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THE 


LAW  OF  EVIDENCE 


IN 


CIVIL  AND  CRIMINAL  CASES 


ILLINOIS 


By  JOHN  A.  MAC  NEIL 

OF  THE  RICHLAND  COUNTY  BAR 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1914 


T 

19  14 


COPYRIGHT,    1914 
BY 

Callaghan  and  Company 


4 


5to 


PREFACE 


In  presenting  this  work  to  tlie  profession,  it  may  not  be  amiss 
to  state  that  the  original  design  was  to  prepare  a  small  volume 
for  trial  use  solely,  and  arranged  that  Admissibility,  only,  should 
and  would  be  the  extent  of  the  text  or  statement. 

The  exceptions  and  provisos  naturally  were  forced  to  be  con- 
sidered or  possible  usefulness  of  the  volume  decreased,  with  the 
result  that  it  has  reached  its  present  proportions. 

The  author  well  understands  that  under  some  titles  it  may 
appear  to  the  practitioner  the  treatment  is  limited,  but  believes 
criticism  as  to  that  feature  will  be  withheld  when  he  considers 
that  there  are  here  some  four  hundred  titles,  while  in  philosophical 
works  and  text  books  the  number  of  divisions  or  chapters  aver- 
age less  than  twenty-five,  and  naturally,  subjects  here  treated 
under  separate  heads,  in  such  works  group  themselves  in  some  of 
those  few  divisions. 

It  must  also  be  remembered  that  this  is  an  Illinois  work,  and  no 
attempt  has  been  made  to  theorize  or  suggest  what  might  or  should 
be  the  rule  in  certain  cases  or  subjects.  When  our  courts  have 
not  passed  on  the  proposition,  no  conclusions  by  analogy  have  been 
ventured.  Neither  have  I  stated  any  more  than  absolutely  neces- 
sary, for  the  reason  that  to  make  this  more  than  one  volume  would 
wholly  destroy  original  plan  and  design.  The  major  portion  of 
the  book  has  been  a  growth.  To  avoid  repetition,  an  Index  has 
been  prepared  which  it  is  believed  is  complete,  and  it  is  suggested 
that  by  reference  to  it,  authority  may  be  found  for  a  principle  for 
which  the  reader  may  wish  precedent,  though  it  may  be  under 
a  different  subject  than  the  one  he  has  under  consideration.  In 
other  words,  the  proposition  may  have  been  placed  in  the  book 
in  a  certain  place  because  of  the  particular  matter  considered  in 
the  authority  cited,  and  by  reference  to  the  Index  under  such 
line  as  the  practitioner  may  naturally  use,  he  may  find  illustra- 
tion and  apply  it  to  the  subject  in  hand.  Any  other  method  under 
the  plan  adopted  w^ould  have  made  many  repetitions  and  a  three 
or  four  volume  work. 

Emphasis  is  placed  on  the  fact  that  substantive  law  has  been 
studiously  avoided,  and  in  the  use  of  this  volume,  this  must  be 

iii 


7352:85 


iv  PREFACE 

considered.  Effort  has  been  made  to  exclude  all  that  for  which 
the  practitioner  would  more  naturally  turn  to  books  on  other  sub- 
jects. I  wish  it  to  be  only  what  it  purports  to  be,  a  convenient 
summary  for  the  practitioner  in  this  state  as  to  the  matters  prop- 
erly Avithin  the  domain  of  the  title,  a  ready  reference  in  time  of 
i^eed, — when  there  is  no  opportunity  for  leisurely  investigation, 
for  we  all  know  courts  will  not  adjourn  while  a  search  is  made 
through  the  numerous  digests,  statutes  and  text  books  for  author- 
ities on  the  admissibility  of  evidence  or  competency  of  witnesses. 
Illustrations  have  been  multiplied  more  than  abstract  state- 
ments of  principle,  as,  generally,  more  desired  results  obtain  where 
rule  is  applied  than  its  mere  abstract  statement. 

Investigation  will  cause  much  surprise  in  the  number  of  cases 
that  are  reversed  solely  because  of  error  in  the  admission  of  evi- 
dence. Some  proof  of  this  is  in  this  volume,  as  it  contains  over 
tAvelve  thousand  propositions. 

I  know  of  no  book  on  similar  plan,  and  several  years  of  hard 
work  were  required  to  obtain  the  classification  that  now  seems  to 
have  been  natural  and  as  matter  of  course.  With  the  growth  of 
our  reports,  I  believe  other  subjects  will  be  treated  by  digesting 
each  in  separate  volumes. 

The  plan  of  this  volume  is  based  upon  utility  and  facility  of 
reference,  with  conciseness  of  statement.  It  is  not  presented  as 
a  treatise,  and  though  standard  divisions  of  the  subject  of  Evi- 
dence have  been  maintained,  they  were  not  of  primary  consider- 
ation. It  has  been  considered  more  advisable  to  give  the  subjects, 
instruments  and  objects  of  evidence  distinct  classification  under 
their  respective  substantive  titles.  Concrete  illustrations  and 
application  have  often  been  deemed  of  no  less  importance  than 
the  abstract  principle.  Cumulation  of  cases  has  not  been  para- 
mount ;  latest  decisions  and  those  grouping  authorities  being  cited. 
A  careful  study  of,  and  a  familiarity  with  the  Table  of  Titles 
will  greatly  enhance  the  usefulness  of  the  book.  The  index  con- 
tains complete  analysis  of  titles. 

Where  at  all  possible,  alphabetical  analysis  of  subject  has  been 
followed  as  in  arrangement  of  principal  titles. 

The  writer  trusts  that  the  book  may  be  of  use  and  service, 
and  fulfill  its  primary  object  of  furnishing  a  convenient  reference 
book  for  busy  lawyers,  stating  tersely  the  rule  in  adjudged  cases 

in  Illinois. 

John  A.  MacNeil. 

Olney,  Illinois,  June  1st,  1914. 


TABLE  OF  TITLES 


Page 

ABANDONMENT     1 

ABATEMENT     3 

ABBREVIATIONS      5 

ABDUCTION     6 

ABORTION    7 

ABSENT    WITNESS    8 

ABSTRACTS  OF  TITLE   10 

ACCESSORIES    17 

ACCIDENT    18 

ACCOMPLICE     19 

ACCORD  AND  SATISFACTION    20 

ACCOUNT  STATED   23 

ACKNOWLEDGMENTS    26 

ADJOURNMENT     33 

ADMISSIBILITY      33 

ADMISSIONS   AND   DECLARATIONS    33 

ADOPTION    69 

ADULTERY     ; 69 

ADVANCEMENTS 72 

ADVERSE  PARTY   76 

ADVERSE  POSSESSION 77 

AFFIDAVITS    80 

AFFIDAVITS  FOR  CONTINUANCE    83 

AFFIRMATIVE    84 

AGE     85 

AGENCY    86 

ALIBI    90 

ALIENATING   AFFECTIONS    91 

ALLEGATIONS  AND  PROOFS    92 

ALTERATIONS  AND  ERASURES   93 

AMBIGUITY     97 

ANCIENT  DOCUMENTS  103 

ANIMALS    105 

ANSWERS 110 

ANTE  NUPTIAL  CONTRACT  113 

ANTI  SALOON  TERRITORY  114 

APPEAL  BONDS  117 

APPRENTICES    120 

ARBITRATION  AND  AWARD    120 

ARSON   122 

ASSAULT  AND  BATTERY   123 

V 


vi  TABLE  OF  TITLES 

Page 

ASSENT     128 

ASSIGNMENT    130 

ASSUMPSIT    131 

ATTACHMENT    140 

ATTORNEYS    142 

ATTORNEYS  OPENING  STATEMENT    ^ 148 

BAILMENT   149 

BASTARDY     150 

BEST  AND   SECONDARY    155 

BIAS  AND  HOSTILITY   173 

BIGAMY    175 

BILL  OF  EXCEPTIONS     179 

BILL  OF  LADING     179 

BILLS  OF  PARTICULARS    180 

BONDS    184 

BOOKS      187 

BOOKS  OF  ACCOUNT    188 

BOOKKEEPER    201 

BOUNDARIES     201 

BREACH   OF  PROMISE    204 

BRIBERY     209 

BROKERS     210 

BUCKET  SHOPS    213 

BUILDINGS     214 

BUILDING  CONTRACTS 214 

BURDEN    OF    PROOF 215 

BURGLARY    252 

CANADA  THISTLES    254 

CANCELLATION  OF  INSTRUMENTS    255 

CERTIFICATES    256 

CERTIFICATES  OF  EVIDENCE   260 

CERTIORARI    260 

CHANCERY    261 

CHARACTER     263 

CHASTITY     266 

CIRCUMSTANTIAL  EVIDENCE   269 

CITIZENSHIP     272 

CITY  DIRECTORY    273 

CLOUD  ON  TITLE    273 

CO.  D 279 

COLOR   OF  TITLE 279 

COMPETENCY  OF  EVIDENCE 280 

COMPROMISE  AND  SETTLEMENT 281 

CONCLUSIONS    OF    WITNESS 285 

CONFESSIONS     292 

CONFIDENCE    GAME    299 

CONFUSION  OF  GOODS    302 

CONSIDERATION     302 

CONSPIRACY     306 

CONTEMPTS 312 

CONTESTED   ELECTIONS .''.4. a.VTf. 316 


TABLE  OF  TITLES  vii 

Page 

CONTRADICTION  AND  SUSTAINING  WITNESSES 324 

COPIES     328 

CORONER'S   INQUEST    334 

CORPORATIONS    338 

CORPUS    DELICTI    350 

CORROBORATION    352 

CREDIBILITY    354 

CRIMINAL   CONVERSATION    362 

CROSS-EXAMINATION    365 

CUMULATIVE  EVIDENCE    379 

CUSTOM  AND  USAGE    382 

DATE    393 

DEADLY  WEAPON    396 

DEAF   WITNESS    396 

DEATH    396 

DEBT    400 

DEDICATION    402 

DEEDS    409 

DEED  AS  MORTGAGE 411 

DEFAULT     412 

DELIVERY    413 

DEMONSTRATIVE  EVIDENCE 416 

DEMURRER  TO  EVIDENCE   418 

DENIAL  OF  EXECUTION    419 

DEPOSITIONS  422 

DESCRIPTION    436 

DESTRUCTION,  SUPPRESSION  AND  FABRICATION  OF  EVIDENCE..  437 

DETECTIVES    440 

DIAGRAMS 441 

DIRECTING   VERDICT    442 

DISCOVERY     444 

DISORDERLY  HOUSE   445 

DIVORCE    446 

DOMICILE    451 

DOWER     454 

DRAM  SHOPS  456 

DURESS     461 

DYING  DECLARATIONS   463 

EJECTMENT     471 

EMBEZZLEMENT     480 

EMINENT  DOMAIN    483 

ESCAPE     500 

ESCROW     500 

EVIDENCE  DEFINED   501 

EXCLUSION  AND  SEPARATION  OF  WITNESSES 504 

EXHIBITION  OF  INJURY   505 

EXPERIMENTS     506 

EXPERT  AND  OPINION   509 

EXPLOSIVES    534 

EXTORTION 535 

EXTRADITION     535 


viii  TABLE  OF  TITLES 

Page 

FALSE  IMPRISONMENT   536 

FALSE  PRETENSES    540 

FIDUCIARY  RELATIONS   542 

FIREARMS    544 

FIRES    544 

FIXTURES    549 

FLIGHT    550 

FORCIBLE  ENTRY  AND  DETAINER 550 

FOREIGN    JUDGMENTS    554 

FOREIGN   LAW    558 

FORGERY   560 

FORMER  ADJUDICATION  563 

FORMER  CONVICTION    566 

FORMER  JEOPARDY    568 

FORMER  PLEADINGS   568 

FORMER  TESTIMONY    570 

FOOTPRINTS     574 

FRAUD     574 

FRAUD  AND  DECEIT    •  ■  •  • 579 

FRAUDULENT  CONVEYANCES 580 

FREIGHT  RATES    585 

GAMBLING  CONTRACTS    585 

GAMING     590 

GAMING  HOUSE   591 

GARNISHMENT    592 

GIFTS    592 

GOOD  FAITH    595 

GRAND  JURORS  598 

GRAND  JURY   598 

GUARDIAN  AND  WARD   598 

HABITS    599 

HANDV/RITING     Q02 

HEARSAY    607 

HEIRSHIP     S16 

HISTORY    317 

HOMESTEAD    <517 

HOMICIDE    620 

HOSPITAL   RECORDS    <353 

HOTEL   REGISTER    Q54 

HUSBAND  AND  WIFE   S54 

HYPOTHETICAL  QUESTIONS    669 

IDENTITY     673 

ILLEGALLY  OBTAINED  EVIDENCE    682 

IMMUNITY    682 

IMPEACHMENT    ,-r,  ^j-^  • 685 

INCEST    •  "• '• 699 

INFANTS   "^00 

INNKEEPERS    "^06 

INSOLVENCY     709 

INSTRUCTIONS     710 

INSURANCE    711 


TABLE  OF  TITLES  ix 

Page 

INTENT    725 

INTEREST     730 

INTERPRETER     732 

INTESTACY    734 

INTOXICATION     734 

JUDGE'S   DOCKET   AND   MINUTES 738 

JUDGMENTS    738 

JUDGMENTS   BY   CONFESSION 740 

JUDICIAL  NOTICE    741 

JUSTICE  OF  PEACE   762 

KIDNAPPING    763 

KNOWLEDGE    764 

LARCENY     766 

LEADING  QUESTIONS    771 

LEGAL  CONCLUSIONS   775 

LEGISLATIVE  ACTS  AND  JOURNALS 776 

LEGITIMACY     777 

LETTERS   779 

LETTER   PRESS    COPIES 786 

LIBEL  AND  SLANDER   787 

LIFE  TABLES    796 

LIMITATIONS    797 

LOST  INSTRUMENTS    801 

LOTTERY    811 

MAGNIFYING    GLASS    812 

MALICIOUS  MISCHIEF     812 

MALICIOUS  PROSECUTION     814 

MARKET  PRICE 823 

MARRIAGE    827 

MAYHEM    836 

MEDICAL  AND  SURGICAL  SERVICES 836 

MEMORANDUM    838 

MENTAL  AND  PHYSICAL  STATES   844 

MESSENGER     856 

MONEY  COUNTS   857 

MOTIVES   859 

NEGATIVE  IN  ISSUE   861 

NEWSPAPER    863 

NEW  TRIAL   863 

NON  JOINDER    866 

NOVATION    867 

NUISANCE     869 

OBJECTIONS    ^"^^ 

OBSTRUCTING    HIGHWAYS     881 

OBSTRUCTING   JUSTICE    883 

OFFER  OF  EVIDENCE   884 

OFFICERS   ^^® 

ORDER  OF  PROOF  889 

ORDINANCES    ^^^ 

OUSTER    ■ ®°^ 

OWNERSHIP    -IT  •  lO"  T' ^°^ 


X  TABLE  OF  TITLES 

Page 

PARDON    906 

PARENT  AND  CHILD   907 

PAROL     913 

PARTIES  AND  PERSONS  INTERESTED  AS  WITNESSES 951 

PARTITION    953 

PARTNERSHIP     955 

PATENTS    961 

PAYMENT    963 

PECUNIARY  CIRCUMSTANCES  969 

PEDIGREE 972 

PENALTIES    ; 974 

PERJURY    976 

PHOTOGRAPHS    981 

PHYSICAL  EXAMINATION 985 

PHYSICIANS  AND  SURGEONS   987 

PLATS     990 

PLEDGE    992 

POLICE   RECORDS    994 

POSITIVE  AND  NEGATIVE   994 

POSSESSION 997 

PRESUMPTIONS     1000 

PRINCIPAL  AND  SURETY   1045 

PRIVILEDGED   COMMUNICATIONS rv. 1047 

PRODUCTION  OF  DOCUMENTS 1051 

PROMISE   TO   REPAIR 1053 

QUO  WARRANTO    1054 

RAPE    1056 

RATIFICATION    1064 

REASONABLE  DOUBT    1065 

REBUTTAL    1067 

RECALLING  WITNESS  1070 

RECEIVERS     1070 

RECEIPTS    1071 

RECEIVING  STOLEN  PROPERTY    1072 

RECOGNIZANCE     1077 

RECORDS  1080 

REFORMATION  OF  INSTRUMENTS 1110 

REFUSAL  OR  FAILURE  TO  PRODUCE  EVIDENCE 1112 

REGISTERS  OF  BIRTHS,  DEATHS  AND  MARRIAGES 1116 

REGISTRATION   OF   TITLES 1116 

RELEASE    1118 

RELEVANCY     1122 

REPAIRS  AFTER  ACCIDENT    1125 

REPLEVIN     1126 

REPRESENTATIVE    CAPACITY    1132 

RESCISSION  OF  CONTRACTS   1076 

RES  GESTAE   1132 

RESIDENCE     1141 

RESISTANCE  TO  OFFICERS    1146 

RESISTING  ARREST   1147 

RESTRAINT  OF  TRADE   1147 


TABLE  OF  TITLES  xi 

Page 

REWARDS    1148 

ROBBERY   1150 

RULES  OF  COURT  1153 

RULES  IN  ACTIONS  FOR  NEGLIGENCE 1154 

SAFER  METHOD    1156 

SANITY  AND  INSANITY  1156 

SEALS 1162 

SEDUCTION    1165 

SEPARATE  AND  SIMILAR  OFFENSES ..  , 1168 

SERVICE    1173 

SET  OFF  AND  COUNTER  CLAIM 1176 

SIDEWALKS     1179 

SIGNATURES  1181 

SIMILAR  FACTS  AND  TRANSACTIONS 1182 

SODOMY     1188 

SPECIFIC  PERFORMANCE   1189 

SPEED    1191 

STAMP  ACT 1195 

STATUTES    1195 

STATUTE  OF  FRAUDS   1198 

STENOGRAPHER'S    NOTES    1201 

STEREOSCOPIC  VIEW    1204 

STIPULATION     1204 

STRIKING    OUT    EVIDENCE 1207 

SUBSCRIBING    WITNESS    1211 

SUBSCRIPTION    1211 

SUICIDE    1212 

SURVEYS,  FIELD  NOTES  AND  MONUMENTS 1214 

SURVIVORSHIP     1216 

TAX   DEEDS    1216 

TAXES    1218 

TAX  RECEIPTS    1223 

TELEGRAMS     1224 

TELEPHONE  CONVERSATIONS    1226 

TENDER    1227 

THREATS    1230 

TIMBER    1233 

TITLE    1235 

TRADE  MARKS   1242 

TRAIN   BULLETINS    1243 

TRESPASS     1243 

TROVER  AND  CONVERSION 1248 

TRUSTS   1252 

USURY     1260 

VALUE    1262 

VENUE    1265 

VIEW   BY  JURY 1268 

VOIR    DIRE     1272 

WAGES,  EARNING  CAPACITY  AND  DOMESTIC  RELATIONS 1273 

WAIVER    1279 

WARRANTY    1280 


xii  TABLE  OF  TITLES 

Page 

WASTE    1286 

WATERS  AND   WATERCOURSES 1288 

WEATHER    1289 

WEIGHT  AND  SUFFICIENCY 1290 

WHOLE  OF  UTTERANCE   1293 

WILLS    1297 

WITNESSES    1336 

WORDS  AND  PHRASES   1367 

WORK  AND  SERVICES    1369 


EVIDENCE 


ABANDONMENT 

See    Adverse    Possession,    Possession,    Ownership,    Brokers, 
Assumpsit. 
Streets : 

—  Proof  Required:  To  show  abandonment  by  a  city  of  a  portion 
of  a  public  street,  there  must  not  only  be  an  apparent  abandonment 
by  the  public,  but  an  intention  to  abandon  must  also  be  proved  by 
clear  and  satisfactory  evidence. 

Shirk  vs.  City  of  Chicago,  195  111,  298 ;  To^\ti  of  Lewiston  vs.  Proctor, 
27  111.  414;  XII  111.  Notes  88,  §84. 

Hig-hways : 

—  Bur  el  en:    Burden  is  on  party  alleging  abandonment  to  prove 

same  by  clear  and  satisfactory  evidence,  and  actual  non-user  under 

circumstances   clearly   indicating   an   intention   to   surrender  and 

abandon  tlie  public  right. 

Highway  Coiiirs.  vs.  Kinahan,  240  111.  593;   Cox  vs.  Comrs.  of  High- 
ways,  194  111.   355. 

—  When  Presumeel:     If  the  public  has  ceased  to  travel  a  road 

and  has  acquired  another  which  accommodates  public  travel,  an 

abandonment  of  the  first  road  may  be  fairlv  presumed. 

Highway   Comrs.   vs.    Kinahan,    240    111.  "593;    XIV   111.    Notes   410, 
§§151,   152. 

—  Proof  Required:  Proof  of  the  fact  must  be  accompanied  by 
the  further  proof  that  another  road  has  been  adopted  in  its  stead, 
or  the  necessity  of  another  having  ceased  to  exist. 

Taylor  vs.  Pearce,  179  111.  145;  Champlain  vs.  Morgan,  20  111.  181. 

Easement : 

—  Burelen:    The  Imrden  of  showing  abandonment  of  an  easement 

rests  upon  party  asserting  same. 
Hunt  vs.  Sain,   181  111.  372. 

—  Direct  as  to  Intention:  Parties  may  testify  as  to  their  inten- 
tion, but  may  be  contradicted  by  acts  and  declarations.  Expression 
of  intention  is  not  conclusive,  but  may  be  considered  in  connection 

with  other  facts  and  circumstances. 

Stannard  vs.  A.  E.  &  C.  E'y  Co.,  220  111.  469;  C.  &  E.  I.  E.  E.  Co. 
vs.  Clapp,  201  111.  418. 

Homestead : 

—  Presumption:  Abandonment  of  homestead  cannot  be  pre- 
sumed from  the  fact  that  the  head  of  the  family  had  gone  in  search 
of  another  home,  and  being  disappointed,  returned  to  his  old  home. 

Lynn  vs.  Sentil,  183  111.  382;  Titman  vs.  Moore,  43  111.  169;  Kitchell 
vs.  Burgwin,  21  111.  40. 

1 

Ev.— 1 


2  abandon:\ient 

"Where  there  is  removal  from  the  premises,  it  will  be  taken  as  an 
abandonment  unless  it  clearly  appears  there  was  an  intention  to 

return  and  occupy  it. 

Kloss  vs.  Wylezalek,  207  111.  328;  Jackson  vs.  Sackett,  146  111.  G46.; 

XII  111.  Notes  904,   §§  100,  101. 

Re-marriage  of  a  widow  and  removal  to  the  home  of  her  second 

husband  raises  a  presumption  of  abandonment  of  her  homestead,  but 

such  presumption  is  not  conclusive  and  will  yield  to  explanatory 

proof  showing  the  removal  was  meant  to  be  temporary. 

Loveless  vs.  Thomas,  152  111.  479;  Buck  vs.  Conlogue,  49  111.  391. 
And  this  may  be  true  wlien  second  husband  had  no  homestead. 
Home  Ins.  Co.  vs.  Field,  42  App.  392. 

—  Weight  and  Sufficiency:  Testimony  of  claimant  as  to  inten- 
tion to  abandon  is  entitled  to  but  little  weight  where  acts  and  dec- 
larations are  to  the  contrary. 

Buck  vs.  Conlogue,  49  111.  391, 
Absence  of  twenty  years  held  conclusive. 

Hart  vs.  Eandol'ph,  142  111.  521;  Cahill  vs.  Wilson,  62  111.  137;  Carr 
vs.  Eisiug,  62  111.  14.     (See  Hoimestead.) 

Contracts : 

—  Parol:  A  contract  may  be  shown  by  parol  to  have  been  aban- 
doned or  rescinded. 

Lasher  vs.  Colton,  190  111.  150;  Cuppy  vs.  Allen,  176  111.  162;   Hale 
vs.  Bryant,  109  111.  34. 
Evidence  of  defendant's  opportunity  to  make  better  sale  to  others 
admissible  on  issue  of  abandonment  of  contract  by  him. 
Kendall  vs.  Young,  141  111.  188. 

Abandonment  of  Wife  or  Children: 

—  In  General:  Husband  is  only  bound  to  provide  for  his  wife 
such  a  reasonably  comfortable  home  as  is  consistent  with  his  means 

and  their  station  in  life. 

Jones  vs.  People,  119  App.  49. 
Fact  that  husband  did  not  provide  for  his  wife  at  her  brother's 
home,  nor  discharge  his  obligations  to  the  latter,  will  not,  alone,  be 
an  abandonment  of  the  wife,  where  it  was  the  understanding  be- 
tween the  two  tliat  the  hu[sband,  who  was  poor  and  without  means, 
was  not  to  remain  a  charge  upon  the  wife 's  brother. 
Foster  vf..  People,  101  Ai)p.  84. 

—  Achnissihilily  of  Evidence:  That  prior  to  alleged  abandon- 
ment defendant  made  a  trip,  taking  a  woman  other  than  his  wife, 
is  incompetent  in  action  for  wife  abandonment. 

Jones  vs.  People,  119  App.  49. 
Question  as  to  whether  husband  was  then  willing  to  take  his  wife 
back  and  live  with  her  is  improper. 
Virtue  vs.  People,  122  App.  223. 
A  divorce  bill  brought  by  wife  is  competent  evidence,  when  of- 
fered by  defendant,  as  showing  the  admissions  of  complaining  wit- 
ness, but  is  not  competent  when  offered  l)y  State,  nor  may  defend- 
ant offer  in  evidence  his  answer  to  the  bill.    Such  answer  is  a  mere 
self-serving  declaration. 

People  vs.  Oldfield,  173  App.  655. 
Proof  of  visits  of  defendant  to  house  of  woman  whose  reputation 
was  of  ((uestionable  character  is  admissible  upon  question  of  neglect 

and  abandonment. 

People  vs.  Colwell,  155  App.  174. 


ABATEMENT  3 

Evidence  that  wife  liad  been  assisted  in  her  support  by  public 
officers  is  not  permissible  for  purpose  of  showing  abandonment, 
yet  such  evidence  is  proper  for  the  purpose  of  showing  where  and 
in  what  manner  wife  had  received  her  support  and  whether  or  not 
from  husband. 

People  vs.  Colwell,  155  App.  174. 
The  fact  that  a  wife  was  a  prostitute  before  marriage  is  no  de- 
fense. 

Peoi^le  vs.  McDonald,  178  App.   159. 

—  Weight  and  Sufficiency:  Marriage  must  be  proven  beyond  a 
reasonable  doubt. 

Stanley  vs.  People,  104  App.  294. 
Prosecution  must  prove  beyond  a  reasonable  doubt  that  defend- 
ant did  abandon  his  wife  without  good  cause.     Every  material  al- 
legation must  be  proven  beyond  a  reasonable  doubt. 
Peterson  vs.  People,  172  App.  287. 

Statute  does  not  change  rule  as  to  quantum  of  evidence  neces- 
sary for  conviction  in  criminal  causes;  it  applies  only  to  quality  of 
proof  in  such  cases. 

Stanley  vs.  People,  104  App.  294. 
Proof  must  be  made  that  the  wife  or  minor  child  or  children 
would  be  in  destitute  or  necessitous  circumstances. 
People  vs.  Bos,  162  App.  454. 

Statute  of  limitations  runs  against  offense,  and  to  constitute  a 
second  abandonmejit,  it  is  necessary  to  prove  that  husband  has 
returned  to  the  wife  and  resumed  marital  relations. 
People  vs.  Heise,  257  111.  443. 

ABATEMENT 

See  NoN  Joinder. 
Matters  of  Record: 

—  Ln  General:  Facts  which  affirmatively  appear  of  record  need 
not  be  pleaded. 

Huinphrey  vs.  Phillips,  57  111.  132;  Sinsheinier  vs.  Skinner  Mfg.  Co., 
165  111.  IIG. 

—  Motion  to  Dismiss:  Maj  be  substituted  for  plea  in  abatement 
only  wh(n'e  objection  appears  on  face  of  papers. 

McNab  vs.  Bennett,  66  111.  157;  Holton  vs.  Daly,  106  111.  131. 
And  plea  is  waived  by  insufficient  motion  upon  same  matter. 

Brollierhood  of  Firemen  vs.  Cramer,  164  111.  9;  Bacon  vs.  Schepflin, 
185  111.  122;  Martin  vs.  C.  &  M.  E.  E.  Co.,  220  111.  97. 

Other  Action  Pending: 

—  What  Should  be  Shown:  That  the  latter  suit  was  in  fact  vex- 
atious and  unnecessary. 

Phillips  vs.  QiiicJi,  68  111.  324. 

That  action  pleaded  in  abatement  was,  in  fact,  commenced  prior 

to  commencement  of  action  in  which  plea  was  made. 
Blumenthal  vs.  Taylor,  44  App.  139. 

And  it  must  be  shown  prior  action  pending  at  date  of  filing  of 
plea. 

Garrick  vs.  Chamberlain,  97  111.  620 ;  Foreman  Shoe  Co.  vs.  Lewis  & 
Co.,  191  111.  155;  Tedrick  vs.  Wells,  152  111.  214;  Ilobson  vs.  McCam- 
bridge,  130  111.  367;  Mundt  vs.  Cambridge,  118  App.  124. 


4  ABATEMENT 

Also  that  both  actions  were  commenced  by  the  same  parties,  but 
the  rule  does  not  extend  where  parties  to  the  two  actions  are  re- 
versed. 

Thompkins  vs.  Garry,  43  App.  255. 

Substantial  identity  of  the  parties  is  all  that  is  necessary. 

Huss  vs.  Eigheimer,  220  111.  193. 

And  it  must  appear  that  former  suit  is  pending,  is  effectual  and 
that  plaintiff  can  obtain  his  remedy  therein  as  completely  as  by 
second  suit. 

Wright  &  Keifer,  131  App.  298;  Garrick  vs.  Chamberlain,  97  111.  620. 
—  When  Pica  not  Sustained:    Plea  is  not  sustained  by  proof  of 
non-suit,  in  previous  action  on  same  claim,  in  which  defendant  yet 
liable  for  costs. 

Mailers  vs.  Whittier  Mach.  Co.,  170  111.  434. 

Nor  by  evidence  of  former  suit  prosecuted  for  use  of  different 
usee  than  that  in  which  plea  filed. 

Foreman  Shoe  Co.  vs.  Lewis  &  Co.,  191  111.  155. 

Nor  by  proof  that  j^laintiff  held  note  in  suit  for  benefit  of  payee 
and  that  before  suit  brought  by  him,  attachment  suit  which  was 
still  pending  was  brought  against  payee  and  defendant  (maker). 
Hippach  vs.  Makever,  166  111.  136. 

Pendency  of  suit  in  another  state  not  matter  in  abatement  or 

bar  of  action  in  this  state. 

Greer  vs.  Young,  120  111.  184;  Allen  vs.  Watt,  69  111.  655;  Lanca- 
shire vs.  Corlietts,  165  111.  592;  Dunham  vs.  Dunham,  162  111.  589; 
XI  111.  Notes  8,  §  42. 

Order  of  Proof  and  Participation: 

If  defendant  is  defeated  upon  trial  of  an  issue  of  fact  in  plea 
in  abatement,  he  cannot  plead  over  to  the  merits,  and  evidence  of 
plaintiff's  damages  should  be  submitted  with  evidence  as  to  issue 

of  fact  under  plea  in  abatement. 

Italian-Swiss  Colony   vs.   Pease,   194  111.   98;    Foreman   Shoe  Co.  vs. 
Lewis  &  Co.,  191  111.  155 ;  Greer  vs.  Young,  120  111.  184 ;  Brown  vs. 
I.  C.  Mut.  Ins.  Co.,  42  111.  366;  Boggs  vs.  Bindskoff,  23  111.  65; 
Moeller  vs.  Quarrier,  14  111.  280. 
If  defendant  is  in  default  as  to  all  issues  except  one  made  by  his 
plea  in  abatement,  upon  which  he  is  defeated,  he  is  entitled  to  par- 
ticipate in  investigation  only  for  purpose  of  reducing  amount  of 

plaintiff's  recovery. 

Foreman  Shoe  Co.  vs.  Lewis  &  Co.,  191  111.  155 ;  First  Natl.  Bank  vs. 
Miller,  235  111.  135;  C.  &  St.  L.  E'y  Co.  vs.  Holbrook,  72  111.  419; 
Baccash  vs.  U.  S.  Tent  Co.,  135  App.  121,     (See  Default.) 
A  defendant  only  has  the  right  to  plead  over  when  the  statute 
gives  him  such  privilege.     AVhen  not  given   such  right,   and  he 
takes  the  initiative,  and  produces  all  his  evidence  on  the  issue  of 
abatement,  and  is  defeated  thereon,  nothing  remains  but  to  ascer- 
tain the  amount  which  the  plaintiff  is  entitled  to  recover. 

Where  facts  averred  in  plea  are  substantially  proven,  yet  not  a 
defense  because  tendering  immaterial  issue,  defendant  may  with- 
draw his  plea  in  abatement  and  re-plead  where  motion  is  made  be- 
fore default  taken  and  judgment  rendered  on  the  plea. 
Pollock  vs.  Kinman,  176  App.  361. 


ABBREVIATIONS  5 

ABBREVIATIONS 

Judicial  Notice: 

—  Names:    The  use  of  the  initial  letter  of  the  Christian  name  is 
so  common  among  all  classes  that  it  is  not  regarded  as  another 
name,  or  the  name  of  another  person,  but  simply  is  an  abbrevia- 
tion of  the  full  name,  and  the  court  may  presume  it  to  be  such 
Slick  vs.  Brooks,  253  111.  58;  Lee  vs.  Mendall,  40  III.  359. 
Courts  may  take  notice  of  the  ordinary  abbreviations  of  Chris- 
tian names,  as,  Jos.  as  a  common  abbreviation  for  Joseph 
Feld  vs.  Loftus,  240  111.  105. 

Courts  will  not  take  judicial  notice  that  Bart,  is  a  contraction 
for  Bartholomew. 

Eives  vs.  Mars,  25  111.  315, 

Courts  cannot  judicially  notice  the  equivalents  of  names  of  per- 
sons in  another  language,  as,  for  instance,  that  Wilhelm  is  the  Ger- 
man equivalent  for  William. 

Becker  vs.  German  Fire  Ins.  Co.,  68  111.  412. 
There  is  no  presumption  of  sex  from  use  of  initials. 

People  vs.  Martin,  180  App,  578. 
Middle  name  or  initial  is  not  a  part  of  the  legal  name  and  may 
be  changed,  dropped  and  resumed  at  pleasure. 

People  vs.  Dunn,  247  111.  410;  Thompson  vs.  Lee,  21  111.  241;  Tucker 
vs.  People,  122  111.  583;  Humphrey  vs.  Phillips,  57  111.  132';  Bleteh 
vs.  Johnson,  40  111.  116;  Miller  vs.  People,  39  111.  458;  Erskine  vs. 
Davis,  25  111.  251;  XIII  111.  Notes  925,  §  3. 

—  Official  Character:  The  court  will  take  notice  that  the  char- 
acters '^N.  P."  are  the  abbreviations  for  the  term  Notary  Public, 
and  that  the  characters  ''J.  P."  that  of  Justice  of  the  Peace. 

Eowley  vs.  Berrian,  12  111.  200 ;  Shattuck  vs.  People,  5  111.  478 ;  Liv- 
ingston vs.  Kettelle,  6  111.  116. 

—  Land  Descriptions:  Court  will  take  judicial  notice  of  abbre- 
viations used  in  land  descriptions. 

MeChesney  vs.  City  of  Chicago,  173  111.  75;  Hull  vs.  Croft,  132  App. 
509. 

And  of  the  meaning  of  initials  used  in  the  descriptions  of  land 
in  this  state  in  conveyances,  levies  of  execution,  judical  sales,  sur- 
veys, assessments  for  taxes,  etc.,  without  further  proof. 
Kyle  vs.  Yellowhead,  80  111.  208. 
And  of  the  meaning  of  initials  usually  used  in  the  description  of 
land  in  tax  receipts. 

Paris  vs.  Lewis,  85  111.  597. 

Parol  Evidence: 

Admissible  to  explain  meaning  of  abbreviations  in  written  in- 
struments, and  to  show  words  for  which  they  stand. 
Converse  vs.  Wead,  142  111.  132. 

To  render  parol  evidence  admissible  to  explain  sense  in  which 
letters  and  characters  not  having  a  legal  significance  were  used,  it 
is  necessary  to  allege  that  they  were  so  used. 

Amer.  Express  Co.  vs.  Lesem,  39  111.  313.  7 

Abbreviations  in  land  descriptions  may  be  shown  to  have  a  well 
defined  meaning  among  surveyors. 

MeCiesney  vs.  City  of  Chicago,  173  111.  75. 


6  ABDUCTION 

"C.  0.  D."  used  in  express  company  receipt  may  be  explained 

by  parol. 

111.  T.  Co.  vs.  Adams  Expr.  Co.,  158  App.  374;  Amer.  Express  Co.  vs. 
Lesem,  39  111.  313. 
Admissible  to  show  for  whom  ballots,  using  abbreviated  names, 
were  cast. 

Kreitz  vs.  Behrensmeyer,  125  111.  141;  Clark  vs.  Eobinson,  88  111.  498; 
Tarkington  vs.  Turner,  71  ill.  234. 

ABDUCTION 

See  Corpus  Delicti,  Circumstantial  Evidence. 
Intent : 

The  gist  of  the  offense  of  abduction  is  the  unlawful  intent  and 
purpose  with  which  the  abduction  was  accomplished. 
People  vs.  See,  258  111.  152.     (See  Intent.) 

Presumptions  and  Burden  of  Proof: 

It  is  presumed  that  female's  previous  life  and  conversation  were 
chaste,  and  burden  is  upon  defendant  to  show  otherwise. 

Bradshaw  vs.  People,  153  111.  156;  Slocum  vs.  People,  90  111.  274. 
And  this  presumption  is  of  probative  force. 

Bradshaw  vs.  People,  153  111.  156.     (See  Chastity.) 

Admissibility  of  Evidence: 

—  Declarations  of  Abducted  Female:    As  to  why  she  left  home 

are  hearsay  and  incompetent. 

Bradshaw  vs.  People,  153  111.  156. 

—  Previoiis  Associations:     Admissible  to  show  chastity. 

Bradshaw  vs.  People,  153  111.  156. 

—  Inducements:  The  enticing  or  taking  away  may  be  accom- 
plished not  only  by  force  but  by  any  scheme  or  device  by  which  the 
person  interposes  his  will  and  personality  between  the  girl  and 
her  home,  so  as  to  induce  her  to  leave  her  home  and  stay  at  some 
other  place,  and  the  kind  and  extent  of  seductive  arts  which  will 
satisfv  the  law  do  not  depend  upon  any  absolute  rule. 

People  vs.  See,  258  111.  152. 

The  kind  and  extent  of  seductive  arts  do  not  depend  upon  any 

absolute  rule.     If  the  inducements  held  out  do,  in  fact,  entice  a 

young  woman  from  her  parent's  house,  then  both  the  letter  and 

spirit  of  the  statutes  are  met,  so  far  as  the  taking  or  enticing  away 

is  involved. 

Slocum  vs.  People,  90  111.  274. 

—  Consent  of  Parents:     Consent  of  parents  is  immaterial  and 

the  crime  is  committed  when  the  female  is  enticed  from  home  for 

purpose  of  concubinage. 

People  vs.  See,  258  111.  152. 

—  Consent  of  Female:  Consent  of  the  abducted  female  to  the 
abduction,  or  co-operation  on  her  part  in  carrying  it  out,  or  whether 
she  was  or  was  not  aware  of  the  abductor's  intention  or  purpose  is 
immaterial. 

People  vs.  See,  258  111.  152. 

Weig-ht  and  Sufficiency: 

The  enticing  of  a  young  woman  to  leave  her  home  and  go  to 
that  of  defendant,  where  he  finally  succeeded  in  overcoming  her 
virtue,  after  which  he  had  intercourse  with  her  for  several  months, 


ABORTION  7 

with  proof  of  solicitation  by  defendant  that  she  live  with  him, 
promising  her  money  and  clothes  and  to  treat  her  as  well  as  his 
wife,  is  sufficient  to  convict  defendant  under  a  count  for  entic- 
ing the  young  woman  away  from  her  home  for  the  purpose  of  con- 
cubinage. The  actual  living  and  co-habiting  together  in  a  state 
of  concubinage  is  not  reciuired. 

Sloeum  vs.  People,  90  111.  274. 

If  a  person  entice  a  girl  from  her  home  for  purpose  of  concu- 
binage, he  is  guilty  of  offense  of  abduction,  even  though  the  act 
was  only  in  contemplation  and  the  girl  was  not  then  aware  of  his 
intent. 

People  vs.  See,  2.'i8  111.  152. 
It  is  not  essential  to  the  crime  of  abduction  of  a  female  that  illicit 
relations  be  proven. 

People  vs.  See,  258  111.  152. 


ABODE 

See  Domicile,  Residence, 

ABORTION 

See  Intent,  Accomplices,  Dying  Declarations,  Expert  and 
Opinion,  Homicide. 
Admissibility  of  Evidence: 

—  Relation  of  Accused  and  Woman:  Evidence  tending  to  show 
that  defendant,  a  doctor,  had  improper  intercourse  with  prose- 
cutiiig  witness,  and  that  he  was  father  of  child  is  admissible. 

Scott  vs.  People,  141  111.  195. 

That  shortly  before  deceased  left  home  she  gave  witness  a  let- 
ter, addressed  to  defendant,  to  mail,  is  admissible  as  tending  to 

show  an  arrangement  between  accused  and  deceased. 
Clark  vs.  People,  224  111.  554. 

—  Other  Offenses  or  Attempts:  Evidence  of  abortions  performed 
on  women  other  than  one  named  in  indictment  is  admissible  to 
show  guilty  knowledge  or  intent. 

People  vs.  Hagenow,  236  111.  514. 

Under  indictment  for  attempt  to  produce  an  abortion,  evidence 
of  other  attempts  is  admissible  when  parts  of  a  continuing  at- 
tempt. 

Scott  vs.   People,   141  111.   195.     (See   Separate  and   Similar   Of- 
fenses.) 

—  Soliciting  Practice:  People  may  prove  that  defendant  adver- 
tised in  daily  papers  as  an  expert  of  long  experience  in  treating 
pregnant  women. 

People  vs.  Hagenow,  236  111.  514. 

It  is  competent,  upon  question  of  intent,  to  permit  witness  to 

testify  that  at  different  times  during  several  years  defendant  had 

solicited  their  patronage  and  held  herself  out  as  willing  and  able 

to  produce  abortions  bv  means  of  instruments  and  medicines. 
Clark  vs.  People,  224  111.  554. 


§  ABSENCE 

—  Expert  and  Opinion:     Physician  who  has  examined  alleged 
victim  may  give  opinion  as  to  whether  oltense  has  been  committed. 

Howard  vs.  People,  185  111.  552. 
And  as  to  manner  in  which  it  was  produced. 

Clark  vs.  People,  224  111.  554  j  Cook  vs.  People,  177  111.  146;  Cochran 
vs.  People,  175  HI.  28. 
Physician  cannot  base  conclusion  that  deceased  had  been  preg- 
nant prior  to  his  examination  of  her  upon  the  history  of  the  case 
detailed  by  her,  and  not  upon  the  result  of  his  examination.    Such 
statements  amount  to  no  more  tlian  hearsay  evidence. 
Stevens  vs.  People,  215  111.  593. 

—  Declarations:  Of  deceased,  made  about  a  year  previous  to 
her  death,  relative  to  acts  of  self  abortion,  are  inadmissible. 

Clark  vs.  People,  224  111.  554. 
Statements  by  deceased  to  attending  physician,  relative  to  man- 
ner in  which  her  illness  was  brought  about  by  herself,  inadmissible. 
Clark  vs.  People,  224  111.  554. 
Declarations  of  woman,  being  neither  dying  declarations   nor 
part  of  res  gestae,  relative  to  when  and  by  whom  she  was  injured, 
are  inadmissible  to  prove  innocence  of  defendant. 
Howard  vs.  People,   185  111.   552. 
Incriminating  statements  of  woman,  not  made  in  presence  of  ac- 
cused, are,  in  general,  not  admissible. 
Scott  vs.  People,  141  111.  195. 
But  when   prosecuting   witness,   on   cross   examination,   testifies 
as  to  what  she  told  an  attending  physician,  the  balance  of  her 
statements  may  be  brought  out  by  prosecution  in  rebuttal. 
Scott  vs.  People,  141  111.  195. 

—  Ilotel  Register:  Admission  of  entry  on  hotel  register,  made 
under  an  assumed  name,  is  not  erroneous  when  such  fact  was  pre- 
viously proven  without  objection. 

Cook  vs.  People,  177  111.  146. 

Presumptions  and  Burden  of  Proof: 

Criminal  intent  is  implied  when  act  is  unlawful  in  itself,  and 
there  is  no  proof  of  justification. 
Scott  vs.  People,  141  111.  195. 
This  criminal  intent  will  be  implied  from  an  attempt  to  pro- 
duce an  abortion  not  necessary  to  preserve  life. 
Scott  vs.  People,  141  111.  195. 
Proof  of  justification  rests  upon  defendant  when  act  is  unlawful 

in  itself. 

Scott  vs.  People,  141  111.  195. 

ABSENCE 

See  Death. 


ABSENT   WITNESS 

See  Former  Testimony,  Destruction,  Suppression  and  Fabri- 
cation OF  Evidence,  Refusal  to  Produce  Evidence,  Best  and 
Secondary,  Certificates  of  Evidence,  Depositions. 


ABSENT  WITNESS  or9 

Presumptions : 

The  unexplained  failure  to  examine  as  a  witness  a  person  who 
has  knowledge  of  facts  in  issue  and  who,  under  the  circumstances, 
would  be  expected  to  be  produced  and  is  available,  raises  a  pre- 
sumption against  a  party.  This  rule  does  not  apply  where  omission 
is  to  call  a  witness  who  might  ecjually  as  well  have  been  called 
by  the  other  party. 

Village  of  Princeville  vs.  Hitchcock,  101  App.  588 ;  Lebanon  Coal 
Co.  vs.  Zerwick,  77  App.  487;  Amer.  Steel  Foundry  vs.  Kesner, 
136  App.  52;  Auerbach  vs.  Arguelles,  80  App.  167;  XII  111.  Notes 
478,  §40. 

Where  neither  party  to  a  civil  suit  calls  an  available  witness, 
whatever  presumption  may  be  indulged  from  the  failure  to  call 
such  witness  will  be  against  party  to  whose  interest  such  witness 
would  most  likely  incline. 

Zimmerman  vs.  Zimmerman,  149  App.  231. 
No  unfavorable  inference  will  arise  from  non-production  of  ex- 
employe. 

Tuthill  vs.  Belt  By.  Co.,  145  App.  50. 

Failure  to  produce  a  witness  who,  if  called  would  have  been 
incompetent,  does  not  justify  unfavorable  inference. 
Stitzel  vs.  Miller,  157  App.  390. 
Unexplained  failure  1o  call   only  eye-witness  to  accident  fur- 
nishes ground  for  unfavorable  inference. 

Lebanon  Coal  Co.  vs.  Zerwick,  77  App.  486. 

Right  to  Explain: 

Evidence  may  be  given  in  behalf  of  party  who  fails  to  produce 

a  witness,  to  explain  why  such  witness  was  not  produced. 

Warth  vs.  Loewenstein,  219  111.  222;  Parker  vs.  People,  94  App.  648; 
Johnson  vs.  People,  124  App.  213;  Hope  vs.  West.  Chi.  St.  Ey.  Co., 
82  App.  311. 

Former  Testimony: 

—  In  General:  Testimony  of  witness  given  at  coroner's  inquest 
is  not  admissible  as  inquest  is  not  judicial  proceeding  between  same 

parties. 

P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  McGrath,  115  111.  172.   (See  Coroner's 
Inquest.) 
Testimony  of  absent  witness  is  inadmissible  though  other  party 

had  opportunity  to  cross  examine  him. 
Brown  vs.  People,  145  App.  263. 

—  Right  to  Introeluce:  In  no  case  may  the  former  testimony  of 
a  witness  who  is  present  and  testifies  in  the  case  be  allowed  to  be 
given  in  evidence  except  for  purpose  of  contradiction. 

Campbell  vs.  Campbell,  138  111.  612;  Stout  vs.  Cook,  47  111.  530. 
When  a  witness  is  kept  away  by  the  adverse  party,  as  between 
the  same  parties,  it  is  competent  to  show  what  such  witness  tes- 
tified to  on  the  former  hearing. 

Stout  vs.  Cook,  47  111.  530;  Letcher  vs.  Norton,  5  111.  575. 
Where  witness  is  beyond  jurisdiction  of  court,  it  should  be  shown 

that  his  deposition  could  not  have  been  taken. 

Cassady  vs.  Trustees,  105  111.  560;  Stout  vs.  Cook,  47  111.  530;  I.  C. 
E.  E.  Co.  vs.  People,  59  App.  256. 

Evidence  as  to  what  a  witness  may  have  sworn  to  on  a  former 


10  ABSTRACTS    OF    TITLE 

trial  is  only  competent  for  purpose  of  affecting  his  credibility,  and 
cannot  be  used  to  prove  facts  previously  svi^orn  to. 
Buffer ty  vs.  People,  72  111.  37. 

—  Proof  by  Bill  of  Exceptions:  Cannot  be  proven  by  bill  of  ex- 
ceptions made  up  on  former  trial,  even  though  his  testimony  may 

have  been  taken  in  short-hand. 

I.  C.  E.  R.  Co.  vs.  Ashliiie,  171  111.  313 ;  Piano  Mfg.  Co.  vs.  Parmen- 
ter,  56  App.  258;  Sargeant  vs.  Marshall,  38  App.  642. 

—  Proof  by  Person  Hearing  Former  Testimony:  The  former 
evidence  of  a  witness  may  be  established  by  any  person  who  has 
heard  the  testimony  given  and  can  swear  to  it  from  memory. 

Miller  vs.  People,  216  111.  309. 

Justice  of  peace  is  competent  to  prove  admissions  of  defendant 

on  trial  before  him. 

Chase  vs.  Debolt,  7  111.  371;  Wheat  vs.  Summers,  13  App.  444. 

—  Proof  by  SfenoyrapJiic  Nutes  or  Abstract  of  Counsel: 

(See  Stenographer's  Notes.) 

—  Criminal  Action:  Former  testimony  of  an  absent  witness 
cannot  be  given  in  evidence  by  the  People,  although  out  of  the 
jurisdiction  of  the  court  by  procurement  of  defendant. 

Bergen  vs.  People,  17  111.  425. 
Nor  is  such  testimony  admissible  on  behalf  of  defendant,  even 
though  on  such  former  cause  the  People  have  had  an  opportunity 
to  cross  examine  and  the  parties  are  the  same  as  in  which  testi- 
mony offered  was  given. 

Brown  vs.  People,  145  App.  263. 

ABSTRACTS   OF  TITLE 

See  Best  and  Secondary,  Lost  Instruments,  Records,  Regis- 
tration OP  Title,  Title. 
Defined : 

An  abstract  of  title  is  a  summary  or  epitome  of  all  facts  relied 
upon  as  evidence  of  title.  It  should  contain  a  note  of  all  convey- 
ances, transfers  and  other  facts  relied  upon  as  evidence  of  claim- 
ant's title,  together  with  all  such  facts  appearing  of  record  as  may 
impair  it. 

Heinsen  vs.  Lamb,  117  111.  549;  Atteberry  vs.  Blair,  244  111.  363;  XI 
111.  Notes  16,  §  3. 

The  word  abstract,  as  used  in  relation  to  land,  is  commonly  un- 
derstood to  mean  a  writing  in  which  is  set  forth  the  chain  of  the 
record  title  and  containing  all  matters  of  record  affecting  the  title, 
and  necessary  to  be  considered  in  determining  in  whom  the  record 
title  was  at  the  date  of  the  al^straot. 

Curtis  vs.  Hawley,  85  App.  429;  Union  Deposit  Co.  vs.  Chisholm,  33 
App.  647. 

Admissibility  in  General: 

Where  original  deeds,  as  M^ell  as  record  books  in  which  they  were 
recorded,  have  been  destroyed,  and  neitlier  party  is  able  to  produce 
copies  of  such  deeds,  resort  may  be  had  to  secondary  evidence  to 
prove  their  contents,  and  abstracts  of  title,  made  by  persons  en- 
gaged in  that  business,  are  evidence  in  all  courts  of  law  or  equity, 
and  may  be  received  to  prove  the  contents  of  such  deeds. 
Miller  vs.  Shaw,  103  111.  277. 


ABSTRACTS   OF    TITLE  11 

Abstracts,  made  as  required  by  statute,  are  secondary  evidence. 
They  are,  however,  only  one  kind  of  secondary  evidence.  The 
copies,^^extracts  or  minutes  mentioned  in  statute  are  another  kind 
of  secondary  evidence.  A  party  may  introduce  either  an  abstract 
or  the  copies,  extracts  or  minutes,  and  the  latter  are  not  secondary 
evidence  of  the  former.  To  require  proof  of  loss  of  abstract  before 
"allowing  copies,  extracts  or  minutes  to  be  introduced,  is  to  require 
secondary  evidence  of  secondary  evidence,  which  is  not  permissible. 
Converse  vs.  Wead,  142  111!  132;  Thatcher  vs.  Olmstead,  110  111.  2G. 

Not  admissible  to  prove  such  facts  as  party  is  prepared  to  show 
by  higher  grade  of  evidence. 

Heinsen  vs.  Lamb,  117  111.  549, 

Wliere  a  deed  is  lost  or  destroyed,  or  not  within  the  power  of 

party  to  produce  same,  and  the  record  is  also  destroyed,  resort  may 

be  had  to  evidence  of  a  two-fold  character :  First,  an  abstract,  made 

in  ordinary  course  of  business  prior  to  such  loss  or  destruction,  or 

letterpress  copy  thereof,  may  be  read  in  evidence  by  party  seeking 

to  establish  title :  and  Second,  any  copy,  extracts  or  minutes  from 

such  destroyed  records,  or  from  originals  of  such,  which  were,  at 

time  of  loss  or  destruction,  in  possession  of  any  person  then  engaged 

in  business  of  makinsr  abstracts  for  others  for  hire. 
Steniheim  vs.  Burckey,  149  111.  241. 

Abstract  is  admissible  against  party  though  he  be  in  possession, 

claiming  title  otherwise  than  under  a  sale  for  taxes   or  special 

assessments. 

Smith  vs.  Stevens,  82  111.  554;  C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111. 
413. 

An  abstract  of  title  is  not  such  a  record  as  imports  verity,  and 
until  its  accuracy  is  proven,  no  presumption  can  ])e  indulged  in  its 
favor.     It  has  no  more  force  than  any  other  private  memorandum 
made  for  convenience  of  owner. 
Steele  vs.  Boone,  75  111.  457. 

Continuation  of  abstract  made  by  abstract  makers  in  ordinary 
course  of  business  is  admissible ;  also  continuations  made  by  em- 
ploye of  recorder  in  ordinarv  course  of  business. 
Hammond  vs.  Glos,  250  111.  32. 

In  proceeding  to  establish  title  under  Burnt  Records  Act,  when 
foundation  is  laid  by  filing  of  proper  affidavit,  any  abstract  of  title, 
made  in  ordinary  course  of  busiiiess  prior  to  loss  of  records,  is  ad- 
missible. 

Converse  vs.  Wead,  142  111.  132. 

To  show  good  faith  upon  part  of  purchaser,  it  is  proper  to  admit 
abstract  in  evidence,  in  connection  with  the  testimony  of  the  at- 
torney who  examined  it,  to  prove  that  purchaser  relied  upon  record 
and  written  opinion  of  attorney  as  to  state  of  title. 
Lennartz  vs.  Qnilty,  191  111.  174. 

In  proceeding  in  Cook  County  for  initial  registration  of  title,  an 
abstract  is  not  admissible  in  evidence  upon  preliminary  proof  com- 
plying with  amendment  to  section  18  of  Torrens  Land  Act,  but  not 
complying  with  section  24  of  the  Records  act,  relating  to  the  ad- 
mission of  abstracts  of  title  in  evidence  where  the  records  are 
destroyed. 

Messenger  vs.  Messenger,  223  111.  282;   XIV  111.  Notes  800,  §10. 


i^  ABSTRACTS    OF    TITLE 

Where  the  records  of  a  court  are  restored  after  destruction,  the 

record  thus  destroyed  cannot  be  supplied  or  overcome  by  a  nienior- 

audum  in  abstract  ol  title,  showing  the  venue  had  been  changed  to 

some  other  court  before  the  records  were  destroyed. 
Dinet  vs.  Eigenniann,  96  111.  39. 

An  abstract  is  admissible  to  sliow  that  conveyance  appeared  upon 

it  when  exhibited  to  party  taking  mortgage  upon  the  premises, 

and  as  affording  a  reason  for  obtaining  a  quit-claim  deed  from  one 

who  appeared  to  have  made  a  mortgage  on  the  land. 
Seaman  vs.  Bisbee,  163  111.  91. 

Preliminary  Proof: 

—  A'cccssity  For:  An  abstract  may  only  be  read  in  evidence 
when  it  is  shown  by  preliminary  proof  that  the  original  of  any  deed 
or  conveyance,  or  other  written  or  record  evidence,  has  been  lost 
or  destroyed,  or  that  it  is  not  within  the  power  of  the  party  wishing 
to  use  it  to  produce  same,  and  the  record  thereof  has  been  de- 
stroyed. It  must  be  established  that  such  abstract  was  made  in 
ordinary  course  of  business,  prior  to  such  loss  or  destruction. 

Glos  vs.  Wheeler,  229  111.  272;  Glos  vs.  Hallowell,  190  111.  65. 

An  abstract  is  incompetent  to  prove  that  a  deed  was  recorded 
prior  to  destruction  of  records,  unless  deed  itself  is  lost  or  de- 
stroyed. 

Walton  vs.  Tollansbee,  165  111.  480. 

Abstracts  of  title  or  books  of  abstracts  are  not  admissible  in  pro- 
ceeding for  initial  registration  of  title,  unless  proper  foundation 
v»oc  nppTi  1  ?i  1  (i 

Glos  vs.  Cessna,  207  111.  69;  Glos  vs.  Wheeler,  229  111.  272;  Glos  vs. 
Hallowell,   190  111.  65. 

The  conditions  upon  which  an  abstract  is  admissible  for  purpose 

of  showing  title  in  party  producing  same,  are  statutory. 
Heiusen  vs.  Lamb,  117  111.  549. 

—  Sufficiency  Of:    Where  evidence  shows  that  a  deed  has  been 

destroyed  and  record  thereof  has  also  been  destroyed,  an  abstract 

shown  to  have  been  made  in  the  ordinary  course  of  business  and 

delivered  to  the  parties  interested  in  the  land  is,  as  to  such  deed, 

competent  evidence. 

Eussell  vs.  Mandell,  73  111.  136. 

To  introduce  an  abstract  in  evidence  under  Burnt  Records  Act, 
it  is  not  necessary  that  any  witness  should  testify  from  personal 
knowledge  that  such  abstract  was  made  in  the  ordinary  course  of 
business  prior  to  loss  of  original. 

C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111.  413. 

A  witness  who  was  familiar  with  the  system  of  entries  and  mak- 
ing of  abstracts  by  abstract  makers,  and  their  rules,  and  who  had 
worked  with  their  men  before  destruction  of  records,  and  who 
assisted  them  daily  in  taking  off  minutes  of  deeds  from  records 
may  testify  to  meaning  of  abbreviations. 
Converse  vs.  Wead,  142  111.  132. 
Abstract  must  be  made  in  ordinary  course  of  business  prior  to 
loss  or  destruction  of  originals. 

Glos  vs.  Wheeler,  229  111.  272;  C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111. 
413;  Pumphrey  vs.  Giggey,  150  Ai^p.  473. 

Testimony  of  witness  in  proceeding  to  register  title   in  Cook 


ABSTRACTS    OF    TITLE  13 

County,  that  he  had  ordered  abstract  of  title  from  the  person  who 
made  it,  subsequent  to  Chicago  fire,  and  that  it  was  a  merchantable 
abstract  is  not  sufficient  preliminary  proof  to  entitle  abstract  to 
admission  in  evidence. 

Glos  vs.  Wheeler,  229  111.  272. 

On  bill  for  partition,  for  purpose  of  proving  title,  party  may 

read  in  evidence,  after  showing  loss  or  destruction  of  original  deeds 

and  records  thereof,  the  extracts  and  minutes  made  from  original 

deeds  on  the  day  they  were  filed  for  record,  by  a  firm  who  were 

in  the  business  of  making  abstracts,  which  minutes  were  made  in 

the  regular  course  of  business  and  were  in  possession  of  such  firm 

when  the  records  of  the  original  deeds  were  destroyed. 
Sternheim  vs.  Bui-ckey,''l49  111.  241. 

Testimony  by  one  who  knew  the  handwriting  and  signatures  in 
vogTie  in  an  abstract  office,  that  an  abstract  of  title  made  in  such 
office  was  genuine,  together  with  proof  of  the  custody  of  such 
abstract  for  over  thii'ty  years,  is  sufficient  to  admit  the  same  in 
evidence  in  a  proceeding  under  the  Burnt  Records  Act. 
Gooney  vs.  Booth  Pkg.  Co.,  169  111.  370. 

In  title  registration  proceedings,  testimony  of  a  witness  that  he 
was  a  professional  abstractor,  employed  by  abstract  company,  that 
he  had  revised  and  passed  upon  the  abstract  in  question,  and  that 
it  was  a  true  and  correct  abstract,  is  sufficient  preliminary  proof 
for  admission  of  same. 

CasAvell  vs.  Glos,  251  111.  505. 

Where  only  evidence  on  question  whether  abstracts  were  made  in 
ordinary  course  of  business  is  that  witness  knew  the  signatures 
attached  thereto,  and  that  they  were  of  a  firm  engaged  in  such  busi 
ness,  and  in  his  opinion,  based  upon  examination  of  abstract,  they 
Avere  so  made,  is  insufficient  to  admit  same  in  evidence  in  proceed- 
ings for  initial  registration. 

Jackson  vs.  Glos,  249  HI.  388. 

Testimony  that  abstracts  were  ''ordered  in  the  regular  course 
of    business"    is    not    compliance    with    statutory    requirement. 
"Ordinary  course  of  business"  applies  to  business  of  abstractor  and 
not  to  business  of  persons  ordering  same. 
Culver  vs.  Waters,  248  111.  163. 

Abstract  not  shown  to  have  been  made  by  abstractors  in  ordinary 
course  of  business,  or  in  absence  of  evidence  as  to  when,  where  and 
under  what  circumstances  it  was  made,  is  inadmissible. 
Waugh  vs.  Glos,  246  111.  604. 

That  abstract  was  made  in  due  course  of  business  is  not  sufficient 
preliminary  proof  where  witness'  only  knowledge  concerning  such 
abstract  was  gained  from  examination  of  same. 
Waugh  vs.  Glos,  246  111.  604. 

"Wliere  abstract  is  shown  to  have  been  made  by  well  known  ab- 
stractors, or  by  clerk  in  their  offices,  before  destruction  of  records, 
and  delivered  in  due  course  of  business,  to  a  person,  at  that  time, 
having  an  interest  in  the  land,  or  a  part  thereof,  and  it  is  further 
shown  such  abstractors  had  been  engaged  in  abstract  business 
for  several  years  before  and  after  date  of  such  abstract,  it  is  ad- 
missible in  evidence  in  so  far  as  it  relates  to  lost  or  destroyed  deeds 


14  ABSTRACTS    OF    TITLE 

in  party's  chain  of  title,  upon  a  showing  of  their  loss  or  destruc- 
tion, or  his  inability  to  produce  them. 

Heinsen  vs.  Lamb,  117  111.  549. 
And  the  fact  that  abstracts  were  prepared  in  abstract  office  by 
clerk  from  memoranda  and  abbreviated  notes  taken  from  records 
by  another  clerk,  and  then  signed  by  the  principals  in  the  firm 
name,  does  not  render  them  inadmissible  in  evidence  on  ground 
that  they  are  copies  of  copies.  The  data  so  collected  from  the 
records  do  not  constitute  the  abstract,  but  only  the  material  out  of 
which  they  are  constructed. 

Heinsen  vs.  Lamb,  117  111.  549. 

Testimony  to  the  effect  that  witness  was  employed  in  office  of  the 
abstractor  who  made  abstract  offered  in  evidence,  and  had  been 
for  a  number  of  years ;  that  in  the  course  of  his  duties  he  assisted 
in  making  the  same,  and  had  personal  knowledge  that  it  was  made 
in  the  regular  course  of  business,  and  was  satistied  from  the  course 
of  business  and  information  that  he  had  that  the  original  records 
were  examined  at  time  the  abstract  was  made,  is  sufficient  prelim- 
inary proof  to  entitle  the  abstract  to  admission  in  evidence  under 

amended  section  IS  of  act  concerning  land  titles. 
Caswell  vs.  Glos,  251  111.  505. 

—  Affidavits:     An  affidavit  must  be  made  by  party  to  the  suit 

or  his  agent  or  attorney,  and  the  relation  of  agent  or  attorney  must 

appear  from  the  affidavit  itself. 
Bauer  vs.  Glos,  244  111.  627. 

And  must  not  only  state  that  original  deeds  or  instruments  have 

been   lost  or  destroyed,   but  also  the   records   thereof  have   been 

destroyed. 

Bauer  vs.  Glos,  244  111.  627. 

If  a  proper  and  sufficient  affidavit  for  laying  foundation  for  in- 
troduction of  certified  copies  of  deeds  in  Burnt  Record  proceedings 
has  been  tiled,  it  is  not  necessary  to  formally  offer  it  in  evidence  on 
hearing  before  master,  but  it  is  sufficient,  when  objection  is  made, 

to  call  attention  to  affidavit  or  exhibit  it  before  the  master. 
Glos  vs.  Gary,  194  111.  214. 

Contents  and  Sufficiency: 

It  is  no  objection  to  admission  of  abstract  in  evidence  that  it  fails 
to  show  some  of  the  lost  deeds  were  properly  acknowledged.  The 
statute  does  not  require  the  abstract  to  note  such  fact.  The  exist- 
ence of  the  original  deed  is  shown  by  preliminary  oath,  and  abstract 

is  admitted  for  purpose  of  showing  title. 
Heinsen  vs.  Lamb,  117  111.  549. 

Notation  of  acknowledgment  implies  a  complete  one. 

Atteberry  vs.  Blair,  244  111.  363. 

In  specific  performance,  sufficiency  of  abstract  is  determined  as 
of  time  when  abstract  was  to  be  delivered  and  transaction  closed. 
Smith  vs.  Hunter,  241  111.  514. 

Fact  that  entries  from  government  are  not  followed  by  patents 
is  not  valid  objection  after  many  years. 
Atteberry  vs.  Blair,  244  111.  363. 

An  abstract  of  title  should  contain  a  summary  of  all  grants,  con- 
veyances, wills,  and  all  records  of  judicial  proceedings  whereby  the 
title  is  in  any  way  affected,  and  all  incumbrances  and  liens  of  record 


ABSTRACTS    OF    TITLE  15 

showing  whether  they  have  been  released  or  not,  and  should  show; 
all  facts  of  record  as  mav  impair  the  title. 
Atteberry  vs.  Blair,  "'244  111.  363. 

An  abstract  showing  that  one  "Gardner  T.  Gorhara,"  accepted 
a  conveyance  from  one  "Samuel  Durley,"  of  an  undivided  one- 
half  interest  in  land  entered  in  the  name  of  ' '  S.  Durley, ' '  and  ' '  G. 
T.  Gorham."  and  that  Gardner  T.  Gorham  later  executed  a  deed 
conveying  the  whole  title,  affords  sufficient  evidence  of  identity  of 
parties,  where  for  more  than  forty  years  neither  S.  Durley  nor 
G.  T.  Gorham,  nor  any  one  claiming  under  them,  had  made  any 
adverse  claim  to  the  premises. 

White  vs.  Bates,  234  111.  276;  Smith  vs.  Steveus,  82  111.  554. 

Aider  by  Affidavits : 

Affidavits  are  as  satisfactory  evidence  of  celibacy  as  a  statement 
by  grantor  himself  in  the  instrument  or  the  certificate  of  the  officer 
taking  the  acknowledgment,  which  is  nothing  more  than  the  state- 
ment of  a  matter  which  the  officer  is  not  required  nor  authorized 
to  certify,  so  as  to  make  his  certificate  evidence  of  the  fact.  Either 
the  certificate  or  affidavit  is  accepted  in  real  estate  transactions  as 
evidence  of  the  fact. 

Identity  of  parties  where  initials  are  given  may  be  shown  by 
other  evidence  than  the  certificate. 
Atteberry  vs.  Blair.  244  111.  363. 

Defective  abstract  will  not  be  rendered  sufficient  by  affidavits 

made  on  information  and  belief,  without  personal  knowledge  of  the 

facts.  I 

Clark   vs.   Jackson,   222    111.    13;    Knox   vs.   Despain,    156   App.    134; 

Vognild  vs.  Yoltz,  141  App.  45. 

Sworn  or  Letter  Press  Copies: 

Are    admissible,    pi'ovided   opposite   party   is   given   reasonable 
opportunity  to  verity  them;  but  no  notice  is  recjuired  by  statute, 
and  if  opposite  party  has  not  had  opportunity,  he  should  ask  for 
time  to  make  the  verification. 
Glos  vs.  Gary,  194  111.  214. 

Prior  to  amendment  1S87,  letter  press  copies  not  admissible. 

Compton  vs.  Eandolph,  104  111.  555;  King  vs.  Worthington,  73  111.  161. 

Sworn  copy  may  be  used  as  evidence  provided  party  desiring 
to  use  same  shall  have  given  the  opposite  party  a  reasonable  oppor- 
tunity to  verify  correctness  of  such  copy.  Where  copy  was  de- 
livered to  counsel  for  defendant  at  noon  on  day  before  trial,  and 
left  in  his  possessioji  until  four  o'clock  of  the  same  day,  time  held 
sufficient  to  afford  reasonable  opportunity  for  examination,  but  if 
not,  defendant  should  have  asked  the  court  to  postpone  the  hear- 
ing until  he  could  have  further  time. 
Sternheim  vs.  Burckey,  149  111.  241. 

To  establish  title  under  Burnt  Records  Act,  after  filing  proper 
affidavit,  petitioner  may  offer  and  the  court  shall  receive  as  evi- 
dence any  copy,  extracts  or  minutes  from  destroyed  records,  or 
from  the  originals  thereof,  at  the  date  of  such  destruction  or  loss, 
in  the  possession  of  persons  then  engaged  in  business  of  making 
abstracts  for  others  for  hire.  Statute  also  provides  that  "sworn 
copies  of  any  writing  admissible  under  this  section,  made  by  per- 


.16  ABUTTING  OWNERS 

son  or  persons  having  possession  of  such  writing  shall  be  admissible 
in  evidence,"  etc.,  subject  to  the  proviso  therein  named. 

Converse  vs.  Wead,  142  111.  132. 
The  uncertified  copy  of  a  certified  copy  of  an  abstract  is  inad- 
missible. 

Hammond  vs.  Glos,  250  111.  32. 

Copies  of  abstracts  of  title,  to  be  admissible  under  section  24  of 
the  Records  Act,  need  not  contain  all  that  is  shown  in  originals. 
p:mson  vs.  Glos,  248  111.  275;  Glos  vs.  Patterson,  195  111.  530. 

Whole  Of: 

Party  introducing  abstract  for  purpose  of  showing  title  in  him- 
self is  not  compelled  to  introduce  same  as  an  entirety,  but  may 
use  such  parts  thereof  as  are  necessary. 
Heinsen  vs.  Lamb,  117  111.  549. 
But  if  plaintiff  in  ejectment  introduces  only  a  part  of  an  abstract 
of  title  to  make  out  his  case,  and  it,  as  a  whole,  shows  the  property 
is  not  in  him,  defendant  may  introduce  the  whole  of  it  in  evidence. 
Heinsen  vs.  Lamb,  117  111.  549. 

Objections : 

Wliere  defendant  in  application  to  register  title  does  not  object 
to  admission  of  abstract  of  title,  for  want  of  preliminary  proof, 
but  obtains  permission  to  file  objections  later,  he  is  not  entitled, 
after  applicant's  testimony  is  closed,  to  urge  before  the  examiner 
such  specific  objection,  as  such  objection  should  have  been  orally 
made  at  time  the  evidence  was  offered,  and  reason  assigned. 
Bjork  vs.  Glos,  256  111.  447. 

Presumptions  and  Burden  of  Proof : 

An  abstract  is  presumed  to  have  been  made  and  signed  at  its  date, 
such  presumption  being  subject  to  relnittal. 
C.  &  A.  R.  R.  Co.  vs.  Keegan,  152  111.  413. 

Where  records  were  destroyed  and  it  was  shown  that  certain  deeds 
were  also  destroyed,  or  could  not  be  found,  and  an  abstract  of  title 
was  produced  which  had  been  made  several  years  before  by  a  firm 
whose  business  it  was  to  make  examinations  of  titles,  it  appearing 
that  such  abstract  came  from  the  former  owner  of  the  land,  it  was 
presumed  that  such  abstract  was  made  and  delivered  to  some 
former  owner  and  handed  down  as  an  accompaniment  of  the  muni- 
ments of  title,  and  admissible  in  evidence  in  proof  of  title  in  place 

of  lost  deed. 

Richley  vs.  Farrell,  69  111.  264. 
Party  offering  abstracts  to  prove  title,  which,  on  their  face,  do 
not  show  compliance  with  statute  rendering  such  instruments  ad- 
missible, has  burden  of  showing  them  to  be  within  the  statute. 

C.  &  A.  R.  R.  Co.  vs.  Keegan,  152  111.  413 ;  Pumphrey  vs.  Giggey,  150 
App.  473. 

ABUTTING  OWNERS 

See  Presumptions. 

ACCESS 

See  Legitimacy,  Heirship. 


ACCESSORIES  17 

ACCESSORIES 

See  Accomplices,  Corroboration,  Intent. 
After  the  Fact : 

Proof  of  the  principal  felony  does  not  prove  or  tend  to  prove  a 
party  guilty  as  an  accessory  after  the  fact. 
Eeynolds  vs.  People,  83  111.  479. 

Where  two  parties  are  alone  present  at  the  time  of  the  killing 
of  another,  and  but  £»ne  does  the  killing,  and  the  other  does  not 
aid,  abet  or  assist  in  the  killing,  but  afterwards  both,  with  guilty 
knowledge,  conceal  the  fact  of  the  crime,  the  one  not  participating 
in  the  crime  is  only  guilty  as  an  accessory  iifter  the  fact,  and  is 
not  guilty  of  murder.  '   '^' 

White  vs.  People,  81  111.  333. 
The  offense  of  which  an  accessory  after  the  fact  may  be  guilty 
is  not  included  in  nor  has  it  any  connection  with  the  principal 
crime.  -'  •'"  *■■''' ^ 

Reynolds  vs.  People,  83  111.  479. 
One  indicted  for  larceny  cannot  be  convicted  of  being  an  acces- 
sory after  the  fact. 

Watts  vs.  People,  204  111.  233. 

The  principal  and  the  accessory  after  the  fact  may  be  indicted 

and  tried  together,  but  when  so  .joined  the  allegations  against  the 

principal  and  accessory  should  be  included  in  one  count,  having 

but  one  conclusion.      (Reynolds  vs.  People.  83  111.  479,  explained.) 

People  vs.  Jordan,  244  111.  386. 

Before  the  Fact: 

— -  Weight  and  Sufficiency  of  Evidence:  It  is  not  essential  that 
indictment  against  one  who  is  an  accessory  under  the  statute  should 
describe  the  circumstances  of  the  offense  as  they  actually  occurred. 
The  allegations  may  charge,  in  direct  terms,  the  accused  with  that 
which  is  the  legal  eff-'ect  of  such  acts  as  were  performed  by  him. 
Such  allegation  is  fully  supported  by  proof  that  another  did  that 
which  is  directly  alleged  to  have  been  done  by  the  accused,  if  it 
be  shown  that  the  accused  was  present,  aiding,  advising,  encourag- 
ing and  assisting  such  other  to  do  the  prohibited  acts. 

Lionetti  vs.   People,    183   111.   253;    Coates  vs.   People,   72   111.   303; 
Baxter  vs.  People,  8  111.  368. 

The  advice  or  encouragement  may  be  by  words,  acts,  signs  cr 
motions. 

White   vs.   People,   139   111.   143;    Ritzman   vs.   People,    110   111.   3f)2 ; 
Lamb  vs.  People,  96  111.  73;  Brennau  vs.  People,  15  111.  511. 

Where  parties  are  jointly  indicted  for  murder,  and  the  evidence 
shows  that  one  did  the  killing  in  the  other's  presence,  to  justify 
a  conviction  of  the  latter  it  must  appear,  beyond  a  reasonable  doubt, 
that  he  aided,  abetted  or  assisted  in  the  killing. 

One  who  is  present  at  the  time  a  homicide  occurs,  and  passively 
assents  thereto,  cannot  be  convicted  of  the  crime  where  he  does  no 
act  in  aid  of  the  killing. 

The  testimony  of  a  witness  in  a  murder  trial  that  one  of  the  joint 
defendants  said  to  him,  shortly  after  the  act,  "You  go  home  and 
we  will  get  out  of  this  by  swearing  a  few  lies,"  will  not  justify  a 

Ev. — 2 


18  ACCIDENT 

conviction  of  such  defendant,  in  absence  of  other  evidence  connect- 
ing him  with  the  crime. 

Jones  vs.  People,  166  III.  264;  White  vs.  People,  ll!9  ill.  14.5;  Lamb 
vs.  People,  96  111.  73. 
One  cannot  be  convicted  as  an  accessory  unless  proof  shows  prin- 
cipal is  guilty. 

Love  vs.  People,  160  111.  501;  People  vs.  Trumbley,  252  111.  20. 

But  accessory  is  indictable  and  punishable  as  principal,  notwith- 
standing principal  is  not  convicted  or  amenable  to  justice. 
Couley  vs.  People,  170  111.  587. 

The  aiding  and  abetting  contemplated  by  statute  concerning 
accessories,  which  is  necessary  to  constitute  one  a  principal  to  the 
homicide  committed  by  another,  consists  in  something  affirmative 
in  its  nature;  and  even  if  thi*eats  made  were  overheard  and  no 
effort  was  made  to  prevent  their  being  carried  out,  such  fact  is  not 
sufficient  to  convict  as  a  principal. 
Crosby  vs.  People,  189  111.  298. 


ACCIDENT 

See  Death,  Coroner's  Verdict,  Insurance,  Repairs  After  Ac- 
cident. 
No  Other  Accident: 

Proof  that  no  other  accident  had  occurred  in  the  use  or  operation 
of  the  agency  in  question  is  inadmissible. 

Guiauios  vs.   DeCanip   Coal  Co.,   242   111.   278;    M.   &   O.   Ey.   Co.  vs. 
Vallowe,  214  111.  124;  Hodges  vs.  Bearse,  129  11!.  87;  C.  &  W.  Co. 
vs.  Brooks,  138  App.  34;  Woelfel  Leather  Co.  vs.  Thomas,  68  App. 
394;  Cochran  vs.  Kankakee  !S.  &  L.  Co.,  179  App.  437. 
But  where  evidence  of  previous  iunnunity  from  accident  is  ad- 
mitted, plaintiff'  mav  show  accident  to  others. 
I.  C.  E.  R.  Co!  vs.  Treat,  179  111.  576. 
So  where  defendant  offers  evidence  of  impossibility  of  accident, 
plaintiff  entitled  to  prove  similar  accident  to  others. 

C.  &  A.  Brick  Co.  vs.  Eeinneiger,  140  111.  334.     (See  Sidewalks- 
Similar  Facts.) 
Conditions  Relating  to  Accident : 

Evidence  showing  condition  immediately  after  accident  is  admis- 
sible to  show  condition  at  time  of  accident. 

C.  &  N    W.  Ey.   Co.  vs.  GiUisou,  173  111.  264;   C.   &  A.  Ey.  Co.  vs. 
Vipond,  112  App.  558;   Slack  vs.  Harris,  101  App.  527;   XIII  111. 
Notes  479,  §  62. 
But  not  unless  conditions  remained  unchanged. 

Keeds  vs.  Christian  Coal  Co.,  149  App.  434;  Goddard  vs.  Enzler,  123 
App.    108;    Mer.   Trust   Co.   vs.   Boucher,    115   App.    101;    Mueller 
Bros.  vs.  Fnlton  Mar.  Co.,  181  App.  685. 
Relation  and  connection  between  prior  condition  and   time  of 

accident  must  be  shown. 

Pioneer  Coop.  Co.  vs.  Eomanov(ricz,  186  111.  9. 
Conditions  over  a  year  after  accident  are  not  admissible. 

Pierce  vs.  Decatur  Coal  Co.,  151  App.  47. 
Proof  of  condition  of  lights  on  station  platform  confined  to  night 

of  accident. 

Rowell  vs.  C.  G.  W.  Ey.  Co.,  92  App.  103. 


ACCOMPLICE  19 

Proof  descriptive  of  surrounding  conditions  and  location  of  ac- 
cident is  adniissi))le. 

Gardner  vs.   C.  &  E.  Ry.   Co.,   154  App.   178;    N.  W.   El.  Ry.  Co    vs 
O'Malley,  107  App.  599;   Clayton  vs.  Brooks,  31  App.  62. 


ACCOMPLICE 

See  Accessories,  Husband  and  Wife,  Immunity,  Credibility. 
Defined : 

One  who  is  in  some  way  connected  with  the  commission  of  a 
crime,  though  not  as  principal,  and  this  includes  all  persons  who 
have  heen  concerned  in  its  commission,  whether  they  are  concerned, 
in  strict  legal  propriety,  as  principal  in  first  or  set;ond  degree,  or 
merely  as  accessories. 

Cross  vs.  People,  47  111.  152;  People  vs.  Turner,  260  111.  84. 

Competency : 

Accomplice  is  a  competent  witness. 

Collins  vs.  People,  98  111.  584;  Bafferty  vs.  People,  72  111.  37;  Cross 
vs.  People,  47  111.  152;  Gray  vs.  People,  26  111.  344. 
State's  attorney  has  right  to  nolle  the  nidictment  as  to  one  of 
the  persons  indicted  and  call  him  as  a  witness. 
Love  vs.  People,  160  111.  501. 

Although  it  is  not  necessarv  that  such  nolle  be  entered. 
Collins  vs.   People,   98   111.   584. 

Corroboration : 

Court  may  advise  jury  not  to  believe  an  accomplice  unless  he  is 
confirmed,  or  only  in  so  far  as  he  is  confirmed.  It  is  a  matter  of 
discretion  rather  than  a  rule  of  law. 

Collins  vs.  People,  98  111.  584;  Earll  vs.  People,  73  111.  329. 
Without  criminal  intent,  a  witness  is  not  an  accomplice  so  as  to 
require  corroboration. 

Cross  vs.  Poople,  47  111.   152;   Love   vs.   People,   160   111.  501;    Kelly 
vs.  People,  192  111.  119. 

Testimony  of  an  accomplice  need  not  be  confirmed  in  every  par- 
ticular, but  only  as  to  some  one  fact  or  facts,  truth  or  falsity  of 
which  goes  to  prove  or  disprove  offense  charged. 

Gray  vs.  People,  26  111.  344.     (See  Corroboeatign.) 

Acts  and  Declarations: 

liy  one  of  several  concerned  in  accomplishment  of  unlawful  pur- 
pose are  admissible  as  against  all. 
Barron  vs.  People,  73  111.  256. 

Where  a  defendant  in  a  criminal  prosecution  alleges  as  a  defense 
that  he  was  feigning  complicity  in  order  to  detect  the  real  criminal, 
and  acting  merely  as  a  detective  to  fasten  the  guilt  on  his  associ- 
ates, he  may  show  any  facts  and  circumstances  tending  to  prove  the 
truth  of  his  claim. 

Price  vs.  Peojile,  109  111.  109;   Love  vs.  People,   160  111.  501.      (See 
Confessions.) 

Cross  Examination: 

Inducements  or  promises  may  be  shown. 

Waters  vs.  People,  172  111. "367;  Conley  vs.  People,  170  111.  587. 
When  testifying  for  People,  after  having  been  granted  a  separ- 
ate trial,  he  establishes  his  own  guilt  and  implicating  the  accused, 


20  ACCORD  AND  SATISFACTION 

great  latitude  slionld  be  alloAved,  and  witness  may  be  asked  wbether 

he  expected  to  be  more  lightly  punished  if  he  testified  for  People. 
Stevens  vs.  People,  215  111.  593. 

Weight  and  Sufficiency: 

A  fonviction  may  ))e  sustained  although  the  only  evidence  of 
guilt  is  that  of  a  self-confessed  accomplice. 

People  vs.  Feinberg,  237  111.  348;  People  vs.  Frankenberg,  23G  111. 
408;  Juretich  vs.  People,  223  111.  484;  Young  vs.  People,  221  111. 
51;  Colm  vs.  People,  197  111.  482;  Kellj  vs.  People,  192  111.  119; 
XI  111.  Notes     1246,  §  174. 

Conviction  of  crime  of  receiving  stolen  property  may  be  had 
on  uncorroborated  testimony  of  thieves,  though  latter  contradict 
each  other  as  to  certain  details  and  accused  denies  he  had  illegal 
dealings  with  such  thieves. 

People  vs.  Baskin,  254  111.  509. 


ACCORD    AND    SATISFACTION 

See  Compromise  and  Settlement,  Receipts,  Release. 
In  General: 

It  is  necessary  that  satisfaction  be  proven. 
Jacobs  vs.  Marks,  183  111.  533. 

Where  a  person  holding  a  claim  against  two,  for  which  both  are 

liable,  is  induced  to  receipt  his  claim  by  the  false  representations 

of  one,  the  other,  when  suit  is  brought  against  both  upon  such  claim, 

cannot  take  advantage  nor  derive  any  benefit  from  the  transaction. 
Woolsey  vs.  Price,  98  App.  503. 

An  accord  and  satisfaction,  when  relied  upon,  must  be  estab- 
lished by  a  preponderance  of  the  evidence, 
kelley  vs.  Martin,  169  App.  92. 

What  Constitutes: 

—  In  General:  To  constitute  an  accord  and  satisfaction,  it  is 
necessary  that  the  money  or  check  or  whatever  is  offered  should  be 
offered  in  full  satisfaction  of  the  demand  and  should  be  offered  in 
such  a  manner  or  accompanied  by  such  acts  and  declarations  as 
amount  to  condition  that  if  tlie  party  to  whom  it  is  offered  takes  it, 
he  does  so  in  satisfaction  of  his  demand.  If  the  offer  is  made  in 
such  a  manner  and  is  accepted,  the  acceptance  will  satisfy  the 
demand,  although  the  creditor  protests  at  the  time  that  the  amount 
received  is  not  all  that  is  due  or  that  he  does  not  accept  it  in  full 
satisfaction  of  his  claim. 

Canton  Coal  Co.  vs.  Parlin  Co.,  215  111.  244;   N.  W.  T.  M.  Assn.  vs. 

Crawford,  126  App.  648;  Kingsville  Pres.  Co.  vs.  Frank,  87  App. 

586. 

Accord  and  satisfaction  is  not  necessarily  the  result  of  accept- 
ance of  amount  of  tender  offered  in  court.  The  intent  is  a  question 
of  fact. 

Fowley  vs.  Thompson,  173  App.  333 ;  Alexander  vs.  Loeb,  230  111.  454. 

But  acceptance  by  a  creditor  of  a  remittance  from  the  debtor 
"to  close  account  on  last  shipment"  does  not  amount  to  a  settle- 
ment in  full,  even  though  the  remittance  is  for  all  the  debtor 
admits  to  be  due,  if  the  circumstances  of  the  transaction  are  not 
such  as  to  indicate  to  the  creditor  that  the  remittance  was  sent 


ACCORD  AND  SATISFACTION  21 

upon  condition  that  its  acceptance  was  to  operate  to  discharge  the 
debt. 

Steidtman  vs.  Lay  Co.,  234  111.  84. 

It  is  not  essential  to  the  creditor's  right  of  action  that  he  rescind 
the  contract  of  settlement  or  return  the  money  received,  but  only 
that  he  give  the  debtor  credit  for  the  amount  paid. 

Eeed  vs.  Engel,  237  111.  628;  F.  &  M.  Ins.  Co.  vs.  Caine,  224  111.  599; 
Pawnee  Coal  Co.  vs.  Rgyce,  184  111.  402;  Hefter  vs.  Cahn,  73  111. 
296. 

A  release,  not  under  seal,  executed  by  the  beneficiary  in  a  benefit 
certificate  upon  the  acceptance  of  a  part  of  the  amount  of  the  cer- 
tificate, cannot  be  made  the  basis  of  a  plea  of  accord  and  satisfac- 
tion in  a  suit  upon  the  certificate,  where  there  was  no  honest  difi'er- 
ence  between  the  parties  as  to  the  amount  due,  which  was  fixed 
by  terms  of  the  contract.  The  payment  of  a  less  sum  is  not  a  sat- 
isfaction of  a  larger  sum  even  when  so  received  without  a  release 
by  deed. 

F.  &  M.  Ins.  Co.  vs.  Caine,  224  111.  599. 

'  —  Joint  Tort  Feasors:  A  release  to  one  of  several  joint  tort 
feasors  is  a  release  to  all,  and  an  accord  and  satisfaction  with  one 
of  them  is  a  bar  to  an  action  against  the  other  and  notwithstanding 
the  contract  between  the  parties  thereto  is  in  writing,  oral  evi- 
dence by  the  other  parties  is  admissible  to  prove  what  the  actual 
contract  was. 

Gore  vs.  Henrotin,  165  App.  222. 

—  Acceptance  and  Retention  of  Checks:  Retention  of  check, 
notwithstanding  request  to  return  it,  and  cashing  it  a  year  before 
suit,  is  sufficient  evidence  of  accord  and  satisfaction. 

Stan  vs.  Regelin,  147  App.  550. 

Acceptance  of  a  check,  tendered  upon  an  express  condition  that 
it  should  be  in  full  payment  of  a  disputed  claim,  is  an  acceptance 
of  the  condition  as  well  as  the  money,  and  satisfies  the  claim,  not- 
withstanding a  protest  by  the  creditor  that  the  amount  was  not  in 
full. 

Snow  vs.  Griesheimer,  220  111.  106;  Worth  Coal  Co.  vs.  Parker  W. 
Co.,  157  App.  199;  Rep.  Jr.  Co.  vs.  Sturges  Mfg.  Co.,  181  App. 
304. 

But  the  retaining  of  a  check  by  a  broker  for  services  will  not 
constitute  an  accord  and  satisfaction  where  good  faith  is  lacking 
on  the  part  of  principal  or  where  there  is  no  affirmative  proof  that 
the  check  was  tendered  in  full  payment  of  the  claim. 
Monroe  vs.  Orr,  171  App.  655. 

—  Bona  Fide  Dispute:  Accord  and  satisfaction  result  where 
it  appears  a  bona  fide  dispute  exists  between  the  parties  and 
money,  draft  or  check  has  been  accepted  which  is  tendered  on  con- 
dition that,  if  accepted,  it  shall  be  received  in  full. 

Canton  Coal  Co.  vs.  P.  &  O.  Co.,  215  111.  244;  Bingham  vs.  Browning, 

197  111.  122;   Probst  vs.  Ehrat,  140  App.  309;   Beach  Clawson  Co. 

vs.  Paper  Co.,  133  App.  61;  Day  Lbr.  Co.  vs.  Serell,  177  App.  30; 

XI  111.  Notes  18,  §  4. 

The  cashing  of  a  check  sent  by  a  real  estate  dealer  to  another 

person  as  the  latter 's  share  of  the  profits  on  sales  of  land  cannot 

be  held  to  be  an  accord  and  satisfaction  if  such  other  person,  before 


22  ACCORD  AND  SATISFACTION 

consenting  to  accept  the  cheek,  was  deceived  by  the  dealer's  mis- 
statement of  facts  known  only  to  him. 
Eeed  vs.  Engel,  237  111.  628. 

—  Liquidated  Demand:     An  acceptance  by  creditor  from  debtor 

of  less  sum  than  the  amount  due,  in  full  satisfaction  of  the  debt, 

is  a  discharge  of  only  so  much  of  the  debt  as  is  equal  in  amount 

of  the  sum  received. 

F.  &  M.  Ins.  Co,  vs.  Caine,  224  HI.  599;  Ostraii<ler  vs.  Scott,  161  111. 
339;  Hayes  vs.  Mass.  Life  Ins.  Co.,  125  111.  626. 

tir Where  the  amount  due  is  ascertained  and  not  in  dispute,  a  pay- 
ment and  acceptance  of  a  less  sum  will  not  operate  as  a  satisfaction 
of  the  demand,  but  if  the  amount  due  is  unlifpiidated  and  there  is 
a  hojm  -fide  dispute  as  to  how  much  is  due,  a  payment  of  the  amount 
claimeci  by  the  debtor  to  be  due,  in  full  settlement,  if  accepted  by 
the  creditor,  is  a  full  satisfaction  of  the  claim. 

Snow  vs.  Griesheimer,  220  111.  106;  Ostrander  vs.  Scott,  161  111.  339. 

Agreement  to  take  less  than  sum  due  is  void  for  want  of  con- 
sideration. 

Hayes  vs.  Mass.  Life  Ins.  Co.,  125  111.  626;  Bostron  vs.  Gibson,  111 
App.  457;  State  Loan  Co.  vs.  Stewart,  65  App.  391. 
An  agreement  to  receive  less  than  amount  due  on  note  in  satis- 
faction is  void  for  want  of  consideration,  a  mere  nudum  pactum. 
Hart  vs.   Strong,   183   111.   349;    Jennings  vs.   Neville,    180   111.   270; 
Heintz  vs.  Pratt,  54  App.  616. 

Agreement  of  a  creditor  with  his  debtor  to  accept  a  less  sum, 
secured,  for  a  larger  sum,  unsecured,  or  differently  secured,  is  a 
good  accord  and  satisfaction. 

Post  vs.  First  Natl.  Bank,  138  111.  559. 

The  payment  of  a  less  sum  must  be  evidenced  by  release  by  deed 
or  same  is  not  a  satisfaction  of  a  larger  sum,  even  though  so  re- 
ceived. 

Eeed  vs.  Engel,  237  111.  62S;  Jackson  vs.  Security  Co..  233  111.  161; 
P.  &  iM.  ins.  Co.  vs.  Caine,  224  111,  599;  Titsworth  vs.  Hyde,  54 
111.  386. 

—  Vnliciuidated  Demanel:     The  payment  and  acceptance  of  a 

sum  of  money  in  satisfaction  of  an  unliquidated  demand  is  a  good 

accord  and  satisfaction,   and  an  accord   and   satisfaction  by   one 

joint  tort  feasor  has  the  same  effect  as  to  all. 
Wallner  vs.  Chi.  Trac.  Co.,  245  111.  148. 

If  there  is  a  hoiia  fide  dispute  as  to  amount  due,  such  a  dispute 
may  ])e  the  subject  of  a  compromise,  and  payment  may  be  made  of 
a  certain  amount  in  satisfaction  of  the  entire  claim. 
Jackson  vs.  Security  Life  Ins.  Co.,  233  111.  161. 

Admissibility  Under  Pleadings: 

.Under  a  plea  of  nou  est  faclum,  in  an  action  of  debt  on  a  writ- 
ing obligatory,  the  defendant  will  not  be  permitted  to  prove  a  re- 
lease and  quit  claim  by  him  to  plaintiff  of  his  equity  of  redemption 
in  land  bought  by  plaintiff  at  sherift''s  sale,  and  acceptance  thereof 
by  plaintiff  in  satisfaction  and  discharge  of  the  debt,  though  he 
might  be  permitted  to  make  such  proof  under  plea  of  nil  debet. 

Bailey  vs.  Cowles,  86  111.  333. 
Accord  and  satisfaction  must  be  specially  pleaded  in  an  action  of 
trespass,  and  cannot  be  given  in  evidence  under  general  issue. 

Kenyon  vs.  Sutherland,  8  111.  99;  XI  lU.  Notes  19,  §  7. 


ACCOUNT  STATED  23 

But  in  case  may  be  shown  under  general  issue.         tr'M". 
Papke  vs.  Hammond,  192  111.  631. 

Burden  of  Proof: 

Is  upon  party  alleging  accord  and  satisfaction. 

Wallner  vs.  Chi.  Con.  Trac.  Co.,  150  App.  242;  McDavitt  vs.  McNay, 
78  App.  396 ;  American  vs.  Rimpert,  75  III.  228. 

Where  a  defendant  pleaded  to  a  declaration  that  he  and  his  wife 
assigned  to  one  of  plaintiffs  the  wife's  interest  and  share  in  the 
estate  of  her  deceased  father,  which  was  taken  and  accepted  in  ftill 
satisfaction  of  the  note  sued  on,  the  burden  of  proof  was  on  de- 
fendant to  show  fact  of  assignment  as  averred  in  such  plea.  Proof 
of  giving  of  power  of  attorney  to  receive  such  estate  will  not  be 

sufficient. 

American  vs.  Eimpert,  75  111.  228. 


ACCOUNTANT 

See  Bookkeeper,  Conclusions  of  Witnesses. 

ACCOUNT    BOOKS 

See  Books  of  Account. 

ACCOUNT    STATED 

See  Books  op  Account. 

Defined: 

An  agreement  between  parties  that  all  the  items  of  the  account 
are  true  and  the  balance  as  struck  correct,  together  with  a  promise 
expressly  implied  for  payment  of  such  balance, 
king  vs.  Kahn,  157  App.  251. 

An  account  is  a  detailed  statement,  something  which  will  furnish 
to  the  person  having  a  right  to  it,  information  of  a  character  which 
will  enable  him  to  make  some  reasonable  test  of  its  accuracy  and 

honesty. 

Moyses  vs.  Eosenbaum,  98  App.  7. 

An  instrument  that  is  a  mere  naked  acknowledgment  that  the 
defendant  had  received  a  certain  amount  from  the  plaintiff  im- 
ports no  promise  or  obligation. 

Eeiss  vs.  Neimes,  171  App.  479. 

An  account  stated  is  an  agreed  balance  of  accounts,  which  has 
been  examined  and  accepted  by  the  parties  to  the  transaction  in 

question. 

Peterson  vs.  Wachowski,  86  App.  661. 
An  account  is  not  to  be  regarded  as  stated  merely  upon  render- 
ing of  statements  periodically,  while  the  account  is  accruing,  and 
the  retaining  of  them  without  objection,  the  statements  showing 

but  one  side  of  the  account. 

Tbomlinson  vs.  Earnshaw,  14  App.   593. 


24  ACCOUNT  STATED 

Admissibility  of  Original  Character  of  Debt: 

Original  character  or  form  of  the  debt,  as  well  as  what  kind  of 
evidence  was  necessary  to  establish  same  is  unimportant. 

Dick  vs.  Zimmerman,  207  111.  636;  Wurlitzer  vs.  D'^kinson,  153  App. 
36;  Pickham  vs.  I.  I.  &  M.  Ry.  Co.,  153  App.  282;  Amer.  B.  Co. 
vs.  Berner  Co.,  83  App.  446. 

Admissions : 

—  In  General:  An  admission  made  in  pleading  in  another  action 
may  be  shown. 

Amer.  Brew.  Co.  vs.  Berner  Mayer  Co.,  83  App.  446. 
One  who  has  stated  an  account  between  himself  and  another  in 
favor  of  the  latter,  and  admitted  it  to  be  correct,  cannot  re-open  it 
without  proof  of  the  items,  and  that  some  one  or  more  of  them  ought 

not  have  been  allowed. 

Sutphen  vs.  Cusliman,  35  111.  186. 

After  a  bill  of  exchange  has  been  refused  payment  by  the  drawee, 
the  drawer  admitting  to  the  holder  that  claim  was  just,  and  amount 
due  on  bill  was  computed  and  agreed  to  by  drawer  and  he  promised 
to  pay  it  at  certain  time  or  send  the  holder  a  note  for  it,  sufficient 
to  justify  a  recovery  on  account  stated. 
McCord  vs.  Curlee,  59  111.  221. 

—  As  to  Correctness:  Between  business  men,  accustomed  to  re- 
ceive and  accept  or  object  to  accounts  with  promptness,  the  recep- 
tion and  retention  of  an  account  without  objection  in  a  reasonable 
time  may  be  treated  as  an  admission  of  its  correctness. 

Peoria  Grape  Sugar  Co.  vs.  Turney,  58  App.  563;  King  vs.  Ehoads, 
68  App.  441. 

—  Made  to  Strangers:  The  mere  admission  of  indebtedness  is 
no  evidence  of  an  account  stated  unless  made  to  the  creditor  or  hu 
representatives.    An  admission  to  a  stranger  is  not  enough. 

Bee  vs.  Tierney,  58  App.  552. 

—  Book  of  Entry:  Is  not  an  admission  to  anybody  and  a  suit 
cannot  be  maintained  upon  it  without  showing  what  it  is  for. 

Bee  vs.  Tierney,  58  App.  552. 

—  Verbal  Admissions:     May  be  sufficient. 

MeCord  vs.  Curlee,  59  Ill.*^221;  Concord  House  Co.  vs.  Alaska  Co.,  78 
App.  682. 

Presumptions : 

—  Assent:  Indorsement  by  debtor  of  0.  K.  upon  itemized  ac- 
count is  evidence  which  tends  to  prove  an  account  stated. 

Clark  vs.  Hoffman,  128  App.  422. 
Proof  of  an  express  promise  is  not  necessary.  The  mutual  agree- 
ment, the  assent  of  the  parties  to  the  account  as  a  iinal  settlement 
of  the  items  stated  in  it,  and  the  promise  of  defendant  to  pay 
plaintiff  the  balance  appearing  by  the  account  to  be  due  from  him 
to  plaintiff  may  be  inferred  from  circumstantial  evidence. 
Neagle  vs.  Herbert,  73  App.  17. 

—  Retention  Without  Objcciion:  Proof  of  objection  to  one  item 
tends  to  establish  an  account  stated  as  to  the  others. 

Congress  Cons.  Co.  vs.  Int.  Bldg.  Co.,  86  App.  199;  Bee  vs.  Tierney, 
58  App.  552. 
Failure  to  object  to  an  account  rendered  is  not  evidence  that  the 


ACCOUNT  STATED  25 

same  has  become  stated  where  the  question  at  issue  is  as  to  whether 
or  not  plaintiff  has  sold  goods  to  defendant. 

Sonnenschein  vs.  Max  Malter  Co.,  144  App.  189. 
When  a  rendered  statement  of  account  has  been  retained  without 
objection  to  the  account  or  to  the  items  contained  therein,  for  such 
a  length  of  time  that  the  recipient  has  had  a  reasonable  time  with- 
in which  to  express  oljjections,  then  he  is  in  law  regarded  as  having 
waived  his  objection,  if  any  he  had. 

Piekham  vs.  I.  I.  &  M.  Ey.  Co.,  153  App.  281;  Parkinson  Co.  vs. 
Tullgreu,  177  App.  295, 

In  an  ordinary  business  transaction,  if  an  account  is  transmitted 
from  one  party  to  another,  and  no  objection  is  made  thereto, 
within  reasonable  time,  the  account  will  be  deemed  a  stated  account, 
by  reason  of  the  presumed  acquiescence  or  approbation  of  the 
parties. 

State  vs.  I.  C.  E.  Co.,  246  111.  188;  Wurlitzer  vs.  Dickinson,  153  App. 
36;  Piekham  vs.  I.  I.  &  M.  Ey.  Co.,  153  App.  282;  N.  W.  Fuel  Co. 
vs.  West  Fuel  Co.,  144  App.  92;  House  vs.  Beak,  43  App.  615:  XI 
111.  Notes  28,  §  5. 

Where  an  agent,  from  time  to  time,  renders  to  his  principal 
reports  and  statements  of  the  business  of  the  agency  and  of  the 
accounts  between  himself  and  his  principal  growing  out  of  it,  and 
such  reports  and  statements  are  received  and  retained  by  the 
principal  without  objection,  such  facts  are  prima  facie  evidence  of 
an  implied  admission  on  the  part  of  the  principal  as  to  their  cor- 
rectness. 

McCord  vs.  Manson,  17  App.  118. 

—  As  to  Matters  Included:  In  the  absence  of  evidence  of  what 
the  account  consisted,  the  presumption  is  that  it  was  made  up  of 
legal  and  proper  items;  and,  under  such  circumstances,  it  will  not 
be  presumed  that  usury  or  any  other  illegal  item  was  allowed  as 
part  of  the  account. 

Sutpheu  vs.  Cushiuan,  35  111.  186. 
As  between  merchants,  an  account  rendered  is  deemed  to  be  con- 
clusive as  to  the  price  given  and  amount  stated,  if  not  objected  to 
within  reasonable  time,  unless  some  fraud,  mistake,  omission  or 
inaccuracy  is  shown. 

Green  Co.  vs.  Smith,  52  App.  158;  Maekin  Co.  vs.  O'Brien,  33  App. 
474;  Bailey  vs.  Bensley,  87  111.  556. 

An  account  stated  between  two  parties  prima  facie  concerns  mat- 
ters solely  between  the  parties  themselves,  and  does  not  include  an 
account  with  a  third  person. 

Sutphen  vs.  Cushman,  35  111.  186. 

A  settlement  is  presumed  to  embrace  all  items  of  account  on 
both  sides. 

Shaubher  vs.  Mohler,  80  111.  21 ;  McDavid  vs.  Ellis,  78  App.  381. 
A  creditor  may  overcome  the  presumption  that  a  certain  item  of 
indebtedness  was  included  in  a  general  settlement  between  him- 
self and  his  debtor  by  proof  that  such  item  was  not  at  the  time  due. 
Beebe  vs.  Smith,  194  111.  634. 


26  ACCUSED 

—  As  lo  Correctness:     An  account  stated  is  only  prima  facie 

evidence  of  its  correctness. 

State  vs.  I.  C.  R.  Co.,  246  111.  188;   Gnibey  vs.  Smith,  13  App.  43; 

Pick  vs.  Slimmer,  70  App.  358;   Poppers  vs.   Selioenfeld,   97   App. 

477;  Jones  vs.  Univer.  Extension,  157  App.  132;  XI  111.  Notes  29, 

§16. 

The  presumption  is  that  a  promissory  note  given  in  settlement  of 

an  open  account  was  given  for  the  correct  amount,  and  if  the  maker 

alleges  that  the  account  was  wrongfully  stated,  it  is  incumbent  upon 

him  to  show  what  the  items  of  the  account  were,  and  that  some 

one  or  more  of  them  was  erroneous. 

Phy  vs.  Clark,  35  lU.  377;  M.  W.  P.  Co.  vs.  Waters,  10  App.  159. 

—  As  to  Receipt  of  Account:  When  an  account  stated  is  sent 
by  plaintiff  to  defendant  in  the  usual  and  customary  way,  in 
absence  of  evidence  to  contrary,  it  is  presumed  that  it  was  duly 

received. 

iviek  vs.  Zimmermann,  105  App.  615.     (See  Letters.) 

Burden  of  Proof: 

Burden  of  showing  what  items  of  the  account  were  and  that  some 
one  or  more  of  them  was  erroneous  is  upon  party  alleging  that 

account  was  wrongfully  stated. 
Phy  vs.  Clark,  35  111.  377. 
A  defendant  in  an  action  charging  an  account  stated  may  show 
fraud  or  mistake,  but  the  burden  of  proof  is  upon  such  defendant. 
Wurlitzer  vs.  Dickinson,  153  App.  36. 
Burden  of  proving  settlement  is  on  party  alleging  it. 
Ziimwalt  vs.  Fletelier,  68  App.  57. 

Questions  for  Jury: 

Whether  there  is  an  account  stated  is  question  for  jury. 

Seal  Lock  Co.  vs.  Cbi.  Mfg.  Co.,  98  App.  637. 
AVhether  silence  for  an  unreasonable  time  after  the  receipt  of  an 
account  amounts  to  an  admission  of  its  correctness,  or  delay  in 
noticing  same  was  unreasonable  are  questions  for  jury. 
Moran  vs.  Gordon,  33  App.  46. 

Cross  Examination: 

Where  plaintiff,  in  action  of  assumpsit  on  account  stated,  testi- 
fies only  to  interviews  and  correspondence  resulting  in  an  agree- 
ment fixing  the  sum  due,  he  camiot  be  cross  examined  regarding 
the  correctness  of  items  of  the  account. 

Dick  vs.   Zimmermann,   207   111.   636;    Nash- Wright   vs.   Wright,    156 
App.  243. 

ACCUSED 

See  Credibility,  Reasonable  Doubt,  Immunity. 

ACKNOWLEDGMENTS 

See  Delivery,  Foreign  Laws,  Certificates. 
Necessity  for  Acknowledgment: 
'It  is  not  necessary  to  validity  of  deed  that  same  be  acknowledged, 

as  execution  mav  be  otherwise  proved. 

Eohinson'vs.  Eobinson,  116  111.  250;   Roane  vs.  Baker,  120  111.  308; 
Seaver  vs.  Spink,  65  111.  441;  XI  111.  Notes  31,  §31. 


ACKNOWLEDGMENTS  '27 

Unless  an  acknowledgment  is  by  statute  made  requisite "td'valid- 
ity  of  deed,  a  delivery  without  aekuowledgment  will  be  good,  and 
will  convey  title  ol"  grantor.  In  such  case  the  certificate  of 
acknowledgment  is  no  part  of  the  instrument  of  conveyance,  but 
is  merely  evidence  of  execution  of  instrument  by  the  grantor,  and 
may  be  attached  to  the  instrument  either  before  or  after  its 
delivery. 

Calligan  vs.  Calligan,  259  111.  52. 

A  contract  to  make  title  to  land  i)iay  be  recorded  without  any 
acknowledgment  or  proof  of  its  execution,  but  a  certified  copy  of  the 
record  is  not  evidence  until  the  instrument  is  proved  or  acknowl- 
edged as  law  requires. 

McCormick  vs.  Evans,  33  111.  328;  Reed  vs.  Kemp,  16  111.  445. 

A  certified  copy  of  the  record  of  an  unacknowledged  instrument 
does  not  prove  the  contents  of  the  instrument  where  there  is  no 
proof  of  execution  of  such  an  instrument  and  connecting  the  in- 
strument executed  with  the  one  recorded. 
Winter  vs.  Dibble,  251  111.  200. 

But  a  deed  which  has  been  recorded  more  than  thirty  years  is  an 
ancient  deed,  and  a  certified  copy  thereof  is  admissible  in  evidence 
although  the  deed  was  not  acknowledged  as  required  by  law  in 
force  when  it  was  executed. 

Bradley  vs.  Lightcap,  201  111.  511, 

Governor's  deed  need  not  be  acknowledged.     It  is  sufSciently 
proven  if  executed  under  the  seal  of  state. 
C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111.  413. 

Not  necessary  to  release  of  dower,  where  wife  joins  in  deed  with 
husband. 

Bute  vs.  Kneale,  109  111.  652. 

"Wife  may  release  dower  by  contract  with  husband  without 
acknowledgment. 

Calling  vs.  Peebles,  215  111.  96. 

Certificate : 

—  Autkoriiy  of  Officer:  A  certificate  of  a  notary'  public  of  sister 
state,  and  under  seal  is  prima  facie  evidence  of  authority  to  take 
acknowledgment. 

Harding  vs.  Curtis,  45  111.  252 ;  Eamsey  vs.  People,  197  111.  594. 

A  justice  of  the  peace  in  any  other  state  or  territory  is  not  pre- 
sumed to  have  power  to  take  acknowledgments. 
Buckmaster  vs.  Job,  15  111.  328. 

It  will  be  presumed  that  the  circuit  court  of  a  sister  state  is  a 
court  of  record,  and  a  certificate  by  the  clerk  of  such  court,  of  con- 
formity of  an  acknowledgment  of  a  deed  with  the  laws  of  such 
state  is  sufficient  to  permit  deed  to  be  read  in  evidence. 
Grand  Pass  Club  vs.  Crosby,  181  111.  266. 

It  may  be  shown  by  certificate  of  county  clerk  of  state  of 
county  records,  proving  that  a  party  before  whom  an  acknowledg- 
ment of  a  deed  was  taken  was  not,  at  the  time  of  the  acknowledg- 
ment, an  officer. 

EioFS  vs.  Hole,  27  111.  104. 
County  clerk's  certificate  competent  to  show  authority  of  justice 
acknowledging  chattel  mortgage. 

Martin  &  Co.  vs.  Heilnian,  89  App.  159. 


28  ACKNOWLEDGMENTS 

Objection  to  acknowledgment  is  obviated  by  grantor's  testimony 
of  actual  execution  of  deed. 

Hobson  vs.  Ewan,  62  111.  146. 

Presumption  that  acknowledgment  in  foreign  state  by  deputy 

clerk  in  name  of  clerk  and  under  seal  of  court,  was  authorized. 
Hope  vs.  Sawyer,  34  111.  254. 

Extrinsic  evidence  is  competent  to  show  qualification  of  justice 
taking  acknowledgment. 

Ii'ehkopf  vs.  Miller,  59  App.  662 ;  Blackman  vs.  Hawkes,  89  111.  585. 
Parol  evidence  is  competent  to  show  county  where  chattel  mort- 
gage acknowledged. 

Martin  &  Co.  vs.  Heilman,  89  App.  159. 

Letters  J.  P.  sufficient  to  show  official  character  of  officer  in 
county  named  in  caption. 

Livingston  vs.  Kettelle,  6  111.  116. 

—  Signatures:     Failure  of  officer  to  write  name  of  office  after 

signature  to  acknowledgment  will  not  avoid. 

L.  E.  &  W.  Ey.  Co.  vs.  Whitham,  155  111.  514. 

Notary  seal  without  signature  insufficient. 
Clark  vs.  Wilson,  27  App.  610, 

Record  of  deed  inadmissible  when  notary's  name  is  not  signed 
to  acknowledgment. 

Clark  vs.  Wilson,  127  111.  449. 

—  Date:     Need  not  be  same  as  execution  of  instrument. 

Springer  vs.  Orr,  82  App.  558. 

Certificate  not  vitiated  by  want  of  date. 
Irving  vs.  Brownell,  11  HI.  403. 

—  Seal:  Certificate  good  without  seal  when  taken  by  officer 
authorized  and  not  required  to  have  official  seal. 

Fisk  vs.  Hopping,  169  111.  105. 

But  otherwise  if  havin;^  official  seal. 

Hamilton   vs.   Doolittle,   37   111.   473;    Mason  vs.  Brock,   12   111.   273; 
Booth  vs.  Cook,  20  111.  130. 

—  Scope  and  Weight  of  Certificate:  The  certificate  of  acknowl- 
edgment to  a  deed  is  evidence  only  of  those  matters  to  which  an 
officer  is  required  to  certify. 

Walker  vs.  Shepard,  210  111.  100. 

Is  prima  facie  evidence  of  the  execution  of  the  instrument  to 
which  it  is  attached. 

Spencer  vs.  Razor,  251  111.  278;   Tunison  vs.  Chamblin,  88  111.  378; 
Estate  of  Eamsey  vs.  People,  97  App.  283. 

Certificate  equal  to  testimony  under  oath. 
Warrick  vs.  Hull,  102  111.  280. 

Certificate  of  deceased  officer  equivalent  to  living  witness. 
Warrick  vs.  Hull,  102  111.  280. 

Execution  of  deed  is  sufficiently  proved  by  notary's  certificate 
regular  in  form. 

Schroeder  vs.  Smith,  249  111.  574. 
A  certificate  of  acknowledgment  is  pnma  facie  evidence  of  ma- 
terial facts  therein  stated. 

Hagan  vs.  Waldo,  168  111.  646;  Warrick  vs.  Hull,  102  01.  280;  Black- 
man  vs.  Hawkes.  89  111.  512;  O'Donnel  vs.  Keliher,  62  App.  641. 
In  taking  acknowledgments  of  deeds,  mortgages  and  other  in- 
struments, an  officer  acts  under  the  sanction  of  his  official  oath,  and 
his  certificate  of  official  acts,  required  by  law  to  be  made,  should 


ACKNOWLEDGMENTS  29 

be  regarded  as  of  as  high  grade  of  evidence  as  testimony  given 
under  oath.  The  presumption  will  be  indulged  as  to  the  certainty 
of  an  officer's  acts  done  in  the  capacity  in  which  he  is  serving. 
After  his  death,  his  certificates  of  official  acts  must  be  heard  to 
speak  for  him,  otherwise  there  would  be  no  security  for  titles 
acquired  under  instruments  required  by  law  to  be  acknowledged 
before  such  officers. 

Warrick  vs.  Hull,  102  111.  280;  Berdell  vs.  Egan,  125  111.  29.8. 

The  date  of  a  deed,  in  absence  of  other  proof,  will  be  presumed 
to  be  the  true  date  of  its  execution,  and  this  notwithstanding  it 
may  not  have  been  acknowledged  until  afterwards. 

Darst  vs.  Bates,  51  111.  439;  Jayne  vs.  Gregg,  42  111.  413. 

The  presumption  is  that  a  deed  was  delivered  on  day  it  bears 
date,  and  this  though  the  deed  may  not  have  been  acknowledged 
until  a  subsequent  date.  In  case  of  a  deed  conveying  homestead, 
there  can  be  no  presumption  that  the  deed  was  delivered  on  the 
day  it  bears  date,  if  the  date  of  the  deed  is  prior  to  date  of  acknowl- 
edgment. 

Calligan  vs.  Calligan,  259  111.  52 ;  Eoane  vs.  Baker,  120  111.  308. 

—  Ameiidmeiit   and   Aid:     Acknowledgment   taken    in   another 

state  may  be  shown  to  be  in  conformity  with  its  laws  by  any  legal 

mode. 

Eagan  vs.  Connelly,  107  111.  458. 

When  foreign  acknowledgment  fails  to  designate  the  locality, 

the  defect  will  be  cured  by  a  certificate  made  in  conformity  with 

the  statute  of  this  state,  certifying  to  authority  of  officer  taking 

acknowledgment  and  that  same  was  taken  in  conformity  with  laws 

of  state  where  made. 

Harding  vs.  Curtis,  45  HI.  252. 

That  a  deed  executed  in  another  state  was  acknowledged  in  con- 
formity with  its  laws,  so  as  to  render  it  admissible  in  evidence,  may 
be  shown  by  the  introduction  of  the  statute  book  of  such  state, 
purporting  to  be  printed  under  its  authority. 

Grand  Pass  Shooting  Club  vs.  Crosby,  181  111.  266. 

A  certificate  of  acknowledgment  cannot  be  amended  by  parol.    So 

parol  proof  is  inadmissible  to  show  what  a  wife  did  acknowledge 

when  she  was  before  the  officer  who  took  her  acknowledgment. 
Ennor  vs.  Thompson,  46  111.  214. 

Defect  in  acknowledgment  cannot  be  amended  by  officer  making 

another  certificate  unless  parties  to  deed  re-acknowledge  it. 
Merritt  vs.  Yates,  71  111.  636. 

Impeachment : 

One  seeking  to  impeach  the  certificate  of  an  acknowledgment  to 
a  deed  has  burden  of  establishing  his  claim  by  clear  and  convincing 
proof. 

Duncan  vs.  Duncan,  203  HI.  461 ;  Gritten  vs.  Dickerson,  202  111.  372. 
The  certificate  of  the  officer  as  to  acknowledgment  must  be  judged 
of  solely  by  what  appears  on  the  face  of  the  certificate,  and  if  that 
is  in  substantial  compliance  with  the  statute,  it  should  not  be  im- 
peached, except  for  fraud  or  imposition. 

Graham  vs.  Anderson,  42  111.  514. 


30  ACKNOWLEDGMENTS 

As  between  the  parties  to  a  deed,  the  certificate  of  acknowledg- 
ment mav  be  impeached  for  fraud,  collusion  or  imposition. 

kosturska  vs.  Bartkiewicz,  241  111.   liU4;   8ti:iueh   vs.  Hathaway,    lUl 
111.    11;    FitzGerald   vs.    FitzGeiald,    100   111.   385;    XI    111.    Notes 
38,  S  42. 
But  cannot  be  otherwise  attacked. 

Kosturska  vs.  Bartkiewiez,  241  111.  604;   FitzGerald  vs.  FitzGerald, 
100  111.  385;   Stiaueh  vs.  Hathaway,  101  111.  11. 
The  evidence  upon  the  issues  of  fraud,  collusion  or  imposition 
must  be  so  complete  and  reliable  as  to  fully  satisfy  the  court  that 

certificate  is  fraudulent  and  untrue. 

Kosturska  vs.  Bartkiewiez,  241  111.   604;   FitzGerald  vs.  FitzGerald, 
100  111.  385;  Strauch  vs.  Hathaway,  101  111.  11. 
Very  clear  and  satisfactory  proof  is  required  to  impeach  the  cer- 
tificate of  acknowledgment  of  deed  or  mortgage. 

McPherson  vs.  Sanborn,   88  111.   150;   Gritten  vs.  Dickerson,  202  111. 
372;    Kosturska  vs.   Bartkiewiez,   241    111.   604;    Huston   vs.    Smith, 
248  111.  396;  Spencer  vs.  Eazor,  251  111.  278. 
The  evidence  to  impeach  the  certificate  of  acknowledgment  of 
a  deed  must  be  so  full  and  satisfactory  as  to  convince  the  mind 
that  the  certificate  is  false  or  forged.     A  mere  suspicion  or  even 
preponderance  of  the  evidence,  less  than  sufficient  to  establish  a 
moral  certainty  to  that  effect,  is  insufficient. 
Griffin  vs.  Griffin,  125  111.  430. 
And  given  by  disinterested  witnesses. 

Gritten  vs.  Diekerson,  202  111.  372. 
Certificate  cannot  be  impeached  by  unsupported  testimony  of 

any  interested  party. 

Canal  &  Doek  Co.  vs.  Eussell,  68  111.  426. 
Except  in  cases  of  fraud,  duress  or  imposition,  or  the  like,  certi- 
ficate  cannot   be    impeached    by    evidence   merely   negativing   its 

recitals. 

Straueh  vs.  Hathaway,  101  111.  11. 
Proof  that  the  signature  is  not  in  the  handwriting  of  the  grantor 
falls  far  short  of  sliowing  it  to  be  a  forgery.     By  acknowledging, 
the  party  adopts  the  signature  and  makes  it  his  own. 

Tunison  vs.  Chamblin,  88  111.  378;  Kerr  vs.  Russell,  69  111.  666. 
Certificate  not  overcome  by  testimony  of  grantor,  with  testimony 
of  experts  that  signature  is  not  in  grantor's  handwriting. 
Blackraan  vs.  Hawkes,  89  111.  512. 
Acknowledgment  to  a  deed  is  not  overcome  by  testimony   of 
acknowledging  officer,   an   old  man  of   failing  memory,   that   the 
signature  to   the   deed,   and   acknowledgment,   were   not   genuine, 
corroborated  by  testimony  of  experts,  based  solely  upon  compar- 
ison of  signatures,  where  a  number  of  witnesses  who  were  familiar 
with  the  handwriting  of  grantor  and  the  officer,  swore  the  sig- 
natures were  genuine. 

Duncan  vs.  Duncan,  203  111.  461. 
The  uncontradicted  testimony  of  three  witnesses,  two  of  whom 
were  disinterested,  is  sufficient  to  overcome  certificate. 
Lewis  vs.  McGrath,  191  111.  401. 
Parol  evidence  is  inadmissible,  in  action  of  ejectment,  to  impeach 
certificate  of  acknowledgment,  except  for  fraud  or  imposition. 
Graham  vs.  Anderson,  42  111.  514. 


ACKNOWLEDGMENTS      '  31 

Acknowledgment  of  deed  of  liusband  and  wife,  regnlar  on  its 
face,  cannot  be  impeached  by  wife. 

Davis  vs.  Howard,  172  111.  340;  Monroe  vs.  Poorman,  62  111.  523. 

Acknowledgment  overcome  where  wife  testified  that  husband 
brought  her  a  paper  to  sign ;  that  she,  not  being  able  to  read,  in- 
quired as  to  same,  to  which  he  replied  it  was  a  mere  matter  of 
form,  and  she  then  made  her  mark ;  that  no  one  asked  her  anything 
about  whether  she  acknowledged  her  signature  or  whether  she 
executed  the  paper.     She  was  fully  corroborated  in  her  testimony 

by  her  husband  and  three  disinterested  witnesses  who  were  present. 
Lowell  vs.  Wren,  80  111.  238. 

The  officer  taking  the  acknowledgment  is  competent,  but  the 
weight  of  his  testimony  is  a  question  for  the  tryor. 

Duncan  vs.  Dunca'n,  203  111.  461 ;  Parlin  Co.  vs."  Hiitson,  198  111.  389 ; 
Miuehrod  vs.  Uhlman,  163  111.  25;  Berdel  vs.  Egau,  125  111.  298; 
Lowell  vs.  Wren,  80  111.  238 ;  Sisters  of  Loretto  vs.  -C.  Bishop,  86 
111.  174;  McDowell  vs.  Stewart,  83  111.  538;  McCurley  vs.  Pittman, 
65  App.   17. 

If  the  certificate  of  a  notary  to  an  acknowledgment  by  a  married 
woman  can  be  impeached  by  parol,  the  testimony  of  the  notary 
that  he  did  not  recollect  asking  whether  she  released  her  right  of 
homestead,  and  did  not  think  she  did,  is  insufficient. 
Mincbrod  vs.  Uhlman,  163  111.  25. 

Certificate  must  be  judged  solely  by  what  appears  on  its  face. 
Monroe  vs.  Poorman,  62  111.  523, 

The  uncorroborated  testimony  of  grantor  that  his  deed  is  a 
forgery  will  not  overcome  the  certificate  of  the  officer  who  took  the 
acknowledgment,  in  absence  of  proof  of  fraud,  collusion  or  imposi- 
lion  by  the  latter. 

Tuchinski  vs.  Met.  Ry.  Co.,  176  111.  420;  McPherson  vs.  Sanborn, 
88  111.  150. 

Testimony  of  grantor  denying  truth  of  certificate,  though  slightly 
corroborated,  is  not  sufficient  to  overcome  same. 

Gritten  vs.  Diekerson,  202  111.  372;  Parlin  vs.  Hutson,  198  111.  389; 
Fischer  vs.  Steftel,  179  111.  59;  Hagan  vs.  Waldo,  168  111.  646. 

Testimony  of  grantor  sufficient  to  impeach  certificate  where  facts 
appear  which  take  away  verity  of  certificate, 
Parlin  vs.  Huston,  198  111.  389. 

Proof  nuist  show  conspiracy  between  officer  taking  acknowledg- 
ment and  the  grantee,  or  that  official  practiced  imposition  or  fraud 
upon  grantor,  and  testimony  of  grantor  alone  is  not  sufficient  to 
overcome  the  certificate  and  the  officer's  testimony  in  support  of 
same, 

FitzGerald  vs.  FitzGerald,  100  111.  385;  Strack  vs.  Hathaway,  101 
111.  11. 

Certificate  of  acknowledgment  made  by  grantor  who  could  neither 
read  nor  understand  English,  is  not  overcome  by  her  testimony 
that  she  remembered  nothing  about  signing  a  deed  or  what  was 
said  at  the  time  because  she  was  sick,  but  that  her  mind  was  clear 
and  she  did  not  lose  it,  where  the  notary  testified  the  grantor  was 
sick,  but  that  the  deed  was  explained  to  her,  at  her  request,  in 
language  she  could  understand,  and  that  she  said  "All  right," 
and  signed  the  deed. 

Kosturska  vs.  Bartkiewicz,  241  111.  604. 


32  ■    ACT  OF  LEGISLATURE 

Certificate  is  not  overcome  by  proof  that  alleged  grantor  could 
write  her  name,  where  evidence  shows  she  often  made  her  mark 
instead  of  writing  her  name,  and  three  witnesses  testify  that  they 
saw  her  make  her  mark  upon  the  deed  in  question. 
Gritten  vs.  Dickerson,  202  111,  372. 

The  rule  that  grantor's  testimony,  although  slightly  corrobor- 
ated, that  deed  was  a  forgery,  is  not  sufficient  to  overcome  certifi- 
cate, does  not  apply  where  notary  testified  he  did  not  know  grantor, 
had  never  seen  him,  and  that,  while  the  seal  and  signature  to  cer- 
tificate of  acknowledgment  were  genuine,  yet  he  had,  at  one  time, 
prepared  a  certificate  of  acknowledgment  in  blank  for  the  grantee, 
to  some  instrument. 

Parlin  Co.  vs.  Hutson,  198  111.  389. 

Acknowledgment  cannot  be  overcome,  after  husband's  death,  by 

wife's  testimony  that  she  never  signed  or  executed  the  deed,  and 

that  her  husband  was  very  weak,  physically  and  mentally,  and  did 

not  sign  unless  it  was  at  a  time  when  he  was  out  of  his  mind. 
Davis  vs.  Howard,  172  111.  340. 

Notary's  certificate  that  a  married  woman,  upon  examination 
separate  and  apart  from  her  husband,  acknowledged  execution  of 
deed,  is  not  overcome  by  husband's  testimony,  based  upon  recollec- 
tion only,  that  the  wife  was  not  present  when  he  signed  the  deed, 
or  by  evidence  of  two  disinterested  witnesses  that  the  signature 

did  not  resemble  the  wife's  handwriting. 
Sasseuberg  vs.  Husenian,  182  111.  341. 

Where  officer  who  has  certified  to  acknowledgment  by  husband 

and  wife  in  proper  form,  testifies  that  wife  was  not  present  and 

did  not  acknowledge  same,  his  testimony  v^^ill  be  entitled  to  but 

little  weight  against  his  certificate. 

Wilsou  vs.  Sou.  Park  Comrs.,  70  111.  46. 

In  absence  of  proof  of  fraud  and  collusion  on  part  of  officer  tak- 
ing and  certifying  acknowledgment  of  deed,  the  officer's  certifi- 
cate of  acknowledgment,  in  proper  form,  must  prevail  over  un- 
supported testimony  of  grantor. 

Mahan  vs.  Sehroeder,  142  App.  538;  Lickmon  vs.  Harding,  65  111.  50o; 
Kostiirska  vs.  Bartkiewicz,  241  111.  604. 

Where  a  lost  or  destroyed  deed  is  satisfactorily  shov/n  to  have 
had  attached  to  it  a  certificate  of  acknowledgment  by  grantor  and 
his  wife,  by  an  officer  authorized  to  take  acknowledgments  of  such 
instruments,  such  fact,  after  lapse  of  twenty-eight  years,  is  suffi- 
cient to  overcome  denial  of  wife  that  she  had  ever  released  her 
dower  by  deed  or  otherwise. 

IBerdel  vs.  Egan,  125  111.  298, 


ACT  OF  LEGISLATURE 

See  Judicial  Notice,  Legislative  Acts  and  Journals,  Statutes. 

ADJOINING  LAND  OWNERS 

See  Presumptions. 


ADMISSIONS  AND  DECLARATIONS  33 

ADJOURNMENT 

Court : 

—  Regularity  of  Judicial  Proceedings:  Where  the  record  in  a 
case  shows  an  adjournment  of  the  court,  during  the  term,  to  a  cer- 
tain day,  and  the  next  entry  appears  to  have  been  made  at  a  later 
date,  which  the  record  states  was  one  of  the  days  of  the  term,  the 
presumption  is  the  court  was  duly  convened  on  the  day  to  which 
it  was  adjourned  and  that  the  term  was  continued  by  regular 
adjournments,  or  that,  in  the  absence  of  the  judge,  the  regular 
eijournments  were  made  by  the  sheriff  as  provided  by  statute. 
White  vs.  People,  81  111.  333. 

ADJUDICATION 

See  Former  Adjudicatioin,  Judgments,  Records. 


ADMISSIBILITY 

General  Rule: 

The  evidence  must  relate  to  some  issue  presented  by  the  plead- 
ings and  tend  to  establish  some  fact  or  facts  legally  competent  for 
the  consideration  of  the  jury. 

City  of  Joliet  vs.  Conway,  119  111.  489;  Robinsou  vs.  Craft,  154  App. 
213. 

By  Whom  Determined: 

Questions  as  to  the  admissibilitv  of  evidence  are  for  the  court. 

Miller  vs.  Metzger,  16  111.  390;  Helgesen  vs.  C.  S.  &  W.  L.  Co.,  156 
App.  541. 

Tendency  to  Prove: 

In  determining  whether  testimony  is  admissible,  it  will  be  treated 
as  establishing  whatever  it  may  fairlv  tend  to  prove. 
Miller  vs.  Bealer,  25  111.  163;  XII  111.  Notes  481,  §  52. 
Evidence  tending  to  prove  the  material  facts  or  either  of  them 
is  admissible  although  it  may  not  establish  the  whole  case  or  be  con- 
clusive. 

B.  &  O.  S.  W.  R.  Co.  vs.  People,  156  111.  189;  Moore  vs.  Flynn,  135 
111.  74;  Miller  vs.  Chrisniau,  25  111.  269;  Slack  vs.  McLeglin,  15 
Til.  242 ;  Clark  vs.  Lake,  2  111.  229. 

It  is  not  unusual  that  circumstances  are  of  small  or  no  signifi- 
cance in  establishing  facts  when  considered  alone.  The  real  ques- 
tion is  have  they  any  proving  force  when  considered  with  the 
other  evidence  in  the  case. 

Gallagher  vs.  Singer  Sewing  Machine  Co.,  177  App.  198. 

ADMISSIONS  AND   DECLARATIONS 

See  Contradiction  and  Sustaining  Witness,  Res  Gestae, 
Hearsay,  Confessions,  Impeachment,  Corroboration,  Witnesses. 
Mental  and  Physical  States,  Dedication,  Contested  Elections. 
Conspiracy,  Abduction,  Account  Stated,  Husband  and  Wife, 
Former  Testimony,  Conclusions  of  Witnesses. 

Ev. — 3 


34  ADMISSIONS  AND  DECLARATIONS 

In  General: 

Where  admissions  are  made  by  a  party  to  a  suit,  such  admis- 
sions are  original  and  substantive  evidence  against  him,  not  neces- 
sarily  for   impeachment,    and   may   be   proved   without   laying   a 

foundation  by  asking  him  if  he  made  the  statements. 
Johnson  vs.  Peterson,  166  App.  404. 
It  is  always  proper  to  show  the  voluntary  statements  or  admis- 
sions of  a  party  to  a  suit,  against  his  interest,  even  though  made  to 

one  not  a  party  to  the  suit. 

Freet  vs.  Amer.  Elec.  Co.,  257  111.  248. 

Admissions  and  declarations  are  admissible  no  matter  to  whom 
made.  There  is  no  rule  of  law  requiring  admissions  to  be  made 
to  the  party  or  his  agent. 

Secor  vs.  Pestana,  37  lU.  525. 

Any  person  hearing  them  is  competent  to  testify  to  admissions 

against  interest. 

Grays  Co.  vs.  Lum  Co.,  163  App.  231;  Grafenreid  vs.  Kundert,  31 
App.  394. 

And  the  fact  that  the  witness  is  unable  to  give  the  exact  lan- 
guage does  not  go  to  the  question  of  competency. 
VVelty  vs.  C.  E.  I.  &  P.  Ey.  Co.,  163  App.  86. 

The  conversations  of  a  party  to  a  suit,  relating  to  the  subject 

matter  of  the  same  are  admissible  in  evidence  against  him. 

Morris  vs.  Jamieson,  205  111.  87. 

Where  conspiracy  and  fraud  established  prima  facie,  admissions 
of  one,  competent  against  co-conspirator,  though  not  made  in  latter 's 
presence. 

Cohen  vs.  Friedman,  259  111.  416. 
The  admissions  of  a  party  as  to  a  fact  in  relation  to  a  matter 
material  to  the  issue,  no  matter  how  made,  may  be  given  in  evidence 
against  him. 

Brown  vs.  Cal.  Elver  Ey.  Co.,  125  111.  600;  C.  &  N.  W.  Ey.  Co.  vs. 
Boone  Co.,  44  111.  240;  Soaps  vs.  Eichberg,  42  App.  375;  XII  111. 
Notes  497,  §  169. 

If  made  with  the  knowledge  of  the  circumstances. 
C.  &  N.  W.  Ey.  Co.  vs.  Boone  Co.,  44  111.  240. 

And  against  the  interest  of  the  party  making  them. 

Chi.  City  Ey.  Co.  vs.  Henry,  218  111.  92;  Brown  vs.  Cal.  Eiver  Ey.  Co., 
125  111.  600;  Smith  vs.  James,  163  App.  501;  Grays  vs.  Lum.  Co., 
163  App.  231. 

Or  when  fonning  part  of  the  7'es  gestae. 
Chi.  Div.  Ey.  Co.  vs.  Becker,  128  111.  545. 

It  is  always  competent  to  prove  admissions  of  a  party  in  interest 
to  his  prejudice,  where  they  relate  to  a  matter  material  to  an  issue 
being  tried,  and  that  without  previously  examining  him  in  relation 
to  such  admissions. 

Building  Assn.  vs.  Cochrane,  103  App.  29. 

Evidence  of  itself  immaterial  may  be  competent  if  inseparably 

interwoven  with  a  material  conversation. 
Sullivan  vs.  Sullivan,  139  App.  378. 
Competent  only  as  against  party  making  them. 

Jarecki  Mfg.  Co.  vs.  Daily,  163  App.  399. 
And  where  parol  evidence  would  be  admissible  to  establish  same, 
or  where  there  is  no  higher  or  more  conclusive  evidence  in  exist- 
ence which  can  be  produced. 

Mason  vs.  Park,  4  111.  533;  Jameson  vs.  Conway,  10  111.  227. 


ADMISSIONS  AND  DECLARATIONS  35 

The  admission  of  a  party  is  competent  evidence  only  where  parol 
evidence  would  be  admissible  to  establish  same  fact. 
Lavery  vs.  Brooks,  37  App.  51. 

But  where  admission  made  is  in  testimony  given  on  former  trial, 
it  is  competent,  it  being  an  admission  made  in  open  court  which 
the  party  is  estopped  to  deny. 

Heiman  vs.  Kinnare,  92  App.  232;  Home  Ins.  Co.  vs.  Field,  53  App. 

Where  an  admission  is  made  in  a  case,  for  purpose  of  trial, 
it  is  regarded  as  a  stipulation  of  party  making  it,  that  the  fact 
about  which  it  is  made  exists,  and  he  is  estopped  from  denying 
it ;  but  an  admission  made  in  pais  is  not  conclusive,  and  is  entitled 
to  no  higher  consideration  than  parol  testimony.  It  amounts  to 
but  oral  testimony,  and  is  liable  to  be  rebutted  by  party  making 
it.  It  is  regarded  as  the  weakest  and  most  uncertain  kind  of  tes- 
timony and  should  be  received  only  in  cases  where  parol  evidence 
is  properly  admissible  to  show  the  same  fact. 
Mason  vs.  Park,  4  III.  532. 

Where  a  written  document  is  given  in  evidence  as  containing 
an  admission  by  an  adversary,  parol  evidence  is  admissible  to  ex- 
plain it  or  to  show  that  it  originated  in  mistake;  so  where  a  let- 
ter, not  being  a  matter  of  compact  and  agreement,  given  in  evi- 
dence as  an  admission  by  an  adversary,  the  writer  may  adduce 
evidence  to  show  that  it  originated  in  a  mistake,  or  explain  it  by 
circumstances. 

Smith  vs.  Mayfield,  163  111.  447. 
But  he  cannot  prove  a  secret  intention. 

Sutter  vs.  Rose,  169  111.  66;  Brant  vs.  Gallup,  111  111.  487. 
Party  making  admissions  is   at   liberty   to   disprove   them, — to 
show  by  proof  aliunde  that  they  were  not  true,  or  made  for  a 
purpose. 

Young  vs.  Fouts,  43  111.  33;  Kadish  vs.  Bullen,  10  App.  566. 
But  it  is  not  competent  for  him  to  prove  other  declarations  in 
his  own  interest  contradictory  to  particular  admissions. 

Harding  vs.  Clark,  15  111.  30.     (See  Whole  of  Utterance.) 
So  where  a  party  examines  a  witness  as  to  a  conversation,  the 
opposing  party  can  only  examine  the  witness  upon  the  conversa- 
tion of  the  same  subject  matter  and  not  as  to  a  conversation  upon 
a  different  subject  matter  not  relating  to  the  former  conversation 
C,  &  A.  Ey,  Co.  vs.  Thompson,  19  111.  578, 

Where  a  party  to  a  suit  is  incompetent  to  testify  against  a 
co-defendant,  his  acts  and  declarations  are  not  admissible  to  prove 
anything  as  to  which  he  is  not  competent  to  testify. 
Bragg  vs.  Geddes,  93  111.  39. 

The  admissibility  of  declaration  is  not  affected  by  circumstance 
whether  declarant  is  a  competent  witness  or  not,  or  whether  he, 
in  fact,  is  a  witness.  Such  evidence  is  admissible  on  the  broad 
ground  that  the  declaration  was  against  the  interest  of  the  party 
making  it,  in  the  nature  of  a  confession,  and  on  that  account,  so 
probably  true  as  to  justify  its  reception. 
'Sandifer  vs.  Hoard,  59  HI.  246. 

An  attachment  plaintiff,  introducing  in  evidence  in  interpleader 
proceedings,   a  deed  from  attachment   defendant   to  interventor, 


36  ADMISSIONS  AND  DECLARATIONS 

purporting  to  be  for  a  certain  consideration,   does  not  thereby 
admit  the  validity  of  the  deed,  bnt  may  sliow  liy  extrinsic  evidence 
that  there  was  in  fact  no  consideration. 
.!•■;;       Cassell  vs.  Baiik,  169  lU.  380, 

'As  an   admission  against  plaintiff,   a  warranty   deed   of  land, 
executed   shortly    before    damage    was   inflicted,    is   admissible    as 
prima  facie  proof  that   tlie   grantor   therein   named   received  the 
price  named  therein  for  the  land  at  the  time  of  conveyance. 
Sanitary  Dist.  vs.  Pearce,  110  Ajip.  592. 

A  letter  from  purchaser  is  admissible  to  show  that  'iio  com- 
plaint was  then  being  made  as  to  the  article  that  had  been  fur- 
nished. 

Hansen  vs.  Wayer,  101  App.  212. 

■  Declarations  of  donor  made  several  years  after  giving  property 
to  child,  not  admissible  to  show  gift  was  intended  as  an  advance- 
ment. '-':'  ■'  ■  ,"   ■ '    '"; .. 

Elliott  vs.  Coal  Co.,  243  111.  614;  Long  vs".  Long,  118  111.  638. 
Expression  of  intention  to  pay  is  competent  as  tending  to  show 
liability. 

Bradenkamp  vs.  Rouge,  143  App.  492. 

"But  for  a  defendant  to  say  that  he  is  not  going  to  appeal,  but 
is  going  to  pay  a  judgment  is  not  to  admit  liability,  and  proof  of 
such  statements  is  inadmissible. 
Lee  vs.  Moore,  161  App.  643. 
Whatever  is  material  to  prove  the  state  of  a  person's  mind,  or 
what  is  passing  in  it,  or  what  his  intentions  were,  may  be  shown 
by  his  declarations. 

Wilkinson  vs.  Service,  249  111.  146. 
It  is  competent  to  prove  admissions  and  declarations  of  owner 
of  property  sought  to  be  condenuied,  as  to  its  value  and  price  at 
which  he  offered  to  sell.     If  he  has  given  an  option  for  the  pur- 
chase of  the  property,  this  is  competent  evidence  against  him  as 
to  the  value  of  the  property  at  or  about  the  time  it  was  given. 
Springer  vs.  City  of  Cliicago,  135  111.  552. 
A  conversation  between  accused  and  a  witness,  tending  to  show 
a  willingness  on  the  part  of  the  accussed  to  commit  another  of- 
fense entirely  distinct  from  the  one  for  which  he  is  indicted,  is 

inadmissible. 

Turley  vs.  People,  188  111.  628. 

AVhere  the  account  between  a  merchant  and  customer  is  in  the 
customer's  possession  except  at  the  end  of  each  month  when  it  was 
taken  to  the  merchant  to  be  balanced,  and  the  customer  acquiesced 
in  the  condition  of  his  account  as  shown  therein  for  a  long  period, 
his  action  tends  to  establisli  an  admission  of  its  correctness. 
Dewes  Brew.  Co.  vs.  Kerwin,  107  App.  620. 

Declarations  made  by  one  not  shown  to  be  dead  or  not  within 
the  jurisdiction  of  the  court,  as  to  boundary  line  to  his  land,  are 

inadmissible. 

Eehfuss  vs.  Hill,  243  111.  140. 
Evidence  of  the  admissions  of  a  father,  made  some  twelve  years 
before,  that  he  bought  a  tract  of  land  with  the  money  of  his  chil- 
dren, will  not  be  rejected  on  account  of  the  lapse  of  time  since 


ADMISSIONS  AND  DECLARATIONS  37 

the   admissions  were   made,   nor  will   its   credibility  be   affected, 

unless  there  are  other  reasons  impairing  its  value. 
Eyder  vs.  Enieiich,  104  111.  470. 

Improper  to  permit  a  witness  to  testify  as  to  a  controversial 
conversation  had  between  plaintiff  and  third  person,   such   con^ 
versation  is  no  wise  pertaining  to  the  issue. 
Hobart  vs.  YanAermau  Bros.,  146  App.  1. 
Where  it  is  proven  that  defendant  had  corrected  prices  current 
in  a  newspaper,  files  of  such  paper  are  admissible  against  him  to 
prove  the  market  value  of  grain. 
Henkle  vs.  Smith,  21  111.  237. 

Where  bond  in  a  bastardy  proceeding  recited  that  complaint 
was  made  by  a  certain  person,  "an  unmarried  woman,"  such  re- 
cital is  an  admission  by  signer  that  the  mother  was  an  unmar- 
ried woman. 

Cook  vs.  People,  51  111.  142. 

Self  Serving  Statements: 

Self-serving  statements  made  by  a  party  to  a  transaction  are 
not  admissible  in  evidence  in  his  own  behalf,  nor  can  they  be  ad-; 
mitted  when  offered  by  his  voluntarv  grantees.  .i 

Oswald   vs.   Nehls,    233    111.    438;'  Telford   vs.    HoweU,    220    111.   52; 
Corder  vs.  Corder,  124  111.  229;   XII  111.  Kotes  497,  §  165. 

Self-serving  statements,  not  part  of  the  res  gestae,  and  made 

out  of  presence  of  party  sought  to  be  charged,  are  inadmissible. 
Express  Co.  vs.  Buskoenitz,  107  111.  660. 

Written    declarations    against    interest    are    competent    against 

writer,    but    self-serving   declarations    are   not   admissible   in    his 

favor. 

Ins.  Co.  vs.  Harvey,  129  App.  105. 

Letters  containing  self-serving  declarations  are  inadmissible  in 
behalf  of  party  writing  same. 

0':\leara  vs.  Cardiff  Coal  Co.,  154  App.  321. 

Declarations  of  maker  that  he  had  paid  note  he  was  destroying 

inadmissible. 

Cumins  vs.  Leighton,  9  App.  186.  (See  Letters.) 

Implied  Admissions: 

—  Destruction  and  Suppression  of  Evidence:  Destruction  or 
suppression  of  material  evidence,  or  fabrication  thereof,  is  an 
admission  that  party  has  no  right  of  recovery  if  the  case  were 

tried  on  the  evidence  in  the  ease  as  it  exists.  ^^  ■^'-""' 

Ey.  Co.  vs.  McMahon,  103  111.  485;  People  vs.  Brown,  218  111.  301; 
"Winchell  vs.  Edwards,  57  111.  41. 

—  Tender:     Tender  of  a  certain  amount  is  an  admission  that 

such  amount  is  due. 

Monroe  vs.  Chaldek,  78  111.  429. 

-^From  Siloicc:  Declarations  or  statements  made  in  the  pres- 
ence of  a  party  are  received  in  evidence,  not  as  evidence  in  them- 
selves, but  to  understand  what  reply  the  party  to  be  affected  should 
make  to  them.  Even  if  he  makes  no  reply,  the  statement  is  still 
admissible,  upon  the  principle  that  if  a  party  is  silent  when  he 
ought  to  have  replied  the  presumption  of  acquiescence  arises.   And 

the  same  rule  applies  in  criminal  cases. 

"Watt  vs.  People,  126  111.  9;  People  vs.  Tielke,  259  111.  88. 


38  ADMlSSlOiNS  AiND  DECLxVRATIONS 

All  conversations  relating  to  the  matters  in  issue  held  or  had 
in  the  presence  and  hearing  of  the  opposite  party,  are  admissible 
in  evidence  against  such  party.     It  does  not  follow  that  every- 
thing asserted  in  his  presence  and  not  denied  is  to  be  taken  as 
true.     But  the  circumstances  are  to  be  weighed  by  the  jury  as 
having  a  tendency,  greater  or  less,  according  to  their  nature,  to 
establish  particular  facts,  by  tacit  admission. 
Mamer  vs.  Lusseni,  65  lU.  484. 
When  a  party   is   interrogated  concerning   transactions   which 
"affect  the  interests  of  another,  if  he  remains  silent,  or  answers 
falsely,   and  if  the  other  is  misled  thereby,   such  party  will  be 
bound  by  his  silence  or  false  declarations. 
Hefner  vs.  Vandolah,  57  111.  520. 
Remaining  silent  when  charged  with  commission  of  crime  will 
not  constitute  an  admission  when,  by  reason  of  promises  made, 
the  party  charged  is  under  a  duty  to  remain  silent. 
Slatterly  vs.  People,  76  111.  217. 
Declarations  in  presence  of  party  are  inadmissible  where  by  rea- 
son of  injury  he  is  in  dying  condition  and  not  capable  of  assent- 
ing to  what  was  said. 

C.  E.  I.  &  P.  Ky.  Co.  vs.  Bell,  70  111.  102. 
But  otherwise  where  injured  party  is  conscious  and  understands 

Chi.  City  By.  Co.  vs.  Bundy,  210  111.  43;   Hatcher  vs.  Quincy  Horse 
By.  Co.,  181  App.  30;   Kozlowski  vs.  Chicago,  113  App.  514. 

—  Account  Stated:  Between  business  men  accustomed  to  re- 
ceive and  accept  or  object  to  accounts  with  promptness,  the  re- 
ception and  retention  of  an  account  without  objection  for  a  rea- 
sonable time,  may  be  considered  as  an  admission  of  its  correctness. 

Peoria  G.  *S.   Co.  vs.  Tierney,  58  App.   563;    McCord  vs.   Curlee,  59 
111.  221. 

—  Reports  of  Employees:  Where  agent,  from  time  to  time, 
renders  his  employer  statements  of  the  business  and  of  the  ac- 
counts between  him  and  his  principal,  the  retention  of  the  same, 
without  objection,  may  be  accepted  as  admission  of  correctness. 

McCord  vs.  Hansen,  17  App.  118. 
So,  accounts  of  sales  rendered  monthly  by  a  commission  mer- 
chant to  the  consignor. 

Bailey  vs.  Bensley,  87  111.  556. 

Out  of  Presence  of  Adverse  Party: 

Declarations  not  made  in  presence  or  hearing  of  or  with  the 
knowledge  and  consent  of  party  sought  to  be  charged  thereby,  are 
mere  hearsay  and  inadmissible. 

Eednion  vs.  Holley,   10  App.  202;   Cotton  vs.  Holliday,   59  111.   176; 
Gray  vs.  Morey,  57  111.  221;  Bennett  vs.  Stout,  98  111.  47. 
Conversations  relative  to   material  matter,   not  made  in  pres- 
ence of  party  or  his  agent  and  concerning  condition  about  which 

party  knew  nothing,  are  inaduiissible  against  him. 

Stewart  vs.  Ey.  Co.,  163  App.  652;  Stephens  vs.  Coni.-News  Co.,  1G4 
App.  6;  Mester  vs.  Quincy  Natl.  Bank,  163  App.  645. 
Conversations  out  of  presence  of  party,  competent  where  same 
tends  to  explain  subsequent  conversations,  based  upon  it,  between 

the  parties. 

Ponting  vs.  More,  165  App.  536. 


ADMISSIONS  AND  DECLARATIONS  39 

Conversations  had  out  of  presence  of  party  against  whom  they 
are  offered  are  competent  if  they  form  part  of  the  res  gestae,  and 
tend  to  prove  issues  of  fact  before  the  jury. 
Benedict  vs.  Dakin,  148  App.  301. 

Except  for  purpose  of  impeachment  and  when  they  form  part 
of  the  res  gestae,  conversations  had  out  of  presence  of  party  sought 
to  be  charged  are  incompetent. 

E.  J.  &  E.  E.  E.  Co.  vs.  Lawlor,  132  App.  280. 

Admissions  of  a  party  for  himself  are  not  admissible  in  refer- 
ence to  a  matter  in  dispute  when  made  out  of  presence  of  party 
against  whom  they  are  ottered. 

Aiken  vs.  Hodge,  61  111.  436. 

Declarations  of  one  party  to  a  contract,  made  in  absence  of 
other  party,  are  not  admissible  for  the  purpose  of  binding  the 
latter. 

Vail  vs.  Eynearson,  249  111.  501. 
Where  prima  facie  case  of  joint  liability  is  made,  acts  and  dec- 
larations of  one  of  the  parties  alleged  to  be  jointly  liable,  are  ad- 
missible in  aid  of  such  prima  facie  case,  although  not  made  in 
presence  of  others. 

Thomas  vs.  Mosher,  128  App.  479. 
Testimony  as  to  declarations  in  his  own  favor,  made  by  party 
to  action,  but  not  in  presence  of  adverse  party,  not  competent  evi- 
dence for  the  former. 

Wright  vs.  Eaftree,  181  111.  464. 
Declarations  of  tenants  in  common   incompetent   against  each 
other. 

Keegan  vs.  Kinnaire^  12  App.  484. 
The  exception  to  the  rule,  wdierein  the  declarations  of  one  party, 
not  made  in  presence  or  with  the  express  or  implied  concurrence 
of  adverse  party,  whom  they  affect,  are  admissible  in  evidence,  are 
limited  by  the  books  to  dying  declarations  accompanied  by  and  ex- 
planatory of  facts,  so  as  to  form  a  part  of  the  res  gestae]  evidence 
of  general  character,  declarations  as  to  present  state  of  health,  or 
expressive  of  condition  of  mind,  etc.,  family  pedigree  and  ancient 
boundaries,  monuments  and  other  public  matters  falling  under  the 
same  principle.  ♦ 

Weyrich  vs.  People,  89  111,  90. 
In  an  action  for  falsely  assuming  to  be  plaintiff's  agent  to  sell 
land  and  making  a  sale  thereof,  where  the  facts  show  a  combi- 
nation or  collusion  between  defendant  and  purchaser  to  effect  a 
common  purpose,  the  declarations  of  the  purchaser  are  admissi- 
ble against  defendant,  though  not  made  in  his  presence. 
Philpot  vs.  Taylor,  75  111.  309. 

The  title  or  interest  of  a  party  in  land  in  possession  of  an- 
other, claiming  under  a  conveyance,  cannot  be  established  or  shown 
by  the  parol  declarations  of  the  former,  made  when  such  other 
person  is  not  present.  Such  declarations  may  be  used  against  the 
person  making  them,  but  not  in  his  favor,  or  in  favor  of  one  claim- 
ing through  him. 

Corder  vs.  Corder,  124  111.  229. 


40  ADMISSIONS  AND  DECLARATIONS 

Heirs   cannot   bind    other   heirs   by    any    admissions   or    state- 
ments they  misrht  make  in  their  absence. 
Stitzel  vs.  Miller,  250  111.  72. 
Where  jiarties  enter  into  contract  to  complete  business  trans- 
action, and  it  is  sought  to  charge  one  for  money  loaned  him  by 
other   members,    declarations   of   other   members   when   defendant 
was   absent,    and   prior   to    his   connection   with   the   speculation, 
and  not  communicated  to  him  are  not  admissible. 
Aiken  vs.  Hodge,  61  111.  436. 
The  declaration  c^'  plaintiff's  agent,  made  in  absence  of  defend- 
ant, in  respect  to  sale  of  land  to  defendant,  and  the  title  to  lands 
received  in  payment,  are  not  competent  evidence  against  the  de- 
fendant. 

Primm  vs.  Legg,  67  111.  500. 

Whole  of  Utterance: 

See  Whole  op  Utterance. 
Compromise  and  Settlement: 

See  Compromise  and  Settlement. 
Weak  Minded  Persons: 

Admissions  of  a  distracted  person  are  not  binding  on  him,  and 

do  not  constitute  substantive  proof. 
Seaverns  vs.  Broffey,  155  App.  10. 
The  fact  that  a  person  has  a  conservator  does,  not  necessarily 
render  his  declarations,   made  as  to  his  relationship   to   another, 

incompetent. 

Champion  vs.  McCarty,  228  111.  87. 

Parties  to  Record: 

—  In  General:     Voluntary  admissions  or  statements  of  fact  by 

a  party  to  a  suit  are  competent  as  evidence  against  him. 

Ashlock   vs.   Linder,    50   111.    169;    Bobbins   vs.    Butler,    24   111.    387; 
Thomas  vs.  Hess,  51  App.   274;   Getsleman  vs.   Schuman,  22  App. 
167;  XII  111.  Notes  497,  §169. 
Admissions   are   receivable,   primarily,   because   of   their   incon- 
sistency with  the  party's  present  claim  and  irrespective  of  their 
credit  as  assertions ;  the  offerer  of  the  admissions,  in  other  words, 
does  not  necessarily  predicate  their  truth,  but  uses  them  merely 
to  overthroAv  a  contrary  position  novt^  asserted. 
Devine  vs.  Stepanek,  176  App.  61. 
The  admissions  of  a  party  to  a  civil  suit,  knowing  his  rights, 
are  strong  evidence  against  him,  but  he  is  at  liberty  to  prove  that 
such  admissions  were  mistaken,  or  were  untrue,  unless  some  other 
person  has  been  induced  to  alter  his  condition,  in  which  case  he 
is,  as  to  such  other  person,  or  those  claiming  under  him,  but  not  as 
to  others,  estopped  from  disputing  their  truth. 

Ray  vs.  Bell,  24  111.  444;  Young  vs.  Foote,  43  111.  33. 
Statements  made  by  one  of  the  parties  to  a  suit,  not  in  a  nego- 
tiation between  them  for  compromise,  but  to  a  third  person,  and 
not  in  confidence,  although  made  with  a  view  to  effect  a  compro- 
mise, are  admissible  against  party  making  them. 
Ashlock  vs.  Linder,  50  111.  169. 
Admissions  made  before  a  person  was  appointed  administrator 
in  a  given  case  are  not  evidence  against  him  when  suing  as  such, 

nor  against  his  successor  so  bringing  suit. 

Gooding  vs.  U.  S.  Life  Ins.  Qo.,  46  App.  307. 


ADMISSIONS  AND  DECLARATIONS  41 

A  written  instrument,  which  is  introduced  in  evidence  as  an 
admission,  and  to  prove  the  execution  of  contract  therein  men- 
tioned, must  be  accepted,  not  only  as  proof  of  the  execution  of  the 

contract,  but  of  the  purpose  of  its  execution  as  therein  described. 
Jeffery  vs.  Eobbins,  167  111.  375. 

Evidence  offered   by   one   of  the  parties  to  a  suit,   to   pi'ove   a 

specific  fact,  and  ruled  out  on  the  objection  of  the  other,  cannot 

be  relied  on  bv  the  latter  as  proof,  or  the  admission  of  anything. 
Powell  Vs.  McCord,  121  111.  330. 

Admissions  of  one  of  several  parties  to  a  bill  in  chancery  are 

not  evidence  against  others  whose  interests  are  adverse. 
Hitt  vs.  Ormsbee,  12  111.  166. 

—  Nominal  Party:  The  admissions  of  a  nominal  plaintiff  will 
be  received  to  l)ind  a  beneficial  one  if  they  were  made  in  the  pres- 
ence of  the  beneficial  one  and  he  does  not  contradict  them.  And 
if  the  nominal  plaintiff  acts  as  his  agent,  the  beneficial  plaintiff' 
will  be  bound  by  his  admissions  when  within  the  scope  of  his  au- 
thority. 

Ilungate  vs.  Rankin,  20  111.  639. 

Declarations  of  noiuinal   plaintiff,    after   parting  with  his   in- 
terest, are  not  admissible  to  defeat  action. 
Dazey  vs.  Mills,  10  111.  67. 

Parties  in  Interest : 

Admissions  of  joint  obligors  are  competent  as  to  all. 

Thomas  vs.  Moslier,  128  App.  479;   Tolev  vs.  Bishop,  84  App.  278. 

Admission  by  one  of  several  parties  having  a  joint  interest  is  in 

general  competent  against  all. 

McMillan  vs.  McDill,  110  111.  47;   Miller  vs.  Mathias,  145  App.  465. 

Where  there  are  several  parties  on  the  same  side,  the  admis- 
sions of  one  are  not  admissible  to  affect  the  others  who  are  joined 
with  him,  unless  there  is  some  joint  interest  or  privity  in  design 
between  them. 

Rogers  vs.  Suttle,  19  App.  163. 
In  civil  cases,  the  declarations  and  admissions  of  the  party  really 
interested,  although  not  a  party  to  the  suit,  are  evidence  as  the 
law  in  respect  to  admissions  regards  the  real  party  in  interest. 
McCoy  vs.  People,  71  111.  111. 

The  admissions  of  cestui  que  trust  of  a  bond,  those  of  the  per- 
sons interested  in  a  policy  of  life  insurance  in  another's  name  for 
their  benefit,  those  of  the  ship-owners  in  action  by  the  master  for 
freight,  those  of  the  indemnifying  creditor  in  action  against  the 
high  sheriff,  and  those  of  the  deputy  sheriff  in  action  against  the 
high  sheriff'  for  the  misconduct  of  the  deputy  are  admissible,  such 

parties  being  the  real  parties  in  interest. 
Grimshaw  vs.  Paul,  76  111.  164. 

Third  Parties: 

—  Ill  General:  Admissions  of  persons  not  parties  to  suit  nor 
interested  in  the  event  thereof,  are  not  admissible  against  parties 

to  suit. 

Grimshaw  vs.  Paul,  76  111.  164. 

Admissions   of   third   persons   are   not   admissible   unless   party 

against  whom  thev  were  oft'ered  is  connected  with  them. 
Aiken  vs.  Hodge,  61  111.  436. 


42  ADMISSIONS  AND  DECLARATIONS 

The  general  statements  of  persons  neither  parties  to  the  record 
nor  in  privity  with  the  party  against  whom  they  are  sought  to 
be  used,  are  not  admissible  in  evidence. 
Montgomery  vs.  Brush,  121  111.  513. 

Book  accounts  of  strangers  and  not  between  parties  are  not 
admissible  as  admissions  or  corroborative  evidence. 

West  Chi.  St.  By.  Co.  vs.  Moras,  111  App.  531;   Boyd  vs.  Yerkes, 
25  App.  527. 

An  admission  by  a  stranger  cannot  be  received  as  evidence  against 
any  party,  for  it  may  have  been  made,  not  because  the  fact  ad- 
mitted was  true,  but  from  motives  and  under  circumstances  entirely 
collateral,  or  even  collusively  for  the  purpose  of  being  offered  in 
evidence. 

Eoche  vs.  Day,  20  App.  417. 
The  statements  or  admissions  of  third  parties  are  hearsay,  and, 
as  a  general  rule,  not  admissible.  The  admissions  of  the  injured 
person  cannot  be  used  by  accused  except  by  way  of  impeachment, 
for  the  State  is  not  bound  by  the  mere  hearsay  testimony  of  the 
injured  party. 

People  vs.  Pezutto,  255  111.  583;  People  vs.  Carleton,  150  111.  181. 

The  fact  that  a  message  M^as  sent  by  one  person  to  another,  and 
what  the  character  of  such  alleged  message  was  cannot  be  proven 
by  person  receiving  same,  where  his  testimony  is  based  solely  upon 
hearsay  statements  of  person  delivering  message. 
C.  &  A.  E.  E.  Co.  vs.  Jennings,  217  111.  494. 

—  Community  of  Inter  est:  Declarations  of  one  of  the  parties 
is  evidence  against  the  rest,  where  there  is  a  community  of  interest 
and  design. 

Snider  vs.  Lefromboise,  1  111.  343. 

—  Parties  Referred  to  For  Information:  The  statements  or 
admissions  of  a  third  party  are  receivable  in  evidence  against  the 
party  who  has  expressly  referred  another  to  him  for  information 
in  regard  to  an  uncertain  or  disputed  matter. 

Bartoletti  vs.  Hoerner,  154  App.  336;  McBride  vs.  Griffin.  59  111.  227. 

Deceased  Persons: 

—  In  General:  Admissions  made  by  deceased  in  his  lifetime, 
against  his  interest,  are  competent  after  his  death. 

Schell  vs.  Weaver,  225  111.  159. 

■ — Testator:    See  Wills. 

—  li elating  to  Title:  Declarations  and  statements  of  a  deceased 
person  regarding  his  title  or  interest  in  real  estate  are  competent 

evidence  in  favor  of  his  heirs-at-law. 

Kotz  vs.  Belz,  178  111.  434;  Laneey  vs.  Block,  110  111.  609;  Fyffe  vs. 
Fyffe,  106  111.  646. 
Evidence  of  the  declarations  of  a  deceased  person,  regarding 
his  title  to  or  interest  in  real  estate,  whilst  in  possession,  are  com- 
petent evidence  against  the  claim  of  title  of  his  heirs  at  law  who 

have  inherited  such  propertv. 

Rust  vs.  Mansfield,  25  111.  336. 
And  are  competent  against  heirs  as  to  value. 
Hunter  vs.  San.  Dist.,  179  App.  172. 

—  Gifts:  The  declarations  of  a  deceased  party,  while  living 
with  a  step-son,  that  he  intended  giving  the  step-son  a  note  held 


ADMISSIONS  AND  DECLARATIONS  43 

against  him,  does  not  give  the  step-son  legal  claim  to  have  the 
note  surrendered  to  him,  nor  is  it  any  defense  for  action  upon  it. 
Myers  vs.  Maleomb,  20  111.  621. 

Declarations  of  deceased  donor  as  to  intention  are  inadmissible 
to  show  what  she  did  in  respect  to  her  property,  either  bywill  or 
gift. 

Barnum  vs.  Eeed,  136  111.  388. 
Declarations    of   deceased,    before    and    after   an    actual    deliv- 
ery, are  admissible  on  question  of  intention.. 
Mclutosh  vs.  Fisher,  125  App.  511. 

—  To  Impeach  Contracts:  Statements  of  a  deceased  person, 
made  during  her  lifetime,  with  reference  to  a  contract  with  her 
physician,  as  to  her  reason  for  executing  it,  and  services  rendered, 
are  inadmissible  to  negative  such  contract. 

Ziegler  vs.  111.  T.  &  S.  Bank,  245  111.  180. 

"Where  a  sister  carried  out  her  contract  to  live  with  her  brother 
and  assist  him  in  running  his  farm,  in  consideration  of  his  leav- 
ing her  all  his  property  at  his  death,  statements  made  during 
his  last  illness,  concerning  the  disposition  cf  estate,  inconsistent 
with  existence  of  contract,  are  inadmissible  to  negative  such  con- 
tract. 

Dalby  vs.  Maxfield,  244  111.  214. 

—  To  Show  Suicide:  On  the  trial  of  a  wife  and  her  paramour 
for  the  murder  of  her  husband  by  administering  to  him  poison, 
declarations  of  deceased,  made  at  different  times  within  the  year 
before  his  death,  and  prior  to  the  last  sickness,  that  he  intended 
to  take  his  own  life,  not  accompanied  by  an  act  of  the  deceased 
which  they  might  explain,  being  merely  hearsay,  are  not  admissible 
on  the  part  of  tlie  defense. 

Siobert  vs.  People,  143  111.  571. 

—  To  Estahlish  Heirship:  Where  defendants  to  a  bill  for  par- 
tition claim  title  to  the  property  as  children  of  the  deceased  life 
tenant,  their  relationship  is  established  by  the  uncontradicted 
declarations  of  the  life  tenant  that  they  were  her  children,  and  by 
testimony  that  they  had  always  lived  with  her  during  their  child- 
hood. 

Chilvers  vs.  Eace,  196  111.  71. 

—  To  Show  Assignment  of  Note:  On  contest  between  an  execu- 
tor or  an  heir,  and  the  wiclow  of  decedent,  as  to  whether  he  as- 
signed a  note  to  his  wife  by  way  of  gift,  the  declarations  of  the 
testator  in  his  lifetime,  in  reference  to  providing  for  bis  wife, 
are  competent  evidence  in  her  behalf,  as  directly  tending  to  show 
that  such  gift  as  claimed  might  probably  have  been  made,  and  that 
such  gift  was  perfectly  consistent  with  his  avowed  purpose  and 

feelings. 

Eiggs  vs.  Powell,  142  111.  453. 

Admissions  and  declarations  of  a  deceased  person  against  his 
interest,  tending  to  show  delivery  of  a  note  intended  as  collateral 
security  for  money  received  by  him  from  his  mother  for  invest- 
ment, are  admissible  against  his  wife,  in  suit  wherein  she  defends 
as  devisee  and  legatee  of  the  husband. 

First  Natl.  Bank  vs.  Bennett,  215  111.  398. 


44  ADMISSIONS  AND   DECLARATIONS 

—  Marriage:    Admissions  of  deceased  person  are  admissible  to 

establish  marriage. 

Lawrence  vs.  Lawrence,  164  111.  367.     (See  Formkr  Testimony.) 

Counsel : 

—  ISght  to  Make:  An  attorney  or  solicitor  retained  in  a  case, 
from  the  natnre  of  the  employment,  may,  on  the  trial  or  hearing 
of  the  cause,  make  admissions  and  waive  the  right  of  his  client, 
which  will  be  as  binding  as  if  made  by  himself,  in  absence  of 

fraudulent  collusion  with  the  other  party. 

Wilson  vs.  Spring,  64  111.  14. 
^'■'But  an  attorney  appointed  to  defend  an  estate  against  a  claim 
presented  by  the  administrator  is  not  competent  to  make  an  ad- 
mission which  will  bind  estate. 

Keuuegar  vs.  Kennegar,  168  App.  276. 

—  liiglit  to  Withdraw:  An  admission  by  counsel  may  be  with- 
drawn by  permission  of  the  court,  where  adverse  party  is  deprived 
of  no  right,  and  party  making  it  is  given  no  undue  advantage 

thereby. 

Sullivan  vs.  Eddy,  154  111.  199. 

—  To  Avoid  Continuance:  Admission  that  an  absent  witness 
would  testify  to  certain  facts,  to  avoid  a  continuance,  is  a  judicial 
admission  which  the  party  cannot  be  permitted  to  dispute. 

Ry.  Co.  vs.  Duffiii,  126  111.  100. 
An  admission,  made  to  prevent  a  continuance,  in  action  on 
policy  of  insurance,  that  certain  papers  showed  a  bill  of  sale  from 
the  assured,  absolute  on  its  face,  made  after  the  policy  and  before 
the  loss,  is  not  an  admission  of  the  sale  of  the  property  insured, 
and  does  not  preclude  the  party  from  showing  the  transaction 
was,  in  fact,  only  a  mortgage. 

Natl.  Ins."  Co.  vs.  Webster,  S3  Til.  470. 

—  Made  at  Former  Trial:  Admissions  of  attorney  of  adverse 
party,  made  at  former  trial  of  cause,  are  admissible  and  may  be 
established  by  calling  attorney  who  made  such  admissions. 

Kirchenlieimer  vs.  Bai'rett,   125  App.   56;    Home  Ins.   Co.   vs.  Field, 
53  App.  119. 

An  admission  of  counsel,  made  only  for  purpose  of  a  trial  at 
one  term  of  court,  cannot  be  used  as  evidence  on  a  subsequent 
trial  of  the  same  cause,  unless  l)y  consent. 
Hardin  vs.  Forsytlie,  99  111.  312. 

—  By  Silence:  Silence  following  statements  by  opposing  coun- 
sel, in  presence  of  court,  jury  and  counsel,  that  a  certain  fact  is 
admitted,  implies  concurrence  in  such  statement. 

Graham  vs.  Kockford,  142  App.  306. 

—  Effect:  An  admission  of  counsel  in  open  court,  with  respect 
to  questions  in  issue,  has  same  effect  as  testimony. 

Todd  vs.  Daniels,  153  App.  223. 
Admissions   by   counsel   of   specific   liability   excludes   necessity 

of  proof  to  establish  liability  so  admitted. 
F.  &  C.  Co.  vs.  Morrison,  129  App.  360. 
An  admission  by  counsel  for  plaintiff,  in  action  of  trespass  for 
damages  for  unlawful  seizure  and  retention  of  goods  by  replevin, 


ADMISSIONS  AND  DECLARATIONS  45 

that  a  suit  on  the  replevin  bond  had  been  prosecuted  to  judgment 
and  satisfaction,  may  be  considered  by  the  court  as  part  of  phiin- 
titf's  ease,  although  made  while  the  court  was  considering  defend- 
ant's motion,  ottered  at  close  of  plaintitf's  evidence,  to  direct  a 
verdict  in  his  favor. 

Kapischki  vs.  Koch,  ISO  111.  44. 

Where  an  attorney,  during  trial,  makes  an  admission  of  a  par- 
ticular fact  in  issue,  he  is  thereafter  estopped  to  deny  such  fact 
and  no  proof  is  required. 

Bechat  vs.  Knisley,  144  App.  551.   (See  Stipulations.) 

Officers : 

Admission  by  officer  that  he  owed  a  certain  amount,  is  evidence 
of  such  fact  against  himself  and  his  co-obligors  in  action  on  bond. 

Swift  vs.  Trustees  of  Schools,  189  111.  584;  People  vs.  T.  H.  &  S.  Co., 
156  App.  488. 

Declarations  of  county  commissioners  are  not  evidence  against 
county  unless  made  while  they  were  acting  as  representatives  of 
county. 
4p.!.  ,,  .-County  of  LaSalle  vs.  Simmons,  10  111.  513. 

Declaration  of  officer  after  retiring  from  office  inadmissible. 
School  Directors  vs.  Wallace,  9  App.  312. 

Partnership : 

—  When  Existence  of  Partnership  in  Question:  There  is  a 
clear  and  j^alpable  difference  between  the  admissions  of  a  part- 
ner to  Ihnd  the  firm  after  its  existence  is  established,  and  the  admis- 
sions of  a  person  who  claims  to  be  a  member  of  a  firm,  the  exist- 
e^ij(?evof  which  is  in  issue,  and  to  prove  which,  evidence  is  being 
heard. 

Ilahn  vs.  Ins.  Co.,  50  111.  456. 

Where  alleged  partner  puts  the  fact  of  partnership  in  issue,  the 
admissions  or  statements  of  his  co-defendant  are  not,  in  absence 
of  evidence  tending  to  establish  a  partnership,  admissible. 

Conlan  vs.  Mead,  172  111.  13;  Hahn  vs.  Savings  Co.,  50  111.  456; 
Montgomery  vs.  Black,  25  App.  24;  Bartlett  vs.  Wilcox,  68  App. 
142;  Hohenadel  vs.  Ellsworth,  154  App.  484. 

If  the  existence  of  a  partnership  relation  has  been  prima  facie 
established,  the  acts  and  declarations  of  the  alleged  co-partners, 
though  not  done  or  made  in  each  other's  presence,  are  admissible 
in'  aid  of  the  prima  facie  case. 
-4'A-;      ■     Daugherty  vs.  Heckard,  189  111.  239;  Conlan  vs.  Mead,  172  111.  13. 

—  To   Show   Existence    of  Partnership:      Partnership    may    be 

proven  by  evidence  that  each  of  alleged  partners  had  admitted 

its  existence. 

Gordon  vs.  Bankard,  37  111.  147. 

Instituting  action  to  recover  goods  is  an  admission  by  one  of 

two  parties,  who  subsequently  sue  as  a  partnership  to  recover  the 

value  of  same  goods,  that  there  was  no  partnership. 
';■'""        C.  &  A.  Ey.  Co.  vs.  Mahan,  42  111.  158. 

In  action  between  partners,  where  fact  of  partnership  is  put  in 
issue  by  one,  admissions  and  statements  of  co-defendant,  in  his 
absence,  in  reference  to  existence  of  such  partnership,  are  not  ad- 
missible, in  absence  of  other  evidence  establishing  same. 

Conlan  vs.  Mead,  172  111.  13 ;  Hohenadel  vs.  Ellsworth,  154  App.  484. 


46  ADMISSIONS  AND  DECLARATIONS 

Neither  the  statement  of  one  defendant  that  he  was  going  into 
the  house,  nor  the  fact  that  he  occupied  a  portion  of  the  house  in 
the  auction  business,  nor  that  he  sold  tickets  for  the  other  de- 
fendant's opera  house,  he  acting  as  treasurer,  his  name  being 
printed  on  the  bills  as  treasurer,  will  prove  that  he  was  a  partner 

in  the  opera  house. 

Parker  vs.  Fergus,  43  111.  437. 

—  After  Dissolution:  The  written  or  verbal  statements  of  one 
of  several  co-partners,  made  after  dissolution,  in  relation  to  part- 
nership transactions  arising  prior  to  that  event,  are  incompetent 
to  charge  other  members  of  the  firm. 

Miller  vs.  Neimerick,  19  111.  172;  Winslow  vs.  Newlan,  45  lU.  145. 
Admissions  made  by  one  of  several  partners,  if  made  while  the 
partnership  existed,  are  evidence  against  the  others.  Such  admis- 
sions, if  made  after  dissolution,  are  sometimes  evidence  as  to 
co-partners,  but  as  a  general  rule,  they  are  not  evidence  against 
those  who  had  a  joint  interest  which  has  ceased  to  exist. 

Hitt  vs.  Allen,  13  111.  592. 

—  Admissions  of  Dormant  Partner:  When  it  has  been  proven  that 

a  person  is  a  partner,  though  a  dormant  one,  it  is  competent  to 

give  his  admissions  in  evidence  against  his  partners,  if  they  relate 

to  partnership  business. 

Kaskaskia  Bridge  Co.  vs.  Shannon,  6  111.  15. 

—  Relating  to  Book  Entries:  The  declaration  of  one  partner 
with  reference  to  entry  upon  the  books,  open  to  the  inspection  of 
all  the  partners,  stating  why  it  was  made,  and  explaining  the 
transaction,  is  proper  proof,  such  declaration  being  part  of  the 

res  gestae. 

Hurd  vs.  Haggerty,  24  111.  172, 

—  As  Limited  hij  Scope  of  Business:  A  partner  can  only  bind 
a  co-partner  by  his  admissions  within  the  scope  of  the  business  of 

the  firm. 

Hahn  vs.  Ins.  Co.,  50  111.  456. 
When  a  note  made  in  the  name  of  one  partner  is  sued  on,  and 
there  is  no  evidence  to  show  it  was  a  partnership  debt,  the  dec- 
larations of  the  maker  cannot  be  used  for  such  purpose,  but  if  it 
has  been  executed  in  the  partnership  name,  and  attacked  as  hav- 
ing been  made  by  an  individual  partner  to  pay  his  own  debt,  then 
the  declarations  of  the  partner  who  executed  the  note  are  admissi- 
ble. 

Hurd  vs.  Haggerty,  24  111.  172. 

Principal  and  Agent: 

—  In  General:  Before  the  declarations  of  an  agent  can  ever  be 
admitted  as  evidence,  it  must  appear  that,  at  the  very  time  of 
making  the  declarations,  he  was  transacting  or  doing  something 
about  the  business  of  his  principal,  so  that  his  acts  and  declarations 
become  and  form,  of  themselves,  a  part  of  the  res  gestae.  Under 
such  circumstances  the  acts  and  declarations  of  the  agent  may  be 
proved  as  any  other  affirmative  fact  in  the  case,  but  not  otherwise. 
If  a  fact  rests  in  the  knowledge  of  the  agent,  which  is  material  to 
the  issue  between  the  parties,  the  party  desiring  such  testimony 


ADMISSIONS  AND  DECLARATIONS  47 

must  call  the  agent  himself  as  a  witness.     He  certainly  cannot  be 
permitted  to  prove  his  mere  declarations. 

Jenks  vs.  Burr,  56  111.  450 ;  Young  vs.  Grand  Lodge,  149  App.  603. 
The  declarations  of  an  agent  of  a  compajtiy  whether  incorporated 
or  not  are  only  admissible  in  evidence  against  the  company  when 
they  form  a  part  of  the  res  gestae  of  some  business  transacted 
by  him  for  his  principal  within  the  scope  of  his  authority. 

Lincoln  Coal  Mining  Co.  vs.  McNally,  15  App.  181. 

Before  acts,  declarations  or  representations  of  an  alleged  agent 
are  admissible  in  evidence  against  the  principal,  there  must  be 
first  a  prima  facie  showing  of  the  authority  of  the  agent. 

Eeynolds  vs.  Ferree,  86  111.  570;  Schoenhofen  vs.  Wengler,  57  App. 

—  Fact  of  Agency:  Between  principal  and  third  person,  fact 
of  agency  cannot  be  established  by  declarations  of  alleged  agent 
or  what  he  did. 

Bank  vs.  Nichols,  223  111.  41;  Bank  vs.  Schott,  135  111.  655;  Proctor 
vs.  Tows,  115  111.  138;  Safety  Device  Co.  vs.  Iron  Works,  153  App. 
313;  Taylor  vs.  Osborne,  86  App.  465;  XIV  111.  Notes  107,  §  234. 

An  agent  may  testify  to  statements  made  at  time  agency  is  cre- 
ated. 

Leonard  vs.  Heevner,  171  App.  188, 

The  fact  of  agency  may  be  shown  by  conversations  between 
principal  and  agent,  though  not  in  presence  of  party  seeking  to 
prove  such  agency. 

Rice  vs.  Int.  Bank,  185  111.  422. 

And   this  though   conversation   is   between  husband   and   wife. 
McDonald  vs.  Crosby,  192  111.  283. 

—  Necessity  of  Authority  in  Agent:  An  admission  of  an  al- 
leged agent  does  not  bind  principal  in  absence  of  proof  of  agent's 
authority. 

Skarkowska  vs.  Brew.  Co.,  152  App.  48. 
A  paper  from  one  bank  to  another,  giving  signatures  of  per- 
sons authorized  to  sign  instruments  for  it,  is  an  admission  of  au- 
thority of  person  whose  signature  appears  therein,  to  sign  instru- 
ments. 

Crane  vs.  Bank,  114  111.  516. 

—  To  Enlarge  Agent's  Authority:  Evidence  of  declarations  of 
agent  is  not  admissible  against  principal,  for  proving  or  enlarging 
his  authority. 

Sonnenschein  vs.  Malter  Co.,  144  App.  183. 

—  To  Prove  Conversion  hy  Agent:  In  action  by  a  principal  to 
recover  from  estate  of  agent  the  value  of  shares  of  stock  appro- 
priated by  him,  duly  signed  by  the  principal,  fact  that  certifi- 
cates bear  assignments  does  not  preclude  the  evidence  of  admissions 
made  by  him  tending  to  prove  the  stock  was  the  principal's  which 
he  had  appropriated  to  his  use  without  consent,  where  there  is  no 
evidence  that  he  paid  anything  for  the  stock  or  that  it  was  a  gift 
to  him. 

McDonald  vs.  Danahy,  196  111.  133. 

—  Relating  to  Matters  Within  Scope  of  Emploifment:  Declara- 
tions  of  an  employe,   not  made   while   in   performance   of  duty, 


48  ADMISSIONS  AND  DECLARATIONS 

though  in  presence  of  the  principal,  are  not  part  of  the  /  c^  gestae, 
and  are  not  binding  as  admissions  against  such  principal. 

Davis  vs.  Gwin,  162  App.  72 ;  Gould  vs.  A.  E.  &  C.  Ky.  Co.,  141  App. 
344;  Mich.  Cent.  Ey.  Co.  vs.  Gougar,  55  111.  503. 
Declarations  of  a  station  agent  are  not  admissible  against  the 
company,  where  the  agent  was  not  employed  at  that  station  until 
sometime  after  the  transaction  to  which  his  declarations  relate. 
Penn  Co.  vs.  Bridge  Co.,  170  111.  645. 
Declarations  of  an  agent,  made  while  performing  work  for  his 
concern,  are  competent  against  principal,  especially  where  no  evi- 
dence to  dispute  the  authority  of  such'  agent  to  make  such  declara- 
tions is  offered. 

Case  Mach,  Co.  vs.  Eoss,  149  App.  616. 
The  declaration  of  an  agent  within  the  scope  of  his  authority  are 
properly  admissible  in  evidence  against  his  principal. 
"^Cook  vs.  Hunt,  24  111.  536. 
Statements   of   a   party's   son   are   not   admissilile   in    evidence 
against  the  objection  of  the  father,  without  proof  that   son   was 
the  agent  of  his  father,  and  authorized,  by  the  terms  of  his  agency, 
to  make  the  arrangement  claimed  to  have  been  made  by  him. 
Eeynolds  vs.  Ferree,  86  111.  570, 
Declarations  of  an  agent,  within  the  scope  of  authority  and  relat- 
ing to  the  transactions  then  being  performed  as  agent,  are  com- 
petent to  be  received  against  the  principal. 

Matzenbaugh  vs.   People,   194  111.  108;   Hungate  vs.  Eankin,   20  111. 
639;  Cheney  vs.  Beatty,  56  App.  90. 
The  conversation  of  an  agent,  relative  to  the  principal's  busi- 
ness, at  a  time  when  discharging  his  duties,  is  competent  against 

the  principal. 

Welty  vs.  C.  E.  I.  &  P.  Ey.  Co.,  163  App.  86;  Osgood  vs.  Poole,  165 
App.  63.  iii'.jn 

Where  the  question  is,  as  to  the  extent  of  an  agent's  authority, 
under  a  certain  letter  written  him  by  his  principal,  and  such  let- 
ter refers  to  a  former  conversation  had  between  the  parties,  and 
is-  obscure  but  for  thd  light  thrown  upon  it  by  such  conversation 
upon  the  same  subject,  it  is  indispensable  for  a  correct  solution 
that  the  jury  should  consider  such  previous  conversations,  in  con- 
nection with  the  letter,  and  so  ascertain  the  extent  of  the  authority 
previously  conferred,  and  its  limitations. 

Durham  vs.  Gill,  48  111.  151. 
It  is  a  general  rule  that  where  the  acts  of  the  agent  will  bind 
a  principal,  there  his  representations,  declarations  and  admissions 
respecting  the  subject  matter  will  alsor- bind  him,  if  made  at  the 
same  time  and  constituting  a  part  of  the  res  gestae.  But  the  dec- 
larations of  an  agent  not  made  .in;  the  presence  of  the  principal, 
and  not  while  the  agent  is  doing  any  act  in  respect  to  the  subject 
matter  of  the  agency,  will  not  bind  the  principal  or  his  privies, 

and  is  not  evidence  against  either. 

Lindbloni  vs.  Eansey,  75  111.  246. 

Declarations  as  to  tlie  intended  use  of  a  strip  of  land  sought  to 
be  condemned,  made  by  the  right  of  way  agent  of  petitioning  rail- 
road company  who  was  not  the  general  officer,  made  while  try- 


ADMISSIONS  AND  DECLARATIONS  49 

ing  to  settle  with  property  owners,  are  inadmissible  as  not  being 
within  any  actual  or  apparent  authority  of  such  agent. 
Hodgeson  vs.  St.  L.  &  St.  P.  Uy.  Co.,  160  111.  430. 

A  conversation  with  a  brakenian  as  to  time  a  passenger  would 
have  to  get  a  ticket  is  admissible  against  company  where  evidence 
shows  the  starting  of  the  train  was  within  the  scope  of  the  brake- 
man's  authority. 

C.  &  A.  Ey.  Co.  vs.  Flaherty,  202  111.  151. 

A  conversation  between  conductor  and  a  passenger,  with  refer- 
ence to  his  getting  olf  at  a  station  to  have  his  baggage  re-checked 
is  admissil)le  in  action  by  passenger  for  injuries  received  in  at- 
tempting to  re-board  the  moving  train. 

Testimony  by  plaintiff  that  some  one  told  him  to  "Hurry  up, 
get  on  there."  as  he  attempted  to  board  a  moving  train  is  prop- 
erly admitted,  even  though  the  plaintilf  is  unable  to  testify  that 
it  was  the  conductor  who  spoke,  where  the  fact  that  it  was  the  con- 
ductor is  shown  by  other  testimonv. 

C.  &  A.  Ky."  Co.  vs.  Gore,  202  111.  ISS. 

The  statements  of  an  agent,   made  when  carrying  out  the  in- 
structions of  his  principal,  are  admissible  as  against  principal. 
People  vs.  MeCann,  247  111.  130. 

The  stipulation   of  an  agent  of   defendant  as  to  amount   due 
under  deed  of  trust,  on  bill  to  redeem,  may  be  acted  upon  by  the 
court  in  stating  the  account,  treating  it  as  a  parol  admission  of  an 
agent  acting  within  his  authority. 
Willemiii  vs.  Duun,  93  111.  511. 

In  suit  against  trustees  of  church  to  recover  money  paid  for 
building  church,  the  admission  of  building  committee,  made  after 
work  was  completed,  and  beyond  the  purpose  for  which  they  were 
appointed,  couhl  not  bind  the  trustees. 
Thomas  vs.  Kutledge,  67  111.  213. 

—  Relating  to  Pending  Negotiations:  The  admissions  of  an 
agent  can  bind  the  principal  only  when  they  are  made  in  regard 
to  a  transaction  then  pending. 

C.  B.  &  Q.  Ey.  Co.  vs.  Eiddle,  60  111.  534. 

Admissions  made  by  agent  long  after  transaction  occurred,  in 
answer  to  questions  and  not  in  the  usual  course  of  business,  are  in- 
admissible. 

Andolman  vs.  C.  &  N.  W.  Ey.  Co.,  153  App.  169. 

Admissions  must  be  part  of  res  gestae,  must  be  original  and  not 
hearsay,  made  during  the  continuance  of  agency  and  regards  a 
transaction  pending  at  that  time. 

Mich.  Cent.  Ey,  Co.  vs.  Gougar,  55  111.  503. 

—  After  Termination  of  Agcneg:  Declarations  made  by  agent 
at  time  of  transaction  binds  principal  but  not  when  made  to  a 
stranger  after  the  transaction. 

Waterman  vs.   Peet,   11   111.   648;    Wliitesides  vs.   Margarrell,   51  111. 
507. 

Statements  by  agent  after  termination  of  agency  are  incompe- 
tent to  bind  principal. 

Miller  vs.  Ins.  Co.,  164  App.  237. 

Ev.— 4 


50  ADMISSIONS  AND  DECLARATIONS 

Admissions  by  lins])and,   long  after   transactions   in   which   he 

acted  as  agent  of  his  wife  is  closed,  are  not  admissible  to  bind 

wife. 

Lowden  vs.  Wilson,  233  111.  340. 

—  Agent's  Books  as  Admissions  Against  Him:  The  balance 
sheet  of  a  freight  agent  returned  to  the  company,  of  the  receipts 
and  disbursements  of  his  office,  is  no  admission  on  his  part  that 
a  deficit  is  chargeable  to  him. 

C.  &  A.  Ey.  Co.  vs.  Higgins,  58  111.  128. 

—  As  Part  of  Res  Gestae:  Admissions  and  declarations  of 
agents  are  not  admissible  to  bind  principal  unless  they  constitute 
part  of  the  res  gestae,  and  were  made  at  the  time  the  transaction 
in  question  was  being  conducted. 

Lowden  vs.  Wilson,  233  111.  340 ;  Penn.  Co.  v.  Bridge  Co.,  170  111.  645 ; 
Summers  vs.  Hibbard,  153  111.  102;  Young  vs.  Grand  Lodge,  149 
App.  603. 

Statements  of  agent  made  at  time  of  sale  of  personal  property 
are  admissible  in  evidence. 

Gilson  vs.  Wood,  20  111.  35. 

Declarations  and  statements  made  by  agent  at  time  of  payment 
of  money  to  him  for  his  principal,  and  of  giving  receipt  therefor, 
are  admissible  in  evidence  against  the  i)rincipal. 
Isaacs  vs.  People,  118  111.  538. 

—  When    Agent's   Declarations   Hearsay:      The   statements   or 

declarations  of  a  party's  son,  or  other  persons  in  charge  of  his 

store,  as  to  a  fact  in  dispute,  are  only  hearsay,  without  proof  that 

such  son  or  other  persons  in  charge  were  the  party's  agents,  in 

relation  to  the  matter,  or  were  specially  authorized  by  the  party 

to  make  such  statement  for  him. 
Calahan  vs.  Myers,  89  111.  566. 

The  statements  of  an  agent,  made  at  time  of  hiring  a  party 
to  lal)or  for  his  principal,  in  reference  to  his  employment,  are  not 
hearsay,  but  pertinent  and  legitimate  evidence  against  the  prin- 
cipal in  suit  against  him  by  the  laborer  to  recover  wages.  - 

Where  plaintiff  was  employed  to  labor  for  defendant  by  one 
claiming  to  act  as  defendant's  agent,  the  fact  that  defendant, 
when  called  on  for  pay,  was  informed  by  plaintiff  that  the  agent 
claimed  to  be  such  and  failed  to  deny  the  agency  or  the  agent's 
authority  to  employ  plaintiff,  is  competent  in  suit  by  plaintiff 
against  defendant. 

Mix  vs.  Osby,  62  111.  193. 

Principal  and  Surety: 

Admissions  of  principal  are  competent  against  surety  as  well 
as  principal. 

Swisher  vs.  Deering,  204  111.  203;  Swift  vs.  Trustees,  189  111.  584; 
Magner  vs.  Knowles,  67  111.  325;  People  vs.  Title  Guaranty  Co., 
156  App.  488;  Guaranty  Co.  vs.  Mutual  B.  &  L.  Co.,  57  App.  254. 

Landlord  and  Tenant : 

AVhere  landlord  admits,  to  officer  holding  an  execution  against 
his  tenant,  when  asked  for  information  before  making  a  levy,  that 
he  had  no  lien  or  claim  on  the  tenant's  crop,  and  in  consequence 


ADMISSIONS  AND  DECLARATIONS  51 

thereof  the  same  is  levied  on  and  sold,  without  the  landlord  taking 
any  steps  to  prevent  the  same,  he  will  be  estopped  from  assert- 
ing his  lien  against  the  purchaser. 
Kinnear  vs.  Mackey,  85  111,  96, 

The  admissions  of  the  tenant  in  possession  of  property  recovered 
in  ejectment,  not  made  in  hearing  or  presence  of  defendant  in 
ejectment,  are  incompetent  as  evidence, 
Hanley  vs.  Erskiue,  19  111,  265. 

Where  a  tenant  has  made  admissions  or  declarations  as  to  the 

extent  of  his  tenancy,   they   are  admissible  against  him  in  suit 

between  him  and   his  landlord  in   respect  to  the  possession,   no 

matter  to  whom  they  were  made.     It  is  not  essential  that  such 

admissions  be  made  to  the  party  or  his  agent,  to  be  available, 
Secor  vs.  Prestania,  37  111,  525. 

Wliatever  a  tenant  may  say  as  to  the  intention  of  a  landlord 
in  reference  to  the  renewal  of  the  lease,  it  does  not  make  testimony 
for  himself. 

Wyndett  vs,  Taylor,  28  111,  239, 

Admissions  of  one  joint  lessee  is  general  evidence  against  both 
lessees. 

Miller  vs.  Mathias,  145  App,  465, 

Master  and  Servant: 

A  declaration  made  by  a  foreman  when  visiting  an  injured  ser- 
vant, as  to  the  circumstances  connected  with  the  accident  caus- 
ing the  injury,  is  not  binding  on  the  master  and  cannot  be  proven 
except  for  the  purpose  of  impeachment,  after  proper  foundation 
is  laid, 

Baier  vs,  Selke,  211  111.  512. 

Where  a  disaster  results  in  destruction  of  a  l)aggage  car  and 
its  contents  by  fire,  the  railway  company  can,  in  no  event,  be 
bound  by  the  subsequent  declarations  of  one  of  its  brakemen  as  to 
the  cause  of  the  disaster. 

Mich,  Cent,  Ey,  Co,  vs.  Carrow,  73  111,  348, 

Where  defendant  directed  its  servants  to  set  fire  to  the  dry 
grass,  weeds  and  other  combustible  material  which  had  accumu- 
lated on  the  right  of  way,  and  in  the  carrying  out  of  such  orders, 
the  fire  spread  to  the  premises  of  an  adjacent  owner  and  destroyed 
his  property,  in  suit  to  recover  damage  thus  occasioned,  any  state- 
ments made  by  company's  servants,  while  engaged  in  performance 
of  the  act,  concerning  same,  are  admissible  in  evidence  against 
the  company,  as  part  of  the  res  gestae. 
Ey,  Co.  vs.  Porter,  92  111.  437. 

Statements  made  by  a  person  as  to  amount  his  employer  owes 
another  are  not  binding  upon  principal,  but  are  proper  evidence 
to  contradict  the  witness  and  to  show  whether  he  was  disposed 
to  testify  fairly. 

Davis  vs.  Hoeppner,  44  111.  306. 

Relating  to  Negligence : 

Declaration  showing  injury  due  to  contributory  negligence  in- 
admissible when  such  negligence  no  defense. 
Elam  vs.  Majestic  Coal  Co,,  155  App.  375. 


52  ADMISSIONS  AND  DECLARATIONS 

Where  the  evidence  showed  negligence  gross  and  reckless  on 
part  of  the  company,  resulting  in  serious  injurj^  to  plaintiff,  proof 
that  plaintiff,  wliile  under  the  intiuence  of  great  pain,  and  his 
mind  confused,  if  not  unsettled,  by  the  injury,  stated  that  no  one 
was  to  blame,  will  not  excuse  the  company.  Even  if  the  declara- 
tion was  made  delil)erately,  but  the  whole  evidence  showing  tliat 
plaintiff  was  mistaken,  it  would  not  relieve  the  company  from  lia- 
bility. 

C.  &  A.  By.  Co.  vs.  Wilson,  G3  111.  167. 

Statements  by  plaintiif,  made  out  of  court  to  a  physician,  as  to 
cause  of  certain  physical  disorders,  and  as  to  having  worn  a  l^elt 
about  his  abdomen  previous  to  the  in.jury,  which  statements  are 
in  the  nature  of  admissions  or  declarations  against  interest,  are 
admissible  and  it  is  error  to  exclude  them. 
Chi.  City  Ey.  Co.  vs.  Henry,  218  111.  92. 

Defense  offered  to  prove  that  just  before  accident,  plaintiff  had 
called  for  a  drink  of  liquor,  in  a  saloon,  and  that  the  bar-keeper 
told  him  he  had  enough,  which  the  court  excluded  on  objection. 
Such  evidence  was  not  admissible  and  was  properly  refused.  The 
fact  whether  plaintiff  was  under  the  influence  of  liquor  was  sub- 
ject to  proof  the  same  as  any  other  fact  in  issue,  but  could  not  be 
proven  bv  the  declarations  of  a  third  person. 
L.  E.  &  W.  Ey.  Co.  vs.  Zoflfinger,  107  111.  199. 

Repairs  after  accident  are  not  admissible  as  admission  of  prior 
negligence. 

Hodcres  vs.  Pereival,  132  111.  53. 

Grantor  and  Grantee : 

—  Impeachment  of  Deed:  The  declarations  of  a  grantor,  made 
either  before  or  after  the  execution  of  the  deed,  are  inadmissible 
for  purpose  of  impeaching  same. 

Parties  making  deeds  cannot  invalidate  them  by  parol.  Such 
declarations  are  only  competent  for  the  purpose  of  showing  the  in- 
tention of  the  grantor  as  to  deliveiy  of  the  deed. 

Potter  vs.  Barrino-er,  23(3  111.  224;  Shielrls  vs.  Bush,  189  111.  534; 
Hagan  vs.  Waldo,  168  111.  646;  Shea  vs.  Mnrphv,  164  111.  615; 
Niccwander  vs.  Nicewander,  151  111.  156;  XII  111.  Notes  500,  §§ 
199-203. 

Even  though  he  may  not  have  yet  surrendered  the  actual  pos- 
session. 

Hart  vs.  Eandolph,  142  111.  521. 

On  creditor's  bill,  the  statements  and  declarations  of  grantor, 
made  to  strangers,  and  in  absence  of  grantee,  are  inadmissible  to 

impeach  conveyance. 

Dnrend  "vs.  Weightman,  108  111.  489. 
But  where  the  grantor  is  offered  as  a  witness,  he  is  subject  to 
the  same  rules  as  any  other  witness,  and  while  his  declarations  may 
not  be  received  to  impeach  the  transaction,  they  may  be  received 
to  impeach  the  witness,  if  the  declarations  so  made  are  inconsist- 
ent with  what  the  witness  has  stated  in  testifying. 

Phillips  vs.  Kesterson,  154  111.  572. 
After  the  holder  of  a  legal  title  to  land  had  divested  himself 
of  all  interest  in  same  by  an  absolute  deed,  any  subsequent  dec- 


ADMISSIOx\S  AND  DECLARATIONS  53 

laralion  by  liim,   whether  in  deposition  or  writing  or  otherwise, 
cannot  affect  the  title  and  charge  the  premises  with  a  trust. 
Phillips  vs.  South  Park  Conns.,  119  111.  627. 

But  dechirations  of  grantor  are  admissible  against  grantee  of 
nn recorded  conveyance,  where  grantor  remains  in  possession  and 
obtains  credit  upon  his  apparent  ownership. 

Gage  vs.  Eddy,  179  111.  492;  Blaekman  vs.  Preston,  123  111.  381. 

Where  a  grantor  remains  in  possession  of  property  conveyed, 
and  uses  and  treats  same  as  if  he  were  the  owner,  his  declarations 
while  so  in  possession,  to  the  etifect  that  he  owned  the  property,  are 
competent  upon  bill  bv  creditors  to  set  a.side  such  deed  as  fraudu- 
lent. 

Jones  vs.  King,  86  111.  225;   Sawyer  vs.  Bradshaw,  125  111.  440. 

—  To  Sustain  Deed:  The  statements  of  a  grantor,  made  after 
execution  of  deed,  are  admissible  in  suit  to  enforce  the  title 
thereunder,  when  such  statements  are  in  favor  of  the  deed. 

Shields  vs.  Bush,  189  111.  534;  IMiller  vs.  Meers,  155  111.  284. 
Subsequent  declarations  of  grantor,  showing  he  is  satisfied  with 
deed,  are  admissible. 

Shields  vs.  Bush,  189  111.  534;  Burt  vs.  Quissenberry,  132  111.  385. 

—  Disparagement  of  Grantee's  Title:  The  admissions  or  dec- 
laratious  of  a  grantor,  after  he  has  parted  with  all  his  interest, 
will  not  be  admitted  to  defeat  the  title  of  his  innocent  grantee. 

Eyder  vs.  Ryder,  244  111.  297;  Elliott  vs.  Western  Coal  Co.,  243  111. 
614;  Lang  vs.  Metzger,  206  111.  475;  Holton  vs.  Dunker,  198  111. 
407;  Heaton  vs.  Gaines,  198  111.  479;  Bellfontaine  vs.  Niedring- 
haus,  181  111.  426;  Hogan  vs.  Waldo,  168  111.  646;  XII  111.  Notes, 
500,   §203. 

Unless  grantee  is  present  and  assenting. 

Higgius  vs.  White,  118  111.  619;  Gridley  vs.  Bingham,  51  111.  153; 
jMyers  vs.  Kinzie,  26  111.  36. 

Declarations  in  disparagement  of  the  title  of  the  declarant, 
made  during  the  continuance  of  title  in  hi)n,  or  while  the  prop- 
erty was  in  his  control,  are  admissible  in  evidence  against  his  sub- 
sequent grantee  or  those  claiming  under  him.  They  are  not  admis- 
sible if  made  before  the  title  is  acquired,  or  after  it  has  been  trans- 
ferred, and  where  sucli  declarations  are  offered,  the  time  at  which 
they  were  made  must  also  be  shown.  if>--;h!.'. 

Gage  vs.  Eddy,  179  111.  492. 

The  declarations  of  a  father  in  his  lifetime  that  he  had,  at  a 
previous  period,  acquired  land  in  the  name  of  his  child,  with  the 
design  of  defeating  creditors,  cannot  be  admitted  to  divest  inter- 
est of  child. 

Cochran  vs.  McDowell,  15  111.  11. 

—  Reformation  of  Deeel:  On  bill  against  heirs  to  reform  a  deed, 
mistake  may  be  shown  by  admission  of  deceased  grantee. 

Purvines  vs.  Harrison,  151  111.  219. 

But  declarations  of  deceased  grantee  in  his  favor  are  not  ad- 
missible. 

Helm  vs.  Boyd,  124  111.  370. 

—  Made  in  Ahsenee  of  Grantee:  Alleged  declarations  of  de- 
ceased grantors,  out  of  presence  of  grantee,  and  against  his  in- 
terest, are  mere  hearsay,  and  not  admissible  against  the  grantee 
in  suit  by  heirs  and  legatees  of  grantors,  to  establish  that  deed, 


54  ADMISSIONS  AND  DECLARATIONS 

which  was  an  absolute  warranty  deed,  was  merely  a  part  of  a 

mortgage  transaction. 

Patterson  vs.  Patterson,  251  ill.  153. 
Grantor's  declarations,  out  of  presence  of  grantee,  to  the  effect 
that  absolute  deed  is  in  trust,  are  not  admissible  to  impeach  gran- 

tee 's  title. 

Evder  vs.  Ryder,  244  111.  297;  Potter  vs.  Barringer,  236  111.  224; 
Francis  vs.  Wilkerson,  147  111.  370;  Higgins  vs.  White,  118  111. 
619. 

—  Time  of  Making:  On  bill  to  set  aside  a  party's  deed,  his  dec- 
larations made  to  strangers  in  respect  to  the  means  used  to  pro- 
cure the  execution  of  the  deed,  when  not  contemporaneous  with 
his  act  in  making  the  deed,  but  in  the  nature  of  a  narrative  of 
past  occurrences,  are  not  admissible  in  evidence  as  part  of  the 

res  gestae. 

Oliphant  vs.  Liversidge,  142  111.   160. 

—  Mental  Condition:  Declarations  and  statements  are  admis- 
sible to  prove  the  mental  condition  of  grantor  at  time  of  execution 
of  instrument  sought  to  be  set  aside,  if  not  made  at  too  remote  a 
period  prior  to  or  subsequent  to  the  execution  thereof. 

Do\\ie  vs.  Driscoll,  203  111.  480 ;  Cf .  Guild  vs.  Hall,  127  111.  523. 
In  proceedings  to  set  aside  a  will  and  certain  deeds  made  by 
same  person,  declarations  against  interest  by  one  of  the  grantees 
who  was  not  a  legatee  under  the  will,  that  he  considered  the  gran- 
tor to  be  of  unsound  mind,  are  competent  upon  issue  of  validity 

of  deed. 

Bird  vs.  Bird,  218  111.  158. 
Declarations  of  grantor,  made  before  or  after  the  execution  of 
deed,  may  be  competent  to  prove  his  mental  condition,  but  not  to 
show  undue  influence  or  fraud. 

A  person  cannot  impeach  a  deed  or  other  instrument  in  writing 
which  he  has  voluntarily  made,  by  his  subsequent  parol  declara- 
tions. 

Massey  vs.  Huntingdon,  118  111.  80. 

—  In  licference  to  Boundary  Line:  Declarations  of  a  grantor 
in  reference  to  boundary  line  of  the  premises  conveyed,  are  not 
admissible  against  his  grantees,  if  made  after  his  conveyance. 

Diinaway  vs.  School  Directors,  40  111.  247. 

Vendor  and  Purchaser: 

—  Admissions  of  Vendee:  Where  the  vendee  of  personalty  has 
the  same  delivered  to  him,  or  the  vendor  consents  or  permits  him 
to  take  and  hold  its  possession,  and  while  so  in  possession  it  is 
levied  upon  by  his  creditors,  and  the  vendor  replevies  the  same 
from  the  officer,  proof  of  the  declarations  of  vendee,  that  he  was 
to  give  his  note  and  security  for  the  property  before  it  was  deliv- 
ered to  him,  is  inadmissible  as  against  the  defendant. 

VanDuzen  vs.  Allen,  90  111.  499. 

—  Prior  to  Sale:  Declarations  of  a  vendor,  made  before  the 
sale,  and  while  he  was  still  in  possession  of  the  property,  in  dis- 
paragement of  his  own  title,  may  be  admissible  against  his  ven- 
dee or  those  claiming  under  him. 

Gage  vs.  Eddy,  179  111.  492;   Vennuni  vs.  Thompson,  38  111.  143. 

,  The  statements  and  declarations  of  a  vendor  of  chattels,  made 


ADMISSIONS  AND  DECLARATIONS  55 

in  absence  of  vendee,  before  the  sale,  are  admissible  in  suit  by  a 
person  claiming  the  chattels,  to  prove  title  in  plaintiff  before  the 
sale.     Such  statements  and  declarations  are  binding  upon  vendee 
as  privy  by  purchase  from  the  vendor. 
Gill  vs.  Crosby,  63  111.  190. 

The  statements  and  declarations  of  a  vendor  in  reference  to 
ownership  of  the  property  sold,  made  before  the  sale,  are  ad- 
missible on  an  issue  of  ownership,  where  the  vendee  is  a  party; 
such  declarations  bind  parties  and  privies,  and  the  vendee  is  a 
privy. 

Eandegger  vs.  Ehrhardt,  51  111.  101. 

—  Siibscqucnt  to  Sale:  The  statements  of  a  vendor  of  land, 
made  after  the  sale,  are  not  admissible  for  the  purpose  of  show- 
ing that  the  transaction  was  fraudulent  or  to  prove  any  other  fact 
affecting  the  title  of  the  vendee. 

Gridley  vs.  Bingham,  51  lU.  153. 

The  admissions  or  declarations  of  a  grantor  of  land,  made  after 
the  sale,  are  not  admissible  to  prejudice  the  rights  of  his  grantee, 
and  neither  is  his  answer  to  a  bill  in  chancery. 
Eusk  vs.  Mansfield,  25  111.  297. 
The  admissions  of  a  vendor  of  goods,  made  after  a  sale,  are  not 
admissible  to  show  sale  was  made  to  defraud  creditors. 
Jewitt  vs.  Cook,  81  111.  260. 

The  declarations  of  a  vendor  in  reference  to  the  ownership  of 
property,  made  after  the  sale,  are  not  admissible  to  defeat  title 
of  his  vendee,  unless  vendee  is  present  and  assenting,  either  ex- 
pressly or  tacitly,  to  their  truth. 

Eandegger  vs.  Ehrhardt,  51  111.  101. 

—  Impeachment  of  Vendee's  Title:    Admissions  of  vendor,  after 

sale,  are  inadmissible  to  invalidate  title  of  vendee. 

Milling  vs.  Hildebrand,  156  111.  310;   Fyffe  vs.  Fyffe,  106  111.   646; 
Gridley  vs.  Bingham,  51  111.  153. 

The  acts  or  declarations  of  a  vendor  of  property,  which  he  has 
sold  and  delivered,  cannot  be  received  to  prejudice  the  title  of 
his  vendee. 

Hessing  vs.  McClosky,  37  111.  342. 

The  oral  or  written  declarations  of  the  vendor  against  the  ven- 
dee is  not  proper  evidence. 

Wheeler  vs.  McCorriston,  24  111.  41.^ 

Admissions  of  vendor,  made  after  sale,  in  disparagement  of 
title,  are  not  admissible  to  defeat  title  of  his  vendee. 

But  while  it  is  true  that  the  declarations  of  a  vendor,  after 
sale,  are  not  competent  against  vendee,  if  the  vendor,  while  on  the 
stand,  denies  having  made  the  declarations  in  respect  to  the  fair- 
ness and  genuineness  of  the  sale,  his  attention  being  called  to  the 
time  and  place  of  making  the  same,  it  is  competent  to  prove  that 

he  did  make  such  statements,  for  purpose  of  impeachment. 
Hanchett  vs.  Kimbark,  118  111.  121. 

—  To  Construe  Contract:  The  admissions  by  a  vendor,  in  suit 
by  third  person  against  him  and  his  vendee,  of  the  execution  of 
a  contract  of  sale,  is  no  admission  of  the  proper  construction  to  be 
put  upon  it  in  suit  between  vendor  and  vendee  for  specific  per- 


56  ADMISSIONS  AND  DECLARATIONS 

formance,  or  of  the  vendee's  right  to  have  the  same  specifically 

enforced. 

Fitch  vs.  Williard,  73  ill.  93. 

—  Payment  of  Furcltase  Money:  While  the  recital,  in  a  patent 
issned  by  state  for  land,  of  the  payment  of  the  purchase  money 
by  the  purchaser,  may  not  be  evidence  of  the  fact  between  third 
parties,  yet  when  one  claiming  under  the  purchaser,  in  applyiug 
for  the  patent,  places  liis  right  to  have  it  issued  to  him  on  tlie 
ground  that  such  purchaser  has  paid  for  the  land,  this  will  be  an 
admission  by  him  that  the  purchase  money  was  paid,  and  will  be 
binding  on  him  in  application  for  dower  by  the  wife  of  one  claim- 
ing under  such  purchaser. 

Stowe  vs.  Steele,  45  Hi.  328, 

—  Fraud:  Conversation  at  time  of  sale  of  personal  property, 
competent  to  establish  fraud  or  lack  of  it. 

Smith  vs.  Bridge,  126  App.  596. 

—  To  Show  Price  of  Goods:  Where  the  son  delivered  to  the 
father  large  quantities  of  grain  to  apply  on  the  indel)tedness  of 
the  former  to  the  latter,  in  suit  by  administrator  of  father  against 
son,  a  sale  bill  of  son's  grain,  made  by  father,  is  admissible,  it 
being  in  the  nature  of  an  admission  of  the  sum  for  which  he  sold 
the  son's  property,  and  tending  to  tix  amount  for  which  intestate 
was  liable. 

Penn  vs.  Oglesby,  89  111.  110. 

Mortgagor  and  Mortgagee : 

—  Made  Contemporaneous  With  Execution:     Admissions  made 

at  time  of  execution  of  chattel  mortgage,  are  part  of  the  res  gestae 

and  admissible  in  evidence. 

Busluieli  vs.  Wood,  85  111.  88. 

—  Made  Subsequent  to  Execution:  Declarations  of  mortgagor 
subsequent  to  execution  of  mortgage,  but  not  forming  part  of  the 
res  gestae,  are  inadmissible  against  mortgagor. 

Muthias  vs.  iViiller,  16-1  App.  113;  Miller  vs.  Cork,  135  111.  191. 

—  As  Against  Person  Claiming  Through  Mortgagor:  The  dec- 
larations and  admissions  of  a  mortgagor  of  chattels,  made  after 
the  execution  of  the  mortgage  by  him,  are  not  admissible  in  evi- 
dence to  defeat  the  title  of  mortgagee  in  contest  between  the  latter 
and  one  claiming  under  the  mortgagor. 

Bell  vs.  Previ'itt,  62  111.  361;  Eeed  vs.  Noxon,  48  111.  323;  Gridley  vs. 
Bingham,  51  111.  103;  Miller  vs.  Cook,  135  111.  191. 

In  contest  between  a  mortgagee  of  chattel  property  and  a  pur- 
chaser from  the  mortgagor,  in  which  the  mortgagee  claims  the 
property  as  a  fixture  to  property  mortgaged  to  him,  the  answer 
of  the  mortgagor  and  his  wife,  admitting  the  chattels  were  fixtures 
to  the  realty,  is  not  evidence  against  the  purchaser  of  the  prop- 
erty from  the  mortgagor. 

Long  vs.  Cochran,  128  111.  29. 

—  As  Against  Subsequent  Incumhrancers:  As  against  subse- 
quent incumbrancer,  the  admission  of  a  mortgagor  of  a  mistake 
in  the  starting  point  of  the  boundaries  of  a  prior  mortgage  is  not 
sufficient  evidence.    To  affect  the  subsequent  incumbrancer 's  rights. 


ADMISSIONS  AND  DECLARATIONS  57 

there  must  be  proof  of  the  mistake,  and  that  he  had  notice  of  it 
at  the  time  he  took  the  mortgage. 
Eussell  vs.  Ranson,  76  111.  167. 

—  To  SJiow  Acquisccnce  in  Sale:  The  declarations  of  a  mort- 
gagor, before  making  conveyance  of  property,  that  he  claimed 
under  title,  and  the  fact  he  executed  his  deed  without  considera- 
tion, are  proper  to  be  considered  in  determining  the  question  of 

whether  he  acquiesced  in  the  sale. 

Cornell  vs.  Newkirk,  144  111.  241. 

—  Mortgagor's  Intention:     Declarations  of  mortgagor  as  to  his 

intention  in  execution  of  mortgage,  unless  knowledge  of  them  is 

brought  to  mortgagee  are  inadmissible,  and  his   connection  with 

them  must  first  be  shown  before  they  can  be  otfered. 
Prior  vs.  White,  12  111.  261. 

—  Attachment  xigainst  Mortgagor:  Declarations  of  mortga- 
gee, made  either  before  or  after  the  execution  of  the  instrument, 
and  who  did  not  act  as  agent  of  the  mortgagor  in  making  the 
mortgage,  are  not  admissible  in  evidence  in  suit  by  creditor  against 
mortgagor  alone,   charging  such   conveyance  to  have  been   made 

for  purpose  of  hindering  ajid  delaying  creditors. 
Rood  vs.  Noxon,  48 'ill.  323, 

Matters  Affecting  Title: 

—  To  Overcome  llecord  Title:     Where  a  party  shows  a  clear 

title  of  record  to  a  tract  of  land,  it  cannot  be  overcome  by  proof 

of  his  casual  admissions,  made  over  twenty  years  before,  to  the 

ett'ect  that  another  person  had  an  interest  in  the  premises. 
Johnson  vs.  Filson,  118  111.  219. 

Conveyance  of  land  cannot  be  shown  by  parol  evidence,  and 
the  execution  of  a  deed  cannot  be  proven  by  the  admissions  of 
persons  not  themselves  shown  to  have  been  in  privity  with  the 
title  under  which  the  grantee  claims,  nor  can  the  execution  of  a 
deed  be  proven  by  showing  the  state  of  accounts  between  the  par- 
ties. 

Where  a  son  has  a  complete  chain  of  title  without  deraigning 

through  his  father,  and  it  is  sought  by  the  father's  creditors  to 

prove  a  deed  from  him  to  the  father,  for  the  purpose  of  attacking 

the  father's  subsequent  deed  to  him,  and  a  deed  by  the  son  to  a 

third  person,  as  fraudulent,   the  admissions  and  declarations  of 

the  father,  made  out  of  the  presence  of  such  third  party,  and 

after  he  had  obtained  his  deed,  are  not  admissible  or  competent 

evidence  to  prove  the  execution  of  the  deed  to  the  father,  whether 

made  after  or  before  the  deed  from  the  father  to  the  son. 
Clark  vs.  Wilson,  127  111.  450. 

—  As  Proof  of  Title:  Plaintiff  cannot  prove  his  title  by  de- 
fendant's admissions,  not  made  for  purpose  of  suit. 

Mason  vs.  Park,  4  111.  532;  La  very   vs.  Brooke,  37  App.  51. 

—  To  Impeach  Title:  If  the  Statute  of  Limitations  has  run  in 
favor  of  a  person  in  possession  of  land,  his  title  so  acquired  can- 
not be  divested  by  his  declarations  inconsistent  with  his  claim  that 
his  possession  is  adverse ;  but  if  the  Statute  has  not  run  in  his 
favor  such  declarations  are  competent,  but  not  conclusive  of  the 
character  of  his  possession. 

Lyons  vs.  Stroud,  2.17  111.  350;   Carroll  vs.  Rabberman,  240  111.  450; 
'l.  C.  R.  R.  Co.  vs.  Wakefield,  173  111.  564. 


:58  ADMISSIONS  AND  DECLARATIONS 

Admissions  against  interest  of  party  making  tliem,  in  respect 
to  his  title  to  property  in  question,  are  admissible. 

Kich  vs.  Nafziger,  248  111.  45.5,     (See  Adverse  Possession.) 

By  Party  in  Possession : 

To  Prove    Title   in  Declarant:     Where   grantor   remains   m 

possession,  treating  the  property  as  his  own,  declarations  tliet  he 
owned  the  property  are  competent  upon  bill  to  set  aside  such  deed. 
Jones  vs.  King,  86  111.  225. 

The  declarations  and  statements  of  a  defendant  in  execution, 
while  in  the  actual  possession  of  property,  exercising  full  con- 
trol over  it,  directing  the  workmen  repairing  the  same,  and  offer- 
ing to  sell  same,  claiming  it  as  his  own,  are  legitimate  and  proper 
evidence  against  one  claiming  the  property  as  against  the  sheriff 
who  has  levied  upon  the  same  for  the  debt  of  party  whose  dec- 
larations are  sought  to  be   shown,   as  they  are   part   of  the  res 

gestae. 

Amick  vs.  Young,  69  111.  542. 
To  Prove  Title  in  Another:     Declarations  of  party  in  pos- 
session of  land  are  admissible  to  show  character  of  his  own  pos- 
session, but  not  to  prove  title  in  another. 
Godfrey  vs.  Dixon  Power  Co.,  247  111.  124. 
To  Explain  Title:     Declarations  of  ownership  by  one  in  act- 
ual possession,   though  not   made  as   incident   to   any   particular 
acts  of  dominion,  are  part  of  the  res  gestae  of  possession  and  ad- 
missible as  explanatoiT  of  title  claimed. 

Knight  vs    Knight,  178  111.  553;  Shaw  vs.  Smith,  167  111.  269;  Shaw 

vs.  Schoonover,   130  111.  448;   Ey.  Co.  vs.  Houghten,  126  111.  233; 

Grim  vs.   Murphv,    110   111.   271;   James  vs.   Ky.  Co.,   91   111.   5o4; 

XII  111.  Notes  499,  §  198. 

Declarations   of  party   in   possession   of  personal   property   or 

growing  crops,  explanatory  of  that  possession,  are  admissible  in 

evidence  on  question  of  ownership. 

Leiserowitz  vs.  Fogarty,  135  App.  612. 
—  In  Disparagement  of  Title:     Admissions  of  a  party  in  pos- 
session, claiming  title,  are  admissilile  against  his  own  title. 
Waggoner  vs.  Cooley,  17  111.  239. 
Declarations  in  disparagement  of  title  of  declarant  in  posses- 
sion of  lands  are  admissible  as  original  evidence.     So  where  a 
boundary  line  of  a  lot  is  in  dispute,  and  depends  upon  the  true 
line  of  a  street,  the  declarations  of  a  former  owner,  while  in  pos- 
session of  the  lot,  as  to  the  location  of  the  line  of  the  street,  are 
admissible  in  evidence  against  the  one  claiming  under  him. 
City  of  Elgin  vs.  Beekwith,  119  111.  367. 
In  action  against  a  sheriff  to  recover  damages  for  selling  the 
property  of  plaintiff  under  an  attachment  against  another  per- 
son, the  declarations  of  the  defendant  in  attachment,  while  in  ap- 
parent possession  of  the  property,  as  explanatory  of  his  posses- 
sion and  in  disparagement  of  any  claim  in  himself,  are  admissi- 
ble in  behalf  of  plaintiff;  and  he  may  also  prove  the  fact  that 
while  in  possession  of  the  property  he  claimed  it  as  his  own. 
Whitaker  vs.  Wheeler,  44  111.  440. 
—  To  Shoiv  Extent  of  Possession:    "Where  a  lessee  of  a  tract  of 
land,  at  time  of  his  entry  upon  the  improved  portion  thereof  un- 
der his  lease,  and  before  any  dispute  had  arisen  in  relation  thereto, 
declared  he  claimed  possession  of  the  entire  tract,  in  subsequent 


ADMISSIONS  AND  DECLARATIONS  59 

forcible  entry  and  detainer  suit,  such  declaration  was  admissible 
in  his  own  behalf  to  show  extent  of  his  possession. 
Kotz  vs.  Belz,  178  111.  434. 

In  trespass  quare  clausum  f regit,  by  owner  of  land,  the  defend- 
ant set  up  his  occupancy  of  that  portion  of  the  premises  upon 
which  the  alleged  trespass  was  committed ;  plaintiff  endeavored 
to  show  abandonment  of  such  occupancy,  by  defendant  having 
moved  off  the  fencing,  etc.  It  was  competent  to  prove  the  dec- 
larations of  defendant  in  that  regard,  at  the  time  he  was  remov- 
ing the  fence,  as  part  of  the  res  gestae. 
Welch  vs.  Louis,  31  111.  446. 

—  To  Shoiv  Character  of  Possession:  Acts  and  declarations  of 
person,  while  in  possession  of  land,  may  be  given  in  evidence  to  ex- 
plain character  of  his  claim  and  possession. 

Towle  vs.  Quante,  246  111.  568. 

Privies : 

—  In   Estate:     The  declarations  and  admissions  of  privies  in 

estate,  made  before  parting  with  their  interest,  are  admissible  in 

evidence  against  the  parties  succeeding  to  their  estate. 

Mueller  vs.  Rebham.  94  111.  142;  Laug  vs.  Metzger,  101  App.  380. 

The  term  privity  denotes  mutual  or  successive  relationship  to 

the  same  rights  of  property, 

Keith  vs.   Thayer,   181   App.   370. 

—  In  Blood:  Admissions  of  privies  in  blood  are  admissible 
against  each  other. 

Green  vs.  Green,  162  App.  91.     (See  Former  Testimony.) 

—  Adminisfrafor:    Admissions  made  by  the  administrator  of  an 

estate  cannot  bind  a  joint  promisor  with  the  intestate. 
Marshall  vs.  Adams,  11  111.  38. 

Admissions   of   administrator   before   appointment   not   binding 

in  official  capacity. 

Goodiug  vs.  Life  Ins.  Co.,  46  App.  307;  Prud.  Ins.  Co.  vs.  Frederichs, 
41  App.  419. 

—  Assigiior  and  Assignee:  Where  the  holder  of  a  chose  in 
action  already  matured,  makes  admissions  and  declarations  against 
his  interest  in  respect  thereto,  while  such  holder,  such  admissions 
and  declarations  are  competent  as  original  evidence  against  an 
assignee  after  maturity. 

The  admissibility  of  such  evidence  is  not  affected  by  the  cir- 
cumstance whether  or  not  the  declarant  is  a  competent  witness, 
or  whether  lie  was,  in  fact,  a  witness  for  the  defendant.  The  evi- 
dence is  admissible  on  the  ground  that  the  declaration  was  against 
the  interest  of  party  making  it,  in  the  nature  of  a  confession,  and 
on  that  account  was  so  probnb.lv  true  as  to  justifv  its  reception. 
Sand  if  er  vs.  Hoard,  59  111.  246. 

The  admissions  of  an  assignor  of  chattel  mortgage  against  his 
own  interest,  made  before  he  assigned  the  instrument,  are  admis- 
sible against  his  assignee. 

Anderson  vs.  Brew.  Co.,  173  111.  213. 

Admissions  made  by  the  owner  of  bills  and  notes  are  admissible 
as  evidence  against  the  purchaser. 

Curtis  vs.  Martin,  20  111.  557;  Driskell  vs.  Flint,  181  App.  137. 

If  the  holder  of  a  note  or  other  evidence  of  indebtedness,  then 
due,  which  is  claimed  to  be  fraudulent  as  to  other  creditors  of  the 


60  ADMISSIONS  AND  DECLARATIONS 

maker,  admits  or  states  that  the  maker  in  fact  owes  him  nothing, 
and  afterwards  transfers  the  same  to  another,  his  admission  is 
proper  evidence  against  his  assignee,  who  takes  subject  to  all 
the  equities  against  the  assignor. 

Hanchett  vs.  Kiuibaik,  llS  111.  121. 
Any  declaration  made  by  the  payee  of  a  promissory  note,  while 
owning  the  same,  is  proper  evidence  against  a  subsequent  hohler 
by  deliver  merely,  but  after  the  sale  and  delivery,  in  good  faith, 
any  such  declarations  are  not  admissible  except  as  impeaching 
testimony,  where  a  proper  foundation  has  been  laid. 

Thorp  vs.  Goeway,  85  111.  G12. 

—  Heirs:     The  admissions  and  declarations  of  a  deceased  per- 
son, made  against  his  interest,  are  admissible  in  evidence  against 

his  heirs. 

First  Natl.  Bank  vs.  Bennett,  215  111.  398. 

Admissions  of  one  heir  at  law  are  not  admissible  to  bind  other 

heirs-at-law, 

Stitzel  vs.  Miller,  250  111.  72. 

—  Devisees:    Admissions  and  declarations  of  devisees  and  lega- 
tees are  inadmissible  to  affect  the  rights  of  those  claiming  under 

the  will. 

Kellan  vs.  Kellau,  258  111.  256;  Cunniff  vs.  Cnuniff,  255  111.  407._ 

Except  where  legatee  is  sole  beneficiary  interested  in  sustaining 

will. 

Egbers  vs.  Egbers,  177  111.  82;   McMillan  vs.  McDiU,  110  111.  47. 

And  if  deceased,  admissible  against  one  v.dio  had  succeeded  by 
devise  on  the  ground  of  privity  of  estate. 

Mueller  vs.   Eebham,  94  111.  142. 
Are  inadmissible  to  show  undue  influence. 

Campbell  vs.  Campbell,  138  111.  612;  Cunniff  vs.  Cunniff,  255  111.  407. 

Or  mental  incapacitv  or  insanity. 
McMillan  vs.  Mcl^ill,  110  111.  47. 
Such  evidence  is  incompetent  as  against  the  party  making  them 
as  it  could  not  affect  the  issue  without  affecting  the  other  defend- 
ants. 

McMillan  vs.  McDill,  110  111.  47. 

—  Peirties  to  Contract:  If  there  is  an  oral  contract  between 
parties  whereby  one  party  is  to  have  the  other's  land  at  the  hit- 
ter's death,  declarations  of  the  latter,  in  absence  of  former,  incon- 
sistent with  contract,  are  not  l)inding  on  the  former. 

Vail  vs.  Eynearson,  249  111.  501. 

Corporations : 

—  Corporate  Officers:  Admissions  of  president  of  corporation, 
made  in  execution  of  his  duties  in  business  of  corporation,  within 
scope  of  his  authority,  are  admissible  against  the  corporation. 

Ey.  Co.  vs.  Coleman,   18  111.  298;  Ey.  Co.  vs.  Ey.  Co.,   149  111.  272; 
M.  S.  D.  Co.  vs.  Langbelt,  117  App.  652;  XII  111.  Notes  499  §  IBS. 
Admissions  by  vice-president  binding  on  corporation. 

Dornfeldt  vs.  Volkman,   138  App.  421. 
A  letter  from  the  president  of  a  corporation  is  competent  as  an 
admission  against  the  company,  where  written  in  connection  with 

the  transaction  in  question. 

Dovine  vs.  Fed.  Ins.  Co.,  250  111.  204;  Cent.  Lbr.  Co.  vs.  Kelter,  201 
Til.  503. 
Letters  from  vice-president  of  corporation  are  admissible  against 


ADMISSIONS  AND  DECLARATIONS  fil 

the   corporation  where  it  appears   that   corporation   approved  of 
and  directed  the  neij:otiations  being  carried  on  by  him. 
Union  Surety  Co.  vs.  Tenny,  200  111.  349. 

—  Directors  and  Stock-Holders:  Admissions  of  a  stock-holder 
or  member  of  a.  corporation  are  inadmissible  against  such  corpora- 
tion. 

Ey.  Co.  vs.  Burns,  92  111.  302. 
In  suit  by  a  creditor  of  a   corporation  seeking  to  enforce  the 
personal   liability   of  a  stock-holder,   ownership   of  stock   may   be 

shown  by  admission  of  defendant. 
Dows  vs.  Naper,  91  111.  44. 

Relating  to  Notes  and  Bonds: 

—  In  General:  Admissions  of  payee  if  made  while  in  possession 
of  note  are  admissible  against  subsequent  holder. 

Driskell  vs.  Flint,  181  App.  611;   Thorp  vs.  Goeway,  85  lU.  611. 
Admissions  made   by   the   owner   of   a  chose  in  action   already 
matured  are  admissible  against  purchaser. 

Sandifer  vs.  Hoard,  59  111.  246;  Hatchett  vs.  Kunbark,  118  111.  121. 

—  As  to  Time  of  Apparent  Alteration:    AVhen  note  is  presented 

to  the  maker  for  its  payment,  and  he  admits  it  to  be  correct,  this 

IS  evidence  that  an  alteration,  apparent  on  the  face  of  the  note, 

was  made  previous  to  its  execution,  or,  if  afterwards,  that  it  was 

made  Avith  the  maker's  consent. 
Ki]ig  vs.  Bush,  36  111.  142, 

—  Impeachment  of  Assignment:  Self-serving  declarations  are 
not  competent  to  impeach  assignment  of  notes  and  mortgages. 

Mahan  vs.  Sehroeder,  142  App.  538. 

—  To  Show  Ownership:  Declarations  of  the  holder  of  unen- 
dorsed notes,  during  possession  thereof,  to  the  effect  that  they 
had  been  given  her  by  the  payee  thereof  before  his  death,  are  ad- 
missible in  her  favor,  as  tending  to  show  her  claim  of  ownership. 

Martin  vs.  Martin,  174  111.  371. 

—  Declarations  Relating  to  Notes  not  iti  Issue:  In  action  by  in- 
dorsee against  indorser  of  a  promissory  note,  who,  after  discharge 
from  his  liabilities  as  such,  made  a  new  promise  to  pay  same,  it 
was  error  to  admit,  against  plaintiff's  objection,  evidence  of  the 
declaration  of  defendant,  made  at  a  second  interview  of  his  own 
seeking  in  which  he  attempts  to  qualify  such  promise  to  apply  it 

to  another  matter. 

Morgan  vs.  Peet,  32  111.  285. 
A  conversation  between  witness  and  plaintiff,   long  before  the 
occurrence  of  the  matters  in  dispute,  is  improper. 
Carpenter  vs.  Ambroson,  20  111.  170. 

Matters  Concerning'  Domicile: 

—  In  General:  Any  declarations  of  the  party,  relative  to  and 
connected  with  act  of  establishing  new  domicile,  are  admissible. 

Matzeubaugh  vs.  People,   194  111.   108;    Wells  vs.   Parrott,  43   App. 
656. 

Paupers:    Where  the  question  is  as  to  the  place  of  residence 

of  a  pauper,  it  is  proper  to  prove  the  statements  of  the  pauper 
as  to  where  he  considered  his  home  previous  to  the  time  of  becom- 
ing a  charge.  Likewise  what  was  said  by  the  brothers-in-law  of 
the  pauper,  with  reference  to  their  making  a  bargain  for  the 
wages,  of  alleged  pauper  with  his  employers,  as  tending  to  show 


62  ADMISSIONS  AND  DECLARATIONS 

the  relation  of  the  parties,  and  whether  the  brothers-in-law  regarded 
their  home  as  the  residence  of  such  person. 
Dorr  vs.  Seneca,  74  111.  101. 

—  Intent:  Declarations  of  a  party,  so  connected  with  the  act 
of  leaving,  that  they  characterize  the  act,  are  admissible  as  estab- 
lishing intent. 

Matzeubaugh  vs.  People,  194  111.  108. 

Religious  Association: 

Admissions  of  members  of  congregation  not  admissible  against 

church  trustees.     Otherwise  Avhen  made  by  vote  of  congregation 

according  to  its  rules. 

Thomas  vs.  Kutledge,  67  111.  213. 

Insurance : 

—  Books  of  Society:  A  minute  book  kept  by  a  subordinate 
lodge,  containing  entries  required  to  be  made  by  it  in  the  per- 
formance of  its  agency  for  the  society,  is  competent  where  it  con- 
tains relevant  admissions  against  such  society. 

Piatt  Grote  Gilde  vs.  Eoss,  117  App.  247. 

—  Declarations  of  Insured:  In  action  upon  benefit  certificate, 
statements  made  by  insured  are  competent  evidence  against  the 

beneficiary^ 

Lundliolm    vs.    Mystic   "Workers,    164    App.    472;    Brown   vs.    IMystic 
Workers,  151  App.  517;  Court  of  Honor  vs.  Dinger,  221  111.  176. 
Competency  of  declarations  of  insured  does  not  depend  upon 

presence  of  beneficiary. 

Town  vs.  Town,  191  111.  478. 
In  determining  whether  deceased  member  of  benefit  society  knew 
and  acquiesced  in  mistake  by  clerk  of  society  in  making  out  cer- 
tificate, his  declarations  tending  to  show  he  did  not  know  of  the 

mistake  are  admissible. 

Town  vs.  Town,  191  111.  478. 

The  admissions  of  a  deceased  member  of  a  beneficiary  associa- 
tion as  to  his  acts  in  relation  to  his  certificate  of  membership  are 
admissible  in  evidence  in  suit  by  his  beneficiary  against  the  asso- 
ciation. 

Natl.  Union  vs.  Hunter,  99  App.  146. 

In  suit  upon  certificate  in  mutual  benefit  society,  under  which 

insured  had  power  to  change  beneficiary  and  pay  assessments  or 

drop  the  membership,  his  declarations  that  he  would  no  longer  pay 

the   assessments  may  be  shown  in  connection  with   fact   that  he 

failed  to  pav. 

Van  Frank  vs.  Ben.  Assn.,  158  HI.  560;  Hansen  vs.  Supreme  Lodge, 

140  111.  301. 

Declarations  of  insured,  made  some  time  before  making  appli- 
cation for  insurance,  and  not  part  of  the  res  gestae,  are  mere  hear- 
say. 

Minn.  Ins.  Co.  vs.  Link,  131  App.  89.     (See  Insxirance.) 

Trusts : 

—  Express   Trust  in  Land:     An  express  trust  in  land  cannot 

be  established  by  oral  admissions  of  party  sought  to  be  charged 

therewith. 

Mining   Co.   vs.   Hulberg,   220   HI.   578;    Stephenson   vs.   McClintoek, 

141  111.  604. 

—  Resulting  Trust:     There  is  a  distinction  between  admission 


ADMISSIONS  AND  DECLARATIONS  63 

by  holder  of  title  that  a  third  party's  money  paid  for  the  land, 
and  an  admission  that  a  third  party  is  interested  in  it. 
Wells  vs.  Messenger,  249  111.  72. 

—  Admissio)is  of  Trustee:  A  party  acting  in  the  liduciary  ca- 
pacity cannot  make  any  admissions  to  the  prejudice  of  the  trust 
fund,  and  against  the  cestui  cjue  trust. 

Thomas  vs.  Bowman,  29  III.  42G.      (See  Trusts.) 

Pleadings : 

—  Former  Pleadings:  Admissions  made  in  pleading  in  another 
action  may  be  shown. 

Blew.  Co.  vs.  Berner-Mayer  Co.,  83  App.  446. 
Admissions  contained  in  pleading  filed  in  cause  pending  in  court 

are  competent  proof  in  another  suit. 

Biirgeuer  vs.  Lippold,   128  App.  590. 
Defendant's  answer  in  former  suit  is  competent  as  admission. 

Cully  vs.  People,  73  App.  501. 

Equity  pleadings  are  competent  in  action  at  law  as  admissions 

of  fact. 

Wadsworth  vs.  Duncan,  164  111.  360;  Fairbanks  vs.  Badger,  46  App. 
644. 

Statements  in  former  pleadings  are  admissible  and  their  weight 
is  to  be  determined  from  all  the  facts  and  circumstances  under 
which  they  were  made. 

Gardner  vs.  Meeker,  169  111.  40. 

A  plea  in  a  former  suit  is  inadmissible  unless  accompanied  by 

declaration  to  which  same  was  tiled. 
Gardner  vs.  Meeker,  169  111.  40. 

Bill  of  complaint  in  different  suit  but  relating  to  same  subject 
matter,  containing  averments  as  to  matters  of  fact  which  were  in- 
volved in  present  suit,  are  competent  evidence  of  plaintiff's  ad- 
missions. 

Kanakakee  Ey.  Co.  vs.  Horan,  131  111.  288. 

—  Aviended  Pleading:  An  original  declaration  not  sworn  to 
and  prepared  by  an  attorney  under  a  misapprehension  of  the 
facts  is  not  competent  against  a  plaintiff  to  overthrow  an  amended 
declaration,  and  the  evidence  introduced  in  support  thereof. 

Lambert  vs.  Bell,  169  App.  500. 

—  Bill  of  Particulars:  A  bill  of  particulars  withdrawn  on  sec- 
ond trial  may  be  admissible  as  an  admission. 

Burn  vs.  Burn,  47  111.  507. 

—  Demurrer:     Demurrer  is  not  competent  as  an  admission. 

K.  N.  S.  Ey.  Co.  vs.  Horan,  131  111.  288. 

—  Affidavit:  Contents  of  an  affidavit  used  in  previous  action  or 
proceedings  are  competent  as  showing  admissions,  but  are  not  con- 
clusive. 

Stone  vs.  Cook,  79  111.  424;  I.  C.  E.  E.  Co.  vs.  Cobb,  64  111.  143. 

—  Pleading  not  Filed:  Pleading  not  filed,  if  authorized  by 
party,  may  be  admissible  as  evidence  of  admissions.  The  filing  of 
the  pleading  is  not  necessary  to  its  competency. 

Burnham  vs.  Eoberts,  70  111.  19, 

—  Plea  of  Non  Est  Factum:  Plea  of  non  est  factum,  verified, 
without  any  other  plea,  admits  all  the  allegations  of  the  declara- 
tion, except  the  execution  of  the  instrument. 

Eudesill  vs.  Jefferson  Co.,  85  111.  446 ;  Oberman  vs.  Gaylord,  13  App. 
30;  Sugdeu  vs.  Beasley,  9  App.  71. 

—  Bill  and  Answer:    In  suit  in  chancery  against  the  mortgagor 


64  ADMISSIONS  AND  DECLARATIONS 

and  his  wife  and  three  others,  where  the  mortgagor  and  his  wife, 
in   their  answers,  admit  the  execution  of  the  mortgage,  this  dis- 
penses witli  necessity  of  proof  of  execution  for  all  parties. 
Fergus  vs.  Tinkham,  38  111.  407. 

On  bill  by  surety  on  note,  to  be  subrogated  to  rights  of  creditor 
and  sureties  on  appeal  bond,  in  appeal  from  judgment  on  note 
which  was  affirmed  and  paid  by  complainant,  an  averment  in  an- 
swer to  bill  that  it  is  "stated  in  said  bill  that  said  complainant 
signed  a  note,  etc.,"  is  an  admission  that  complainant  was  surety. 
Freiberg  vs.  Donovan,  23  App.  58. 

The  record  of  a  chancery  suit  is  admissible  as  evidence  in  an- 
other suit  to  show  what  complainant  claimed  and  to  prove  the  fact 
that  he  prosecuted  such  claim,  and  his  deposition  taken  in  the 
former  suit  is  admissible  as  tending  to  show  what  he  claims  and 
under  whom. 

The  statements  in  a  bill  in  chancery,  unsworn  to  by  complain- 
ant, but  merely  'signed  by  his  counsel,  are  not  admissible  as  evi- 
dence of  his  admissions  in  anothei-  suit.     They  will  rather  be  re- 
garded as  the  suggestions  and  statements  of  his  counsel. 
Miller  vs.  Chrisman,  25  111.  269. 

A  bill  to  set  aside  a  tax  deed  cannot  be  construed  as  an  admis- 
sion of  title  in  defendant. 

Gage  vs.  Bissell,  119  111.  298. 

If  fact  is  alleged  in  bill  and  admitted  in  answer,  admission  is 
conclusive  and  evidence  tending  to  disprove  it  is  not  admissible. 
C.  K.  I.   &  P.   Ry.   Co.  vs.   People,   222   111.   427;    Home  Ins.  Co.  vs. 
Meyer,  93  111.  271;  Wood  vs.  AVhelan,  93  111.  153. 

Although  a  bill  in  chancery,  so  far  as  it  may  be  taken  as  the 
suggestion  of  counsel,  is  but  feeble  evidence  against  complainant 
of  the  admissions  which  it  contains,  it  is  yet  some  evidence  of  the 

same. 

Sehmissuer  vs.  Beatrie,  147  111.  210. 

An  original  unsworn  answer  is  evidence  of  the  admissions  of 
party  making  same  though  withdrawn  from  the  files. 
Daub  vs.  Englebeck,  109  111.  267. 

—  Of  Co-Defendant:  The  pleadings  of  one  co-defendant  can- 
not be  read  in  evidence  against  another,  except  in  particular  cases, 
as  where  such  defendants  are  partners,  or  where  one  is  acting  as 
the  agent  of  the  other,  in  any  transaction  to  which  the  answer 
may  relate,  and  the  agency  or  partnership  at  the  time  of  filing  the 

answer,  still  exists. 

Rust  vs.  Mansfield,  25  111.  336. 

—  Witlulrawcil  of  Plea:     In  suit  on  note,  where  defense  is  plea 

of  illegal  consideration,  the  withdrawal  of  the  general  issue  is  an 

admission  of  right  of  plaintiff  to  recover  amount  of  note,  unless 

the  defense  alleged  in  special  plea  was  proven  by  a  preponderance 

of  the  evidence. 

Gardner  vs.  Meeker,  169  111.  40.   (See  Former  Pleadings.) 

Former  Testimony: 

AVhat  a  party  may  have  stated,  although  under  oath,  as  a  wit- 
ness, is  admissible  as  an  admission,  although   compulsory. 

Miller  vs.  People,  216  111.  309;  Wheat  vs.  Summers,  13  App.  444; 
Gates  vs.  Gilman,  86  App.  215;  Chase  vs.  Debolt,  7  111.  371;  Devine 
vs.  Stepaneh.  176  App.  61;  Barron  vs.  Burk,  82  App.  116.  (See 
Former  Testimony.) 


ADMISSIONS  AND  DECLARATIONS  65 

Depositions : 

Statements  in   depositions   used  in  another  case,   adopted  and 
acted  on  as  facts,  are  admissible  as  admissions. 
Ey.  Co.  vs.  Boone  Co.,  44  111.  240. 

Right  of  Court  to  Compel : 

To  avoid  an  incumbrance  of  a  record  with  proofs  of  matters 
that  might  be  admitted,  the  court  may  compel  an  admission  or 
denial  of  all  such  allegations  as  require  proof. 
Stacey  vs.  Eandell,  17  111.  467. 

Estoppel : 

—  Ill  Pais:     Ordinarily,  admission  may  be  explained. 

Smith   vs.   Mayfield,   163   111.  447;   Eobins  vs.   Lasswell,   27   111.   265; 
Kadish  vs.  Bullen,  10  App.  566. 

Estoppel  in  pais  are  to  prevent  injuries  from  acts  and  represen- 
tations which  have  been  acted  upon.  A  declaration,  to  constitute 
an  estoppel,  must  be  one,  the  injurious  effects  of  which  might  and 
ought  to  have  been  foreseen.  It  must  be  acted  on  in  good  faith, 
and  the  person  acting  upon  it  must  have  changed  his  situation  so 
that  injury  would  result  to  him,  if  the  party  making  the  declar- 
ation were  allowed  to  retract  it. 

Knoblc  vs.  Kircher,  33  111.  308. 

Estoppel  in  pais  can  only  arise  from  acts  which  work  injury. 
Mere  declarations  to  strangers,  unless  communicated  to  and  acted 
upon  by  party,  will  not  operate  as  an  estoppel.  And  generally, 
when  the  avenues  of  information  are  equally  open  to  both  parties, 
there  will  be  no  bar. 

Mills  vs.  Graves,  38  111.  455;  Young  vs.  Fonts,  43  111.  33. 

—  Recitals  in  Agreements:  Parties  are  estopped  by  the  recitals 
in  agreements,  and  are  bound  by  their  admissions  in  them. 

Wynhook  vs.  Cowing,  21  111.  570;  Farrar  vs.  Hinch,  20  111.  647. 
But  where  collaterally  used  merely  as  admissions,  they  are 
evidence  only  of  such  matters  as  admissions  are  competent  to  prove, 
and  the  fact  that  they  are  in  writing  adds  nothing  to  their  legal 
effect,  when  the  subject  matter  of  the  admissions  is  a  legal  con- 
clusion. 

Lavery  vs.  Brooks,  37  App.  51. 

—  Inducement  to  Action:  The  declarations  of  a  party,  not  made 
with  knowledge  of  the  facts,  or  with  the  intention  that  they  should 
be  acted  upon,  or  which,  in  fact,  have  not  been  acted  upon,  will 
not  constitute  an  estoppel  in  pais. 

Winslow  vs.  Cooper,  104  111.  235. 

When  a  party  is  induced,  by  the  acts  and  declarations  of  an- 
other to  do  an  act  which  he  would  not  have  otherwise  done,  or  omits 
to  do  an  act  he  would  have  done  but  for  the  conduct  of  such  party, 
and  injury  results  therefrom,  the  party  who  induced  such  action, 
or  non-action,  must  be  held  responsible  for  the  consequences. 
Hefner  vs.  Vandolah,  57  111.  520. 

While  the  admissions  of  a  party  against  his  interest  are  always 
admissible  in  evidence  against  him,  it  may  or  may  not  be  conclu- 
sive. If  the  other  party,  relying  on  it,  alters  his  position  on  the 
faith  of  it,  the  party  making  the  admission  will  be  estopped.  But, 
ordinarily,  a  mere  admission,  unaccompanied  by  any  equitable  cir- 

Ev.— 5 


GG  ADMISSIONS  AND  DECLARATIONS 

eumstances,  which  would  render  it  conclusive,  will  not   work  an 

estoppel. 

llalloiivn  vs.  Ilalloran,  137  111.  100. 

A  verbal  statement  is  held  suflicient  when  the  party  has  made  an 
admission  which  is  clearly  inconsistent  with  the  evidence  he  pro- 
poses to  give,  or  the  title  or  claim  which  he  proposes  to  set  up, 
and  the  other  party  has  acted  on  the  admission  and  will  be  injured 

by  allowing  the  truth  of  the  admission  to  be  disproved. 
Baker  vs.  Pratt,  15  111.  .568. 

Unless  admissions  have  induced  a  person  to  act  upon  them,  and 

so  altering  his  condition,  they  may  be  shown  to  be  untrue;  but  it' 

a  party  has  acted  upon  them,  they  will  act  as  an  estoppel  on  party 

making  them. 

Young  vs.  Font,  43  111.  33. 

The  admissions  of  a  party  to  a  civil  suit,  knowing  his  rights, 
are  strong  evidence  against  him,  but  he  is  at  liberty  to  prove  that 
such  admissions  were  mistaken  or  untrue,  unless  some  other  per- 
son has  been,  induced  to  alter  his  condition,  in  which  case  he  is, 
as  to  such  persons  or  those  claiming  under  him,  but  not  as  to 
others,  estopped  from  disjuiting  their  truth. 
Ray  vs.  Bell,  24  111.  444. 

In  order  to  create  an  estoppel  in  pads,  by  acts  and  declarations, 
the  party  estopped  must  have  induced  the  other  party  to  occupy 
a  position  he  would  not  have  occupied  but  for  the  acts  and  declar- 
ations. 

Ball  vs.  Hooteii,  85  111.  159. 

A  party  cannot  rely  upon  an  estoppel  from  acts  and  representa- 
tions upon  which  he  was  not  induced  to  act  otherwise  than  he 
would,  nor  can  he,  upon  information  given,  which  is  no  more  than 
the  public  records  disclose. 

St.  Joseph's  Mfg.  Co.  vs.  Daggett,  84  111.  556. 

If  a  party  make  a  declaration,  or  does  any  act  to  induce  another 
to  do  an  act  which  he  would  not  otherwise  do,  or  to  invest  his  cap- 
ital on  the  faith  of  such  declaration  or  act,  he  will  be  estopped  to 
denv  the  truth  of  his  declaration,  or  the  just  effect  of  his  act. 
Hefner  vs.  Vandalia,  57  111.  520. 

Weig-ht  and  Sufficiency: 

Weight  of  admissions  as  evidence  is  for  jury. 

Mauro  vs.  Piatt,  62  111.  450;  Diversy  vs.  Kellogg,  44  111.  114;  Young 
vs.  Fonts,  43  111.  33;  Frazel  vs.  Cole,  29  111.  465. 

As  a  general  rule  tlie  statements  of  a  witness  as  to  verbal  admis- 
sions of  a  party  sliould  be  received  with  groat  caution,  as  that  kind 
of  evidence  is  subject  to  imperfection  and  mistake.  Where  the 
admissions  are  deliberately  made  and  precisely  identified,  the 
evidence  afforded  by  them  is  of  a  satisfactory  character. 

People  vs.  Riseho,  262  111.  596;  Lipsey  vs.  People,  227  111.  364;  Mar- 
zen  vs.  People,  173  111.  43;  Sphwat-htgen  vs.  Schwachtgen,  65  App. 
127;  XII  111.  Notes  502,  §  220. 

Proof  of  admissions  of  party  is  the  least  satisfactory  kind  of 
evidence,  even  if  witness  testify  through  personal  knowledge  of  the 
facts. 

O'Reilly  vs.  FitzGeralrl,  40  111.  310;  Young  vs.  Fonts,  43  111.  33. 

Evidence  of  alleged  admissions  of  a  deceased  person  should  be 


ADMISSIONS  AND  DECLARATIONS  '      67 

received  with  great  caution  as  such  evidence  is  the  most  dangerous 
that  can  be  admitted,  and  the  most  liable  to  abuse. 
Dangerfield  vs.  Hope,  157  App.  63. 

An  admission  amounts  to  but  oral  testimony  and  is  liable  to  be 
rebutted  by  the  party  making  it.  It  is  regarded  as  the  weakest 
and  most  uncertain  kind  of  evidence,  and  ought  to  be  received  only 
in  cases  where  parol  evidence  is  properly  admissible  to  show  the 
same  fact. 

Mason  vs.  Park,  4  111.  533. 
While  it  is  true,  as  a  general  rule,  that  evidence  of  the  admis- 
sions of  parties  is  unsatisfactory,  it  is  not  necessarily  and  per  se 
of  that  character.  It  may  or  may  not  be  so,  according  to  the  cir- 
cumstances attending  it,  from  which  the  .jury  are  to  determine  what 
weigiit  it  is  entitled  to,  without  any  interference  in  that  respect  on 
the  part  of  the  court. 

Straubher  vs.  Mohler,  80  111.  21. 

Much  depends  upon  the  accuracy  of  the  memory  of  the  witness 
and  the  circumstances  under  which  the  admissions  were  made. 
Young  vs.  Fonts,  43  111.  33. 

Where  an  admission  is  delil)erately  and  understandingly  made 
and  precisely  identified,  it  often  affords  evidence  of  the  most  sat- 
isfactory nature.  But  when  it  appears  that  the  party  making 
verbal  statements  or  admissions  w^as  misinformed  or  did  not  clearly 
express  his  own  meaning,  or  the  witnesses  misunderstood  him,  or 
cannot  give  the  words  used,  so  that,  by  altering  the  expressions 
used,  a  different  effect  may  be  given  to  what  the  party  did  say, 
it  is  of  but  little  weight,  and  ought  to  be  received  and  considered 
and  weighed  Avith  caution. 

C.  &  N.  Ey.  Co.  vs.  Button,  68  111.  409. 

A  party  may  rely  on  the  admissions  made  by  other  party,  in  his 
testimonj^,  against  his  interest,  without  being  concluded  by  the 
other  statements  made  in  exoneration  of  his  liability  or  in  his 
favor.  The  statements  of  a  party  made  against  his  interest  may 
be  accepted  and  acted  upon  by  the  .jury  as  true,  while  others  made 
in  his  favor,  though  at  the  same  time  and  as  part  of  the  same  con- 
versation, may  be  rejected. 

Schmidt  vs.  Pfau,  114  111.  494. 

Evidence  of  admissions  and  statements  of  a  party,  in  loose  and 
casual  conversations,  occurring  several  years  before  the  witnesses 
are  examined  relating  to  a  subject  or  subjects  in  which  they  had 
no  interest,  where  they  do  not  pretend  to  give  the  exact  phraseology 
used,  or  to  show  the  exact  connection  in  which  the  language  was 
used,  should  be  received  with  great  caution,  and  unless  corrobor- 
ated, will  not  be  sufficient  to  establish  a  resulting  trust. 
Harris  vs.  Melntyre,  118  111.  275. 

In  order  to  make  an  admission  or  declaration  of  a  party  of  any 
value  as  evidence,  it  ought  to  appear  that  it  was  made  by  the  party 
with  full  knowledge  of  his  rights,  and  deliberately.  If  made  in 
ignoi-ance  of  his  rights,  it  amounts  to  nothing.  The  jury,  in  weigh- 
ing such  evidence,  should  consider  all  the  circumstances  throwing 
light  on  the  admission. 

Winslow  vs.  Cooper,  104  111.  235. 


68     •  ADMISSIONS  AND  DECLARATIONS 

Admissions  of  one  of  the  parties  to  a  marriage  contract,  obtained 

under  threats  by  the  father  of  the  injured  party,  with  a  deadly 

weapon  in  his  hand,  or  by  artifice  of  counsel,  should  be  weighed 

with  great  caution. 

Fidler  vs.  McKinley,  21  111.  308. 

It  is  not  true  that,  under  all  circumstances,  admissions  of  a  party 
are  weak  evidence ;  sometimes  they  are  the  strongest  and  most 
satisfactory  species  of  evidence.  It  is  the  province  of  the  jury  to 
weigh  such  evidence,  and  give  it  the  consideration  to  which  it  is 
entitled;  and  in  case  of  a  conflict,  the  court  has  no  right  to  tell 
the  jury  that  an  admission  is  a  weak  kind  of  evidence. 
Mauro  vs.  Piatt,  62  111.  450. 

Where  one  party  gives  evidence  of  the  admissions  of  the  other 
party,  such  admissions  are  not  conclusive  of  the  point  to  which 
they  refer,  in  absence  of  other  explanatory  or  contradictory  evi- 
dence, but  are  to  be  weighed  and  considered  the  same  as  other 
evidence. 

The  admissions  must  be,  in  themselves,  consistent  and  not  con- 
tradictory, and  in  such  case  it  would  not  be  true  to  say  that  they 
are  conclusive,  unless  they  are  rebutted  or  explained  by  other 
evidence.  It  is  the  duty  of  the  jury  to  receive  such  portions  as 
they  believe,  and  reject  such  portions  as  they  may  think  untrue. 
Ayers  vs.  Metcalf,  39  111.  307;  Young  vs.  Fout,  43  111.  33. 

"Where  one  party  to  a  contract  alleges  certain  things  concerning 
the  contract  to  be  true,  in  presence  of  other  party,  and  he  remains 
silent,  making  no  denial,  such  evidence  is  proper  for  the  consider- 
ation of  the  jury,  but  it  is  not  conclusive,  nor  is  such  silence  evi- 
dence, always,  of  the  truth  of  the  statements  thus  made,  because 
under  a  variety  of  circumstances,  it  would  be  highly  improper  to 
make  a  denial.  The  extent  of  the  rule  is  that  it  is  a  question  for 
the  jury,  in  the  light  of  all  the  circumstances,  to  say  whether  or  not 
it  amounts  to  an  admission. 

Hagenbaugh  vs.  Crabtree,  33  111.  225. 

Parties   cannot,   by   their   admissions   of  law   as   to  undisputed 
facts,  bind  the  court  to  adopt  their  views,  but  they  may  estop 
themselves  from  afterwards  denying  an  admission. 
People  vs.  Ft.  W.  &  C.  Ey.  Co.,  244  111.  166. 

It  is  material  to  consider  whether  an  admission  is  made  inde- 
pendently and  because  it  is  true,  or  is  merely  conversational, 
entered  into  between  the  parties  from  other  causes  than  a  convic- 
tion of  its  truth  and  only  as  a  convenient  assumption  for  the 

particular  purpose  at  hand. 

Smith  vs.  Mayfield,  163  111.  447. 
With  respect  to  all  verbal  admissions,  they  should  1)6  received 
with  great  caution.  The  evidence  consisting,  as  it  does,  in  the  mere 
repetition  of  oral  statements  is  subject  to  much  imperfection  and 
mistake,  the  party  himself  either  being  misinformed  or  not 
having  clearly  expressed  his  own  meaning,  or  the  witness  having 
misunderstood  him.  It  frequently  happens  also  that  the  witness, 
by  unintentionally  altering  a  few  of  the  expressions  really  used, 
gives  an  effect  to  the  statement  completely  at  variance  with  what 

the  party  actually  did  say. 

Bragg  vs.  Geddes,  93  111.  39;   Eyder  vs.  Eyder,  244  111.  297.      (See 
Conclusions   of  Witnesses.) 


ADOPTION  69 

ADOPTION 

Burden  of  Proof  and  Presumptions : 

One  claiming  to  be  an  adopted  child  for  the  purpose  of  inherit- 
ance must  prove  the  petition  for  adoption  contained  the  necessary 
requisites  to  confer  jurisdiction  upon  the  court. 
Kennedy  vs.  Borah,  226  111.  243. 

The  jurisdiction  must  appear  from  the  record  itself;  nothing 
will  be  presumed  to  be  within  the  jurisdiction  which  does  not  dis- 
tinctly appear  to  be  so. 

Kennedy  vs.  Borah,  226  111.  243 ;  Watts  vs.  Dull,  184  111.  86 ;  Barnard 
vs.  Barnard,  119  111.  92. 

Admissibility  of  Evidence: 

Where  many  years  have  elapsed  since  the  adoption  proceedings 

were  had,  and  the  records  of  the  court  have  been  destroyed  by  fire, 

during  which  time  the  judge  who  presided  has  died,  parol  proof 

of  compliance  with  the  statute  conferring  jurisdiction  upon  the 

court  is  admissible. 

Kennedy  vs.  Borah,  226  111.  243. 

If  the  county  court  had  jurisdiction  to  enter  an  order  of  adop- 
tion, such  order  cannot  be  attacked  in  a  proceeding  by  the  adopted 
child  to  have  her  portion  of  her  adopted  parent's  estate  awarded 
to  her. 

Flannigan  vs.  Howard,  200  111.  396. 

ADULT 

See  Age. 

ADULTERY 

See  Dower. 
Definition : 

Adultery  is  illicit  intercourse  between  a  married  person  and  one 
of  the  opposite  sex,  whether  married  or  single. 

Miner  vs.  People,  58  111.  59;  People  vs.  Martin,  180  App.  578. 

Marriagfe : 

Averment  of  marriage  must  be  proven. 

People   vs.    Martin,    180   App.   578. 
To  sustain  a  charge  in  criminal  prosecution  there  must  be  proof 

of  actual  and  not  reputed  marriage. 
Miner  vs.  People,  58  111.  59. 

Degree  of  Proof: 

A  preponderance  of  the  evidence  only,  and  not  a  clear  pre- 
ponderance, is  necessary  in  action  for  divorce  to  establish  a  charge 

of  adultery. 

Heyman  vs.  Heyman,  210  111.  524;  Lenning  vs.  Lenning,  176  111.  180; 
Stiles  vs.  Stiles,  167  111.  576;  Chestnut  vs.  Chestnut,  88  111.  548; 
Carter  vs.  Carter,  62  111.  439;  Jenkins  vs.  Jenkins,  86  111.  340; 
Balswic    vs.    Balswic,    178    App.    118. 

Circumstantial  Evidence: 

—  In  General:     May  be  proven  by  the  inferences  arising  from 

the  acts  of  the  parties,  although  not  directly  shown. 

Jones  vs.  Jones,  124  App.  201;  Smith  vs.  Smith,  149  App.  596; 
Zimmermann  vs.  Zimmermann,  242  111.  552;  Dunham  vs.  Dunham, 
162  111.  589;  Carter  vs.  Carter,  152  111.  434;  Searles  vs.  People, 
13  111.  597;  XII  111.  Notes  164,  §46. 


70  ADULTERY 

—  Weight  and  Sufficiency:     Suspicious  circumstances  are  insuf- 
ficient to  establish  charge  of  adultery, 
Jones  vs.  Jones,  124  App.  281. 
It  is  sufficient  if  the  evidence,  when  considered  together,  con- 
vinces the  mind  that  the  charge  is  true.        ^  • '"' 
Daily  vs.  Daily,  64  111.  329. 
Adultery  may  he  established  by  circumstantial  evidence  but  the 
proof  must  convince  the  mind  affirmatively  that  actual  adultery 
was   committed,  ■  as  nothing  ^hort   of  the   carnal   act   can   lay   a 

foundation  for  a  divorce. 

Blake  vs.  Blake,  70  111.  618. 
Direct  proof  is  not  required,  but  may  be  proven  by  such  facts 
and  circumstances  as  by  fair  inferences  would  raise  in  the  mind  of 
a  reasonable  and  just  man  a  presumption  of  cohabitation  and  un- 
lawful intimacy. 

Heyman  vs.   Heyman,   210   111.   524;    Stiles  vs.   Stiles,   167   111.   576; 
Bast  vs.  Bast,  82  111.  584;   Daily  vs.  Daily,  64  111.  329;   Smith  vs. 
Smith,  149  App.  596. 
The   question   for   the   jury,    in    determining   guilt   in   criminal 
action,  is  not  whether  there  is  sufficient  evidence  of  the  acts  occur- 
ring in  the  particular  county  to  prove  guilt  beyond  a  reasonable 
doubt,  but  whether  there  was  such  evidence  tending  to  establish 
guilt  as,  when  considered  with  all  the  evidence  and  as  explaining 
the  evidence,  showing  prior  illicit  relations,  is  sufficent  to  prove  the 
offense  charged  beyond  a  reasonable  doubt. 
Crane  vs.  People,  168  111.  395. 
Visiting  house  of  ill-fame  admissible ;  character  of  house  must 

be  clearlv  proven. 

Cooke  vs.  Cooke,  152'  Dl.  286. 

That  defendant  had,  on  many  occasions,  been  shut  up  alone  in 
the  room  of  a  woman  generally  reputed  to  be  unchaste,  no  ex- 
planation being  given  for  the  doors  being  locked  and  all  entrances 
to  the  house  liarred ;  that  he  visited  her  almost  daily,  in  the  absence 
of  her  husband,  on  no  apparent  business ;  that  he  paid  her  money, 
frequently  met  her  at  an  eating  house,  had  frequent  rides  with 
her, — together  with  other  circumstances  proved,  unexplained,  fully 
justified  the  court  in  finding  defendant  guilty. 
Daily  vs.  Daily,  64  lU.  329. 

Complainant  testified  to  having  detected  the  husband  in  act  of 

adultery  on  several  occasions  with  a  woman  employed  in  the  house 

as  a  servant.     The  husband  and  servant  both  denied  the  charge 

of  adultery,  and  there  was  no  evidence  tending  to  disprove  their 

denial  except  that  of  the  wife,  and  her  testimony  was  improbable 

in  details.     The  evidence  was  not  of  a  satisfactory  character  to 

warrant  a  decree  of  divorce. 

Jenkins  vs.  Jenkins,  86  111.  340. 

The  fact  that  the  husband,  after  his  wife  left  him,  employed  a 
man  and  his  wife  to  come,  and  stay  at  his  house  for  a  few  days, 
although  the  character  of  the  man's  w'ife  for  virtue  may  not  have 
been  good,  does  not  prove  the  husliand's  adultery,  unless  it  is  also 
shown  that  they  were  emploved  for  improper  purposes. 
Carter  vs.  Carter,  62  111."  439. 

Evidence  that  the  defendants,  indicted  for  living  in  open  adultery, 


ADULTERY  7-1 

were  living,  to  all  outward  appearances  as  husband  and  wife,  that 
the  man  had  a  wife,  and  the  woman  had  a  husband,  living  and  un- 
divorced,  is  sufficient  when  considered  with  the  evidence  of  prior 
illicit  relations  between  them,  to  sustain  a  verdict  of  guilty. 
Crane  vs.  People,  168  111.  395.  • 

Occupying  same  berth  in  sleeping  car  admissible. 
Eawsom  vs.  Eawsom,  37  App.  491. 

If  a  married  w^oman  is  shown,  by  undoubted  proof,  to  have  been 
in  an  equivocal  position  with  a  man  not  her  husband,  leading  to  a 
suspicion  of  adultery,  and  it  is  proven  that  she  had  previously 
shown  an  unwarranted  predilection  for  that  man;  that  they  had 
been  detected  in  a  clandestine  correspondence,  had  stolen  inter- 
views, made  passionate  declarations ;  that  her  affections  were  alien- 
ated from  her  husband,  and  that  her  mind  and  heart  were  already 
depraved,  and  nothing  remained  wanting'  but  an  opportunity  to 
consummate  the  guilty  purpose,  then  proof  that  such  opportunity 
had  occurred,  will  lead  to  the  satisfactory  conclusion  that  the  act 
had  been  committed.  But,  when  those  circumstances  are  want- 
ing, proof  of  the  opportunity  and  equivocal  appearances  afford  no 
proof  of  adultery. 

Blake  vs.  Blake,  70  111.  618. 

—  Presumptions:  When  the  facts  and  circumstances  relied 
upon  to  establish  the  same,  may  well  import  innocence,  as  guilt, 
they  must  be  held  to  import  innocence. 

Carter  vs.  Carter,  62  111.  439;  Jenkins  vs.  Jenkins,  86  111.  340. 
Adultery  may  be  proven  by  circumstances,  but  the  circumstances 
to  raise  the  presumption  of  unlawful  intimacy  should  amount  to 
enough  to  produce  a  belief  or  conviction  of  the  judgment  that  the 
parties  had  been  co-habiting. 

Searles  vs.  People,  13  111.  597. 

Opinion  Evidence: 

A  witness  who  is  not  an  expert  may  give  his  conclusion  and  the 
results  of  his  oliservation,  when  the  matter  to  which  the  testimony 
relates  cannot  be  reproduced  or  described  to  the  jury  precisely  as 
it  appeared  to  the  witness.  Therefore  it  is  not  error  to  pei-mit  a 
witness  to  give  his  opinion  from  sounds,  noises  and  conversations 
heard  in  an  adjoining  room  that  an  act  of  adultery  took  place, 
particularly  wluu-e  the  sounds  heard  and  the  conversation  detailed 
were  so  conclusive  that  the  opinion  of  the  witness  could  add  noth- 
ing to  their  force. 

Carter  vs.  Carter,  152  111.  434. 

Character  and  Reputation  of  Parties: 

Defendant's  reputation  for  chastity  admissible. 

Thomas  vs.  Thomas,  51  111.  162. 
Character  of  alleged  paramour  admissible. 

Daily  vs.  Daily,  64  111.  329. 

Letters  and  Correspondence: 

Where  a  difficulty  is  admitted  to  have  taken  place  between  hus- 
band and  wife,  the  cause  of  which  is  in  dispute,  the  husband,  who 
swears  the  cause  w^as  reading  by  him  to  his  wife  of  certain  unsigned 
letters,  found  in  her  possession,  may  properly  read  the  letters  as 


72  ADVANCEMENTS 

part  of  the  res  gestae,  even  though  they  tend  to  prove  improper 

conduct  not  charged  in  bill. 

Carter  vs.  Carter,  152  111.  434. 

Letters  are  incompetent  to  establish  adultery  unless  they  appear 
as  part  of  a  series,  and  it  is  shown  they  were  assented  to  or  acted 
upon. 

Jones  vs.  Jones,  124  App.  201. 

Letters  written  by  alleged  paramour  are  not  competent  as  against 
a  person  charged  with  adultery,  but  letters  written  by  person  to 
such  alleged  paramour,  showing  affectionate  disposition  towards 
him,  are  competent. 

Loreuson  vs.  Lorenson,  155  App.  35;  Razor  vs.  Razor,  149  111.  621. 

Where  only  issue  is  as  to  whether  wife  had  resided  in  state  for 
necessary  period  of  time,  and  whether  charge  of  adultery  was  true, 
letters  to  husband  admitting  miscarriage  and  declaration  that  she 
would  bear  him  no  more  children,  and  consenting  to  his  adultery, 
are  inadmissible. 

Cliapman  vs.  Chapman,  129  111.  386. 

After  Filing  Bill: 

Evidence  of  adultery  of  defendant  after  filing  bill  is  improper. 
Foval  vs.  Foval,  39  App.  644. 

In  order  to  render  subsequent  acts  admissible,  there  must  be  some 

independent  proof  of  the  acts  relied  upon. 
Wahle  vs.  Wahle,  71  111.  510. 

Kecrimination  a^  a  Defense: 

Proof  tliat  complainant  has  been  guilty  of  adultery  is  a  complete 
bar  to  divorce,  whether  alleged  in  the  pleadings  or  not. 

Zimmermann  vs.  Zimmermann,  242  111.  552;  Decker  vs.  Decker,  193 
111.  285;  Duberstein  vs.  Duberstein,  171  111.  133;  Lenning  vs. 
Lenning,  176  111.  180;  Gordon  vs.  Gordon,  141  111.  160;  XII  111. 
Notes  160,  §  17. 

And  though  during  pending  of  litigation. 

Zimmermann  vs.  Zimmermann,  242  111.  552;  Davis  vs.  Davis  19 
111.  334. 

Statutory  Offense: 

The  statutory  offense  of  adultery  cannot  be  proven  by  a  single 
act,  or  even  a  number  of  acts  of  illicit  intercourse.  The  statute 
requires  an  "open  state  of  adultery."  The  living  together  must 
be  open  and  notorious  as  if  the  relation  of  husband  and  wife  existed, 
and  the  illicit  intercourse  habitual. 

Miner  vs.  People,  58  111.  59;  Harmon  vs.  Harmon,  16  111.  85;  Searles 
vs.  People,  13  111.  597. 

Bill  for  Dower: 

Adultery  by  a  wife  after  she  has  been  wrongfully  abandoned  by 
her  husband  will  not  have  the  effect  of  barring  her  claim  for  dower 
in  her  husband's  lands,  and  evidence  of  the  same,  on  bill  to  assign 
dower,  is  inadmissible. 

Gordon  vs.  Diekirson,  131  111.  141. 


ADVANCEMENTS 

See  Gifts,  Trusts,  Delivery,  Husband  and  Wife,  Parent  and 
Child. 


ADVANCEMENTS  73 

Defined : 

An  advancement  is  a  gift  from  a  parent  to  a  child  or  heir  by 
way  of  anticipation  of  the  whole  or  a  part  of  that  to  which  it  is 
supposed  the  donee  will  be  entitled  on  the  death  of  the  party  mak- 
ing the  advancement. 

Wallace  vs.  Eeddick,  119  III.  151. 
An  advancement  differs  from  a  gift  in  as  much  as  it  is  charged 
against  the  child ;  and  from  a  debt  in  that  there  is  no  enforceable 
liability  on  the  part  of  the  child  to  repay  during  the  lifetime  of  the 
donor,  or  after  his  death,  except  in  the  way  of  suffering  a  deduction 
from  his  portion  of  the  estate. 

Duckett  vs.  Gerig,  223  111.  284. 

How  Established: 

—  Must  he  in  Writing:  No  gift  or  grant  shall  be  deemed  an 
advancement  unless  so  expressed  in  writing  by  the  donor  or 
acknowledged  in  writing  bj^  the  donee. 

Gary  vs.  Newton,  201  111.   170;   Marshall  vs.  Coleman,  187  111.  556; 
Bartmess  vs.  Fuller,  170  111.  193;  XI  111.  Notes  57,  §  3. 
No  material  or  essential  part  of  the  proof  necessary  to  establish 
an  advancement  can  be  supplied  by  parol  testimony. 

Young  vs.  Young,  204  111.  430. 

A  verbal  agreement  by  an  heir  to  release  his  expectancy  of  his 
father's  estate  in  consideration  of  the  payment  of  a  sum  of  money 
by  his  father  is  but  an  attempted  advancement,  and  is  void  if  not 
charged  in  writing  by  the  donor  as  an  advancement. 

Gary  vs.   Newton,  201  111.   170;    Elliott  vs,   Western  Coal  Co.,   243 
111.    614. 

—  Deed:  A  deed  not  disclosing  on  its  face  anything  to  indicate 
that  the  interests  conveyed  were  intended  as  advancements  is  not 
sufficient. 

Bartmess  vs.  Fuller,  170  111.  193;  Long  vs.  Long,  118  111.  638. 
And  the  recital  in  a  deed  from  a  father  to  a  son,  of  "love  and 
natural  affection,"  as  a  consideration,  is  not  sufficient  to  show  the 

property  conveyed  is  to  be  taken  as  an  advancement. 
Wilkinson  vs.  Thomas,  128  111.  363. 
But  the  parol  promise  of  an  heir  to  accept  a  certain  amount  of 
property  in  lieu  of  his  expected  interest  in  his  father's  estate,  when 
followed  by  the  execution  and  delivery  of  a  deed,  and  the  posses- 
sion of  the  property  conveyed,  is  valid. 

Crosman   vs.   Keister,   223    111.   69;    Gary  vs.   Newton,   201   III.   170; 
Galbraith  vs.  McLean,  84  111.  379. 

And  where  a  parent  conveys  land  to  son  by  deed,  reciting  money 

consideration,  and  son  executes  receipt  stating  he  had  received  a 

certain  sum  as  his  full  share  of  his  parent's  estate,  the  receipt  is 

admissible  and  the  conveyance  constituted  an  advancement  in  full, 

and  children  of  advanced  heir  are  barred. 
Kershaw  vs.  Kershaw,  102  111.  307. 

—  Will:  The  recital  in  a  will  "she  having  heretofore  received 
the  sum  of  $1,000  in  real  estate,"  does  not  comply  with  the  statute. 

Wilkinson  vs.  Thomas,  128  111.  363. 

—  Account  Book:  The  rule  that  book  accounts  are  only  ad- 
missible in  favor  of  the  party  who  keeps  them  when  the  entries  are 
made  contemporaneously  with  the  transactions  recorded,  applies 
to  the  books  and  entries  of  a  deceased  person. 

Marshall  vs.  Coleman,  187  111,  556. 


74  ^ADVANCEMENTS 

An  account  hook  showing  charges  of  money  paid  to  children  by 
tlieir  father  from  time  to  time  does  not  sliow  that  'sncli  sums  were 
advancements  even  though  their  father  intended  them  as  such, 
where  there  is  nothing  in  writing  evidencing  such  intention. 

Young  vs.  Young,  204  111.  430;  Marshall  vs.  Coleman,  187  111.  556. 

The  entry  in  a  book,  at  the  dictation  of  the  intestate,  just  before 
his  decease,  of  items  of  personal  property  previously  given  to  his 
several  children,  is  inadmissible  in  evidence  to  prove  the  indel)ted- 
ness  to  the  estate.  Such  entries  were  not  made  in  the  usual  course 
of  business,  and  were  mere  memoranda  of  advancements  made,  and 

do  not  come  within  the  statute. 

Tread  way  vs.  Treaclway,  5  A  pp.  478. 
The  mere  memoranda  of  what  intestate  had  given  to  his  chil- 
dren, without  anything  to  show  that  the  gifts  were  made  as  ad-. 

vancements,  are  not  sufficient. 

Jones  vs.  Dawson,  68  App.  70. 

—  Lost  Instrument  Evidencing:  Proof  of  the  loss  of  a  written 
instrument  alleged  to  show  an  advancement  is  unavailing  without 
secondary  proof  of  contents  thereof. 

Marshall  vs.  Coleman,  187  111.  556. 

—  Quit-Claim  Deed  to  Ancestor:  The  mere  making  and  deliv- 
ery of  a  quit-claim  deed  by  a  person  to  his  grand-father,  as  to  the 
lands  of  the  latter,  affords  no  evidence  of  an  intention  on  the  part 
of  the  grantor  to  release  an  expected  inheritance. 

Long  vs.  Long,  118  111.  638.     '  J-  y/;  •' ,' ,  ;,  '      ' 

—  Note  Paid  hy  Parent:  The  l*etention"of  a  note  paid  by  a 
parent  as  surety  for  the  husband  of  a  child,  is  not  conclusive 
as  to  an  intention  not  to  consider  the  payment  as  an  advancement, 

the  note  being  marked  paid. 

Kinney  vs.  Schumaker,  65  App.  342. 

—  Destruction  of  Evidence:,  Evidence  that  a  son  had  posses- 
sion of  his  father's  papers  shortly  after  his  death  and  deposited 
them  in  a  bank  does  not  give  rise  to  tlie  presumption  that  he 
destroyed  or  suppressed  notes  and  books  showing  amounts  advanced 
to  hin'i  by  his  father,  where  there  is  no  competent  evidence  that 

such  notes  or  books  existed. 

Scott  vs.  Scott,  191  111.  628. 
It  is  presumed  that  testator  mutilated  book  to  destroy  proof 

of  advancement. 

Marshall  vs.  Coleman,  187  111.  556. 

Intent  of  Donor: 

—  Parol:  Whether  the  transaction  was  an  advancement  or  a 
trust  may  be  shown  by  evidence  of  intention  at  the  time  of  the 
conveyance  of  the  legal  title. 

Brennaman  vs.  Schell,  212  111.  356. 

Under  section  7  of  the  statute  of  Descent,  providing  that  no 

gift  or  grant  shall  be.,  deemed  an  advancement  unless  so  expressed 

or  charged  in  writing  by  the  donor  or  acknowledged  by  the  donee 

in  writing,  parol  evidence  of  donor's  intention  at  the  time  gift  was 

made  is  immaterial. 

Elliott  vs.   Western  Coal  Co.,  243   111.   614. 

—  Hoiv  Must  Be  Proven:  Prior  to  the  enactment  of  section  7 
of  the  Statute  of  Descent,  it  was  a  question  of  intention  whether  a 


ADVANCEMENTS  7Sr 

gift  from  parent  to  child  was  an  advancement,  and  oral  declar- 
ations of  the  donor  at  the  time  were  admissible,  and  while  the  ques- 
tion of  advancement  is  still  one  Of  intention,  yet  such  intention 
must  now  be  expressed  as  required  by  statute. 
Elliott  vs.  Western  Coal  Co.,  243  111.  614. 

Declarations  of  Donor: 

Declarations  of  the  donor,  whether  oral  or  in  writing,  made 
several  years  after  giving-  property  to  his  child,  are  not  admissible 
to  show  the  gift  was  intended  as  an  advancement. 

Elliott  vs.  Western  Coal  Co.,  243  111.  614;  Long  vs.  Lone,  118  111 
638. 

Where  a  will  does  not  specify  what  notes  or  accounts  or  the 
amounts  thereof  are  to  be  deducted  from  a  son's  share  as  advance- 
ments, but  merely  states  whatever  notes  and  unsettled  accounts  the 
testator  holds  against  his  son  at  the  time  of  his  death  shall  be  con- 
sidered, declarations  of  the  testator  made  to  his  attorney  and 
others  who  were  present  when  the  will  was  made,  but  not  in  the 
presence  of  the  son,  as  to  the  amounts  of  such  notes  and  accounts, 
are  not  admissible ;  nor  can  they  be  considered  competent  as  part 
of  the  res  gestae. 

Scott  vs.  Scott,  191  111.  628. 

Parol : 

No  material  or  essential  part  of  the  proof  necessary  to  establish 
an  advancement  can  be  supplied  by  parol. 
Elliott  vs.  Western  Coal  Co.,  243  111.  614. 

An  advancement  cannot  be  established  by  parol  evidence,  but, 
on  the  contrary,  "the  gift  or  grant  must  be  expressed  in  writing 
as  an  advancement  or  charged  in  writing  by  the  intestate,  or 
acknowledged  in  writing"  by  the  donee  or  grantee. 

Bartmess  vs.  Fuller,  170  111.  193;  Young  vs.  Young-,  204  111.  430; 
Brcnnaman  vs.  Sc-hcll,  212  Til.  356;  Wilkinson  vs.  Thomas,  128  111. 
363;   Long  vs.  Long,  118  111.  636;   Maxwell  vs.  Maxwell,   109  111. 

588. 

Presumptions : 

The  general  rule  is  that  if  the  purchase  money  is  paid  by  the  hus- 
band or  father,  and  the  legal  title  is  taken  in  the  name  of  a  wife 
or  child,  the  implication  of  resulting  trust  does  not  arise,  but  the 
presumption  is  that  the  conveyance  to  the  wife  or  child  was  in- 
tended as  an  advancement. 

Baehseits  vs.  Leichtweis,  256  111.  357;  Brennaman  vs.  Schell,  212  111. 

356;   Smith  vs.  Smith,   144  111.  299;   Campbell  vs.  Potter,   147  111. 

576;  Duvall  vs.  Duvall,  153  111.  49;  Goeltz  vs.  Goeltz,  157  111.  33; 

Fry  vs.  Morrison,  159  111.  244;  XIV  111.  Notes  903,  §§51,  55. 

And  this  although  the  husl)and,  for  a  long  time  afterwards,  lives 

on  the  place  and  treats  it  as  his  own,  paying  taxes  and  making 

valuable  improvements.  ^ 

Fry  vs.  Morrison,  159  111.  244. 

But  an  advancement  from  a  wife  to  her  husband  is  not  to  be 
presumed  from  such  a  transfer. 

Francis  vs.  Ehodes,  146  111.  635. 

The  presumption  of  an  advancement  may  be  rebutted  or  over- 
come by  parol  evidence  of  antecedent,  contemporaneous  or  subse- 
quent facts  and  circumstances  so  immediately  connected  with  it  as 
to  illustrate  the  intention  of  the  parties,  and  which  clearly  shows 


76  ADVERSE  PARTY 

that  it  was  intended  that  some  beneficial  interest  or  use  was  retained 

by  the  gi'antor. 

Campbell  vs.  Potter,  147  111.  576. 
It  may  be  shown  that  the  conveyance  was  not  intended  to  be  an 
advancement  by  proof  of  such  acts  and  circumstances  as  clearly  in- 
dicate that  the  intention  wjis  not  to  make  an  advancement. 
Johnson  vs.  Johnson,  138  111.  385. 
Proof  that  the  parent  reluctantly  consented  to  the  conveyance 
to  a  child  by  title  purchased  with  the  parent's  money,  being  in- 
fluenced to  do  so  by  business  reasons,  and  that  after  the  conveyance 
the  parent  took  possession  and  improved  the  property  and  after 
leaving  the  same,  rented  it  to  tenants,  rebuts  presumption  that  con- 
veyance was  an  advancement. 

Brennaman  vs.  Schell,  212  111.  356. 
Where  one  conveys  land  to  enable  the  grantee  to  qualify  as 
surety  on  the  grantor's  bond,  and  subsequently  the  surety  conveys 
the  land  to  the  grantor's  wife  in  order  to  avoid  creditors  in  case 
of  a  suit  on  the  bond,  as  to  the  husband  and  those  claiming  under 
him,  the  conveyance  to  the  wife  will  be  an  advancement  to  her. 
Lewis  vs.  McGrath,  191  111.  401. 
Whether  a  purchase  in  the  name  of  the  wife  or  a  child  is  an  ad- 
vancement or  not  is  a  question  of  pure  intention. 
Bachseits  vs.  Leiehtweis,  256  111.  357. 
Not  every  gift  from  parent  to  child  is  to  be  regarded  as  an  ad- 
vancement. 

Elliott  vs.  Western  Coal  Co.,  243  111.  614. 

Value : 

In  ascertaining  the  value  of  advancements,  it  should  be  con- 
sidered as  of  the  date  when  it  was  in  fact  made,  and  possession  was 
taken,  though  not  conveyed  until  afterwards,  the  deed  taking  effect 

as  of  the  prior  date. 

Pigg  vs.  Carroll,  89  111.  205. 

Re-payment : 

Advanced  heir  may  show  by  extrinsic  evidence  that  advancement 
described  by  testator  was  repaid  after  execution  of  will. 
Aster  vs.  Ralston,   179  App.   194. 


ADVERSE  PARTY 

See  Contradiction  and  Sustaining  Witness,  Witnesses. 
Right  to  Call: 

Under  a  mixed  bill  for  discovery  and  other  relief,  waiving  oath 

to  the  answer,  plaintiff  may  have  defendant  sworn  and  examined 

as  a  witness. 

Hair  Co.  vs.  Daily,  161  111.  379. 

Effect  of  Calling  or  Naming  as  Nominal  Party: 

Fact  that  witness  is  called  by  adverse  party  does  not  qualify  her 

to  testify  in  her  own  behalf. 

Garrus  vs.  Davis,  234  111.  326;  Merchants  L.  &  T.  Co.  vs.  Egan,  222 
111.  494. 
A  complainant  cannot  deprive  defendant  of  the  testimony  of  a 


ADVERSE  POSSESSION  77 

witness  who  is  not  a  necessary  or  proper  party,  by  making  such 
witness  a  co-defendant. 

Afikman  vs.  Potter,  239  111.  578;  Pain  vs.  Parson,  179  111.  185. 
Dismissal  of  witness  as  a  complainant  and  naming  him  in  the 
pleadings  as  a  defendant  has  no  eft'ect  to  render  him  an  adverse 
party  in  interest  to  comj)Iainants  and  thereby  competent. 
Pyle  vs.  Pyle,  L'3M  111.  289;  Bardell  vs.  Brady,  172  111.  420. 

Effect  of  Disclaimer  of  Interest: 

Party  cannot  be  made  a  competent  witness  by  releasing  his  in- 
terest. 

Volbracht  vs.  White,  197  111.  298. 
All  executor,  called  as  a  witness  in  a  will  contest  but  withdrawn 
upon  objection  by  contestants,  may  testify  at  a  later  stage  of  the 
proceedings  where,  in  the  meantime,  he  procures  his  discharge  as 
executor  from  the  county  court  and  retains  no  interest  in  the  suit 
as  a  party  or  otherwise. 

Smith  vs.  Smith,  168  111.  488. 

Contradiction  and  Impeachment: 

A  party  who  calls  the  adverse  party  as  his  witness  is  not  bound 
by  the  mere  conclusions  of  such  witness,  and  only  by  his  statement 
of  fact  in  so  far  as  he  is  entitled  to  credit,  and  all  other  proper 
tests  of  the  credibility  of  witnesses  and  the  weight  of  the  evidence. 
A  party  is  not  concluded  by  the  evidence  of  a  witness  introduced 
by  him  whether  a  party  or  not. 

If  a  witness  state  facts  against  the  interest  of  the  party  calling 
him,  other  w^itnesses  may  be  called  by  the  same  party  to  disprove 
those  facts,  as  such  facts  are  evidence  in  the  case ;  and  the  other 
witnesses  are  not  called  directly  to  discredit  the  first,  but  the  im- 
peachment of  his  credit  is  incidental,  only,  and  consequential. 

Lasher  vs.  Colton,  225  111.  234;   U.  S.  Brew.  Co.  vs.  Ruddy,  208  111. 

306;    Higrhley  vs.   Amer.   Natl.   Bank,   185   111.   565;    Rindskoph   vs. 

Kuder,  145  111.  607;   Mitchell  vs.  Sawyer,  115  111.  650;  People  vs. 

Paul,  143  App.  566;  XIV  111.  Notes  1151,  §290. 

A  party  having  called  an  adyerse  party  as  a  witness  can  not 
thereafter  introduce  what  is  known  as  directly  impeaching  testi- 
mony. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597 ;  U.  S.  Brew.  Co.  vs.  Ruddy, 
203  111.  306;  Bauman  vs.  Ash,  143  111.  649;  Mitchell  vs.  Sawyer, 
115  111.  650;  Briggs  vs.  Keplinger,  159  App.  265. 

Where  a  plaintiff  calls  as  a  witness  one  of  the  owners  of  the  de- 
fendant corporation,  he  may  examine  the  witness  in  such  a  way  as 
to  elicit  the  facts,  even  though  the  examination  partakes  of  the 

nature  of  a  cross  examination. 

N.  A.  Restaurant  vs.  McEUigott,  227  111.  317. 


ADVERSE  POSSESSION 

See  Abandonment,  Color  of  Title,  Ejectment,  Good  Faith, 
Possession,  Title,  Trespass. 
Presumptions : 

—  In  General:     Adverse  possession  cannot  be  made  out  by  in- 
ference or  implication. 

Horn  vs.  Metzger,  234  111.  240;  Zerngibl  vs.  Dock  Co.,  157  111.  430; 
McClellan  vs.  Kellogg,  17  HI.  498. 


78  ADVERSE  POSSESSION 

,. Presumptions  do  not  rim  in  favor  of  adverse  claimants. 

White  vs.  Harris,  206  111.  584. 

Presumption  as  to  jiossession  favors  le^al  title  as  against  color 

of  title. 

Towle  vs.  Quante,  246  111.  568. 

Possession  under  deed  is  presumed  to  be  co-extensive  with  deed. 
S.  T.  &  H.  R.  Co.  vs.  Nugent,  152  111.  119. 

Possession  is  presumed  to  continue  until  interruption  is  estab- 
lished. 

Downing  vs.  Mayes,  153  111.  330. 

Where  an  entry  is  made  with  consent  of  owner,  and  subservient 
to  his  claim,  possession  will  be  presumed  to  continue  in  subordi- 
nation. 

C.  &  A.  R.  R.  Co.  vs.  Keegan,  185  111.  70 ;  Timraons  vs.  Kidwell,  138 
111.   13;    Bryan  vs.  E.   St.  L.  R.  Co.,   12  App.   390;   XI  111.  Notes 
83,  §  207. 
Possession  by  widow  before  assignment  of  dower  not  presumed 

to  be  hostile  to  co-tenant. 

Lambert  vs.  Hemler,  244  111.  254. 
Joint  possession  by  life  tenant  and  remainder  man  is  not  pre- 
sumed to  be  adverse. 

Wright  vs.  Stice,  173  111.  571. 

Essential  Elements: 

—  In  General:     The  intention  with  which  possession  was  taken 
is  a  material  factor  in  determining  whether  it  is  adverse. 
Kirby  vs.  Kirby,  236  HI.  255. 
Must  be  hostile  or  adverse,  actual,  visible,  notorious,  and  exclu- 
sive, continuous,  under  claim  or  color  of  title. 

Zerngibl  vs.  Dock  Co.,   157   111.   430;    Stewart  vs.   Andrews,   239   111. 
186;    Kirby  vs.    Kirby,    236   111.   255;    Timmons   vs.   Kidwell,    138 
111.  13. 
The  possession  must  be  such  as  to  show  clearly  that  the  party 
claims  the  land  as  his  own,  openly  and  exclusively. 

Clark    vs.   Jackson,   222   111.   13;    McClellan  vs.   Kellogg,    17   HI.   498; 
Roby  vs.  C.  &  C.  Dock  Co.,  211  111.  173. 

- —  Possession :     Actual  possession  is  necessary. 

Roby  vs.  Dock  Co.,  211  111.  173;  I.  C.  R.  Co.  vs.  Hatter,  207  111.  88. 

Constructive  possession  is  not  sufficient  where  possession  alone  is 

relied  upon. 

Eli  vs.  Brown,  183  111.  575;  Norris  vs.  Isle,  152  111.  190;  Lnmsey  vs. 
Brock,  110  111.  609. 
Possession  must  be  visible  and  notorious  possession. 

Roby  vs.  C.  &  C.  Dock  Co.,  211  111.  173;  Zerngibl  vs.  Dock  Co.,  157 
111.  430. 

And  must  be  exclusive. 

Clark  vs.  Jackson,  222  111.   13;   Wright  vs.  Stice,   173  111.  571;   Rob- 
bins  vs.  Moore,  129  111.  30. 
The  adverse  possession  must  be  continuous. 

Stewart  vs.   Andrews,   239  111.   186;    Kirby  vs.  Kirby,   236   111.   255; 
Byrnes  vs.  Edwards,  163  111.  494;  Medley  vs.  Elliott,  62  111.  532. 
And  under  twenty  year  limitation,  must  be  unbroken  and  con- 
tinuous without  interruption. 

Morris  vs.  Seibold,  147  HI.  318;   Shaw  vs.  Schoonover,  130  111.  448; 
Glos  vs.  Holberg,  220  111.  167. 
Adverse  possession  must  be  hostile  in  inception,  and  under  claim 

of  ownership. 

Clark   vs.    Jackson,    222    Til.    13;    Morris   vs.    Seibold,    147   111.    318j 
Shaw  vs.  Schoonover,  130  111.  448. 


ADVERSE  POSSESSION  79 

—  raijm<  nt  of  Taxes:     Payment  of  taxes  is  essential. 

Bell   vs.   Neidcrcr,    169    111.  M;    Taylor   vs.   Lawrence,   148   111.   388; 
Allen  vs.  Miinii,  ,j5  111.  -180. 
And  must  be  for  lull  period  oi'  seven  consecutive  years,  and 
continuous  and  unbroken. 

Miller  \  s.  lieich,  2()-4  111.  444 ;  Bell  vs.  Neiderer,  109  111.  54 ;  Converse 
,,  vs.  Dunne,  IGO  111.  25;  Ueurichson  vs.  Hodfren,  07  111.  179. 

The  full  period  of  seven  years  must  elapse  from  date  of  first  pay- 
ment and  before  commencement  of  suit. 

Blair  vs.  Johnson,  215  111.  552;  Burton  vs.  Perry,  146  111.  71  ;  Iberg 
vs.  Webb,  90  111.  415. 
If  made  before  acquisition  and  color  of  title,  suck  payments  will 

not  avail. 

Wliite  vs.  Harris,  206  HI.  584. 
It  is  necessary  that  payment  be  made  under  color  of -title  or  title. 
Horn  vs.  Horn,  234  111.  208;  Durfrey  vs.  Q.  B.  &  E.  Co.,  140  HI.  435; 
Cliiekerin^r  vs.  Taile,  38  111.  342. 

Admissibility  of  Evidence: 

Proof  that  person  wlio  had  conveyed  was  generally  reputed  to 
be  the  owner  is  competent  to  show  notoriety  of  possession,  knowl- 
edge thereof  by  grantee  and  that  possession  was  under  claim  of 

title. 

Knight  vs.  Knight,  178  HI.  553. 

Witness  may  state  that  party  was  in  possession. 
Knight' vs.  Knight,  178  HI.  553. 

Collateral  facts  and  circumstances  are  admissible  to  extent  of 

claim. 

Lancey  vs.  Brock,  110  III.  609. 
When  one  succeeds  to  possession  of  another,  the  identity  and 
continuity  of  their  possession  may  be  shown  by  parol  in  order  to 

make  out  period  required  to  bar  owner. 

Falloon  vs.  Simshauser,  130  HI.  649;  Nauman  vs.  Birch,  91  App.  48; 
Weber  vs.   Anderson,    73   HI.    439. 
A  transfer  of  possession  may  be  proved  by  parol. 

Eich  vs.  Naffziger,  255  111.  98. 
Declarations  of  ownership  by  one  in  actual  possession  of  land, 
though  not  made  as  incident  to  any  particular  acts  of  domination, 
are  part  of  res  gestae  of  possession  and  admissible  as  explanatory 

of  title  claimed. 

Knight  vs.  Knight,  178  III.  553 ;  James  vs.  I.  &  St.  L.  E.  Co.,  91  111. 

554;   Shaw  vs.  Smith,  167  111.  269;   Shaw  vs.  Schoonover,   130  HI. 

448;  I.  C.  E.  E.  Co.  vs.  Houghton,  126  HI.  233;  Grim  vs.  Murphy, 

110  111.  271. 

Declarations  of  claimant  at  time  of  entry  are  competent  to  show 

character  of  entry. 

Quinn  vs.  Eagleson,  108  111.  248. 
Declarations  inconsistent  with  possession  are  not  admissible  to 
divest  title   where   made   after  title  acquired  by  limitations,   but 

otherwise  where  period  not  complete.  .  ,    ^  , , 

Carroll  vs.  Eabberman,  240  HI.  450;   I.  C.  E.  E.  Co.  vs.  ^\  akefield, 
173  HI.  564;  Lyons  vs.  Stroud,  257  HI.  350. 

Weight  and  Sufficiency  of  Evidence: 

Party  claiming  by  adverse  possession  must  prove  his  possession 
was  adverse  to  the  true  owner,  by  clear  and  positive  evidence. 
Lambert  vs.  Ilemler,  244  HI.  254;  Kirby  vs.  Kirby,  236  HI.  255. 


80  ADVERSE  WITNESS 

Adverse  possession  of  vacant  land  is  sufficiently  established 
under  statute  of  limitations  by  such  possession  and  acts  of  owner- 
ship as  the  premises  are,  in  their  situation,  susceptible  of,  par- 
ticularly as  against  claimants  who  have  abandoned  possession  to  a 
lienholder  because  the  lien  exceeded  the  value  of  the  property. 
French  vs.  Goodman,   167  111.  345, 

It  is  not  essential  to  claim  of  title  under  seven  years  statute  that 
there  be  oral  declarations  of  claim.     It  is  sufficient  if  the  parties 

so  act  as  to  clearly  indicate  claim  of  title. 

Falloon  vs.  Simshauser,  130  111.  649;   I.  C.  E.  E,  Co.  vs.  Houghton, 

126  111.  233. 

Possession  for  seven  years  is  not  shown  by  proof  of  recording 

of  deed  and  making  entries  in  books  with  reference  to  the  property. 

Glos  vs.,  Wheeler,  229  111.  272. 

The  survey  of  uninclosed  land  and  the  placing  of  stones  at  the 

boundary  corners  is  not  such  a  taking  possession  as  is  contemplated 

by  the  Limitation  Act. 

White  vs.  Harris,  206  111.  584. 
To  constitute  possession  by  holder  of  color  of  title,  there  must  be 
such  an  appropriation  of  the  land  by  him  as  to  indicate  to  the 
neighborhood  that  it  is  appropriated  to  his  exclusive  use. 

Stalford  vs.  Goldring,  197  111.  156. 

Questions  of  Law  and  Fact : 

Possession  for  statutory  period  is  question  of  fact  for  jury. 

Johns  vs.  McKibben,  156  HI.  71;  Kane  vs.  Footh,  70  111.  587;  Eddy 
vs.  Gage,  147  111.  162;  Chiles  vs.  Davis,  58  111.  411;  XI  111.  Notes 
84,  §  218. 


ADVERSE  WITNESS 

See  Bias  and  Hostility,  Credibility. 

ADVERTISEMENT 

See  Rewards,  Bucket  Shops,  Lottery,  False  Pretenses. 

ADVICE  OF  COUNSEL 

See  Privileged  Communications,  Malicious  Prosecution,  At- 
torneys. 

AFFIDAVITS 

See  Affidavits  for  Continuance,  New  Trial,  Replevin,  Wills. 

Defined : 

An  affidavit  is  simply  a  declaration  on  oath,  in  writing,  sworn  to 

by  a  party,  before  some  person  who  has  authority  under  the  law 

to  administer  oaths. 

Cox  vs.  Stern,  170  111.  442;  Hertig  vs.  People,  159  111.  237;   Harris 
vs.  Lester,  80  111.  307 ;  XI  111.  Notes  85,  §  3. 


AFFIDAVITS  81 

Form: 

—  In  General:  Need  not  be  entitled  in  any  cause  or  in  any  par- 
ticular way,  and  without  any  caption  whatever,  it  is  nevertheless 
an  affidavit. 

Hertig  vs.  People,  159  111.  237;  Harris  vs.  Lester,  80  111.  307;  Hays 
vs.  Loomis,  84  III.  18;  Cf.  Watson  vs.  Reissig,  24  111.  282. 

Venue  may  be  ascertained  by  inspection  of  seal  attached  by 
notary. 

Cox  vs.  Stern,  170  111.  442. 

Omission  of  attestation  of  ot^cer  may  be  cured. 
Pierson  vs.  Hendricks,  88  111.  34. 

Should  appear  on  its  face  to  have  been  sworn  to. 

Kelioe  vs.  Eounds,  69  111.  351;  McDermaid  vs.  Russell,  41  111.  489. 

When  stating  conclusions,  must  also  state  evidentiary  facts  upon 
which  conclusions  are  based. 

Clark  vs.  Jackson,  222  111.  13, 

—  Jurat:  The  jurat  or  certificate  of  officer  administering  oath 
is  not  a  necessary  part  of  the  affidavit,  and  it  may  be  shown  aliunde 
that  the  statements  in  the  affidavit  were  in  fact  made  as  they  pur- 
port to  be,  on  oath  duly  administered  by  an  authorized  officer. 

Cox  vs.  Stern,  170'  111.  442 ;  Kruse  vs.  Wilson,  79  111.  233. 

Jurat  is  not  conclusive,  but  may  be  shown  to  be  false,  and  if 
shown  to  be  false,  and  no  oath  in  fact  administered,  instrument 
would  not  be  affidavit. 

Cox  vs.  Stern,  170  111.  442;  Kruse  vs.  Wilson,  79  111.  233. 

Amendment : 

It  is  improper  to  permit  an  affidavit  to  be  amended  by  erasures 
or  interlineations;  if  an  affidavit  be  so  amended  without  being  re- 
sworn to,  it  ceases  to  be  either  an  affidavit  or  an  amended  affidavit 
Moorehead  vs.  Briggs,  152  App.  361. 

Ex  Parte  Affidavits: 

Produced  on  motion  to  dissolve,  cannot  be  read  in  evidence  on  final 
hearing,  except  by  consent  of  parties. 

Atkinson   vs.   Linden   Steel   Co.,   138   111.   187;    Bressler   vs.   McCune, 
56  111.  475;  Ames  vs.  Stockhoff,  73  App.  427. 

An  ex  parte  affidavit  of  a  third  person  is  inadmissible  as  evidence 

and  amounts  to  no  more  than  hearsa.y. 

Manning  vs.  Stockton,  34  111.  306;"  Shreve  vs.  Town  of  Cicero,  124  III. 
226. 

And  the  fact  that  it  is  a  part  of  the  files  in  the  case  does  not 
change  its  character  nor  make  it  competent. 
Quinn  vs.  Eawson,  5  App.  130. 

Presumptions : 

AVhere  a  notary's  jurat  to  an  affidavit  has  no  venue,  it  Avill  be 
presumed    that    such   notary    administered   the    oath    within    the 

county  in  which  he  was  authorized  to  administer  oaths. 

Hertig  vs.  People,  159  111.  237;  Stone  vs.  Williamson,  17  App.  175. 
In  absence  of  any  showing  of  the  officer's  authority  on  face 
of  affidavit  itself,  it  may  be  presumed  from  evidence  afforded  by 

other  papers  in  the  cause. 

Singleton  vs.  Wofford,  4  111.  576. 
A  certificate  under  seal  by  a  foreign  notary  public  is  not  prinut 

Ev. — 6 


82  AFFIDAVITS 

facie  evidence  of  his  authority  to  administer  oaths  unless  it  con- 
tains a  recital  of  the  fact  of  his  authority. 

Desnoyeis  Shoe  Co.  vs.  Natl.  Bank,  188  111.  312;  Trevor  vs.  Colgate, 
181  111.  129;  Ferris  vs.  Com.  Bank,  158  111.  238;  Smith  vs.  Lyons, 
SO  111.  GOO. 

Venue  in  caption  is  proof,  until  overcome  by  other  evidence, 

that  oath  was  administered  in  the  place  named. 
Van  Dusen  vs.  People,  78  111.  (345. 

A  court  cannot  presume  that  a  notary  puhlic  of  another  state 

has  authority  in  the  state,  to  administer  oaths,  and  the  authority  of 

the  officer  administering  the  oath  must  be  shown  in  some  way,  Init 

there  is  no  law  requiring  the  fact  to  be  shown  in  any  particular  way. 

It  may  be  shown  by  any  competent  evidence. 
Figge  vs.  Eowlett,  84  App.  238. 

Judicial  Notice: 

Courts  will  take  judicial  notice  of  the  official  character  of  offi- 
cers empowered  to  administer  oaths  within  their  jurisdiction. 

Dyer  vs.  Flint,  21  111.  80;  Thompson  vs.  Haskell,  21  111.  215;  Stout 
vs.  Slatterly,  12  111.  162;  Eovvley  vs.  Berrian,  12  111.  198. 

Hence  the  jurat  of  a  notary  to  affidavits  made  before  him  to  be 

used  in  his  county  need  not  be  authenticated  by  his  notarial  seal. 

Cox  vs.  Stern,  170  111.  442;  Schaefer  vs.  Kienzel,  123  111.  430;  Eich- 
enlianm  vs.  Levee,  78  App.  610. 

Particular  Affidavits: 

—  Voters:  On  application  for  leave  to  file  an  information  in 
quo  warranto,  where  it  is  claimed  that  an  election  complained  of 
was  void  because  the  baljot  was  so  printed  as  to  be  ambiguous  and 
uncertain  the  affidavits  of  voters  tending  to  show  how  they  under- 
stood and  marked  the  ballots  and  how  they  intended  to  vote,  and 
the  affidavits  of  the  judges  of  the  election  as  to  how  the  marked 
ballots  were  understood  and  counted  by  them  may  be  considered 

by  the  court. 

People  vs.  Sullivan,  247  111.  176. 

An  affidavit  by  a  voter,  made  three  days  after  the  election,  to 
the  etfect  that  he  had  inadvertently  voted  twice,  is  admissible  on 
contest  of  election  when  voter  has  refused  to  testify  but  has  not 
claimed  his  privilege. 

Eggers  vs.  Fox,  177  III.  185. 

—  Attachment:  The  affidavit  for  attachment,  bond  and  wTit 
are  not  evidence  of  defendant's  indebtedness  to  plaintiff. 

Yost  Mfg.  Co.  vs.  Alton,  168  111.  564. 

—  Change  of  Venue:  An  affidavit  for  change  of  venue  because 
of  prejudice  of  the  judge  or  the  inhabitants  of  a  county  against 
defendant,  is  not  evidence  to  prove  any  issue  in  the  case  in  which 
it  is  made,  and  should  not  be  read  in  evidence  to  the  jury. 

Yundt  vs.  Hartrunft,  41  111.  9. 

—  Of  Merits:  An  affidavit  filed  with  a  declaration  in  action  on 
injunction  bond,  which  recites  "that  there  is  now  due  from  de- 
fendants to  plaintiffs,  after  allowing  them  all  just  credits,  deduc- 
tions and  setoffs,"  etc.,  is  not  subject  to  the  objection  that  it  pur- 
ports to  allow  the  credits,  deductions  and  set-offs  to  plaintiffs  in- 
stead of  defendants. 

N.  Y.  Natl.  Bank  vs.  Eeed,  232  111.  123. 

. —  For  Introduction  of  Copies:     Where  an  affidavit  for  intro- 


AFFIDAVITS  FOR  CONTINUANCE  83 

duction  of  a  certified  copy  of  a  deed  is  positive  in  its  terms  and 

meets  all  the  requirements  of  the  statute,  the  opposite  pai1y  is  not 

entitled  to  cross  examine  the  affiant  as  to  the  truth  of  the  affidavit. 
Glos  vs.  Garrett,  211)  111.  208. 

Affidavit  intended  to  lay   foundation   for  purpose  of  introduc- 
tion of  records,  "that  all  of  the  originals  were  not  destroyed  for 
purpose  of  using  copy,"  defective. 
Scott  vs.  Bassett,  104  111.  602. 

In  Aid  of  Plea:     An  affidavit  in  aid  of  plea  of  non  est  factum  is 
not  evidence  for  the  jury. 

Miller  vs.  Mitzger,  16  111.  390. 

—  Jurors:    See  Grand  Jurors,  New  Trial. 


AFFIDAVITS  FOR  CONTINUANCE 

See  Affidavits. 
Admissibility  of  Affidavits : 

—  In  General:  The  affidavit  is,  in  the  first  instance,  addressed 
to  the  court,  but  on  being  held  sufficient  and  admitted,  so  much 
thereof  as  sets  up  the  facts  material  and  pertinent  to  the  issue, 
which  would  be  testified  to  by  the  absent  witness,  is  to  be  admitted 
to  the  jury  as  the  testimony  of  such  witness.  The  other  portions 
of  the  affidavit  will  have  performed  their  office,  and  party  cannot 
be  permitted  to  introduce  in  evidence  any  part  of  the  affidavit  ex- 
cept that  alleging  the  facts  to  be  proven  by  the  absent  witness,  and 
even  in  that  will  be  limited  to  such  facts  as  the  witness  could,  under 
the  evidence,  testify  to  if  present, — that  is,  such  as  are  competent 
under  the  issues. 

Chi.  City  Ry.  Co.  vs.  Dnffin,  126  111.  100;  Supervisors  vs.  Ry.  Co.,  21 
111.  337. 

Court  is  not  bound  to  admit  in  evidence,  on  the  trial,  an  affida- 
vit for  continuance  which  has  been  admitted  to  avoid  a  continu- 
ance, without  regard  to  the  competency  of  its  contents  as  evidence. 
When  such  affidavit,  if  admitted,  could  not  affect  the  general  re- 
sult, upon  a  trial,  there  is  no  error  in  excluding  it. 

Slate  vs.  Eisenmeyer,  94  111.  96;  C.  S.  P.  Co.  vs.  Wolf,  133  App.  365. 

—  As  An  Admission:  An  affidavit  of  a  party  for  continuance 
is  competent  evidence  against  him  on  the  trial,  when  relevant  to 
the  issue,  it  standing  on  the  same  footing  as  any  other  declaration 
made  by  him  under  oath. 

'Farrell  vs.  People,  103  111.  17. 

—  Under  Different  Form  of  Action:  Affidavit  of  defendant  in 
criminal  prosecution  for  assault  is  admissible  in  subsequent  civil 
suit  for  same  cause,  upon  cross  examination  to  impeach  credibility 
of  defendant. 

Wilson  vs.  Genseal,  113  111.  403. 

—  WJwle  of:  Improper  to  introduce  any  part  of  affidavit  other 
than  part  alleging  facts  to  be  proved. 

Chi.   City  Rv.  Co.  vs.  Duffin,  126  111.   100;  C.  &  N.  W.  Ry.  Co.  vs. 
Clark,  70  111.  276. 

—  Containing  Statements  of  Opinion:  Statement  in  affidavit 
for  continuance,  that  it  was  not.  the  duty  of  plaintiff  to  do  a  cer- 


84  AFFIRMATIVE 

tain  thing,  but  it  was  his  duty  not  to  do  so,  is  only  a  conclusion  of 

witness,  and  proof  of  form  of  such  statement  not  admissible  in 

action  by  plaintiff  for  damages  for  injury  received   while  doing 

such  work. 

Brooks  vs.  C.  W.  &  V.  Coal  Co.,  234  111.  372. 

—  Judicial  Admission:  The  admission  that  an  absent  witness 
would  testify  to  certain  facts,  to  avoid  a  continuance,  is  a  judicial 
admission,  which  the  party  cannot  be  permitted  to  dispute.  There- 
fore it  is  error  to  allow  part  of  affidavit  to  go  to  jury  which  showed 
the  statement  the  absent  witness  would  testify  to  was  made  upon 
information  and  belief  only.  The  effect  of  the  admission  of  such 
portion  would  be  to  create  in  the  minds  of  the  jury  a  doubt  not  only 
as  to  truthfulness  of  statements,  if  sworn  to,  but  also  to  the  fact 
that  the  witness  would,  if  present,  testify  as  alleged. 

Chi.  City  Ey.  Co.  vs.  Duffin,  126  111.  100. 

Effect  of  Admitting^: 

—  Civil  Actions:  Illinois  Statutes,  (Annotated,  Jones  &  Adding- 
ton,)   Chapter  110,  Section  8601. 

Affidavit  will  be  received  in  evidence  only  so  far  as  testimony  of 
witness,  if  present  would  be  admissible. 

Chi.  City  Ey.  Co.  vs.  Duffin,   126  111.   100;   C.  &  N.  W.  Ey.  Co.  vs. 
Clark,  70  111.  276;  Supervisors  vs.  Ey.  Co.,  21  111.  337. 
A  party,  in  admitting  affidavit  to  avoid  a  continuance,  does  not 
admit  the  alleged  opinions  of  witness  contained  in  it,  where  opin- 
ions would  not  be  competent  if  witness  were  present. 
City  of  Aurora  vs.  Scott,  82  App.  616. 

—  Criminal  Action:  Illinois  Statutes,  (Annotated,  Jones  &  Add- 
ington,)  Chapter  38,  Section  4124. 

Under  admission  that  absent  witness  would  testify  as  alleged  in 
affidavit,  truth  of  matters  recited  not  admitted. 
Hoyt  vs.  People,  140  111.  588. 

Impeachment  of  Absent  Witness: 

A  party,  to  avoid  continuance,  having  admitted  that  witness 
would  swear  to  facts  stated  in  affidavit,  cannot,  on  trial,  intro- 
duce  evidence   of  admissions  made   outside   of  court   by  witness 
whose  testimony  was  referred  to  in  affidavit,  for  purpose  of  im- 
peaching him.  ^^    ^^ 
C.  &  A.  Ey.  Co.  vs.  Lammert,  19  App.  135;  City  of  Aurora  vs.  Scott, 
82  App    616;   N.  C.  St.  Ev.  Co.  vs.  Cottingham,  44  App.  46;  Hel- 
big   vs.   Cit.   Ins.   Co.,    120   App.   58;    Chi.   Sign   Painting   Co.    vs. 
Wolf,  135  App.  366;  Hoyt  vs.  People,  140  111.  588. 
That  impeaching  matter  is  in  writing  does  not  change  rule  as 

to  laying  foundation. 

N.  C.  St.  Ey.  Co.  vs.  Cottingham,  44  App.  46. 


AFFIRMATIVE 

See  Positive  and  Negative,  Burden  of  Proof. 

Burden  of  Proof :  ^         .u    t 

—  In  General:    The  burden  of  proof  to  establish  the  truth  of  a 


AGE  85 

claim  by  a  preponderance  of  the  evidence  rests  throughout  upon 
party  asserting  the  affirmative  of  tiie  issue. 

Chi.  U.   Trac.  Co.  vs.  Mee,  218  111.  9;   Supreme  Tent  vs.   Stensland, 

206  111.  124;  Egbers  vs.  Egbers,  177  111.  82;  Stevenson  vs.  Marony, 

29  111.  532;   XII  111.  Notes  480,  §46. 

The  party  holding  the  affirmative  of  an  issue  must  prove  it, 

and  until  the  affirmative  is  established  by  proof,  the  negative  is 

presumed  to  exist. 

Union  Natl.  Bank  vs.  Baldenwick,  45  111.  375. 

The  burden  of  proof  is  upon  him  who  has  the  affirmative  of  the 

issue,  but  there  is  an  obvious  distinction  between  the  affirmative 

of  the  issue  and  the  affirmative  of  the  question.     The  affirmative  of 

the  issue  is  with  him  who  affirms  or  asserts  a  matter  in  support  of 

his  claim  or  defense  regardless  of  whether  he  affirms  or  asserts 

the  affirmative  or  negative  of  the  question  at  issue. 
Postlewaite  vs.  Highby,  83  App.  414, 

"Where  a  party  asks  a  court  to  believe  a  proposition,  and  to  base 
a  finding  thereon  in  his  favor,  the  law  casts  the  burden  on  him  of 
furnishing  the  evidence  upon  which  such  finding  can  legally  rest. 
Prentice  vs.  Crane,  234  111.  302. 

—  Determined  hy  Pleading:  The  burden  of  proof  is  deter- 
mined by  the  pleadings,  and  the  condition  of  the  proof,  and  not- 
withstanding where  plea  is  of  the  general  issue,  that  defense  is  an 

affirmative  one. 

Adams  vs.  Pease,  113  App.  356. 

Whenever,  whether  in  plea  or  replication  or  rejoinder  or  sur- 
rejoinder, an  issue  is  reached,  then,  whether  the  party  claiming 
the  judgment  of  the  court  asserts  an  affirmative  or  negative  propo- 
sition, he  nnist  make  good  his  assertion.     On  him  lies  the  burden 

of  proof. 

Osgood  vs.  Groseclose,  159  111.  511;  Chandler  vs.  Smith,  70  App.  658. 
(See  Burden  of  Proof.) 

Weight : 

Affirmative  testimonv  is  of  greater  force  than  negative. 

C.  B.  &  Q.  E.  Co.  vs.  Dickson,  88  111.  431;  C.  &  A.  R.  Co.  vs.  Rob- 
inson, 106  111.  142;  W.  St.  L.  &  P.  Ry.  Co.  vs.  Hicks,  13  App.  407. 


AGE 

See  Pedigree,  "Witnesses,  Registers  of  Births,  Deaths  and 

Marriages. 

ADMISSIBILITY  OF  EVIDENCE: 

Family  Record: 

Should  be  shown  by  whom  the  record  was  made. 
Kreitz  vs.  Behrensmeyer,  125  111.  141. 

Proof  of  age  may  be  made  by  entries  in  a  family  bible,  not- 
withstanding such  entries  were  not  made  contemporaneous  with 
birth. 

Swift  &  Co.  vs.  Rennard,  119  App.  173. 

—  Parol:     Parol  is  inadmissible  to  prove  what  family  record 

contains. 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 

—  Copies:     Copies  of  entries  from  a  leaf  in  the  family  bible 


86:  AGENCY 

are  not  admissible  on  the  testimony  of  witness  that  he  made  such 

copy  at  the  request  of  one  of  the  family ;  that  original  leaf  was 

somewhat  torn  and  blotched,  but  could  be  read  distinctly,  and  that 

the  paper  was  wet  and  damaged  some,  and  that  he  did  not  knov/ 

what  had  become  of  the  original  leaf. 
McDeed  \^s.  McDeed,  67  111.  545. 

—  School  Record:  A  school  record  kept  by  a  teacher  is  compe- 
tent in  connection  with  her  testimony  as  to  the  age  given  by  a 
child  at  the  time  of  his  entry  into  her  school. 

Swift  &  Co.  vs.  Eennardj  119  App.  173. 

—  Declarations  of  Deceased  Person:  The  age  of  a  deceased  per- 
son may  be  established  by  proof  of  declarations  of  the  deceased, 
blood  relatives,  or  of  husband  or  wife  of  the  party  whose  pedi- 
gree is  in  issue,  when  made  ante  litem  motam. 

The  term  pedigree  embraces  age,  birtli,  marriage,   and  death, 
and  the  dates  or  times  when  these  events  happened. 
Harvick  vs.  iModern  Woodmen,  158  App.  570. 

—  Confession:  Where  age  of  accused  is  a  part  of  corpus  delicti, 
his  voluntary  written  confession  is  inadmissible  to  prove  his  age. 

Wistrand  vs.  People,  213  111.   72. 

COMPETENCY  OF  WITNESSES: 

Witness  may  testify  to  his  own  age. 

Eaymond  vs.  People,  226  111.  433 ;   Mash  vs.  Peof-le,  220  111.  86. 

Or  person  who  has  known  the  party,  whose  age  is  in  issue,  since 

birth  and  childhood. 

C.  &  A.  R.  Co.  vs.  Levi^andowski,  190  111.  301;  Greenwood  vs.  Spiller, 
3  111.  502;  Libre  vs.  Brotherhood  of  Yoemen,  168  App.  328. 
— Opinions  of  Witnesses:  A  witness  cannot,  in  the  first  in- 
stance, express  his  opinion  as  to  age  from  appearance.  Witness 
should  first  describe  the  appearance  of  the  individual  whose  age 
is  in  question,  and  then  state  his  opinion  in  reference  to  the  age 
of  the  person,  based  upon  the  appearance  of  that  person  as  he 

has  already  descri])ed  it. 

Poo[.le  vs.  Davidson,  240  111.  ]91. 

INSPECTION  BY  JURY: 

The  age  of  one  accused  of  crime  cannot  be  fixed  from  an  inspec- 
tion of  his  person  bv  the  iurv. 

Wistrand  vs.  People,  213  111.  72. 
But  this  rule  does  not  apply  to  civil  cases. 
Housten  vs.  Quiun,  168  App.  593. 


AGENCY 

See  Admissions  and  Declarations,  Husband  and  Wife^  Insur- 
ance, Res  Gestae. 
Order  of  Proof: 

—  Authority:  ]\Iay  first  show  the  fact  of  the  agreement  or  the 
acts  of  the  agent,  then  follow  with  proof  of  authority  of  agent. 

,E.  &  P.  By.  Co.  vs.  Cecil,  112  111.  ISO;  Mix  vs.  Osby,  62  111.  193. 

—  Knowledge  of  Parly:  A  party  dealing  with  an  agent  nuist 
prove  that  the  facts  giving  color  to  the  agency  w^ere  known  to  him 
when  he  dealt  with  the  agent.     If  he  has  no  knowiedge  of  sueh 


AGENCY  87 

facts,  he  does  not  act  iu  reliance  upon  them  and  is  in  no  position  to 
claim  anything  on  account  of  lliem. 

Alton   Mfg.  Co.  vs.   Biblical  Ins.,   243  HI.   298;   Merchants  Bank  vs. 

Nichols  &   Co.,   223   111.   41  j  Jackson  Mfg.   Co.  vs.   Bank,   199,  111. 

15 1 ;   Eaws  vs.  Curtis,  19  111.  456. 

Presumptions : 

—  Corporate  Agents:  The  presumption  relating  to  the  author- 
ity of  agents  of  corporations  are  not  different  than  those  relating  to 
the  authority  of  agents  of  individuals  where  the  circumstances  are 

the  same. 

Merchants  Bank  vs.  Nichols  Co.,  223  111.  41. 

—  Continuance  of  Relation:  The  law  raises  no  presumption 
that  a  special  agency  continues  or  extends  to  other  matters. 

Eeed  vs.  Baggott,  5  App.  ,257. 

Agency  for  person  concerned  in  legal  proceedings  is  presumed  to 

continue  throughout  proceedings. 

Parker  vs.  Crilly,  113  App.  309. 

Burden  of  Proof: 

Party  affirming  existence  of  relation  of  agency' has-  burden  of 

proof. 

Schmidt   vs.   Shaver,   196   111.   108;    Good  vs.    Akin,-  147   App.    390; 
Kearney   vs.   Aetna   Ins.    Co.,    109   App.   609 ;    Cliesley   vs.    Woods 
Motor  Co.,  147  App.  5SS;  Calnnefs  vs.  Texas  T.  &  L.  Co.,  152  App. 
406;   Proudfoot  vs.  Wightnaan,   78  III.  553. 
To  show  agency  to  collect  accounts,  burden  Jcests  .upon  party 
making  payment  of  same.  ,  .        o  vM  "^r'       ^----.i 

Good  vs.  Arkin,  147  App.  390.  -       : 

Burden  is  on  agent  purchasing  property  of  same  class  as  that 
which  he  purchased  for  his  principal,  to  show  same  was  done  with 
principal's  knowledge  and  consent. 
Fox  vs.  Simmo'ns,  251  111.  316. 

Admissibility  of  Evidence : 

—  Declarations  and  Acts  of  Agent:  The  fact  of  agency  cannot 
be  established  by  declarations  of  alleged  agent  and  what  he  did. 

Merchants  Bank  vs.  Nichols  &  Co.,  223  111.  41 ;  MuUanphy  vs.  Schott, 

135  111.  655;  Proctor  vs.  Tows,  115  111.  138;   Elevator  Co.  vs.  Iron 

Works,  153  App.  313 ;   Sonnenschein  vs.  Malter  Co.,  144  App.  183 ; 

Taylor  vs.  Osborne,  86  App.  465 ;  XIV  111.  Notes  107,  §  234. 

But  an  alleged  agent  is  a  competent  witness  to  prove  the  agency. 

Eichley  vs.  Miller  Brg.  Co.,  180  App.  645. 
The  agent  may  testify  to  statements  made  at  the  time  the  agency 

is  created. 

Leonard  vs.  Heavener,  171  App.  188. 

An  agency  may  be  proven  by  the  agent  himself  if  he  will  testify 

to  his  employment,  or  to  such  a  course  of  conduct  or  dealing  as 

will  justify  the  presumption  of  his  authority  to  act  and  bind  his 

principal. 

St.  L.  S.  &  W.  Ey.  Co.  vs.  Elgin  Co.,  74  App.  619 ;  Phillips  vs.  Poul- 
ter,   111  App.   330;   People  vs.  McCann,  247  111.   130;    Thayer  vs. 
Meeker,  86  111.  470. 
Agency  cannot  be  proven  by  acts  of  supposed  agent,  neither 
expressly  or  impliedly  authorized  by  the  alleged  principal. 
Fleischman  vs.  Ballon,  131  App.  565. 

Mere  fact  that  one  assumes  to  act  as  agent  without  the  knowl- 


88  AGENCY 

edge  or  subsequent  ratification  of  the  principal  is  not  sufficient  to 

prove  agency. 

Sievert  vs.  111.  Furniture  Co.,  178  App.  574. 
An  entry  by  a  collector  showing  payment  of  delinquent  special 
assessment  by  a  named  person,  as  agent  of  the  owner,  is  of  no 

validity  to  prove  the  agency. 

Palmer  vs.  City  of  Chicago,  248  111.  201. 
Where  one  person  has  only  assumed  to  act  as  agent  for  another 
in  a  single  transaction,  that  act  alone  does  not  raise  the  presump- 
tion of  appointment  as  agent  to  do  the  act. 
Walker  vs.  Wood,  170  111.  463. 
An  admission  of  an  alleged  agent  does  not  bind  the  principal, 

in  absence  of  proof  of  agent's  authority. 

Skarkowska  vs.   Brew   Co.,    152   App.   48;    Manchester   Lbr.    Co.   vs. 
Hanson,  176  App.  130. 
Evidence  of  declarations  of  agent  is  not  admissible  against  prin- 
cipal for  proving  or  enlarging  his  authority. 
Sonnenschein  vs.  Malter  Co.,  144  App.  183. 

—  Admissions  of  Principal:     Evidence  of  admissions  of  alleged 

principal  are  admissible  against  him. 
Kelly  vs.  Shumway,  51  App.  634. 
Letters  written  by  the  principal  are  admissible  to  prove  agency 

as  against  him. 

Case  vs.  Lyman,  66  111.  229;  Crane  vs.  Bank,  114  111.  516;  Freet 
vs.  Amer-Elec.  Sup.  Co.,  171  App.  512. 
Admissions  by  the  owner  to  an  agent  who  was  trying  to  induce 
him  to  allow  the  agent  to  make  a  sale  to  a  certain  party,  that  the 
deal,  as  to  such  purchaser,  belonged  to  another  agent,  and  if  he 
made  the  sale  he  would  have  to  protect  the  agent  in  his  commis- 
sions, make  a  prima  facie  case  of  employment  of  the  latter  to  make 
the  sale. 

Kigdon  vs.  More,  226  111.  382. 
Evidence  that  one  openly  acts  for  another  under  circumstances 
implying  knowledge  on  part  of  supposed  principal,  makes  a  prima 

facie  agency. 

E.  E.  I.  &  St.  L.  E.  Co.  vs.  Wilcox,  66  111.  417;   Doan  vs.  Duncan, 
17  111.  272. 
But  evidence  of  isolated  transactions  is  not  sufficient. 

Fadner  vs.  Hibner,  26  App.  639. 
A  contract  signed  by  an  agent  is  inadmissible  against  principal 
without  proof  of  express  or  implied  authority  to  sign.  No  infer- 
ence of  such  authority  can  be  drawn  from  evidence  that  the  agent 
had,  in  presence  of  principal,  on  two  occasions,  drawn  up  and 
signed  contract  embodying  terms  made  by  the  principal. 

Fadner  vs.  Hibner,  26  App.  639 ;  Daist  vs.  Doom,  38  App.  397. 

—  Circumstantial:     Agency  may  be  proven  by  circumstantial 

evidence. 

St.  L.  S.  W.  Ey.  Co.  vs.  Elgin  Co.,  74  App.  619;   Phillips  vs.  Poul- 
ter.  111  App.  330;  Thayer  vs.  Meeker,  86  111.  470. 
Similar  previous  acts  of  agent,  done  with  approval  of  principal, 

are  competent. 

Schoenhofen  Brg.  Co.  vs.  Wengler,  57  App.   184. 

But  such  color  of  agency  must  be  known  to  party  at  time  of 

transaction. 

Alton  Mfg.  Co.  vs.  Biblical  Ins.,  243  111.   298;   Merchants  Bank  vs. 
Nichols  &  Co.,  223  111.  41. 


AGENCY  89 

—  Prior  Course  of  Dealing:  Evidence  of  prior  general  course 
of  dealing  between  principal  and  agent  is  competent  as  tending  to 
show  extent  of  agency. 

Haas  Lbr.   Co.   vs.   Harty  Bros.,   169   App.  323;    Mcintosh  vs.   Ran- 
som 106  App.  172;  Thornton  vs.  Lawther,  169  111.  228. 

—  Parol:     Parol  evidence  is  inadmissible  to  explain,  modify  or 

enlarge  terms  of  an  appointment  after  same  is  reduced  to  writing. 
Davis  vs.  Ins.  Co.,  208  111.  375. 

Parol  evidence  of  an  agency  is  admissible  though  such  agency 
exists  by  virtue  of  a  power  in  writing,   when  party   offering  to 

prove  the  facts  is  a  stranger  to  the  instrument. 

Anglo-Wyoming  Co.  vs.  Miller,  216  111.  272;   Kaskaskia  Bridge  Co. 
vs.  Shannon,  6  111.  16. 

Although  in  general  the  maxim  is  true  that  where  an  express 
power  is  conferred  in  writing,  it  cannot  be  enlarged  by  parol,  or 
an  authority  be  implied  where  there  exists  an  express  one,  yet  the 
maxim  is  applicable  only  to  cases  where  the  whole  authority  grows 
solely  out  of  the  writing,  and  the  parol  evidence  applies  to  the 
same  subject  matter  at  the  same  point  of  time,  and  therefore,  in 
effect,  seeks  to  contradict,  vary  or  control  the  effect  of  the  writing. 
Where  parol  evidence  seeks  to  establish  a  subsequent  enlargement 
of  the  original  authority,  or  give  an  authority  for  another  object, 
or  where  the  express  power  is  engrafted  on  an  existing  agency, 
affecting  it  only  suh  moelo  to  a  limited  extent,  the  maxim  loses 
its  application.  And  where  there  was  a  written  authority  to  the 
agent,  but  the  principal,  by  his  declarations  and  conduct,  had  au- 
thorized the  conclusion  that  he  had,  in  fact,  given  more  extensive 
powers  to  the  agent  than  were  conferred  by  the  writing,  then  as 
to  all  persons  dealing  w'ith  such  agent,  upon  the  faith  of  such  ap- 
parent authority,  the  principal  will  be  bound  to  the  extent  of  the 

apparent  authority. 

Blaekmer  vs.  Coal  Co.,  187  111.  32;  Hartford  Ins.  Co.  vs.  Wilcox,  57 
HI.  180. 

The  existence  of  an  agency  may  be  established  by  oral  testi- 
mony of  an  employee  of  principal  having  knowledge  of  that  fact. 
Eice  vs.  Int.  Bank,  86  111.  136. 

It  is  competent  to  prove  by  parol  the  situation  of  the  parties 

and  of  the  subject  matter  of  a  written  contract  of  agency,  at  time 

it  is  made  and  the  circumstances  under  which  it  was  made,  for  the 

purpose  of  understanding  the  language  employed  and  the  sense  in 

which  it  is  employed,  though  not  for  purpose  of  contradicting  or 

enlarging  its  terms. 

Wood  vs.  Clark,  121  111.  359. 

So  where  a  written  instrument  bears  the  name  of  but  one  per- 
son, presumably  it  is  the  undertaking  of  that  person,  but  it  is  com- 
petent to  establish  by  parol  that  the  contract  is  one  of  a  co-part- 
nership, and  the  firm  entered  into  the  contract  in  the  name  and 

style  of  the  individual. 

Dangherty  vs.  Heckard,  189  111.  239. 

Even  where  a  written  contract  is  entered  into  in  his  own  name, 
it  is  competent  for  principal  to  show  by  parol  that  agent  was  act- 
ing for  him. 

Barker  vs.  Garvey,  83  111.  184.   (See  Ambiguity.) 


90  ALIBI 

ALIBI 

Defined: 

Tlie  defense  of  an  alibi  does  not  in  theory 'deny  that  the  crime 
was  committed,  but  is  designed  to  prove  that  the  defendant,  dur- 
ing the  whole  time,  was  so  far  from  the  place  where  the  crime  was 
committed,  that  he  could  not  have  participated  in  it. 

People   vs.    Liikoziis,    242    111.    101;    Miller  vs.    People,    39   111.   458; 
Ackerson  vs.  People,  124  111.  563. 

Burden  of  Proof: 

The  burden  of  establishing  the  defense  of  an  alibi  is  on  the  de- 
fendant, and  to  maintain  it  it  is  incumbent  upon  him  to  prove 
facts  and  circumstances  which,  when  considered  in  connection  with 
all  the  evidence  relied  upon  to  establish  his  guilt  of  the  crime 
charged,  is  sufficient  to  create  in  the  minds  of  the  jury  a  reason- 
able doubt  of  the  truth  of  the  charge. 

Plannegan  vs.  People,  214  111.  170;  Hauser  vs.  People,  210  111.  253; 
Carleton  vs.  People,  150  111.  181;  Auueals  vs.  People,  134  111.  401; 
Ackerson  vs.  People,  124  111.  563. 
Where  the  people  have  made  out  a  prima  facie  case,  and  the  de- 
fendant relies  upon  the  defense  of  an  alibi,  the  burden  is  upon 

him  to  prove  it. 

People  vs.  Lukoszus,  242  111.  101;  Ackerson  vs.  People,  124  111.  563; 
Hojje  vs.  People,  117  111.  35;  Mullins  vs.  People,  110  111.  42, 

Degree  of  Proof: 

Must  be  shown  to  such  a  degree  of  certainty  as  will,  when  the 
whole  evidence  is  considered,  create  and  leave  in  the  minds  of  the 
jury  a  reasonable  doubt  as  to  the  guilt  of  defendant. 

People  vs.  Lnkozsus,  242  111.  101;  Ackerson  vs.  People,  124  111.  563; 
Hoge  vs.  People,  117  111.  35;  Mullings  vs.  People,  110  111.  42. 

Weight  and  Sufficiency : 

—  Exact  Time:    Evidence  of  absence  is  competent  and  material, 

although  it  may  not  cover  the  exact  time,  or  the  whole  time  of  the 

alleged  commission  of  the  crime. 

Waters  vs.  People,  172  111.  367. 

But  an  instruction  that  to  render  evidence  of  an  alibi  satis- 
factory, it  should  cover  the  entire  time  of  the  transactions  so  that 
it  would  have  been  impossible  for  the  defendant  to  have  commit- 
ted the  offense  is  proper. 

People  vs.  Prol)st,  237  111.  390;  Miller  vs.  People.  39  111.  457;  Cf. 
Briggs  vs.  People,  219  111.  330;  Creed  vs.  People,  81  111.  505. 

An  alibi  is  not  a  separate  defense,  and  if  upon  the  whole  evi- 
dence including  that  in  relation  to  the  alibi,  there  is  a  reasonable 
dou])t  of  the  guilt  of  the  accused,  he  should  be  acquitted.  It  is  only 
necessary  to  make  such  proof  as  will  raise  a  reasonable  doubt  of 

guilt. 

Briggs  vs.  People,  219  111.  330;  Carlton  vs.  People,  150  111.  ISl; 
Ackerson  vs.  People,  124  111.  563;  Hoge  vs.  People,  117  111.  35; 
Mullins  vs.  People,  110  111.  42;  Miller  vs.  People,  39  111.  457; 
IIo])ps  vs.  People,  31  111.  385. 

Presumption : 

Where  an  alibi  sought  to  be  shown  depends  vitallv  upon  the 
accuracy  and  agreement  of  different  time  pieces,  so  that  a  disa- 
greement of  ten  or  fifteen  minutes  would  be  fatal  to  its  establish- 


ALIENATING  AFFECTIONS  "im 

ment,  and  the  apparent  conflict  between  the  witnesses  would  dis- 
appear, it  is  more  reasonable  to  suppose  that  there  was  a  slight  dis- 
crepancy in  the  time  pieces  than  tliat  one  or  the  other  of  the  two 

sets  of  witnesses  swore  to  an  untruth. 
Painter  vs.  People,  147  111.  444. 

Legitimate  Defense: 

An  alibi  is  a  defense  as  legitimate  as  any  other,  and  attempting 
to  prove  it  and  failing  so  to  do,  should  have  no  greater  weight  to 
convince  a  jury  of  the  guilt  of  the  accused,  than  the  failure  to 
prove  any  other  important  item  of  defense. 
]\riller  vs.  People,  39  111.  457. 

Rebuttal : 

—  Hotel  Register:    Counsel  for  People  may  exhibit  to  the  jury 

the  hotel  register  relied  upon  by  the  defendant  in  attempting  an 

alibi,  and  comment  upon  the  clean  appearance  of  the  book  and  the 

fact  that  all  names  were  in  the  same  handwriting  and  appeared  to 

be  made  at  the  same  time,  as  tending  to  show  it  was  not  a  register 

in  dailv  and  actual  use. 

'  Haviser  vs.  People,  210  111.  253. 

—  Impeachment:  Defendant  called  as  witness  a  former  clerk  of 
a  hotel,  and  proved  by  him  he  saw  defendant  at  hotel  on  morn- 
ing after  larceny.  People  then  introduced  evidence  to  show  that 
witness  was  discharged  as  clerk  a  day  or  so  before  time  spoken  of, 
for  drunkenness.  This  was  not  done  to  contradict  w^itness  by  show- 
ing his  absence,  but  it  was  evident  purpose  thereby  to  impeach 
him;  the  court  erred  in  admitting  the  evidence,  as  witness  could 
not  be  so  impeached.  If  his  reputation  for  truth  and  veracity  was 
bad,  that  fact  should  have  been  proven.  Why  he  was  discharged 
was  immaterial. 

Hoge  vs.  People,  117  111.  35. 


ALIENATING  AFFECTIONS 

See  IMarriage,  Criminal  Conversation,  Husband  and  Wife. 
Right  of  Action: 

Married  woman  may  maintain. 

Betser   vs.    Betser,    186   111.    537;    Smith   vs.   Gillap,    123    App.    121; 
Bassett  vs.  Bassett,  20  App.  543. 

Matters  to  be  Proven: 

To  recover,  it  must  be  established  that  alienation  arose,  at 
least,  in  part  from  fault  or  by  reason  of  efforts  to  that  end,  of 
defendant.  It  is  not  enough  to  prove,  in  such  case,  the  fact  of 
plaintiff's  husband  being  infatuated  M'ith  defendant,  and  that  in 
consequence  thereof  his  affections  for  his  wife  had  grown  cold,  but 
it  is  necessary  to  show  that  the  person  who  is  charged  with  wrong 
was  the  blamable  party  and  that  by  some  acts  or  words  had  wil- 
fully and  wrongfully  sought  and  succeeded  in  alienating  the  af- 
fections. 

Smith  vs.  Gillap,  123  App.  121. 

In  action  against  parent,  inquiry  is  whether  the  actions  were 

inspired  by  parental  regard  of  welfare  of  child. 
Hilling  vs.  Huling,  32  App.  519. 


92  ALLEGATIONS  AND  PROOFS 

Presumptions : 

Bad  or  unworthy  motives  cannot  be  presumed  in  action  against 
parent. 

Huling  vs.  Huling,  32  App.  519. 

Conversations : 

It  is  improper,  in  action  by  wife  against  the  parents  of  her  hus- 
band for  recovery  of  damages  alleged  to  have  arisen  through  the 
alienation  of  his  affections  for  her  by  reason  of  acts  and  advice  on 
their  part,  to  allow  her  to  testify  to  conversations  between  herself 
and  husband  touching  their  living  together  and  the  attitude  of  the 
parents  towards  them. 

Hilling  vs.  Huling,  32  App.  519. 

Nor,  in  action  by  husband,  is  it  competent  for  him  to  state  con- 
versations with  the  wife  in  effort  to  induce  reconciliation. 
Miller  vs.  KnoUenberg,  161  App.  107. 

Character : 

The  general  reputation  of  defendant  for  chastity  is  not  competent. 
Golden  vs.  Gartelman,  159  App.  338. 

Damages : 

—  Gist  of  Action:  Not  the  loss  of  assistance,  but  the  loss  of  con- 
sortium of  the  husband,  under  which  term  are  included  the  per- 
son's affections,  society  and  aid. 

Betser  vs.  Betser,  186  111.  537. 

—  Mitigation:    A  written  agreement  between  husband  and  wife, 

wherein  she  has  accepted  valuable  property  is  no  defense. 
Betser  vs.  Betser,  87  App.  399. 

Defendant  offered  to  prove  that  previous  to  the  marriage,  the 
husband  (his  son)  never  kept  company  with  plaintiff,  nor  paid 
her  any  such  attention  as  indicated  any  love  for  her,  or  any  mar- 
riage contract  between  them,  and  that  at  the  time  he  was  married 
he  was  in  such  a  state  of  intoxication  as  not  to  know  what  he  was 
about,  and  so  continued  until  he  had  been  taken  home  by  defend- 
ant and  cared  for  until  he  was  sober,  held,  admissible  in  mitigation 
of  damages. 

Bassett  vs.  Bassett,  20  App.  543. 

Marriage  itself  cannot  be  considered  as  conclusive  proof  of  that 

mutual  regard  and  love  which  should  be  entertained  by  husband 

and  wife. 

Bassett  vs.  Bassett,  20  App.  543. 

—  Divorce  Decree:  Decree  of  divorce  granted  at  instance  of 
wife  tends  to  show  the  affections  were  alienated  by  plaintiff's  own 

conduct. 

Sackheim  vs.  Miller,  136  App.  132. 


ALLEGATIONS  AND  PROOFS 

See  Answers,  Default,  Chancery. 
Must  Agree: 

No  facts  are  properly  in  issue  unless  charged  in  the  bill. 
Kice  Co.  vs.  McJohn,  244  111.  264. 


ALTERATIONS  AND  ERASURES         93 

And  the  allegations  and  proofs  must  agree.  A  party  can  not 
make  one  case  by  his  pleading  and  another  by  his  evidence. 

Clark  vs.  Janowski,  255  111.  129;  Stearns  vs.  Gloss,  235  111.  290; 
Dorn  vs.  Gender,  171  111.  362;  Vennum  vs.  Vennum,  61  111.  331; 
Bush  vs.  Connelly,  33  111.  -148;  Sehwitters  vs.  Barnes,  157  App. 
381;  Burns  Lbr.  Co.  vs.  Keynolds,  148  App.  356;  Norris  vs.  War- 
ner, 59  App.  300. 

No  Allegation: 

The  court  will  not  consider  evidence  upon  a  point  as  to  which 
there  is  no  allegation  in  the  bill.  No  relief  can  be  granted  for 
matters  not  charged  in  the  bill  even  though  such  matters  may  be 
apparent  from  other  parts  of  the  pleading  and  evidence. 

C.  P.  &  St.  L.  R.  Co,  vs.  Jacksonville,  245  111.  155;  Schmitt  vs. 
Weber,  239  111.  377;  Lange  vs.  Metzger,  206  111.  457. 

Matters  Not  Denied: 

Material  allegations  of  a  bill  in  chancery  not  admitted  or  de- 
nied by  the  answer  must  be  proven  by  the  complainant. 

Schuld  vs.  Wilson,  225  111.   336;   Llewellin  vs.  Dingee,   165  111.   26; 
Cotes  vs.  Eohrbeck,  139  111.  532;   Nelson  vs.  Pinegar,  30  111.  473; 
XII  111.  Notes  415,  §  277. 
Corporate  capacity  to  sue,  if  not  denied  by  answer,  is  an  excep- 
tion. 

Grace  vs.  Oakland  Bldg.  Assn.,  63  App.  339;  Enos  vs.  Chestnut,  88 
111.  590. 


ALMANACS 

See  Judicial  Notice. 

ALTERATIONS  AND  ERASURES 

See     Handwriting,     Photographs,     Denial     of     Execution, 
Expert  And  Opinion. 
Question  of  Law  and  Fact: 

The  question  whether  there  has  been  an  alteration  in  a  contract 
and  the  intent  with  which  it  has  been  made,  are  questions  for  the 

jury. 

Hayes  vs.  Wagner,  220  111.  256. 

Whether  an  alteration  has  been  made  is  a  question  of  fact  for 

the  jury. 

Catlin  Coal  Co.  vs.  Lloyd,  180  111.  398;  Tanner  vs.  Newton,  254  HI. 
432;  Schwarz  vs.  Herrenkind,  26  111.  209;  Peterson  vs.  Emery, 
154  App.  294;  Eeed  vs.  Kemp,  16  HI.  445. 

Admissibility  of  Instruments: 

When  instrument  contains  apparent  alteration,  and  same  changes 
the  legal  effect,  and  its  operation  and  the  liability  of  the  parties 
thereto,  and  is  of  such  a  character  as  to  amount  to  suspicious  cir- 
cumstances, instrument  should  not  be  admitted  in  evidence  with- 
out explanation. 

Landt  vs.  McCullough,  206  111.  214;  Merritt  vs.  Boyden,  191  HI.  136; 
Catlin  Coal  Co.  vs.  Lloyd,  180  111.  398;  Gage  vs.  City  of  Chicago, 
225  111.  218. 


94         ALTERATIONS  AND  ERASURES 

Instruments  executed  in  duplicate  are  both  primary  evidence, 
and  if  one  of  the  duplicates  is  unaltered,  there  is  still  original 
primary  evidence  of  the  contract,  although  the  other  duplicate  has 
been  altered.  The  latter  may  also  be  admitted  to  show  ail  the  facts 
in  relation  to  its  execution,  but  not  as  basis  for  recovery. 

Hayes  vs.  Wagner,  220  111.  256. 
Uncontradicted  evidence  that  the  erasures,  alterations  and  inter- 
lineations in  a  lease  were  there  when  the  lease  was  executed  by  the 
parties,  and  that  the  lease  was  then  in  the  same  condition  when  it 
was  otfered  in  evidence  as  when  it  was  signed  by  the  parties,  and 
that  the  assignees  under  the  lease  were  given  a  copy  thereof  and 
had  paid  rent  under  the  lease,  justifies  the  court  in  admitting  the 
lease  in  evidence  in  action  against  assignors  for  rent. 

Landt  vs.  McCuUough,  218  111.  607. 
An  alteration  of  a  written  agreement,  after  its  execution,  by 
a  stranger,  and  with  no  fraudulent  purpose  or  intent,  will  not 
render  the  agreement  inadmissible  in  evidence. 

Coiidict   vs.   Flower,    106   111.    105;    Bledsoe   vs.    Graves,    5    111.    383; 
Vogle  \s.  Kipper,  34  111.  100;  Soaps  vs.  Eichberg,  42  App,  375.  ., 
Interlineations  in  an  official  certificate,  if  satisfactorily  explained, 
will  not  affect  the  competency  of  such  certificate. 

People  vs.  Foreman,  165  App.  13. 
Erasures  and  interlineations  appearing  in  a  certified  copy  of  a 
record  of  an  instrument,  form  no  sufficient  reason  for  excluding 
the  copy,  since  they  may  have  been  made  by  the  copyist  to  conform  to 
the  record.  It  seems  that  erasures  and  interlineations  in  a  certi- 
fied copy  in  no  way  impairing  the  meaning  of  the  instrument,  will 
not  warrant  its  exclusion  from  evidence,  even  if  the  Avord  erased 
appear  on  original  instrument  on  record. 

Holbrook  vs.  Micholas,  36  111.  161. 
A  copy  of  a  special  assessment  ordinance,  properly  certified  to 
be  a  true  copy  of  the  original,  made  upon  a  blank  from  which,  ap- 
parently, the  printed  matter  not  corresponding  with  the  original 
ordinance,  had  been  stricken  out  and  other  provisions  inserted  with 
pen  and  ink,  and  making  an  ordinance  harmonious  throughout,  is 
properly  admitted  in  evidence  without  extrinsic  explanation  of  the 

changes. 

Gage  vs.  City  of  Chicago,  225  111.  218;   Gage  vs.  City  of  Chicago, 
223  111.  602. 

Presumption : 

—  Fact  of  Alteration:  The  law  indulges  no  presumption  as  to 
condition  of  an  instrument  when  it  is  executed,  or  whether  there 
has  been  a  subsequent  change.  The  appearance  and  circumstances 
might  be  such  that  considering  it  as  a  question  of  fact  would  re- 
quire an  explanation,  and  without  it  an  inference  against  the  in- 
strument might  be  justified,  but  the  law  raises  no  presumption  on 

the  subject. 

Webster  vs.  Yorty,  194  111.  408;   Gage  vs.  City  of  Chicago,  225  111. 
218;  Grand  Lodge  vs.  Young,  123  App.  628. 
There  is  no  presumption  of  law  arising  upon  the  bare  inspec- 
tion of  an  instrument  whether  it  has  been,  and  if  so,  when,  altered 
from  the  true  contract ;  such  appearance  may  throw  suspicion  and 


ALTERATIONS  AND  ERASURES         95 

distrust  upon  the  instrument,  but  it  is  a  question  of  fact  and  not 
of  law. 

Eeed  vs.  Kemp,  16  111.  445;  Millikeu  vs.  Marliu,  GG  111.  13. 

—  As  to  Validity  of  Lisirumcnt:  The  mere  fact  of  an  interlinea- 
tion or  an  erasure  appearing  in  an  instrument  does  not,  of  itself, 
raise  any  presumption  of  law  for  or  against  the  validity  of  the 
writing,  but  the  question  when,  by  whom,  and  witli  what  intent  it 

was  made,  is  one  of  fact  to  be  su))mitted  to  the  jury. 

Catlin  Coal  Co.  vs.  Lloyd,  180  111.  398;  Walters  vs.  Short,  10  111.  252; 
Gillett  vs.  Sweat,  6  111.  475. 

—  Time  of  Alterations:  The  law  indulges  no  presumption  as 
to  when  a  change  in  a  written  instrument  was  made. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Milliken  vs.  Marlin,  66  111.  13; 
DeLong  vs.  Soucie,  45  App.  234. 

In  absence  of  all  evidence,  either  from  the  appearance  of  the 
instrument  itself,  or  otherwise,  to  show  when  the  alteration  was 
made,  it  must  be  presumed  to  have  been  subsecpient  to  the  execu- 
tion and  deliverv  of  the  instrument. 
Walters  vs.  Short,  10  111.  252. 
An  alteration  apparent  upon  the  face  of  a  note  must  be  pre- 
sumed prima  facie  to  have  been  made  after  instrument  was  exe- 
cuted. 

McAllister  vs.  Avery,  17  App.  568. 

Presumption  is  that  alteration  was  made  after  instrument  was 

executed. 

Sisson  vs.  Pearson,  44  App.  81;  ]\lontag  vs.  Lynn,  23  111.  551;  Hodge 
vs.  Oilman,  20  111.  437.  See  Pyle  vs.  Oustatt,  92  111.  209;  XI  111. 
Notes  95,   §  22.      (See  Presumptions.     Decisions  not  in  harmony.) 

Burden  of  Proof: 

—  In  General:  After  proof  tending  to  show  alteration,  burden  of 
proof  upon  whole  case  is  then  upon  party  offering  instrument  to 
show  that  no  such  alteration  was  made  or  that  it  was  made  with 
consent  of  defendants,  or  that  they  ratified  same. 

Merritt  vs.  Dewey,  218  111.  599;   Catliu  Coal  Co.  vs.  Lloyd,   180  111. 
398;   Eggman  vs.   Nutter,   155  App.  390;   Dewey  vs.   Merritt,   106 
App.  156. 
If  a  document  produced  in  court  appears  to  have  been  niaterially 
altered,  and  under  circumstances  which  may  be  suspicious,  the 
burden  of  explaining  its  appearance  rests  upon  party  offering  it. 
Landt  vs.  MeCullough,  206  111.  214;   Hodge  vs.  Oilman,  20  111.  437; 
Gillett  vs.  Sweat,  6  111.  475. 
It  is  incumbent  upon  party  offering  an  instrument  which  ap- 
pears to  have  been  altered,  to  explain  such  alteration,  and  in  ab- 
sence of  all  evidence,  either  from  appearance  of  instrument  itself, 
or  otherwise,  to  show  when  the  alteration  was  made,  it  must  be  pre- 
sumed to  have  been  made  subsequent  to  execution  and  delivery  of 

instrument. 

Walters  vs.  Short,  10  111.  252;  Hodge  vs.  Gilman,  20  111.  43  <  ;  Mon- 
tage vs.  Linn,  23  111.  551;  Pyle  vs.  Oustatt,  92  111.  207;  McAllister 
vs.  Avery,  17  App.  568.     But  see  Milliken  vs.  Marlin,  66  111.  13; 
Swarz  vs.'Herrenkind,  26  111.  209;  DeLong  vs.  Soucie,  45  App.  234. 
Party    offering   instrument,    where    alteration    is    material,    has 
burden  of  explaining  such  alteration  before  the  instrument  will 
be  admitted  in  evidence.     Such  explanation  may  satisfaetordy  ap- 
pear from  the  instrument  itself,  or  by  extrinsic  evidence. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Hodge  vs.  Gilman,  20  111.  437. 


96         ALTERATIONS  AND  ERASURES 

The   alteration   or  interlineation   must  be  explained  by  party 

claiming  benefit  of  the  paper,  and  if  it  is  suspicious  in  appearance 

and  satisfactory  explanation  is  not  made,  the  proper  conclusion 

is  a  conclusion  of  fact  against  the  instrument. 
Catlin  Coal  Co.  vs.  Lloyd,  180  111.  398. 

The  burden  is  on  the  party  offering  the  instrument,  to  prove  the 

alterations  apparent  on  same  were  honestly  and  properly  made. 

Pyle  vs.  Oustatt,  92  111.  209. 

—  Notes:  Burden  of  proving  apparent  alteration  of  note  was 
made  prior  to  its  execution  rests  on  holder. 

McAllister  vs.  Avery,  17  App.  568. 

Wliere  the  execution  of  a  promissory  note  is  put  in  issue  by  plea 
verified  by  affidavit,  and  defendant  admits  name  signed  thereto  is 
his  signature,  it  is  not  incumbent  upon  plaintiff  to  show  note  has 
not  been  altered,  wliere  no  alteration  is  apparent  on  its  face,  to 
admit  same  in  evidence,  but  defendant  must  show  that  fact  in  de- 
fense. 

Lowman  vs.  Aubrey,  72  111.  619;  Merritt  vs.  Dewey,  218  111.  599. 

Admissibility  of  Evidence  to  Show  or  Explain  Alteration : 

—  Parol  Evidence:  Explanation  may  satisfactorily  appear  from 
instrument  itself,  or  may  be  made  by  extrinsic  evidence. 

Gage  vs.  City  of  Chicago,  225  111.  218;  People  vs.  Foreman,  165  App. 
13 ;  Tanner  vs.  Newton,  254  111.  432. 
Where  a  written  instrument  offered  in  evidence  exhibits  an  era- 
sure of  a  certain  part,  parol  evidence  is  admissible  to  show  why 

such  erasure  was  made. 

Johnson  vs.  Pollock,  58  111.  181;  Kelly  vs.  Trumble,   74  111.  428. 

—  Opinion  Evidence:  Expert's  opinion  is  admissible  to  show 
that  instrument  was  altered  after  filing. 

Eass  vs.  Sebastian,  160  111.  602. 

—  Photographs:  An  enlarged  photograph  of  a  document,  al- 
leged to  have  been  altered,  is  admissible,  when  so  enlarged  as  to  il- 
lustrate testimony  of  witness.  In  such  case,  photograph  is  not 
merely  secondary  evidence. 

Howard  vs.  111.  Bank,  189  111.  568. 

—  Comparison  of  Instruments:  Alterations  in  a  deed  executed 
to  correct  certain  defects  in  former  quit-claim  deed,  which  consist 
of  erasure  of  certain  words  in  warranty  form  used  in  drawing  seC' 
ond  deed,  in  order  to  make  same  conform  to  original  quit-claim 
deed,  are  sufficiently  explained  by  introducing  the  deeds  in  evi- 
dence and  comparing  them. 

Wilder  vs.  A.  D.  &  E.  Elec.  Co.,  216  111.  493. 

—  Copies:  Where  a  written  contract,  when  produced,  appears 
to  have  been  changed,  a  copy  of  the  same  is  admissible  in  evidence 
for  purpose  of  showing  that  change  was  made  before  its  execution.. 

Lombard  vs.  Johnson,  76  HI.  599. 

Or  a  duplicate  is  admissible. 

Hayes  vs.  Wagner,  220  111.  256. 
And  a  certified  copy  of  recorded  instrument. 

Kimball  vs.  Piper,  111  App.  82. 

—  Affidavit:  Affidavits  may  be  read  or  proof  heard  to  show  that 
words  have  been  improperly  stricken  from  a  judgment,  but  not  to 


AMBIGUITY  97 

falsify  a  record  by  showing  tlial  an  alteration  correcting  it  was  im- 
properly made. 

"  Walker  vs.  Armour,  2l2  III.  658. 
—  Pleading:  Where  the  general  issue  is  filed  Avith  a  notice  of 
special  matter,  if  such  special  matter  goes  to  the  alteration  or  de- 
nial of  the  execution  of  the  instrument  sued  on,  the  evidence  offered 
to  establish  this  fact  will  be  inadmissible.  Such  a  defense  must 
be  by  special  plea  verified. 

Dewey  vs.  Warriner,  71  111,  198;  Hunt  vs.  Weir,  29  111.  83;  Eichard- 
sou  vs.  Mather,  178  111.  449. 

Witnesses : 

Where  party  defends  as  heir,  adverse  party  is  incompetent  to 
testify  in  explanation  of  apparent  alteration  in  deed  under  which 
both  claim. 

Pyle  vs.  Oiistatt,  92  111.  209. 

A  judge  or  clerk  of  the  court  making  the  minutes  of  an  order, 
is  a  competent  witness  to  prove  or  disprove  same,  whenever  the 
genuineness  is  questioned.  It  may  be  proven  that  what  purports 
to  be  a  minute  of  a  judge  or  clerk  in  a  case  is  not,  in  fact,  his  min- 
utes, and  upon  same  principle,  it  can  be  proven  by  him  that  marks 
of  cancellation  or  erasure  were  not  made  by  him. 
Gillett  vs.  Booth,  95  111.  183. 

Erasures  and  alterations  appearing  on  the  face  of  a  tax  receipt 
may  be  shown  to  have  been  made  by  the  person  giving  it,  and  un- 
der circumstances  which  rebut  any  allegation  of  fraud  on  the  part 

of  the  holder. 

Elston  vs.  Kennicott,  46  111.  187;  Babcock  vs.  McFarland,  43  111.  381. 

Authority  to  Make : 

Authority  to  alter  cannot  be  proven  by  statements  of  agent 
making  the  alteration. 

Leonard  vs.  Heavner,  171  App.  188. 


AMBIGUITY 

See  PAROii,  Identity. 
ADMISSIBILITY  OF  PAROL  EVIDENCE: 

Contracts : 

—  In  General:  If  the  terms  used  by  the  parties  to  a  contract 
are  ambiguous  in  meaning,  and  if  at  the  time  the  contract  is  being 
made  particular  words  are  agreed  upon  as  having  a  particular 
meaning,  then  parol  evidence  is  admissible  to  show  the  true  intent 
and  undertaking  of  the  parties,  and  for  suck  purposes  such  agree- 
ment is  competent  evidence. 

S    F.  Coal  Co.  vs.  Eldridge  Coal  Co.,  170  App.  268;  Evaus  vs.  Eoss 
Cons.  Co.,  142  App.  375;  Street  vs.  Chi.  W.  Co.,  157  ill  605. 
Where  there  is  no  misunderstanding  between  the  parties,  about 
the  terms  of  a  contract,  and  no  dispute  between  them  as  to  the 
meaning  of  same,  parol  evidence  as  to  alleged  ambiguities  is  in- 
admissible. 

Pinch  vs.  Zenith  Furnace  Co.,  245  111.  586. 

Ev.  — 7 


98  AMBIGUITY 

Unambiguous  writing  cannot  be  altered,  varied,  modified  or  ex- 
plained by  parol. 

Schneider  vs.  Sulzer,  212  111.  87;  Town  of  Kane  vs.  Farrelly,  192 
111.  521;  Com.  Mut.  Ace.  Assn.  vs.  Bates,  176  111.  194;  Hamilton 
vs.  Harvey,  121  111.  469;  Panton  vs.  Tefift,  22  111.  367;  Griffith  vs. 
Fuhrey,  30  111.  251;  Summerville  vs.  Klein,  140  App.  39;  XII  111. 
Notes  514.  §  319. 

A  written  contract  which  purports  to  be  a  complete  and  final 
stateiuent  of  entire  transaction  is  the  only  evidence  of  its  terms 
and  conditions. 

Osgood  vs.  Skinner,  211  111.  229;  Cook  vs.  Whitney,  16  111.  480; 
Lane  vs.  Sharp,  4  111.  566;  Petrea  vs.  Iledeger,  173  App.  203. 

And  is  the  only  legitimate  evidence  of  extent  of  agent's  au- 
thority, and  the  question  whether  it  is  within  the  written  authority 
conferred,  is  one  of  law. 

Oliver  vs.  Sattler,  233  111.  536. 

And  construction  is  for  the  court. 

Danziger  vs.  Pittsfield  Shoe  Co.,  204  111.  145;  Spence  vs.  Hndkins, 
208^111.  304. 

Where  the  meaning  of  a  contract  is  plain,  another  meaning  can- 
not be  added  l)y  implication  or  intendment. 
Diederiek  vs.  Eose,  228  111.  610. 
And  is  not  subject  to  construction  where  there  is  no  ambiguity 
in  the  language  used. 

Brenzel  vs.  Kusehner,  128  App.  136;  Clark  vs.  Mallory,  185  111.  227; 
Strauss  vs.  Cohen  Bros.,  169  App.  337. 

And   court  may  not  read  into   a  written  contract  a  provision 
which  parties  have  failed  to  insert,  simply  because,  from  one  point 
of  view%  it  would  have  been  reasonable  or  desirable. 
Burt  vs.  Garden  City  Sand  Co.,  237  111.  473. 

—  Parties  and  Subject  flatter:  A  written  contract  may  speak 
for  itself  as  to  terms,  conditions  and  limitations  of  the  agreement, 
but  as  to  the  parties  and  sul)ject  matter  of  the  contract,  extrinsic 
evidence  is  always  competent,  if  necessary,  for  their  identification, 
without  reference  to  tlie  question  of  latent  or  patent  ambiguity. 

Cum])erledge  vs.  Brooks,  235  111.  249;  Bulkley  vs.  Devine,  127  111. 
406. 

It  is  a  rule  of  uniform  application  that  parol  or  other  extrinsic 
evidence  may  be  received  for  the  purpose  of  identifying  the  prop- 
erty sold.  This  evidence  does  not  infringe  upon  the  rule  that  a 
written  agreement  cannot  be  contradicted,  enlarged  or  varied  by 

parol. 

Marshall  vs.  Gridley,  46  111.   247. 

Parol  testimony  is  admissible  to  apply  written  agreement  to  the 
subject  matter  to  which  it  relates,  as,  to  show  that  the  property 
mentioned  in  a  contract  was  the  same  as  that  for  which  a  suit  was 

prosecuted. 

Eeed  vs.  Ellis,  68  111.  206. 
Where  there  is  a  misnomer  or  variance  from  the  legal  name  of 
a  corporation  extrinsic  evidence  is  admissible  to  identify  and  ex- 
plain the  variance. 

Mall.  Iron  Eange  Co.  vs.  Pusey,  244  111.  184. 
When  it  is  doubtful  from  the  instrument  itself,  whether  the  con- 


AMBIGUITY  99 

tract  was  intended  to  bind  the  principal  or  the  agent,  extrinsic  evi- 
dence may  be  received  to  ascertain  the  intention. 

O.  &  M.  Ky.  Co.  vs.  Middleton,  20  111.  629;  Braim  vs.  Hess,  187  111. 
283. 

But  not  if  the  contract  clearly  binds  the  agent. 
Vail  vs.  Mut.  Life  Ins.  Co.,  192  111.  567, 

Two  contracts  of  the  same  date,  for  improving  a  building,  one 
signed  "Nebauer  Decorating  Company,  D.  E.  Livermore,  Supt.  of 
Contracts,"  and  the  other,  "D,  E.  Livermore,  Mfg.  Agent  &  Supt. 
of  Contracts."  Held,  sufficient  uncertainty  upon  the  face  of  the 
transaction  to  admit  parol  evidence  as  to  who  was  intended  to  be 
bound  as  principal  by  the  latter  contract,  and  if  the  owner  of  the 
building  treated  the  Nebauer  Decorating  Company  as  principal, 
the  burden  of  proof  is  upon  him. 

Keeley  Brew.  Co.  vs.  Decorating  Co.,  194  111.  580. 

—  Extrinsic  Rendering  Uncertain:  When  a  contract  on  its  face 
appears  to  be  explicit  and  certain,  but  is  rendered  uncertain  by 
extrinsic  evidence,  it  may  be  explained  by  the  same  class  of  evi- 
dence by  which  the  uncertainty  is  created. 

Haraian  vs.  People,  214  111.  454;  Marshall  vs.  Gridley,  46  111.  247; 
Halliday  vs.  Hess,  147  111.  588;  Doyle  vs.  Teas,  5  HI.  202. 

—  Terms  of  Trade  and  Art:  If  such  terms  have  a  well  defined 
signification,  it  is  not  competent  to  change  that  meaning  by  evi- 
dence ;  but  if  not  well-defined,  a  local  meaning  may  be  proven. 

Galena  Ins.  Co,  vs.  Kupfer,  28  111.  338;  Lord  vs.  Owen,  35  App.  382. 

The  testimony  of  witnesses  is  admissible  to  explain  not  only 
technical  words  or  art  or  science,  but  words  or  phrases  having  a 
local  or  special  meaning  in  a  particular  calling,  trade,  business  or 
profession.  Such  evidence  does  not  contradict  or  change  the  writ- 
ten instrument.  The  presumption  is  that  such  terms  Avere  used 
according  to  their  understood  meaning  in  the  place  or  business  with 
reference  to  which  the  contract  is  made,  and  evidence  as  to  such 
meaning  is  the  only  method  of  ascertaining  the  intention  of  the 
parties  in  entering  into  the  agreement. 

Steidtman  vs.  Lay  Co.,  234  111.  84;   Turner  vs.  Osgood  Art  Co.,  223 

111.  629;  Eeed  vs.  Hobbs,  3  111.  297;  Elgin  vs.  Joslyn,  36  App.  301; 

Chi.  Port.  Cement  Co,  vs.  Hofnian,  168  App.  71. 

Such  general  custom  or  technical  meaning  of  words  may  be  proven 
without  being  specially  pleaded. 

Steidtmann  vs.  Lay  Co.,  234  111.  84;  Stewart  vs.  Smith,  28  111.  397. 

—  Usage:  Evidence  of  a  usage  may  be  admissible  to  add  to  or 
explain  the  terms  of  a  written  contract,  but  not  to  vary  or  con- 
tradict such  terms,  either  expressly  or  by  implication. 

Turner  vs.  Osgood  Art  Co.,  223  111.  629;  W.  V.  Cold  Storage  Co,  vs. 
Produce  Co.,  197  111.  457;  Leavitt  vs.  Kennicott,  157  111.  235; 
Gilbert  vs.  McGinnis,  114  111.  28. 

—  Construction  by  Parties:  AVhen  the  terms  of  a  written  agree- 
ment are  in  any  respect  uncertain  or  doubtful,  and  the  parties,  by 
their  own  conduct,  have  placed  a  construction  upon  them,  which 
is  reasonable,  such  construction  will  be  adopted  by  the  court,  evi- 


100  AMBIGUITY 

dence  of  acts  showing  practical  construction  of  the  instrument  by 
the  parties  themselves  is  admissible. 

McLean  Coal  Co.  vs.  Bloomington,  234  111.  90;   Walker  vs.  I.  C.  E. 

E.  Co.,   215   ill.   ClU;    Slack  vs.  Kuox,  213  111.   190;    :\lerrifield  vs. 

Canal   Comrs.,   212   ill.   456;    Whalen   vs.   Stephens,   193   111.    121; 

Carroll  vs.  Drury,  170  111.  571;   Ilarter  vs.  Morris,   124  App.  377; 

Gronimett  vs.  Sawyer,   133  App.  249;   Borustein  vs.  Berliner,  170 

App.  519. 

But  will  adopt  such  construction  only  wlieii  it  is  reasonable. 

Allison  vs.  Taylor,  133  App.  70 ;  O  'Conner  vs.  Harrison,  132  App.  264. 

—  Previous  Course  of  Dealing  and  Contracts:  A  previous  course 
of  dealing  between  the  same  parties,  under  similar  contract,  may 
be  proven  in  determining  the  intention  of  the  parties  as  to  the  con- 
tract in  question,  and  the  manner  in  which  they  acted  under  simi- 
lar contracts  should  be  considered. 

Janiieson  vs.  Wallace,  167  111.  388;   Carroll  vs.  Drury,  170  111.   571. 

—  Surrounding  Circumstances:  In  construing  a  contract  un- 
certain in  meaning,  the  court  will  look  at  the  surrounding  circum- 
stances in  order  to  understand  the  language  in  the  sense  intended 

by  the  parties. 

Kelsey  vs.  Clausen,  257  111.  402;   Close  vs.  Brown,  230  111.  228;  Car- 
roll vs.  Drury,  170  111.  571;  Wilson  vs.  Eutz,  119  111.  379;   Turpin 
vs.  B.  &   O.  Ey.  Co.,   105  111.  11;   Barrett  vs.  Stowe,   15  111.  423; 
Calkins  vs.  Pease,  125  App.  270. 
And  circumstances  surrounding  the  execution  of  a  contract  and 
those  showing  construction  of  the  parties  are  competent  in  evi- 
dence to  aid  in  interpreting  it. 

Warfield  vs.  "Williamson,   233   111.   487;    Cantrell  Coal   Co.   vs.   Level, 
139  App.  104. 
Circumstances  surrounding  execution  of  contract  are  questions 

of  fact. 

Amer.  Ins.  Co.  vs.  Myers,  118  App.  484. 

Contracts  of  Conveyance: 

See  Identity,  Description. 
Deeds : 

—  Legal  Effect:  Language  in  deed  having  settled  legal  mean- 
ing, cannot  be  changed,  explained  or  added  to  by  parol  evidence. 

Mortan-vs.  Babb,  251  111.  488. 

—  Patent  Amhigwity:  A  patent  ambiguity  in  a  deed  is  not  capa- 
ble of  explanation  by  extrinsic  evidence.  While  a  latent  ambiguity 
may  be  so  explained,  it  is  because  it  is  made  to  appear  by  evidence 
outside  of  the  instrument,  yet  a  patent  ambiguity  is  not  susceptible 
of  any  other  explanation  than  that  furnished  by  the  instrument 

itself." 

Panton  vs.  Tefft,  22  111.  367. 

—  Description:  Parol  evidence  is  always  admissible  to  explain 
a  latent  am])iguity,  showing  what  property  was  intended  to  be 

conveyed. 

Evans  vs.  Gerry,  174  111.  595;  Bradisli  vs.  Yocum,  130  111.  386; 
Sharp  vs.  Thompson,  100  111.  447;  Fisher  vs.  Quackenbush,  83  111. 
310;  Colcord  vs.  Alexander,  67  111.  581:  Billinsrs  vs.  Kankakee  Coal 
Co.,  67  111.  489;  Bybee  vs.  Hageman,  C^Ci  111.  519;  XII  111.  Notes  520, 
§359. 
If  the  description  in  the  deed  is  uncertain,  parol  evidence  of 


AMBIGUITY  101 

any  extrinsic  circumstances  is  admissible  to  identify  and  establish 
the  objects  of  the  call  in  the  deed. 

Koelliug  vs.  People,   196  111.  353;   Kleiner  vs.  Bowen,   166  111    537; 

Masou  vs.  Merrill,  129  111.  5U3;  Taylor  vs.  Wright,  121  111.  455. 

But  if  no  uncertainty  or  ambiguity  exists,  parol  evidence  of  the 

acts  and  conversations  of  grantor  and  grantee,  prior  to  execution 

of  deed,  cannot  ])e  received  to  show  description  in  deed  is  wrong. 

Duggan  vs.  Uppendahl,  197  111.  179. 

Where  there  is  a  latent  ambiguity  in  the  description  in  a  con- 
veyance, as  an  omission  to  refer  to  any  meridian,  the  defect  may 

be  obviated  by  proof.     Such  a  deed  is  not  void  for  uncertainty. 
Daugherty  vs.  Purely,  18  111.  206, 

A  latent  ambiguity  in  the  description  of  land  in  a  conveyance, 
as  where,  by  omitting  to  state  the  number  of  township  north  of 
the  base  line,  there  are  several  parcels  which  will  answer  the  de- 
scription, may  be  explained  by  evidence ;  and  is  so  explained  when 
it  is  shown  which  of  the  several  parcels  the  grantor  claimed. 
Clark  vs.  Powers,  45  111.  284. 

In  ejectment  for  a  tract  of  land  claimed  to  have  been  conveyed 

by  defendants  to  plaintiffs,  where  the  deed  is  subject  to  a  latent 

ambiguity,  the  burden  of  proof  will  rest  upon  plaintiff  to  show 

such  tract  was  a  part  of  the  land  intended  to  be  conveyed  to  him. 
Bradish  vs.  Yocum,  130  111.  386. 

Where  a  deed  described  the  land  as  being  in  a  certain  section, 
without  showing  in  what  township  that  section  is  located,  and  it 
is  shown  there  are  several  sections  in  the  county  of  that  number, 
the  deed,  taken  in  connection  with  such  showing,  will  reveal  a 
latent  ambiguity,  and  parol  evidence  will  be  admissible  to  show  in 
what  township  such  section  is  located. 

Halliday  vs.  Hess,   147  111.  588;   Billings  vs.  Kankakee  Coal  Co.,  67 
111.  489. 

The  location  of  a  town  lot  may  be  fixed  by  a  witness  from  com- 
mon repute,  irrespective  of  any  plat. 

Judson  vs.  Glos,  249  111.  82;  Holbrook  vs.  Debo,  99  111.  372. 

Where  the  title  to  a  tract  of  land,  out  of  which  a  lot  in  contro- 
versy is  carved,  is  established,  the  identity  of  the  premises  may 
be  shown  by  other  proof,  without  the  introduction  of  a  map  or  plat 

of  the  survey  of  which  the  lot  forms  a  part. 
Smith  vs.  Stevens,  82  111.  554. 

And  the  rule  admitting  evidence  of  a  practical  construction 
given  by  the  parties  to  a  writing,  extends  to  evidence  of  such  acts 
in  order  to  determine  the  ambiguous  terms  of  a  conveyance  as  to 
the  estate  conveyed. 

Parnam  vs.  Thompkins,  171  111.  519. 

—  Parties:    Where  conveyance  of  land  is  made  to  one  bearing 
same  name  as  prior  owner  and  grantor  thereof,  in  absence  of  con- 
trary, he  will  be  presumed  to  be  same  party. 
Brown  vs.  Metz,  33  111.  339. 

Wliere  deed  is  to  one  of  two  persons  of  same  name,  being  father 
and  son,  it  devolves  upon  one  claiming  under  son  to  overcome  or 
rebut  presumption  of  law  that  grant  was  made  to  father,  and 
then  burden  is  shifted  to  party  claiming  under  father,  and  he 
must  produce  evidence  sufficient  to  overcome,  or  at  least,  equal  in 
probative  force  the  case  of  adverse  party. 


102  AMBIGUITY 

Where  a  deed  is  made  to  one  of  two  persons  of  same  name,  the 
one  the  father,  and  the  other  the  son,  both  living  together  and  oc- 
cupying premises  conveyed,  the  character  and  circumstances  of 
the  occupancy  are  admissible  on  question  whether  deed  was  to 
the  father  or  the  son. 

Graves  vs.  Colwell,  90  111.  612. 

It  may  be  presumed  that  parties  to  conveyances  are  same  persons 
where  initials  of  christian  names  are  used,  and  they  are  the  initials 
of  Christian  names  given  in  full  in  other  deeds  of  same  premises, 
the  surnames  being  the  same. 

Ogden  vs.  Beinis,  125  111.  105;  Skinner  vs.  Fulton,  39  111.  484. 

Wills: 

—  In  General:  Parol  testimony  is  inadmissible  to  explain  a 
patent  ambiguity  in  a  will. 

Engelthaler  vs.  Engeltlialer,  196  111.  230. 

The  rule  is  that  while  surrounding  facts  and  circumstances  may 
be  proven  to  explain  a  latent  ambiguity  which  is  not  found  upon 
the  face  of  the  instrument  itself,  extrinsic  evidence  cannot  be  ad- 
mitted to  explain  an  ambiguity  which  appears  upon  the  face  of 
the  will,  or  supply  its  omission  and  deficiencies,  since  that  would 
be  to  make  a  will  for  testator. 

Carston  vs.  Carston,  254  111.  480. 

Where  an  ambiguity  in  a  will  is  not  latent,  extrinsic  evidence 
is  inadmissible  to  explain  will  or  show  intention  of  testator. 
Haywood  vs.  Loper,  147  111.  41. 

Parol  evidence  is  admissible  in  explanation  of  a  latent  ambiguity 
that  arises  where  writing,  on  its  face,  appears  clear  and  unam- 
biguous, but  the  meaning  is  rendered  uncertain  by  extrinsic  evi- 
dence, or  from  matters  of  which  the  court  will  take  judicial  notice, 
and  where  uncertainty  is  so  created,  it  may  be  removed  by  extrin- 
sic evidence. 

Graves  vs.  Rose,  246  111.  76. 

Where  the  devise  of  "the  homestead"  is  followed  by  a  description 
which  is  incomplete  but  not  incorrect,  parol  testimony  is  compe- 
tent to  prove  the  legal  description  of  the  homestead  premises. 
Morall  vs.  Morall,  236  111.  640. 

Where  the  description  of  land  devised  in  a  will  is  apparently 
unambiguous,  but  the  township,  range,  county  and  state  are  not 
specified,  the  court  will  take  judicial  notice,  from  its  knov.ledge 
of  governmental  surveys,  that  the  apparently  unambiguous  de- 
scription is,  in  fact,  uncertain,  and  may  permit  the  township,  county, 

range  and  state  to  be  supplied  by  extrinsic  evidence. 
Graves  vs.  Rose,  246  111.  76. 
Reference  to  number  of  acres  cannot  control  plain  words  of  a 
will. 

Graves  vs.   Rose,  246   111.   76;    Williams   vs.   Williams,    1S9   111.   500; 
Bingel  vs.  Volz,  142  111.  214;  Bishop  vs.  Morgan,  82  111.  351. 

When  there  is  a  latent  ambiguity  in  description  of  object  or  sub- 
ject of  the  gift,  and  such  ambiguity  can  be  removed  by  rejecting 
false  words,  leaving  a  complete  intelligible  description,  it  is  the 
duty  of  the  courts  to  so  do,  as  where  there  are  two  descriptions,  one 

good  and  the  other  bad,  the  latter  may  be  rejected. 

Vestal  vs.  Garrett,  197  111.  398;  Collins  vs.  Capps,  235  111.  560;  Gano 
vs.  Gano,  239  111.  539;  Emmert  vs.  Hays,  89  111.  11. 


ANCIENT  DOCUMENTS  103 

When  there  is  a  gift  to  a  society  for  charity  without  clearly  de- 
scribing the  particular  society,  and  there  are  two  or  more  societies 
carrying  on  the  same  charity,  a  latent  ambiguity  exists  and  extrin- 
sic evidence  is  admissible  for  the  purpose  of  determining  the  society 
or  institution  intended  by  the  donor.  The  rule  also  applies  where 
there  is  a  mistake  in  the  name  or  description  of  the  legatee  or  de- 
visee whether  an  individual  or  a  corporation. 

Hitchcock  vs.  Bd.  of  Home  Missions,  259  HI.  288.   (See  Wills.) 

Letters : 

See  Letters-Intention. 


ANCIENT  DOCUMENTS 

Definition : 

Deeds  more  than  thirty  years  old  at  the  date  of  the  trial  are  "an- 
cient, ' '  although  less  than  thirty  years  old  at  the  date  of  the  com- 
mencement of  the  suit. 

Renter  vs.  Stuckart,  181  HI.  529;  XII  111.  Notes  511,  §292. 

Purpose  of  Rule  Relating  to : 

The  rule  relating  to  ancient  documents  which,  under  some  cir- 
cumstances, will  dispense  with  proof  of  the  execution  of  a  docu- 
ment which  appears  to  be  at  least  thirty  years  old,  cannot  be  in- 
voked for  any  other  purpose  than  to  relieve  a  party  from  the  bur- 
den otherwise  imposed,  of  proving  the  due  execution  of  the  in- 
strument. 

Koch  vs.  Streuter,  232  111.  594. 

Proof  of  Execution: 

—  Burden  of  Proof:  A  party  producing  such  papers  must  do 
everything  in  his  power  to  raise  the  presumption  of  their  genu- 
ineness. 

Smith  vs.  Rankin,  20  111.  15. 

—  Necessity  of  Showing:  An  instrument  is  admissible  as  an 
ancient  deed,  without  proof  of  its  execution,  when  it  comes  from 
the  custody  of  the  grantee's  wife,  who  held  possession  under  it  for 
a  series  of  years  and  paid  taxes  assessed  on  the  property  in  the 
grantee's  name,  and  deed  bears  an  indorsement  showing  the  record- 
ing of  the  deed  at  a  time  more  than  thirty  years  before  the  trial. 

Renter  vs.  Stuckart,  181  111.  529. 

Deeds  more  than  thirty  years  old  are  called  ancient  deeds,  and 
they  are  admitted  in  evidence  without  proof  of  execution ;  but  be- 
fore this  can  be  done,  it  must  appear  that  the  instrument  comes 
from  such  custody  as  to  show  a  reasonable  presumption  of  its  gen- 
uineness, and  facts  and  circumstances  must  be  proven  which  will 
establish  the  fact  that  the  instrument  has  been  in  existence  the 

length  of  time  indicated  by  its  date. 

Whitman  vs.  Hcnneberry,  73  111.  109. 
A  deed  which  has  been  a  matter  of  record  for  fifty-nine  years 
is  an  ancient  deed,  and  in  absence  of  any  fraud  or  suspicious  cir- 
cumstances, it  is  not  necessary  to  show  proof  of  execution. 

Stafford  vs.  Goldring,  197  111.  156. 


104  ANCIENT  DOCUMENTS 

A  deed  may  be  admitted  without  proof,  as  an  ancient  document, 
where,  upon  its  face,  it  appears  to  have  been  executed  more  than 
thirty  years  since,  and  where  it  comes  from  the  proper  custodian 
of  a  genuine  instrument,  such  deed  proves  itself. 
Buc'klen  vs.  Hasterlick,  51  App.  132. 

Deeds  not  acknowh^lged  according  to  law,  were  admitted  in 
evidence  on  behalf  of  plaintiff  in  ejectment,  as  ancient  deeds,  on 
proof  that  they  had  actually  been  recorded  in  the  proper  county 
for  twenty-nine  years  before  the  commencement  of  the  suit  in  which 
they  were  received,  and  they  having  been  shown  to  have  been  in 
possession  of  party  in  possession  of  the  land  before  the  plaintiff, 
and  to  have  remained  with  him  until  his  death,  and  it  being  shown 
one  of  the  deeds  had  been  recorded  for  more  than  forty  years  be- 
fore suit  was  brought:  Held,  in  absence  of  evidence  of  fraud  or 
suspicious  circumstances,  this  was  satisfactory  proof  that  the  deeds 
had  been  in  existence  for  thirty  years,  and  entitled  them  to  be 

read  in  evidence  as  ancient  deeds. 
Quinn  vs.  Eagleson,  108  111.  248. 

—  Acknowledgment:  A  deed  which  has  been  of  record  more 
than  thirty  years  is  an  ancient  deed,  and  a  certified  copy  thereof  is 
admissible  in  evidence  though  the  deed  was  not  acknowledged  as 
required  by  law  in  force  wdien  it  w^as  executed, 

Bradley  vs.  Lightcap,  201  111.  511. 
Under  act  of  1851,  a  deed  acknowledged  prior  to  such  act,  be- 
fore a  justice  of  the  peace  in  a  county  other  than  that  where  the 
land  lies,  and  recorded  in  the  county  where  such  land  is  situ- 
ated, is  valid  although  no  certificate  of  magistracy  is  attached. 

Stafford  vs.  Goldring,  197  111.  156. 

—  Subscribing   Witness:     If  living  and  in   power  of  party  to 

produce,  should  be  offered. 

Smith  vs.  Eankin,  20  111.  15. 

—  Power  of  Attorney:  The  existence  of  a  valid  power  of  attor- 
ney will  be  presumed  in  favor  of  an  ancient  deed  which  purports 

to  be  executed  by  an  attorney  in  fact. 

Eeuter  vs.  Stuckart,  181  111.  529;  Cf.  Fell  vs.  Young,  63  111.  106. 

A  conveyance,  though  over  thirty  years  old,  cannot  be  admitted 

as  an  ancient  deed  when  purporting  to  be  executed  by  one  acting 

in  a  fiduciary  character,  in  absence  of  proof  of  his  authority  to 

make  the  deed.     It  is  well  settled  that  if  a  deed  purports  to  have 

been  executed  under  a  power,  and  is  sought  to  be  used  as  evidence, 

the  power  must  be  shown. 

Fell  vs.  Young,  63  111.  106. 

Delivery : 

—  Presumption:  "While  it  is  true  that  a  deed  will  be  presumed 
to  have  been  delivered  on  the  day  it  bears  date,  yet  the  presump- 
tion is  not  conclusive,  but  may  be  overcome  by  proof. 

Whitman  vs.  Henneberry,  73  111.  109.     (See  Acknowledgments.) 

Extrinsic  in  Aid: 

Memoranda  and  indorsements  upon  a  deed  may  be  considered  as 
circumstances  indicating  that  it  is  genuine,  where  they  are  of  such 
character  as  to  satisfy  a  cautious  and  discriminating  mind  that 
they  would  not  have  been  there  had  the  paper  been  a  forgery ;  and 
if  it  is  established  that  the  deed  has  been  on  record  for  over  thirty 


ANIMALS  105 

years,  this  will  be  a  strong  fact  in  its  favor,  although  it  may  not 
have  been  recorded  in  the  place  required  by  law. 
Whitninn  vs.  Heiinebeny,  73  111.  109. 
A  plat  bearing  the  signature  of  a  deceased  grantor,  found  among 
papers  of  his  deceased  grantee,  is  admissible  to  show  tliat  the  de- 
scription in  the  deed  was  made  with  reference  to  a  contemplated 
widening  of  one  of  the  boundary  streets  and  not  to  its  then  actual 
width,  where  a  long  time  has  elapsed  since  the  deed  was  made,  and 
such  grantee,  during  the  lifetime  of  the  grantor,  had  fenced  the 
property  in  conformity  with  the  plat,  which  plat  was  identified  by 

a  witness  as  one  seen  by  him  near  the  time  the  deed  was  executed. 
Prouty  vs.  Tilden"  1G4  111.  163. 

Foundation  if  or  Admission: 

—  How  Laid:  Where  a  deed  was  shown  to  have  been  in  existence 
for  over  fifty  years,  and  in  the  custody  of  the  grantee  and  his 
heirs,  who  were  claiming  the  land  under  it,  and  who  paid  the  taxes 
on  it  from  year  to  year,  and  it  also  appeared  that  it  was  recorded 
fifty  years  prior,  in  the  proper  oifice,  it  was  held  that  the  proof  was 
ample  to  admit  same  in  evidence  as  an  ancient  deed.  It  is  not  nec- 
essary that  party  claiming  under  such  deed  should  take  actual 
possession  of  the  land  to  entitle  same  to  be  read  in  evidence. 

Whitman  vs.  Henneberiy,  73  111.   109;   Quinn  vs.  Eagleston,  108  111. 
248. 


ANIMALS 

See  Ov^NERSHiP,  Similar  Facts,  Malicious  Mischief. 
Injuries  by  Animals: 

—  DoDUstio  Animals:  The  owner  of  domestic  or  other  animals, 
not  naturally  inclined  to  commit  mischief,  as  dogs,  horses,  oxen, 
is  not  liable  for  any  injury  committed  by  them  to  the  person  or 
personal  property  of  another,  unless  it  can  be  shown  that  he  pre- 
viously had  notice  of  the  animal's  mischievous  propensity,  or  that 
the  injury  was  attributable  to  some  other  neglect  on  his  part,  it 
being,  in  general,  necessary,  in  action  for  injury  committed  by 

such  animals,  to  allege  anjd  prove  the  scienter. 

Mareau   vs.  Vanatta,   88   111.   132;   Wormley  vs.  Gregg,  65   111.   251; 
W.  Chi.  St.  Ej.  Co.  vs.  Walsh,  78  App.  595;  Fritschle  vs.  Clemow, 
109  App.  355;   Feldman  vs.  Selig,  110  App.  130;  Keightlinger  vs. 
Egau,  65  111.  235 ;   S.  C,  75  111.  141 ;  XI  111.  Notes  99,  §  15. 
The  natural  presumption  from  the  habits  of  dogs  is  that  they  are 
tame,  docile  and  harmless,  both  as  to  persons  and  property,  and  the 
owner  of  a  dog  is  not  liable  for  damages  resulting  from  the  vicious 
or  mischievous  acts  unless  he  had  knowledge  of  his  mischievous  or 
vicious  propensities,  and  such  knowledge  must  be  proven. 
Domm  vs.  Hollenbeck,  259  111.  382. 

—  Wikl  Animals:  The  distinction  between  the  liability  of  owner 
of  animals  kept  for  domestic  use  or  convenience,  (animals  man- 
suetae  naturae)  such  as  horses,  cattle,  dogs  and  the  like,  and  the 
owner  or  keeper  of  wild  and  savage  beasts  {ferae  naturae)  as  lions, 
tigers,  bears,  etc.,  is  well  settled.  In  respect  to  the  latter  class,_the 
owner  is  conclusively  presumed  to  have  notice  that  they  are  vicious 


106  ANIMALS 

and  dangerous,  and  if  he  neglects  to  keep  them  properly  secured, 
he  is  liable  for  injuries  committed  by  them,  without  any  proof  of 
his  knowledge  of  their  viciousness.  While,  on  the  other  hand,  the 
owner  of  animals  which,  as  a  species,  are  domesticated,  is  not  li- 
able for  injuries  done  by  them,  unless  he  is  proved  to  have  had 
notice  of  the  inclination  of  the  particular  animal  complained  of,  to 
commit  such  injuries,  there  being  no  presumption  that  such  ani- 
mals of  that  species  are  vicious  or  dangerous. 

W.   CM.   St.   Ky.  Co.  vs.  Walsh,   78  App.   595;    Moss  vs.   Pardridge, 
9  App.  490. 

—  Vicious  Animals:  The  very  keeping  of  an  animal  known  to 
be  vicious,  likely  to  attack  and  injure  men,  is,  of  itself,  such  neg- 
ligence as  will  render  the  keeper  liable  for  injuries  done  by  it. 

Ahlstraad  vs.  Bishop,  88  App.  424;   Hammond  vs.   Melton,  42  App. 
186,  3  App.  531. 

The  proof  may  be  made  by  evidence  of  facts  and  circumstances 
from  which  an  inference  of  knowledge  arises,  and  it  is  not  neces- 
sary that  the  owner  or  keeper  knew  the  dog  had  committed  the 
same  injury.  It  is  sufficient  if  he  know  it  will  be  likely  to  commit 
an  injury  similar  to  the  one  complained  of,  but  it  is  not  enough  to 
charge  him  that  he  might  have  known  of  the  vicious  or  mischievous 
propensities  of  the  dog  by  the  exercise  of  reasonable  care.  Nor 
may  scienter  be  shown  by  admissions  concerning  particular  attack 

on  which  action  is  based. 

Domm  vs.  Hollenbeck,  259  111.  382. 
It  is  not  necessary  to  show  that  the  keeper  of  a  dog  has  allowed 
him  to  bite  a  large  number  of  his  neighbors  or  their  animals  be- 
fore he  commences  to  be  liable.  But  it  is  enough  to  show  that  there 
is  within  his  knowledge  a  probability  that  he  may  do  so.  If  he 
have  reasona])le  grounds  to  suppose  the  dog  may  do  so,  he  must 
restrain  him  or  be  liable  for  the  consequences. 

Flansburg  vs.  Basin,  3  App.  531;  Kolbe  vs.  Klages,  27  App.  531. 
But  plaintiff'  must  prove  that  the  owner  of  the  animal  had  no- 
tice of  the  vicious  propensity  of  the  animal. 

Feldman  vs.  Selig,  110  App.  130;  Ward  vs.  Danzeigen,  111  App.  163; 
Swanson  vs.  Miller,  130  App.  208 ;  Field  vs.  Monson,  142  App.  457. 
And  the  burden  of  proof  is  upon  plaintiff. 

W.  Chi.  St.  Ry.  Co.  vs.  Walsh,  78  App.  595;  Breitman  vs.  Braun,  37 
App.  17. 
Evidence  that  defendant  at  times  kept  his  dog  chained  does  not 
justify  inference  that  he  knew  the  dog  to  be  dangerous  or  knew 
he  was  accustomed  to  attack  and  bite  mankind. 
Fritschle  vs.  Clemow,  109  App.  355. 
In  an  action  to  recover  damages  resulting  from  the  bite  of  a 
dog,  the  scienter  may  be  established  without  the  necessity,  m  all 
ease's,  of  proving  prior  injuries  by  him.     Where  watch  dogs  are 
kept  for  protection,  their  dangerous  character  and  knowledge  may 
be  inferred  from  the  admitted  purpose  for  which  they  are  kept 
and  the  care  exercised  in  their  custody. 

C.  &  A.  R.  E.  Co.  vs.  Kuckkuck,  98  App.  252, 
It  is  not  necessary  to  prove  a  want  of  care  in  methods  of  sta- 
bling or  securing  or  fastening. 

Ahlstrand  vs.  Bishop,  88  App.  424;   Hammond  vs.  Melton,  42  App. 
186;  Stumps  vs.  Kelley,  22  111.  140. 


ANIMALS  107 

Competent  for  plaintiff  to  show  by  a  former  owner  that  the  dog 
was  addicted  to  vicious  attacks,  although  such  vicious  acts  did  not 
come  to  the  defendant's  knowledge,  there  being  other  proof  that 
he  knew  the  dog  was  vicious. 

Johnsou  vs.  Eckborg,  94  App.  634. 

The  fact  that  a  dog,  to  the  knowledge  of  its  owner,  has  made 
vicious  attacks  upon  persons,  although  without  actually  biting 
them,  is  sufficient  to  put  him  upon  notice  of  its  vicious  propensi- 
ties. 

Johnson  vs.  Eekburg,  94  App.  634. 
The  general  reputation  of  dog  for  viciousness  and  the  manner 
in  which  the  public  acted  towards  him  is  inadmissible. 
Norris  vs.  Warner,  59  App.  300. 

Viciousness  towards  other  dogs  is  incompetent. 
Norris  vs.  Warner,  59  App.  300. 

So  evidence  tending  to  show  that  defendant's  dog,  at  other  times 
and  to  other  persons  than  those  referred  to  by  plaintilf 's  witnesses, 
was  quiet  and  had  never  offered  to  bite,  should  be  refused. 
Link  vs.  Scheffel,  32  App.  17. 

If  conclusive  proof  is  made  of  the  propensity  of  a  dog  to  attack 
and  bite  mankind,  it  is  incompetent  to  show  that  at  some  time  the 
dog  was  quiet  and  did  not  manifest  a  bad  disposition;  but  where 
evidence  is  contradictory,  the  owner  may  prove,  on  question  of 
notice,  the  previous  uniform  good  behavior  of  the  dog  and  his 
peaceable  and  quiet  disposition. 

Domin   vs.    Hollenbeek,   259   111.   382. 

Evidence  of  the  conduct  of  the  animal  subsequent  to  injury  com- 
plained of  is  inadmissible  on  question  of  disposition  manifested  at 
time  of  injury.  Viciousness  sul^sequent  to  the  accident  is  of  no 
avail  to  plaintilf,  and  gentleness  after  the  injury  is  no  shield  to 
defendant. 

Knickerbocker  Co.  vs.  Dehass,  37  App.  195. 

In   action  based  upon  negligence  of  defendant's  coachman  in 

leaving  the  horses  untied,  in  consequence  of  which  they  escaped 

from  the  barn,  evidence  that  they  had  escaped  before  when  left 

untied  by  him  is  competent. 

Maxwell  vs.  Dnrkin,  185  111.  546. 

The  gist  of  the  action  is  not  the  manner  of  keeping  the  vicious 

animal,  but  the  keeping  him  at  all  with  the  knowledge  of  the 

vicious  propensity. 

Hammond  vs.  Melton,  42  App.   186;   Ahlstrand  vs.  Bishop,  88  App. 
424. 
—  Defenses:     There  can  be  no  recovery  where  a  person  is  bit- 
ten from  aggravating  an  animal  and  not  from  its  mischievous  pro- 
pensity. 

Feldman  vs.  Selig,  110  App.  130;  Keightlinger  vs.  Egan,  65  111.  235. 

But  evidence  tending  to  show  that  plaintiff  at  other  times  and 
places  had  teased  and  worried  the  animal  is  inadmissible. 
Linck  vs.  Scheffel,  32  App.  17. 

In  the  case  of  domestic  animals  which  are  not  naturally  danger- 
ous, the  public  are  not  bound  to  exercise  care  and  caution,  with- 
out notice  of  the  dangerous  propensity  of  the  particular  animal. 

If  a  party  heedlessly  place  himself  in  the  way  of  a  vicious  dog, 
with  knowledge  of  its  propensity  or  knowingly  brings  the  injury 


108  -ANIMALS 

upon  himself  by  his  own  conduct,  such  facts  constitute  a  good  de- 
fense to  action  for  damages;  but  it  is  a  defense  which  depezids 
upon  knowledge,  and  it  is  not  necessary  for  plaintiff  to  aver  and 
prove  the  exercise  of  caution. 

C.  &  A.  Ey.  Co.  vs.  Kuckkuck,  197  111.  3(M. 

Under  a  declaration  that  defendant  kept  a  dog  he  knew  was  ac- 
customed to  bite  mankind,  it  is  not  enough  for  plaintiff  to  prove 
the  dog  had  a  savage  and  ferocious  disposition,  and  defendant 
knew  it ;  but  he  is  bound  to  prove  his  allegation  that  the  dog  was 
accustomed  to  attack  and  bite  mankind  and  that  defendant  knew  it. 
Fritsehle  vs.  Clemow,  109  App.  355;  Keightlinger  vs.  Egan,  65  111. 
235. 

Animals  Injured  or  Killed: 

—  Dogs:  Where  a  dog,  without  any  provocation,  assails  a  man 
upon  the  puhlic  highway  and  is  killed  by  the  man  in  self-defense, 
the  act  of  killing  is  justifiable,  although  theretofore  the  dog  may 
not  have  been  regarded  as  ferocious  and  may  not  have  been  accus- 
tomed to  attack  persons. 

Kej-uolds  vs.  Phillips,  13  A^Dp.  557. 

"Where  one  person  kills  the  dog  of  another,  which  has  been  scared 
and  runs  upon  his  premises,  but  had  done  no  injury,  or  was  at- 
tempting to  do  none,  but  simply  because  the  party  killing  it  sus- 
pects the  dog  previously  interrupted  his  hens'  nests,  such  an  act 
is  trespass  for  which  the  perpetrator  is  liable.  If  the  dog  be  vicious, 
and  the  owner  had  notice  of  the  fact,  an  action  would  lie  against 
him  for  damage  done  by  the  dog.  But  the  party  injured  has  no 
more  right  to  kill  the  dog  than  he  would  have  to  kill  anybody's 

breachy  animal  for  breaking  into  his  corn. 
Brent  vs.  Kimball,  60  111.  211, 

If  the  owner  of  cattle,  without  fault  on  his  part,  is  unable  to 

protect  them,  when  thc}^  are  not  trespassing  upon  the  land  of 

plaintiff,  from  serious  injury  from  the  dog  of  the  latter,  it  seems 

he  would  have  the  right  to  kill  such  dog  to  protect  his  stock. 
Spray  vs.  Animerman,  66  111.  309. 

In  suit  by  owner  of  a  dog  to  recover  damages  for  killing  the 
same,  the  court  instructed  the  jury  that  dogs  had  no  established 
commercial  value  in  that  county.    Such  was  not  a  question  of  law, 
but  one  of  fact  for  the  determination  of  the  jury. 
Spray  vs.  Animerman,  66  111.  309. 

In  action  for  killing  dog  it  is  competent  to  show  vicious  habits. 
Meneley  vs.  Carson,  55  App.  74;  Eeynolds  vs.  Phillips,  13  App.  557. 

—  Folds:  The  owner  of  crops  has  no  right  to  wound  or  kill 
domestic  animals  found  trespassing  upon  his  premises.  This  rule 
applies  to  fowls  as  well  as  to  more  valuable  animals. 

Eeis  vs.  Stratton,  23  App.  314. 

But  the  owner  is  liable  for  damages  of  trespassing  fowls. 
McPherson  vs.  James,  69  App.  337. 

—  Race-Horses :  Witnesses  who  were  engaged  in  buying  and 
selling  race  horses,  and  who  frec^uently  had  seen  the  injured 
horses,  before  their  injury,  upon  the  track  and  in  races,  and  who 
knew  their  speed  and  quality,  may  testify  as  to  value  of  such 
horses  immediately  before  and  after  the  injury. 

C.  &  N.  W.  Ey.  Co.  vs.  Cal.  Stock  Farm,  194  111.  9. 


ANIMALS  109 

Evidence  as  to  name  of  sires  of  animal  and  nnborn  foal  is  admis- 
sible as  an  element  of  market  valne. 

O.  &  M.  Ey.  Co.  vs.  Stribliug,  38  App.  17. 

Diseases  of  Animals: 

The  qnestion  whether  the  disease  called  "scab"  is  contagious 

among  sheep,  is  question  for  jury. 
Mount  vs.  Hunter,  58  111.  246. 

In  action  on  case  to  recover  damages  for  communicating  dis- 
eases to  plaintiff's  sheep,  where  defendant  proves  by  witnesses  that 
they  had  cured  sheep  of  the  disease,  it  is  error  for  court  to  refuse 
to  allow  plaintiff  to  show,  by  other  witnesses,  that  they  had  tried 
the  same  prescription,  without  success. 

So  where  defendant  introduces  testimony  that  plaintiff's  sheep 
were  seen  running  at  large  prior  to  their  infection,  to  induce  the 
belief  that  they  were  infected  while  so  running  at  large,  the  court 
should  not  refuse  to  allow  plaintiff  to  show  that  the  sheep  so  seen 
running  at  large  were  not  his  sheep, 
"llerriok  vs.  Gary,  83  111.  85. 

In  action  on  case  for  tort  committed  by  defendant's  bringing 
horses  known  to  him  to  be  infected  with  the  glanders,  a  disease 
highly  infectious,  into  plaintiff' 's  close,  whereby  plaintiff's  horses 
became  infected  and  died :  Held,  that  the  gravamen  of  the  action 
was  not  deceit,  but  the  above  act  described,  and  therefore,  plain- 
tiff was  not  bound  to  prove  his  averment  in  his  declaration  that 
defendant  falsely  represented  to  plaintiff  that  the  horses  were 
sound  and  in  no  wise  diseased,  and  plaintiff,  relying  upon  such 
representations,   was   induced   to   permit   defendant  to   enter   his 

close  with  horses  so  infected. 

Hite  vs.  Blanford,  45  111.  9. 
Evidence  that  disease  of  horses  killed  was  not  glanders  is  com- 
petent from  experts. 

Pearson  vs.  Zehr,  138  111.  48. 

Farmers  and  other  persons  who,  for  many  years,  have  had  per- 
sonal care  and  management  of  horses  both  sick  and  well,  and  have 
had  an  extensive  practical  experience  with  such  animals  and  with 
some  particular  disease  to  which  they  are  subject,  and  ample  op- 
portunity to  observe  and  know  the  characteristics  and  symptoms  of 
such  disease,  are  well  qualified  to  state  whether  in  a  particular  case 
such  characteristics  and  symptoms  do  or  do  not  exist.  After  de- 
tailing facts  which  show  they  have  had  a  practical  experience  and 
personal  knowledge  in  respect  thereto,  they  may  give  opinion  in 
regard  to  existence  or  non-existence  of  a  disease  with  which  ob- 
servation has  made  them  familiar. 
Pearson  vs.  Zehr,  138  111.  48. 

A  jury  is  warranted  in  finding  that  Texas  Fever  was  communi- 
cated to  plaintiff's  cattle  from  infected  cars,  under  evidence  that 
defendant's  line  extended  from  Chicago  to  New  Orleans;  that  the 
cars  had  been  recently  used  to  carry  other  cattle;  that  there  had 
been  no  Texas  Fever  for  over  twenty-five  years  in  the  place  where 
the  cattle  were  raised  and  shipped  to;  and  that,  though  the  cat- 
tle were  kept  in  a  pasture  by  themselves  after  unloading,  Texas 
Fever  soon  broke  out  among  them. 

I,  C.  E.  K.  Co.  vs.  Harris,  184  111.  57. 


110  ANSWERS 

Wliether  disease  is  eomnmnicated  by  Texas  cattle  in  any  given 
ease  is  a  fact  to  be  proved ;  it  is  not  a  conclusion  of  law  from  the 
statute  forbidding  the  importation  of  such  cattle. 
Davis  vs.  Walker,  60  111.  452. 
In  such  action,  it  is  not  necessary  to  allege  the  cattle  were  dis- 
eased or  that  defendant  knew  they  were  diseased,  in  order 
to  admit  proof  of  such  facts,  the  statute  giving  action  for  dam- 
ages resulting  "in  any  manner." 

Sagamon  Distilli'ng  Co.  vs.  Young,  77  111.  197. 
Plaintiff  must  prove  infection  was  taken  from  defendant's  cat- 
tle, it  is  not  enough  to  show  it  was  taken  from  Texas  cattle  on  the 
range,  Texas  cattle  other  than  defendants  having  been  there. 
Newkirk  vs.  Milk,  62  111.  172. 
It  is  no  defense  that  other  cattle,  the  property  of  a  third  person, 

contributed  to  the  infection. 

I'razee  vs.  Milk,  56  111.  435;  Newkirk  vs.  Milk,  62  111.  172. 
Where  the  declaration  in  action  for  damages  for  selling  hogs 
afflicted  with  cholera  alleged  defendant  sold  same  to  plaintitf, 
knowing  they  were  so  afflicted,  and  defendant  knew  they  had  been 
exposed  to  that  disease  and  knew  they  were  afflicted,  but  sold  them 
as  sound,  the  burden  of  proof  is  on  plaintiff  to  show  the  hogs  died 
of  cholera,  and  defendant,  at  time  of  the  sale,  knew  they  were  af- 
flicted or  had  been  exposed  to  it. 

O'Hair  vs.  Morris,  87  App.  393. 
In  action  for  damages  for  violation  of  act  to  prevent  spread  of 
disease  among  swine,  it  is  not  necessary  to  allege  and  prove  that 
defendant  had  been  convicted  in  a  criminal  prosecution  for  viola- 
tion of  the  act. 

Conrad  vs.  Crowdson,  75  App.  614. 


ANSWERS 

See  Chancery,  Former  PiiEADiNGS. 
Answer  Under  Oath: 

—  In  General:    A  sworn  answer  must  be  overcome  by  two  wit- 
nesses or  other  equivalent  testimony. 

Fish  vs   Fish,  235  111.  396;  Mey  vs.  Gulliman,  105  111.  272;  Stevenson 

vs.  Mathers,  67  111.  123;   Trout  vs.  Emmons,  29  111.  433;  XII  111. 

Notes  417,  §  313. 

A  sworn  answer  in  a  burnt  records  proceeding  is  not  evidence 

as  in  ordinary  chancery  proceedings,  and  has  no  greater  weight  as 

evidence  than  the  petition. 

Miller  vs.  Stalker,  158  HI.  514. 
The  evidence  of  one  witness  is  not  sufficient  to  overcome  the 
sworn  answer  of  the  defendant  in  chancery. 

Dunlop  vs.  Wilson,  32  111.  517;   Barton  vs.  Moss,  32  111.  50;   Maple 
vs.  Seott,  41  111.  60;  Walton  vs.  Walton,  70  111.  142;   O'Brien  vs. 
Frey,  82  111.  274;  Mey  vs.  Gulliman,  105  111.  272;   Ware  vs.  Sals- 
bury,'  80  App.  485. 
AVhen  the  complainant  requires  an  answer  under  oath,  such  an- 
swer can  only  be  overcome  by  the  evidence  of  two  witnesses  or 
the  testimony  of  one  and  circumstances  equal  to  that  of  another. 

Merchants  Bank  vs.  Lyon,  185  111.  343;  Blow  vs.  Gage,  44  111.  208; 
Wildey  vs.  Webster,  42  111.   108. 


ANSWERS  111 

Instead  of  the  requirement  that  there  be  two  witnesses  to  over- 
come the  sworn  answer,  it  is  sufficient  if  it  be  opposed  to  one  wit- 
ness and  strong  corroborating  circumstances. 

Salsbury  vs.   Ware,   183   111.   505;    Fish  vs.   Stubbings,   65   111.   492; 
Myers  vs.  Kinzie,  26  111.  36. 

Where,  upon  a  bill  to  redeem  from  an  absolute  deed  alleged  to 
be  a  mortgage,  the  allegation  that  the  deed  and  bond  to  reconvey 
upon  payment  of  a  certain  sum,  within  a  given  time,  constituted  a 
mortgage,  was  denied  by  a  sworn  answer,  it  was  held  that  the 
evidence  of  the  scrivener  who  drew  the  papers,  that  the  grantor 
was  embarrassed,  and  that  the  grantee  advanced  the  money  to  re- 
lieve him  from  his  pecuniary  necessities,  and  that,  if  the  money 
was  refunded  within  the  stated  time,  the  grantee  was  to  reconvey 
the  land,  together  with  the  evidence  afforded  by  the  papers  them- 
selves, was  sufficient  to  overcome  the  sworn  answer. 
Preschbaker  vs.  Feaman,  32  111.  476. 

—  Dismissal  of  Bill:  If  a  complainant,  after  the  coming  in  of 
sworn  answers,  dismisses  his  bill,  and  files  another  setting  up  sub- 
stantially the  same  grounds  for  relief  as  in  the  former  one  but 
waiving  answer  under  oath,  such  sworn  answers  filed  in  the  prior 
suit  will  remain  evidence,  and  complainant  can  have  no  decree 
until  such  sworn  answers  are  overcome  by  a  preponderance  of  the 

other  proofs. 

Mey  vs.  Gulliman,  105  111.  272. 
A  sworn  answer  must  be  taken  as  true  unless  overcome  by  the 
testimony.  Where  such  answer  sets  up  a  material  fact  responsive 
to  the  bill,  which  is  denied  by  two  witnesses  and  is  sustained  by 
the  testimony  of  the  defendant  answering,  and  another  defendant, 
they  all  being  equally  credible,  it  cannot  be  said  the  answer  is 

overcome. 

Hurd  vs.  Asehernian,  117  111.  501. 

—  Two  Defendants:  AVhere  a  bill  of  complaint  against  two  de- 
fendants called  for  answers  under  oath,  each  answer  must  be  over- 
come by  at  least  two  witnesses  or  what  is  equivalent  to  the  testi- 
mony of  two  witnesses. 

Heeren  vs.  Kitson,  28  App.  259;  Wynhoop  vs.  Cowing,  21  111.  570. 

—  Information  and  Belief:  It  is  only  when  the  defendant  states 
facts  within  his  knowledge  that  his  answer  has  to  be  overcome  by 
evidence  equivalent  to  the  testimony  of  two  witnesses. 

Atkinson  vs.  Foster,  134  111.  472;  Cunningham  vs.  Ferry,  74  111.  426; 
Fryrear  vs.  Lawrence,  10  111.  325. 
— -Matters  Not  Responsive:     It  is  only  where  defendant  states 
facts  within  his  knowledge  that  his  sworn  answer  must  be  over- 
come by  evidence  equivalent  to  two  witnesses ;  and  new  matter  set 
forth  in  the  answer  not  responsive  to  the  allegations  of  the  bill  is 

not  evidence  for  the  defendant. 

Atkinson  vs.  Foster,  134  111.  472. 
Immaterial  matters  will  be  disregarded. 

Pinueo  vs.  Goodspeed,  120  111.  524;  O'Brien  vs.  Fry,  82  HI.  274. 

—  Matters  in  Avoidance:  Effect  of  sworn  answer  as  to  evidence 
may  be  waived  by  stipulation. 

Dowden  vs.  "Wilson,  71  111.  485. 

—  Spirit  of  Charge:    An  answer  under  oath  will  not  avail  as  to 


112  ■        ANSWERS 

evidence  on  a  point  which  is  denied  word  for  word  as  alleged  in  bill, 
but  which  does  not  deny  the  spirit  of  the  charge. 
Sutherland  vs.  Eeeve,  41  App.  295. 
Answer  must  meet  charge  as  fully  as  it  is  made  to  be  responsive. 
Gregg  vs.  Eenfrew,  24  111.  621. 

—  Bills  for  Divorce:  The  divorce  statute  does  not  require  an 
answer  to  a  bill  for  divorce  to  be  sworn  to,  but  provides  that  it  need 
not,  and  is  different  from  the  general  chancery  practice  in  that 
respect.  The  statute  having  dispensed  with  such  oath,  the  defend- 
ant requires  no  advantage  by  swearing  to  answer.  Such  a  sworn 
answer  has  no  more  effect  than  the  bill,  and  is  not  evidence. 

Coursey  vs.  Coursey,  60  111.  186;  Adlard  vs.  Adlard,  65  111.  212. 

—  Oath  Waived:  If  the  oath  is  waived,  sworn  answers  will  have 
no  force  as  evidence  but  will  be  deemed  only  pleading. 

Plot  vs.  Davis,  241  111.  434;  Hare  Co.  vs.  Dailey,  161  111.  379;  Hop- 
kins vs.  Granger,  52  111.  504;  Wallwork  vs.  Derby,  40  111.  527; 
Willenborg  vs.  Murphy,  36  lU,  344;  W.  Chi.  St.  Ey.  Co.  vs.  Stolt- 
zeiifcldt,  100  App.  142. 

Unsworn  Answers: 

—  As  Evidence:  Allegations  of  an  unsworn  anrwer  are  not  evi- 
dence in  favor  of  defendant. 

Hoffman  vs.  Schoyer,  143  111.  598. 

—  Admissible  as  Admission:  An  original  answer  filed  by  defend- 
ants in  a  bill  to  foreclose  a  mortgage,  admitting  that  the  mortgage 
was  made  on  the  land  for  which  it  was  foreclosed,  is  legitimate 
evidence  to  be  considered  by  the  court,  whether  it  was  sworn  to  or 
not,  and  it  matters  not  that  it  was  withdrawn  from  the  files  when 
a  second  answer  was  filed.    It  is  like  a  letter  or  other  statement  in 

writing  admitting  a  fact. 

Daub  vs.  Englebach,  109  111.  267;  Fairbanks  vs.  Badger,  46  App.  644, 

So  where  a  defendant  in  his  answer  claims  that  the  bond  men- 
tioned in  the  bill  as  the  foundation  of  the  relief  sought,  was  for- 
feited by  reason  of  non-payment,  it  in  effect  is  an  admission  on  the 
record  of  the  existence  of  the  l)ond. 
McVey  vs.  McQuality,  97  111.  93. 

Conclusiveness : 

—  hnpcachment  of  Defendant:  A  party  seeking  evidence  by  a 
bill  of  discovery  is  not  bound  by  the  answer  to  such  an  extent  that 
he  may  not  controvert  the  correctness  of  it,  although  he  cannot 
impeach  the  party  answering  by  showing  that  he  is  unworthy  of 

belief. 

Chambers  vs.  Warrenu,  13  111.  319;  Williams  vs.  Jayne,  55  111.  181; 

Curtis  vs.  Martin,  20  111.  557. 

Disclosures  made  by  answer  to  a  bill  in  chancery  requiring  a 

discovery  concerning  matters  charged  therein  are  not  conclusive, 

but,  upon  replication  being  filed,  maybe  disproved  or  contradicted. 

Harbert  vs.  Mershon,  169  111.  52.     (See  Discovery.) 

—  Hearing  on  Bill  and  Ansiver:  AVhere  a  case  is  heard  upon  bill 
and  a  verified  answer,  answer  under  oath  not  having  been  waived, 
no  replication  having  been  filed,  the  answer  is  taken  as  true,  and 


ANTE-NUPTIAL  CONTRACT  113 

no  evidence  can  be  received  unless  it  be  a  matter  of  record  to 

which  the  answer  refers. 

Knapp  vs.  Gass,  63  111.  492;  Mason  vs.  McGuire,  28  111.  322;  Cham- 
bers vs.  Bowe,  36  111.  171;  Piot  vs.  Davis,  241  111.  434;  Butts  vs. 
County  of  Pooiia,  226  111.  270;  KaoKcbein  vs.  Higgle,  51  App. 
538;  Cf.  Kingman  vs.  Mowrey,  182  111.  256;  Fordyco  vs.  Shriver, 
115  111.  530;  Mason  vs.  McGuire,  28  111.  322;  Dc  Wolf  vs.  Long, 
7  III.  679.     (See  Chancery.) 

—  Fact  Admitted  hij  Answer:  If  a  fact  is  alleged  in  bill  and  ad- 
mitted in  answer,  admission  is  conclusive  and  evidence  tending  to 
disprove  it  should  not  be  admitted. 

C.   E.   I.   &  P.   E.   Co.  vs.   People,  222   111.   427;    Home   Ins.   Co.   vs. 
Meyer,  93  111.  271;  Wood  vs.  Wheeler,  93  111.  153. 
And  a  defendant  cannot  set  up  by  evidence  defense  which  is 
not  set  up  in  his  answers. 

Home  Ins.  Co.  vs.  Meyer,  93  111.  271;  Johnson  vs.  Johnson,  114  111. 
611  ;  Kehm  vs.  Mott,  187  111.  519;  ^Nfehan  vs.  Mehan,  203  111.  180; 
Milliard  vs.  Milliard,  221  111.  86;  C.  E.  I.  &  P.  E.  Co.  vs.  People, 
222  111.  427, 

Allegation  admitted  need  not  be  proven. 

Loughridge  vs.  N.  W.  Ins.  Co.,  180  111.  267;  Diemel  vs.  Brown,  136 
111.  586. 

—  Exceptions:  Under  sections  20,  21,  and  24  of  the  Chancery 
act,  the  defendant  is  requii^ed  to  answer  all  allegations  and  inter- 
rogatories of  the  complainant,  whether  answer  on  oath  is  waived  or 
not,  and  accordingly,  the  former  practice  precluding  the  filing  of 
exceptions  to  an  unsworn  answer  no  longer  prevails. 

Farrand  vs.  Long,  184  111.  100;  Bauerle  vs.  Long,  165  111.  340;  Hair 
Co.  vs.  Daily,  161  HI.  379. 

Admissibility  of  Answer  of  One  Defendant: 

As  a  general  rule,  the  answer  of  one  co-defendant  in  chancery 
cannot  be  introduced  in  evidence  against  another. 

Eust  vs.  Mansfield,  25  111.  336;  Rector  vs.  Eector,  8  111.  105. 

But  when  such  defendants  are  partners,  or  when  one  has  acted 
as  agent  of  the  other  in  any  transaction  to  which  answer  may  re- 
late, same  is  admissible,  the  partnership  or  agency  existing  at  time 
of  filing  the  answer. 

Pensoneau  vs.  Pulliam,  47  111.  58;  Eust  vs.  Mansfield,  25  111.  336. 

So  the  answer  of  one  co-defendant  may  be  read  in  an  interpleader 

suit. 

Morrill  vs.  Manhattan  Ins.  Co.,  183  111.  260. 

Answer  of  one  co-defendant  cannot  be  admitted  on  behalf  of 
complainant  against  defendant  in  default,  merely  by  reason  of  such 
default. 

Clark  vs.  Wilson,   127  111.  449. 

The  reason  why  an  answer  of  one  defendant  in  chancery  cannot 

l)e  used  against  his  co-defendants  is  because,  as  there  is  no  issue 

between  them,  there  can  be  no  opportunity  for  cross  examination. 
Pensoneau  vs.  Pulliam,  47  111.  58. 


ANTE-NUPTIAL  CONTRACT 

Presumptions  and  Burden  of  Proof: 

—  Knoivledge  of  Extent  of  Husband's  Property:     If  it  appear 
that  the  provision  made  for  the  intended  wife  is  disproportionate 

Ev. — 8 


114  ANTI-SALOON  TERRITORY 

to  the  means  of  the  intended  husband,  a  presumption  is  raised  in 
her  favor  that  the  execution  of  the  agreement  was  brought  about 
by  a  designed  concealment  of  the  amount  of  his  property  by  the  in- 
tended husband,  and  the  husband  or  persons  cLiiming  through  him, 
in  order  to  sustain  the  agreement,  have  cast  upon  them  the  burden 
of  proof  to  show  that  the  intended  wdfe,  at  the  time  she  executed 
the  agreement,  had  full  knowledge  of  the  nature,  character  and 
value  of  the  intended  husband's  property,  or  that  the  circumstances 
were  such  that  she  reasonal)ly  ought  to  have  had  such  knowledge. 

Mines  vs.  Phee,  254  111.  60 ;  Warner  vs.  Warner,  235  111.  448 ;  Colbert 
vs.  Einijs,  231  111.  404;  Murdock  vs.  Murdock,  219  111.  123;  Yarde 
vs.  Yarde,  187  111.  630;  Hessick  vs.  Hessick,  169  111.  486;  Achilles 
vs.  Achilles,  151  111.  136;  XII  111.  Notes  940,  §  24. 

Admissibility  of  Evidence : 

Parol  evidence  to  establish  an  ante-nuptial  agreement  is  inad- 
missible. 

Keady  vs.  White,  168  111.  76;  Richardson  vs.  Eichardson,  148  111.  563; 

McAnulty  vs.  McAnulty,  120  111.  26;  Austin  vs.  Kuehn,  111  App. 

506. 

But  conditions  and  circumstances  surrounding  parties  at  time  of 

execution    are    competent   in    aid   of   construction    of   contract   in 

writing. 

Collins  vs.  Phillips,  259  111.  405. 

Competency  of  Witnesses : 

Widow  is  not  a  competent  witness  in  her  own  behalf  against  the 
heirs  of  her  deceased  husband,  in  suit  by  her  to  set  aside  ante- 
nuptial contract. 

Yarde  vs.  Yarde,   187  111.  636;   Eichardson  vs.   Richardson,   148  111. 
563;   Murdock  vs.  Murdock,  121  App.  429. 
Nor  on  bill  for  dower,  where  an  ante-nuptial  contract  is  set  up 
in  bar,  is  she  a  competent  witness  to  testify  as  to  circumstances  at- 
tending making  of  agreement  for  purpose  of  impeaching  same. 
Taylor  vs,  Taylor,  144  111.  436. 
Nor  as  against  the  heirs  of  her  husband  is  the  widow  a  compe- 
tent witness  to  tell  what  took  place  at  the  time  of  the  execution 
of  a  post-nuptial  contract. 

Stokes  vs.  Stokes,  240  111.  330. 

ANTI-SALOON  TERRITORY 

Admissibility  of  Evidence: 

—  Records  of  Election  Creating:  Certificates  of  officers  who  can- 
vassed the  election,  which  state  the  meeting  of  the  canvassing  board, 
and  the  canvassing  of  the  returns  of  the  election,  the  number  of 
votes  cast  for  and  against  the  proposition,  and  the  majority  in 
the  affirmative,  is  sufficient.  Certificate  need  not  recite  legal  votes 
nor  copy  the  official  ballot.     Presumption  is  that  votes  cast  were 

legal. 

People  vs.  Walker,  154  App.  3;  People  vs.  Joyce,  154  App.  13. 

Official  certificate  of  clerk  as  to  result  of  election,  whether  cer- 
tain territory  in  which  election  was  held  was  to  be  anti-saloon  ter- 
ritory, is  admissible  in  prosecution  for  selling  liquor  in  such  ter- 
ritory. 

People  vs.  Willi,  147  App.  207;  People  vs.  Danley,  181  App.  80. 


ANTI-SALOON  TERRITORY  115 

And  in  such  proceedings  it  is  conelusive  and  its  correctness  can- 
not be  attacked. 

People  vs.  Willi,  147  App.  207. 

The  record  kept  by  the  town  clerk,  showing  result  of  an  election 

is  admissible  as  evidence,  and  the  question  of  how  well  bound  the 

book  was,  in  which  such  record  was  kept,  is  not  material.     If  it 

is  the  one  used  for  such  purpose,  and  the  record  is  properly  kept, 

it  is  admissible  in  all  courts. 

People  vs.  Ezell,  155  App.  298;  People  vs.  Doschio,  157  App.  51. 

The  record  of  election  is  competent  where  it  shows  the  result  of 
;ni  election  in  the  town  in  question,  notwithstanding  the  recitals 
that  it  was  a  township  meeting  and  a  township  election. 
People  vs.  Arms,  165  App.  394. 

To  warrant  a  verdict  of  guilty  in  a  prosecution  for  maintain- 
ing saloon  in  an  anti-saloon  territory,  it  is  essential  that  the  Peo- 
ple prove,  beyond  a  reasonable  doubt,  tliat  the  act  complained  of 
took  place  in  an  anti-saloon  territory  or  district. 

A  certificate  of  a  town  clerk  showing  the  result  of  an  election, 
and  the  number  of  votes,  is  not  sufficient,  though  the  affirmative 
votes  were  in  the  majority. 

Where  the  proposition  submitted  was,  shall  this  town  continue 
to  be  anti-saloon  territory,  it  cannot  be  inferred  from  the  mere 
fact  that  the  question  whether  the  town  should  remain  anti-saloon 
territory  was  submitted  to  and  answered  in  the  affirmative,  by  the 
voters,  that  the  town  theretofore  had  been  declared  to  be  anti- 
saloon  territory. 

People  vs.  Wilson,  1G8  App.  637, 

—^Government  License:     Proof  of  a  license  may  be  made  by 

oral  testimony  of  an  officer  to  whom  such  license  was  shown  by 

defendant,  upon  request,  at  his  place  of  business. 
People  vs.  Peterson,  153  App.  481. 

A  question  put  to  defendant,  when  called  in  his  own  behalf,  as 

to  Avhy  he  had  taken  out  a  government  license  is  proper. 
People  vs.  Zoeller,  160  App.  437. 

Secondary  evidence  of  the  issuance  to  defendant  of  an  internal 

revenue  special  tax  stamp  or  receipt  is  properly  admitted,  though 

objected  to,  for  the  reason  that  defendant  could  not  be  called  upon 

to  incriminate  himself  by  producing  the  original  of  such  special 

tax  stamp  or  receipt. 

People  vs.  Plopper,  158  App.  250. 

Upon  failure  to  produce  the  original  stamp  or  license  issued  by  the 
government  upon  proper  notice,  the  record  of  the  government, 
showing  issuance  of  such  stamp  or  license,  is  competent. 
People  vs.  Baum,  159  App.  315. 
An  examined  copy  of  a  record  of  tax  payers  in  the  office  of 
the  district  collector  of  internal  revenue  is  competent  to  show  de- 
fendant had  government  license. 

People  vs.  Joyce,  154  App.  13;  People  vs.  Peterson,  153  App.  480. 

Certified  copy  of  the  official  record  of  the  collector  of  internal 

revenue  is  admissible  and  where  letters  are  used  upon  the  record, 

and  so  appear  from  the  certificate,  the  collector  may  designate  in 

his  certificate  the  meaning  of  such  letters  as  so  officially  used  by 

him. 

People  vs.  Plopper,  158  App.  250. 


116  ANTI-SALOON  TERRITORY 

An  internal  revenue  tax  stamp  is  competent,  notwithstanding  it 
contains  no  statement  that  it  sets  forth  .-ill   I  hat  is  shown  })y  the 
record  in  the  office  of  the  internal  revenue  collector. 
People  vs.  Foremau,  165  App.  13. 

Such  original  special  tax  stamp  issued  to  defendant  and  posted 
by  him  is  competent,  and  its  admission  does  not  controvert  estab- 
lished rule  of  evidence  in  criminal  cases. 
People  vs.  Whalen,  151  App.  16. 

An  exemplified  copy  of  the  record  showing  issuance  of  an 
internal  revenue  tax  stamp  by  the  United  States  Revenue  Collec- 
tor is  competent  as  tending  to  show  the  liquor  sold  was  of  the  kind 
for  which  the  government  required  the  payment  of  a  tax,  and  also 
as  tending  to  show  that  such  liquor  was  intoxicating  in  character. 
People  vs.  Moore,  161  App.  56. 

Interlineations  in  official  certificate,  if  satisfactorily  explained, 

will  not  affect  the  competency  of  such  certificate. 
People  vs.  Foreman,  165  App.  13. 

—  Former  Prosecutions:  In  prosecution  for  the  unlawful  sell- 
ing of  intoxicating  liquor  within  the  limits  of  a  city,  it  is  compe- 
tent to  show  that  defendant  had  been  charged  by  information  with 
the  keeping  of  a  place  where  intoxicating  liquor  was  unlawfully 
sold,  and  that  to  such  information  he  had  pleaded  guilty. 

People  vs.  Whaleu,  151  App.  16. 
But  it  is  improper  to  require  defendant,  upon  cross  examination, 
to  testify  as  to  former  prosecutions  to  which  he  had  been  party  de- 
fendant. 

People  vs.  Duggan,  150  App.  375. 

—  Good  Faith:    Where  the  good  faith  of  a  party  is  involved,  he 

may  testify  directly  thereto. 

People  vs.  Kudorf,  149  App.  215. 

Weight  and  Sufficiency: 

The  issuance  of  an  internal  revenue  special  tax  stamp  or  receipt 
by  the  United  States  to  any  person  as  a  wholesale  or  retail  dealer 
in  liquors  or  malt  liquors  at  any  place  within  territory  w^hich,  at 
the  time  of  issuance  thereof,  is  anti-saloon  territory,  shall  be  prima 
facie  evidence  of  the  sale  of  intoxicating  liquor  by  such  person  at 
such  place,  or  at  any  place  of  business  of  such  person  within  such 
territory  where  such  stamp  or  receipt  is  posted,  and  at  the  time 
charged  in  any  suit  or  prosecution  under  this  act,  Provided,  such 
time  is  within  the  life  of  such  «tamp  or  receipt. 
People  vs.  Joyce,  154  App.  13. 

In  such  prosecution  the  evidence  is  clear  and  convincing  when 
it  appears  that  the  liquor  v/as  sold  in  bottles  the  size  of  ordinary 
beer  bottles;  that  it  looked  like  beer,  tasted  like  a  poor  quality  of 
beer,  foamed  like  beer  and  produced  on  the  drinker  the  same  effect 
as  beer,  that  the  liquid  was  intoxicating;  that  the  place  where 
defendant  sold  same  was  in  anti-saloon  territory,  and  that  defend- 
ant had  an  internal  revenue  special  tax  stamp  from  the  United 
States  for  the  retail  sale  of  liquor  in  his  place  of  business  at  the 

same  time  the  sales  were  made. 

Pesple  vs.  Zoeller,  160  App.  437. 
A  prima  facie  case  of  selling  liquor  in  anti-saloon  territory  is 
made  by  proving  the  issuance  to  defendant  of  a  special  tax  stamp, 
without  proving  that  such  special  tax  stamp  was  posted. 

People  vs.  Plopper,  158  App.  250. 


APPEAL  BONDS  117 

The  time  of  the  commission  of  the  offense  is  not  of  the  essence,  it 
need  not  be  precisely  laid,  and  it  is  suriieient  if  it  be  laid  at  any 
time  before  the  filing  of  an  information,  and  witliin  the  limitation. 
Proof  that  the  olfenses  charged  were  committed  on  any  day  or  days 
within  the  period  of  eighteen  months  before  indictment  found  is 
sufficient. 

Kettles  vs.  People,  221   111.  221;   People  vs.  Kudorf,   149  App.   21.5- 
Koop  vs.  People,  47  111.  327. 


APPEAL  BONDS 

See  Bonds,  Principal  and  Surety,  Records. 
Pleading : 

—-0/  the  Declaration:  The  declaration  in  action  on  bond  suf- 
ficiently avers  the  rendition  of  judgment  against  appellant  where 
it  sets  out  the  bond  in  haec  verba  and  that  fact  is  recited  in  the 
bond. 

Harding  vs.  Kuessner,  172  111.  125. 

And  need  not  aver  that  judgment  of  affirmance  remains  in  force, 
or  that  no  further  appeal  has  been  prosecuted. 
Harding  vs.  Kuessner,  70  App.  355. 

An  allegation  that  appellant  did  not  prosecute  his  appeal  with 
effect,  without  a  statement  of  what  became  of  the  suit,  is  insuf- 
ficient on  dennirrer.  Nor  will  it  avail  that  it  alleges  appeal  was 
finally  terminated. 

Daggett  vs.  Mensch,  141  HI.  395. 

The  averment  of  amount  of  judgment  appealed  from  is  matter 
of  description  and  must  be  proven  as  laid. 
Smith  vs.  Frazier,  61  111.  164. 

—  Set-off:  Costs  awarded  to  appellant  on  affirmance  are  not 
matter  of  set-off  in  action  on  bond, — certainly  not  without  a  plea. 

Harding  vs.  Kuessner,  172  111.  125. 

—  Niil  Tiel  Record:  Is  not  proper  plea  to  action  of  debt  on  ap- 
peal bond. 

McCarty  vs.  Construction  Co.,  219  111.  616;  Herrick  vs.  Swartout,  72 
111.  340;  Arnott  vs.  Friel,  50  111.  174. 

—  Non  Est  Factum:     Not  sworn  to,  does  not  put  execution  of 

bond  in  issue. 

Herrick  vs.  Swartout,   72  111.  340;   Obberreich  vs.  Foster,   152  App. 
302. 

And  admits  all  other  material  averments  of  the  declaration. 

Lefkow  vs.  Taylor,   140  App.  570;  Landt  vs.  McCullougli,  130  App. 
515. 

—  Non  Damnificatiis :  A  plea  of  non  damnificatus  is  not  good  in 
debt  as  against  a  declaration  based  upon  breach  of  a  covenant  to 
pay  specified  sums  of  money,  although  the  covenant  may  have  been 
given  by  way  of  indemnity  only. 

T.  H.  &  I.  Ey.  Co.  vs.  P.  &  P.  U.  Ey.  Co.,  182  111.  501;  Fidelity  De- 
posit Co.  vs.  Cooney,  127  HI.  523. 

Admissibility  of  Evidence: 

—  The  Bond:  Where  the  declaration  described  an  appeal  bond 
to  be  payable  on  demand,  but  proceeds  to  set  forth  the  condition 
at  large,  by  showing  the  true  character  of  the  bond,  so  that  no  sur- 


118  APPEAL  BONDS 

prise  ensues  to  defendant,  the  bond  may  be  offered  in  evidence, 

although  it  is  not  payable  on  demand,  but  on  the  affirmance  of  the 

judgment. 

Walker  vs.  Welch,  14  111.  277. 

—  Mistake  in  Name  of  Party:  Where  the  names  of  parties  to 
suit  are  correctly  given  in  an  appeal  bond,  except  in  the  condition, 
where  appellee's  name  is  inserted  instead  of  appellant's,  the  bond 
will  not  be  rendered  invalid,  as  the  context  shows  the  mistake  and 

who  was  intended. 

Sehill  vs.  Eeisdorf,  88  111.  411;  Bloch  vs.  Blum,  33  App.  643;  Hib- 
bard  vs.  McKinley,  28  111.  240. 
A  mistake  in  an  appeal  bond  as  to  name  of  a  party  who  recov- 
ered judgment  appealed  from  is  fata]  to  action  thereon,  for  the 
reason  that  no  record  of  the  court  appealed  to,  showing  any  dispo- 
sition of  the  suit  between  the  parties  named  in  the  bond  can  be 
produced,  and  therefore  that  no  breach  of  the  condition  of  the  bond 

can  be  proven. 

Bloch  vs.  Blum,  33  App.  643. 

—  True  Intent:    The  true  intent  of  such  bond  may  be  followed, 

where  the  same  can  be  discovered  therefrom,  without  the  aid  of 

extrinsic  evidence. 

Bloch  vs.  Blum,  33  App.  643 ;  Hibbard  vs.  McKinley,  28  111.  240. 

—  Recitals  in  Bond:    In  action  of  debt  on  appeal  bond,  parties 
executing  it  are  not  permitted  to  deny  the  facts  recited  in  the 

bond. 

McCarthy  vs.  Chimney  Cons.  Co.,  219  111.  616;   Ferguson  vs.   Allen, 
91  App.  591. 
So  the  defendants  in  such  action  cannot  plead  that  the  judgment 
appealed    from,   was   rendered   against   other   persons   than   those 
recited  in  the  iDond  as  being  the  parties  to  such  judgment. 

xMcCarthy  vs.  Construction  Co.,  219  111.  616;  Arnott  vs.  Friel,  50  111. 
174. 
The  bond  sued  on  recited  a  judgment,  and  covenanted  for  its 
payment  upon  affirmance  in  the  supreme  court,  and  the  obligors  are 
estopped  by  such  recitals  to  deny  the  existence  of  a  valid,  unsat- 
isfied judgment  at  time  bond  was  executed.  Although  there  had 
been  a  levy  upon  sufficient  property  to  satisfy  the  judgment,  yet 
appellants,  by  interposing  their  appeal  bond  to  the  supreme  court, 
suspended  all  proceedings  under  the  levy,  and  they  cannot  be  per- 
mitted to  insist  that  the  levy  was  itself  a  payment  and  satisfaction 

of  the  judgment. 

Smith  vs.  Lozano,  1  App.  171. 
Where  an  appeal  was  allowed  to  two  defendants  upon  their  en- 
tering bond,  with  security  to  be  approved,  and  only  one  of  them 
gave  bond  and  the  appeal  was  dismissed  by  court,  it  was  held,  that 
the  parties  who  did  execute  the  bond  were  liable  on  the  same,  and 
that  they  were  estopped  by  recital  therein  from  denying  that  an 

appeal  had  been  taken. 

Meserve  vs.  Clark,  115  111.  580. 
—  Defense  in  Original  Action:    An  affirmance  by  a  court  of  re- 
view of  the  judgment  appealed  from  is  conclusive  of  the  validity 

of  the  judgment  in  an  action  on  appeal  bond. 

McCarthy  vs.  Construction  Co.,  219  111.  616;   K.  &  E.  R.  E.  Co.  vs. 
Henry,  90  111.  255. 


APPEAL  BONDS  119 

It  is  no  defense  to  an  action  on  bond  that  there  was  a  good  de- 
fense to  action  on  appeal  in  which  bond  was  given;  surety  can- 
not relitigate  the  matter  thus  determined. 
Mann  vs.  Warde,  64  App.  108. 

The  judgment  appealed  from,  the  court  having  had  jurisdiction 

both  of  the  person  and  of  the  subject  matter,  cannot  be  impeached 

by  parol  evidence  in  action  on  bond. 

Trogdon  vs.  Cleveland  Stone  Co.,  53  App.  206. 

—  Judgment  and  Decree:    Draft  of  decree  in  original  suit  is  not 

best  evidence. 

Huntingdon  vs.  Aurand,  70  App.  28. 

—  Certified  Transcript:  Duly  certified  transcript  of  record  or 
order  affirming  judgment  is  competent  evidence  of  affirmance. 

Hardiag  vs.  Kuessuer,  172  111.  125;  Obberreich  vs.  Foster,  152  App. 
302. 
Copy  of  final  order  of  supreme  court  showing  that  a  judgment 
had  been  affirmed  on  day  alleged  in  declaration,  between  same  par- 
ties and  from  same  county,  is  prima  facie  evidence  that  judgment 

appealed  from  was  affirmed. 

Pearl  vs.  Wellman,  11  111.  352. 

In  suit  on  bond  given  upon  appeal,  it  is  unnecessary  to  intro- 
duce a  copy  of  the  record  of  judgment  appealed  from,  when  it  is 
recited  in  condition  of  bond,  as  defendant  is  estopped  from  deny- 
ing its  existence. 

Herrick  vs.  Swartout,  72  111.  340 ;  Shunick  vs.  Thompson,  25  App.  619. 

Plaintiffs  read  in  evidence  the  bond  sued  on  and  a  certified  copy 
of  order  of  Appellate  Court  affirming  a  decree  of  circuit  court 
in  favor  of  plaintiffs  and  against  the  principal  named  in  bond, 
and  rendering  judgment  in  favor  of  plaintiffs  for  costs.  Defend- 
ants thereupon  introduced  evidence  tending  to  show  that  decree 
actually  taken  to  Appellate  Court  by  appeal  was  one  rendered 
in  suit  in  which  principal  was  defendant  and  plaintiffs  and  an- 
other were  complainants.  He  then  attempted  to  raise  a  ques- 
tion of  identity  of  appeal  affirmed.  The  order  of  affirmance  was 
at  least  prima  facie  evidence  that  decree  affirmed  was  one  appealed 

from. 

McDonald  vs.  Allen,  128  111.  521. 

—  Prosecution  With  Effect:  Is  not  a  question  of  fact,  but  of 
law,  arising  upon  facts. 

Daggett  vs.  Mench,  141  111.  395. 

—  Issuance  of  Execution:  In  action  on  appeal  bond,  it  is  not 
necessary  to  show  that  execution  issued  upon  the  judgment. 

Trogdon  vs.  Cleveland  Stone  Co.,  53  App.  206. 

—  Cost  and  Damages:  AVhen  the  appeal  bond  sued  on  and 
orders  of  affirmance  of  the  courts  are  in  evidence,  it  is  improper 
to  permit  a  witness  to  testify  as  to  amount  due  upon  the  bond. 

Becker  vs.  People,  164  111.  267. 

—  When  Lease  Competent:  In  action  on  appeal  bond  given  in 
action  of  forcible  detainer,  conditioned  to  pay  all  rent  due  and 
to  become  due,  original  lease  is  proper  evidence  to  show  what  rent 

should  be  paid. 

Clapp  vs.  Noble,  84  111.  62. 
Where  a  plaintiff  in  action  of  forcible  detainer  is  wrongfully 
kept  out  of  possession  of  the  premises  during  pendency  of  an  ap- 


120  APPEARANCE 

peal,  the  value  of  use  and  occupation,   or   (he   reasonable  rental 
value  is  correct  measure  of  damages  in  action  on  appeal  bond. 
Schuuick  vs.  Thompson,  25  App.  619. 

—  Costs  and  Damages:  A  plaintitt'  cannot  recover  without  evi- 
dence of  amount  of  his  damages;  and  the  affidavit  of  plaintiff's 
claim,  tiled  with  his  declaration,  is  not  competent  evidence  on 
assessment  of  damages.  The  statute  makes  it  evidence  only  when 
suit  is  upon  an  open  account,  and  not  when  it  is  upon  a  written 

contract. 

Mestling  vs.  Hughes,  89  111.  389. 

—  Correctness  of  Fee  Bill:     INlade  out  by  proper  officer,  cannot 

be  questioned  in  action  on  the  bond. 

Parisher  vs.  Waldo,  72  111.  71;   Trogdon  vs.  Cleveland  Stone  Co.,  53 
App.  206;  Santa  Clara  Co.  vs.  Prescott,  127  App.  644. 


APPEARANCE 

See  Age,  Attorneys,  Judgments,  Expert  and  Opinion, 

APPRENTICES 

Consent  of  Parties: 

—  Parol  Competent  in  Action  For  Services:  In  an  action  by 
a  minor  for  work,  labor  and  sei-vices,  proof  that  the  services  were 
rendered  under  an  indenture  of  apprenticeship  is  a  good  bar  to 
the  action,  and  oral  evidence  is  admissible  to  prove  the  consent  of 
the  father  and  minor  to  the  execution  of  an  indenture  with  the 

master. 

Olney  vs.  Myers,  3  111.  311. 
Indenture  though  void  as  to  minor,  binds  father. 
Ford  vs.  McVay,  55  111.  119. 

Enticing-  Apprentice: 

An  action  will  lie  against  a  party  who  shall  "counsel,  entice, 
and  persuade"  an  apprentice  to  depart  from  the  service  of  the 
master,  without  proof  that  the  apprentice  acted  upon  such  counsel 

given. 

Ilalliday  vs.  Gamble,  18  111.  35. 

—  Measure  of  Damages:  Value  of  services  lost,  reasonable  ex- 
penses incurred  in  getting  servant  back  again,  damages  for  loss 

of  time  in  that  behalf. 

Hays  vs.  Borders,  6  111.  46. 

ARBITRATION  AND  AWARD 

Admissibility  of  Evidence  by  Arbitrators: 

Arbitrators  must  act  together  in  taking  evidence. 

Cit.  Ins.  Co.  vs.  Hamilton,  48  App.  593. 
Umpire  should  not  make  decisions  on  statements  of  arbitrators, 
but  should  hear  evidence  and  make  independent  award  as  if  he 

were  sole  arbitrator. 

Ingraham  vs.  Whitemore,  75  111.  24;  Waughop  vs.  Carter,  20  111.  112. 


AKBiTRATION  AND  AWARD  121 

Examination  of  parties  by  sole  arbitrator  is  not  ex  parte  exami- 
nation. 

Lincoln  vs.  Cook,  3  111.  61. 
Rejection  of  evidence  by  arbitrators  is  not  evidence  of  fraud 
on  their  part. 

Root  vs.  Eenwick,  15  111.  461. 

Admissibility  of  Submission  and  Award: 

As  between  parties  to  submission  and  award,  same  is  inadmissible 
to  show  title  to  property  not  passed  upon. 
Woodward  vs.  Woodward,  14  111.  370. 
Not  admissible  when  award  signed  by  only  two  of  three  arbi- 
trators. 

Bannister  vs.  Reed,  6  111.  92. 

And  is  not  admissible  where  defect  is  apparent  on  the  face. 
Kelderbaus  vs.  Hall,  116  111.  147. 

Presumptions  and  Burden  of  Proof: 

—  Validity  of  Award:  Award,  being  the  judgment  of  a  tribu- 
nal chosen  by  the  parties,  is  to  be  liberally  construed.  Every  rea- 
sonable intendment  and  presumption  is  in  favor  of  its  validity. 
The  burden  of  proof  is  upon  objectors  to  impeach. 

Seaton  vs.  Kendall,  171  111.  410;  Darst  vs.  Collier,  86  111.  96;  Hay- 
wood vs.  Harmon,  17  111.  477;  Henrickson  vs.  Eheinbecker,  33  111 
299 ;  XI  111.  Notes  376,  §  63. 

All  reasonable  intendments  will  be  indulged  in  support  of  an 
award  where  no  fraud,  corruption  or  unfairness  is  shown. 

McDonald  vs.  Bond,  195  111.  122;  Haywood  vs.  Harmon,  17  111.  477; 
Meritt  vs.  Meritt,  11  111.  565. 

In  the  absence  of  proof  of  fraud,  accident  or  mistake,  award 
will  be  presumed  just  and  correct,  and  its  fairness  and  correct- 
ness will  not  be  re-tried  in  suit  to  recover  the  amount  found  due 
from  one  party  to  another. 

Tucker  vs.  Page,  69  111.  179. 

No  presumption  will  be  indulged  to  overthrow  it. 

Merritt  vs.  Merritt,  11  111.  565;   Shear  vs.  Mosher,  8  App.  119. 

—  Matters  Suhmitted:  Where  submission  is  general  and  an 
award  of  one  or  more  things  made,  it  will  be  presumed,  until  con- 
trary is  shown,  that  nothing  else  was  submitted  to  the  arbitrators. 

Tucker  vs.  Page,  69  111.  179;  Hubbard  vs.  Forman,  29  111.  90. 

—  Ratification  hy  Partner:  Ratification  of  submission  may  be 
presumed  where  he  gives  evidence  before  arbitrators,  though  he 
did  not  sign  submission. 

Hallack  vs.  March,  25  111.  48.     (See  Stipulation.) 
Impeachment  in  Equity: 

—  In  General:  AVhere  an  award  is  in  conformity  with  the  gen- 
eral submission,  and  no  fraud  or  mistake  appears  on  the  face  of 
the  award,  it  will  not  be  interfered  with  or  set  aside  by  a  court 
of  equity  for  errors  either  of  law  or  fact,  committed  by  the  arbi- 
trators. 

White  Star  Mining  Co.  vs.  Hull])erg,  i:20  111.  578. 

—  Admissibility  of  Parol  Evidence:  Parol  evidence  is  incom- 
petent to  enlarge  written  award. 

Schmidt  vs.  Glade,  126  111.  485. 
The  scope  and  effect  of  an  award  must  be  determined  from  the 


122  ARCHITECT'S    CERTIFICATE 

language  of  the  submission  and  the  award  cannot  be  enlarged  by 

parol. 

Pinkstaff  vs.  Stefify,  216  111.  406. 

Parol  evidence  is  admissible  to  explain  award,  or  identify  mat- 
ter in  controversy. 

Burroughs  vs.  Guthrie,  61  111.  70;  Farr  vs.  Johnson,  25  111.  522. 

Arbitrators  as  Witnesses: 

Arbitrators  may  be  examined  to  prove  that  no  evidence  was 

given  on  a  particular  subject,  or  that  there  is  a  mistake  in  the 

award,  also,  as  to  the  time  when  and  the  circumstances  under  which 

an  award  was  made,  and  what  transpired  at  the  hearing. 
Spurch  vs.  Crook,  19  111.  415. 

But  where  award  pursues  written  submission,   arbitrators  are 

incompetent  to  enlarge  written  award. 
Schmidt  vs.  Glade,  126  111.  485. 
Testimony  of  one  arbitrator,  tending  to  show  misconduct  on  his 
part  alone,  cannot  be  received  to  impeach  the  award,  there  being 

110  other  evidence  of  such  misconduct. 

Stone  vs.   Baldwin,  226  111.   338;    Claycomb  vs.  Butler,  36  111.   100; 
Dauman  vs.  Baylers,  22  111.  300. 

Nor  can  the  testimony  of  one  arbitrator  be  received  to  show  mis- 
conduct of  co-arbitrators. 

Tucker  vs.  Page,  69  111.  179;  Pulliam  vs.  Pensonneau,  33  Til.  376. 

Nor  that  he  signed  same  under  belief  that  award  was  illegal  and 

of  no  binding  effect. 

Tucker  vs.  Page,  69  111.  179. 

But  an  arbitrator  who  has  not  signed  the  award  is  competent 

to  impeach  same. 

Novak  vs.  Eoehester  Ins.  Co.,  156  App.  352. 

And  when  all  are  produced,  arbitrators  are  competent  to  show 

fraud  or  mistake. 

Pnlliam  vs.  Pensonneau,  33  111.  376. 


ARCHITECT'S  CERTIFICATE 

See  Building  Contracts,  Assumpsit. 


ARSON 

See  Identity. 
Corpus  Delicti: 

Consists  not  only  of  the  fact  that  a  building  has  been  burned, 
but  also  of  the  fact  that  it  has  wilfully  been  burned  by  some  re- 
sponsible person.  The  main  fact  which  is  to  be  proven  in  the  first 
place,  is  the  burning  of  the  building.  When  that  fact  is  estab- 
lished, then  it  is  necessary  to  show  how  that  act  was  done  and  by 
whom. 

Carlton  vs.  People,  150  111.  181. 

Statute  defines  offense  as  at  common  law.  Offense  is  commit- 
ted by  the  wilful  and  malicious  burning  of  any  of  the  structures 


ASSAULT  AND  BATTERY  123 

enumerated  without  alleging  or  proving  a  specific  intention  to  in- 
jure or  defraud. 

Mai  vs.  People,  224  111.  414. 

The  burning  of  a  stack  of  hay  is  not  arson  at  common  law  or 
under  the  statute. 

Creed  vs.  People,  81  111.  565. 
Under  former  statute,  value  of  property  must  be  averred  and 
proven. 

Clark  vs.  People,  2  111.  117. 

Threats : 

—  Of  Accused:     Are  admissible. 

Carlton  vs.  People,  150  111.  181. 

—  Of    Third   Persons:     Defendant  offered  to  prove  by  witness 

that  they  had  heard  a  third  person  make  threats  that  he  would 

burn  up  everything  the  prosecutor  had,  which  was  not  admitted. 

Held  that  proposed  testimonv  was  hearsay  and  properly  excluded. 
Carlton  vs.  People,  150  111.  181, 

To  Defraud  Insurer: 

The  crime  of  arson  and  the  crime  of  maliciously  burning  prop- 
erty with  intent  to  defraud  an  insurance  company  are  entirely  dis- 
tinct. 

Mai  vs.  People,  224  111.  414;  Elgin  vs.  People,  226  111.  486. 

The  dififerences  between  this  otfense  and  arson  are,  First :  It 
may  be  committed  on  personal  property ;  Second,  it  may  be  com- 
mitted on  one 's  own  property ;  Third,  it  must  be  committed  on 
property  which,  at  the  time,  is  insured  against  loss  by  fire,  but  not 
necessarily  under  a  valid  policy ;  Fourth,  it  must  be  committed  with 
the  specific  intent  to  injure  the  insurer ;  fifth,  the  punishment  is 
imprisonment  in  the  penitentiary  not  less  than  one  nor  more  than 
ten  years,  whereas  arson  is  punished  under  our  statute  by  imprison- 
ment in  penitentiarv  not  less  than  one  or  more  than  twenty  years. 
Mai  vs.  People,  224  111.  414. 

—  Intent:  The  specific  intent  to  injure  insurer  must  be  averred 
and  proven. 

Mai  vs.  People,  224  111.  414;  Staaden  vs.  People,  82  111.  432. 

—  Insi'rcr:  IMust  be  alleged  as  a  body  corporate  or  naming  per- 
sons composing  company. 

Staaden  vs.  People,  82  111.  432.  * 

—  Policy:  Need  not  be  proven  to  be  valid,  but  that  the  act  was 
done  with  intent  to  defraud  the  company.  Policy  competent  on 
question  of  intent. 

McDonald  vs.  People,  47  111.  533. 


A.SSAULT  AND  BATTERY 

Burden  of  Proof: 

—  Intoit:    The  burden  of  proof  is  upon  plaintiff  to  show  either 
that  the  intention  was  unlawful  or  that  defendant  was  in  fault. 

Paxton  vs.  Boyer,  67  111.   132;   Eazor  vs.  Kinzie,  55  App.  605;   see 
ali-o  People  vs.  Hart,  156  App.  523. 

—  Self -Defense:    The  burden  of  proving  self-defense  is  upon  de- 
fendant. 

Hulse  vs.  Tolman,  49  App.  490;  XI  111.  Notes  388,  §  12. 


124  ASSAULT  AND  BATTERY 

—  Under  Pleadings:  On  issue  taken  upon  replication  de  in- 
juria to  a  plea  of  son  assault  demesne,  burden  is  upon  defendant 
to  prove  that  the  assault  was  made  in  necessary  defense,  and  that 
in  making:  the  assault  he  used  no  more  force  than  was  necessary  to 

protect  himself. 

Gizler  vs.  Witzel,  82  111.  322;  Hulse  vs.  Tolman,  49  App.  490. 

Where  a  defendant  has  pleaded  son  assault  demesne,  l)urden  is 
upon  him,  notwithstanding  the  interposition  likewise  of  a  plea  of 
the  general  issue,  to  establish  a  justification  for  the  assault. 

Spenler  vs.  Turley,  158  App.  146;  Wells  vs.  En,irlehart,  118  App.  217. 

True  rule  under  such  pleadings;  the  general  issue  requires  plain- 
tiff to  prove  an  assault  by  defendant,  but  when  that  assault  is 
proven,  the  burden  of  proving  prior  assault  by  plaintiff  is  upon 

defendant. 

Kebl  vs.  Burgener,  157  App.  468. 
Where  a  defendant  has  pleaded  moderate  castigavit,  and  plain- 
tiff has  replied  de  injuria,  burden  is  upon  defendant. 

SwiKart  vs.  Ballon,  106  App.  226. 

Admissibility  of  Evidence: 

—  In  General:  AVhether  a  statement  or  admission  of  a  party 
has  reference  to  the  issue,  is  a  question  of  fact  for  the  jury,  the 
duty  of  the  court  being  to  admit  proof  of  the  statement  or  admis- 
sion if  there  is  evidence  tending  to  show  that  it  refers  to  the  con- 
troversy in  hearing. 

A  witness  for  plaintiff  was  allowed,  over  objection  of  defend- 
ant, to  give  in  evidence  a  declaration  made  by  defendant  after 
the  occurrence,  to  the  effect  that  he,  defendant,  "had  knocked 
hell  out  of  them  up  at  Nakomis."  It  was  objected  that  it  did  not 
appear  that  this  admission  or  statement  had  reference  to  the  diffi- 
culty with  plaintiff.  The  name  of  plaintiff  was  not  used,  but  the 
assault  upon  him  occurred  at  Nakomis,  a  few  weeks  previous  to 
the  conversation,  and  the  words  used  by  defendant,  in  their  com- 
mon meaning,  clearly  referred  to  the  hitting  or  knocking  some 

one  at  Nakomis. 

VonEeeden  vs.  Evans,  52  App.  209. 
In  an  action  of  trespass  by  husband  and  wife  for  injury  to  the 
latter,  evidence  of  injury  to  the  property  of  husband  at  same  time 
is  inadmissible,  except  so  far  as  it  may  be  necessary  to  explain  as- 
sault on  person  of  the  wife. 

Eeeder  vs.  Purdy,  41  111.  279. 

In  action  against  street  car  company  for  assault  by  conductor, 

his  report  to  defendant  company  is  not  admissible  in  its  behalf 

where,  on  cross  examination  of  the  conductor,  as  to  its  contents, 

his  statements  were  only  negative. 

Sweeney  vs.  Chi.  City  Ey.  Co.,  148  App.  351. 

—  Under  Particular  Pleadings:  In  absence  of  a  plea  son  assault 
demesne,  self  defense  or  justification  is  not  available  by  defendant 
as  a  substantive  ground  of  defense  to  a  civil  action  of  assault 

and  battery. 

DeFreitas  vs.  Niines,  156  App.  17;  Grabill  vs.  Ben,  110  App.  588. 

On  plea  of  son  assaidt  demesne,  replication  of  de  injuria  is  a 
general  traverse  of  the  whole  plea,  and  under  it  plaintiff  is  at  lib- 
erty to  adduce  any  proof  that  tends  to  disprove  any  of  the  facts 


ASSAULT  AND  BATTERY  125 

alleged  in  plea,  and  may  show-  in  evidence  that  defendant's  bat- 
tery was  excessive. 

Ayers  vs.  Keller,  11  111.  17;  Fortune  vs.  Jones,  30  App.  llli. 
But   when  defendants  liave  pleaded  so)i  assault   (kmesnc,   and 
plaintiflt'  has  replied  de  injuria  without  a  special  replication,  justi- 
fying such  prior  assault,  he  cannot  either  by  evidence  or  instruc- 
tion, justify  it. 

Fortune  vs.  Jones,  30  App.  116. 

In  action  of  trespass  vi  et  armis,  matters  in  discharge  or  by 
way  of  justification  must  be  specially  pleaded,  and  cannot  be  of- 
fered under  general  issue. 

Thomas  vs.  Eiley,  114  App.  520;  Blanchard  vs.  Burbauk,  16  App.  375. 

In  absence  of  plea  molliter  man  us  imposuit,  proof  that  the  as- 
sault and  battery  in  question  took  place  in  an  effort  to  preserve 
the  peace  is  not  admissible  as  a  substantive  gTound  of  defense,  but 
it  is  competent,  notwithstanding  the  absence  of  such  a  plea,  in 
diminution  of  damaixes. 

Merifield  vs.  Davis,  130  App.  162. 

—  Threats:  Threats  must  have  been  communicated  to  defend- 
ant. 

Sorgenfrei  vs.  Scbroeder,  75  111.  397;  Forbes  vs.  Snyder,  94  111.  374. 

Previous  threats  are  competent  only  to  give  character  or  coloring 

to  some  act  of  party  making  same. 
Forbes  vs.  Snyder,  94  111.  374. 

Unless  threats  to  be  proven  are  so  recent  as  to  become  a  part  of 

the  transaction  in  question,  they  are  not  admissible. 

Cummins  vs.  Crawford.  88  "ill.  312;  Hulse  vs.  Tolman,  49  App.  490; 

Stucker  vs.   Thompson,   139  App.   147;   Doyle  vs.   Cavauaugh,   139 

App.  363. 

In  trespass  for  shooting  plaintiff,   testimony  of  witnesses  that 

they  heard  plaintiff  make  threats  against  life  of  defendant  some 

twenty  days  before  shooting  is  inadmissible. 

Cummins  vs.  Crawford,  88  III.  312;  Hulse  vs.  Tolman,  49  App.  490; 
Stucker  vs.   Thompson,   139  App.   147;   Doyle  vs.   Cavanaugh,   139 
App.  363. 
Evidence  of  threats  made  by  one  party  to  an  altercation  against 
the  other  are  only  competent  when  the  party  alleged  to  have  made 
the  tln^eats  makes  some  hostile  demonstration  prior  to  being  at- 
tacked by  the  other  partv. 

Hefferman  vs.  Lloyd,  145  App.  583;  Forbes  vs.  Snyder,  94  111.  374. 

—  Intent:  The  motive,  intent  or  design  of  the  wrong-doer 
towards  the  plaintiff  is  not  the  criterion  as  to  the  form  of  remedy, 
for,  where  the  act  occasioning  the  injury  is  unlawful,  the  intent 
of  the  wrong-doer  is  immaterial;  but  where  the  party  inflicting  the 
injury  is  no  wroug-doer,  but  is  exercising  a  right  or  doing  a  law- 
ful act,  and  injury  results  to  another,  then  the  intent  becomes 
material,  as  also  the  question  of  reasonable  care. 

Gilmore  vs.  Fuller,  198  111.   130;   Paxton  vs.  Boyer,  67  Til.   132. 

Where  the  defendant  testified  he  made  no  threats  and  did  not 
offer  to  strike  or  harm  plaintiff,  refusal  to  permit  proof  of  laek  of 

intent  is  not  error. 

Sidiniitt  vs.  Kurrus,  234  111.  578. 
In  an  action  for  an  assault  and  battery,  if  the  act  occasioning 
the  wrong  is  unlawful,  the  intent  of  the  wrong-doer  is  innnaterial; 


126  ASSAULT  AND  BATTERY 

but  where  the  party  inflicting  the  injury  is  not  a  wrong-doer,  but  is 
doing  an  act  not  unlawful,  and  injury  results  to  another,  then  the 
intent  becomes  material. 

Nicholls  vs.  Colwell,  113  App.  219;  Hitzelberger  vs.  Kanter,  181  App, 

459. 

If  a  person  in  the  exercise  of  a  right,  is  approached  by  another 

in  a  menacing  manner,  and  is  told  if  he  does  the  act  his  menaces 

indicated,   he   would   kill   him,   such   a  declaration,   instead   of   a 

threat  to  kill,  should  rather  be  regarded  as  a  warning  to  the  other 

party  not  to  do  the  violence. 

Chapman  vs.  Cawrey,  50  111.  512. 

—  Character  of  Party:  In  trespass,  for  shooting  and  wounding 
another,  evidence  of  the  previous  character  of  the  parties  is  inad- 
missible. As  a  general  rule,  the  character  of  plaintiff  as  for  vio- 
lence, in  such  case,  is  not  the  subject  of  inquiry.  Particular  acts, 
when  they  constitute  part  of  or  explain  the  transaction,  may  some- 
times be  shown  in  mitifijation  of  damages. 

Cummins  vs.  Crawford,  88  111.  312. 
Evidence  that  plaintiff  has  been  guilty  of  adultery  is  incompe- 
tent. 

Dimmick  vs.  Downs,  82  111.  570. 

Proof  of  habits  of  plaintiff  for  sobriety  prior  to  the  injury  af- 
fords no  justification,  and  when  proposed  without  any  explanation 
or  offer  to  follow  it  with  proof  that  such  habits  contri]>utcd  to  suf- 
ferings and  injury  of  plaintiff,  it  is  not  error  to  exclude  same. 
Drohn  vs.  Brewer,  77  111.  280. 

—  As  to  Damages:  The  jury,  in  awarding  punitive  damages  for 
wanton  and  wilful  trespass,  may  take  into  consideration  the  pe- 
cuniary circumstances  of  the  defendant,  the  age,  sex,  position  in 
society  of  plaintiff,  and  the  injuries  received,  with  all  circum- 
stances in  evidence. 

Jones  vs.  Jones,  71  111.  562. 
Evidence  as  to  what  plaintiff  has  paid  for  medical  and  surgical 
treatment  is  competent,  and  the  fact  that  it  is  not  followed  by  proof 
as  to  the  amount  being  the  usual  and  reasonable  charge  does  not 
render  its  admission  erroneous,  where  no  assurance  was  required 
of  the  plaintiff  that  such  further  proof  would  be  made,  and  no 
motion  was  made  to  exclude  the  evidence  when  other  proof  did  not 
follow. 

Schmitt  vs.  Kurrus,  234  111.  578. 
Evidence  is  admissible  to  show  pecuniary  circumstances  of  par- 
ties. 

Cochran  vs.  Annon,  16  111.  316;  Schmitt  vs.  Kurrus,  234  111.  578; 
Mullin  vs.  Spangenberg,  112  111.  140;  Drohn  vs.  Brewer,  77  111. 
280;  McNamara  vs.  King,  7  111.  432. 

But  the  defendant  can  introduce  no  evidence   on   the   subject, 

even  in  mitigation  of  damages,  unless  proof  is  first  introduced  by 

plaintiff. 

Mullin  vs.  Spangenberg,  112  111.  140. 

Plaintiff  may  show  he  is  a  poor  man  with  a  large  family.     The 

business  and  circumstances  of  plaintiff  in  actions  of  this  character 

are  proper  subjects  for  the  consideration  of  the  jury  in  assessing 

the  damages  which  he  may  have  sustained.     It  is  the  polic,y  of  the 

law  to  protect  the  persons  and  property  of  the  poor.     The  conse- 


ASSAULT  AND  BATTERY  127 

quenees  of  an  assault  upon  a  poor  man,  who  has  a  family  depend- 
ent upon  his  labor  for  support,  by  which  he  is  maimed  for  life, 

are  surely  more  serious  than  they  would  be  to  a  man  in  affluence. 
McNamara  vs.  Kiiif?,  7  111.  432. 

In  action  for  trespass  for  assaulting  and  whipping  plaintiff  to 
make  him  confess  to  the  commission  of  a  crime,  the  fact  tliat  the 
plaintiff  was  of  weak  mind  and  incapable  of  taking  care  of  him- 
self is  proper  to  go  to  the  jury. 

Ousley  vs.  Hardin,  23  111.  352. 

Ailments  and  aggravation  by  means  of  the  injury  may  be  shown. 
Green  vs.  Buckingham,  122  Ai)p.  631. 

So  circumstances  of  outrage  attending  assault  and  battery  may 
be  given  in  evidence  to  increase  exemplary  damages, 
Dickey  vs.  McDonnell,  41  111.  62. 

An  inquiry  into  antecedent  facts  is  not  proper,  unless  they  are 
fairly  to  be  considered  as  part  of  same  transaction. 
Hulse  vs.  Tolman,  49  App.  490. 

Proof  as  to  conduct  of  plaintiff  at  other  times  and  upon  other 
occasions,  the  assault  and  battery  having  been  committed  without 
any  provocation  at  the  time,  cannot  be  given  in  evidence  to  miti- 
gate the  damages. 

Murphy  vs.  McGrath,  79  111.  594. 

The  merits  of  former  controversies  occurring  some  weeks  be- 
fore the  affair  in  question,  are  not  material  in  determining  the 
defendant's  liability  for  committing  the  assault;   or  whether  his 

conduct  was  commendable  on  other  occasions,  is  not  the  issue. 
Hulse  vs.  Tolman,  49  App.  490. 

The  mere  fact  that  the  assault  and  battery  complained  of  might 
have  been  committed  by  the  defendant  in  the  course  of  a  fight  with 
the  plaintiff,  which  was  entered  into  by  mutual  consent,  will  not 
avail  to  relieve  defendant  from  all  liability  for  the  injury  inflicted; 
however,  such  facts  may  be  shown  in  mitigation  of  damages. 
Thomas  vs.  Eiley,  114  App.  520. 

While  words  spoken  do  not  constitute  a  defense  for  an  assault 
or  an  imprisonment,  nor  even  a  ground  for  mitigating  or  reduc- 
ing the  damages  actually  sustained  by  defendant,  and  it  is  error 
to  so  instruct  the  jury,  still  they  may  be  considered  for  the  pur- 
pose of  mitigating  exemplary  damages,  together  with  all  the  sur- 
rounding circumstances. 

Donnelly  vs.  Harris,  41  111.  126;  Scott  vs.  Fleming,  16  App.  539. 

Admitted  in  Sorgenfrie  vs.  Schroeder,  75  111.  397 ;  Court  says, 
"It  is  not  necessary  to  cite  authorities  to  show  that  the  charge  of 
swindling  was  no  justification  for  the  beating  and  wounding.  That 
the  jury  took  this  into  consideration  in  estimating  the  damages 
seems  probalile  from  the  small  verdict  rendered." 
Weight  and  Sufficiency: 

In  a  civil  action  for  damages  for  personal  injuries  received  as 
the  result  of  an  assault  and  battery,  where  the  act  or  acts  which 
constitute  such  assault  and  battery  were  not  of  such  criminal  char- 
acter as  might  be  attended  with  infamy,  and  were  not  in  any  re- 
spect felonious,  it  is  only  essential  that  the  plaintiff  establish  his 
case  by  a  preponderance  of  the  evidence. 
Soloman  \s.  Buechele,  119  App.  595. 


128  ASSENT 

Self-defense  is  not  established  when  i1   Jippears  that  defendant 
provoked  or  brought  on  the  first  assault. 
Wells  vs.  Eu^lehart,  118  App.  217. 

But  even  if  a  phiintifTp,  in  action  of  assault  and  battery,  provoked 
the  assault  by  himself  tirst  connuitting  a  technical  assault,  still  he 
can  maintain  his  action  if  the  assault  and  battery  conuuitted  by 
the  defendant  goes  further  than  a  reasonable  self-defense. 
Gizler  vs.  Whitzel,  82  111.  322. 

The  question  of  how  much  force  a  person  may  use  in  self-defense 
and  what  he  may  do  is  a  question  of  fact  for  the  jury  and  not  one 

of  law  for  the  court. 

Stueher   vs.   Thompson,   139   App.   145;    Hulse  vs.   Tolman,   49  App. 
490.- 


ASSENT 

See  Novation,  Recognizance,  Bill  of  LxVding. 

CONTRACT  OF  CARRIER: 
Shipper's  Assent: 

—  Burden  of  Proof:  Where  a  contract  limiting  the  liability  of 
the  carrier  is  contained  in  a  bill  of  lading,  constituting  both  a  re- 
ceipt and  a  contract,  burden  is  upon  carrier  to  show  that  shipper 
assented  to  terms  and  conditions  of  the  contract. 

Plaff  vs.  Pacific  Express  Co.,  251  111.  243;  111.  Match  Co.  vs.  C.  E.  T. 
&  P  Ey  Co.,  250  111.  396;  Wabash  Ey.  Co.  vs.  Thomas,  222  111. 
337;  C.  C.  C.  &  St.  L.  E.  Co.  vs.  Pattoii,  203  111.  376;  C.  &  N.  W. 
Ey.  Co.  vs.  Calumet  Stock  Farm,  194  111.  9;  I.  C.  E.  B.  Co.  vs. 
Carter,  165  111.  570;  C.  &  N.  W.  Ey.  Co.  vs.  Simon,  160  111.  648; 
Field  vs.  C.  &  A.  E.  E.  Co.,  71  111.  458;  Boscovit:;;  vs.  Adams 
Express  Co.,  93  111.  523;  Toberman  vs.  Tol.  St.  L.  &  W.  Ey.  Co., 
159  App.  200;  Warren  vs.  C.  C.  C.  &  St.  L.  E.  E.  C?.,  156  App. 
Ill;  XI  111.  Notes  762,  §  181. 

—  Presumption:  In  absence  of  any  evidence  that  terms  of  con- 
tract were   assented  to,   presumption  is   that   consignor   did   not 

Wabash  E.  E.  Co.  vs.  Thomas,  222  111.  337;  C.  C.  C.  &  St.  L.  Ey.  Co. 
vs.  Patton,  203  111.  376. 
And  this  though  signed  by  the  consignor. 

Wabash  e'.  E.  Co.  vs.  Thomas,  222  111.  3b7;  C.  C.  C.  &  St.  L.  Ey.  Co. 
vs.  Patton,  203  111.  376. 
Proof  that  a  shipper  had  upon  previous  occasions  received  bills 
of  lading  containing  limitations  like  those  contained  in  one  in  ques- 
tion does  not  establish  prima  facie  case  of  assent. 

111.  Match  Co.  vs.  C.  E.  I.  &  P.  Ey.  Co.,  153  App.  568. 

—  AdrnissihiJifij  of  Evidence:  "Whether  the  terms  of  a  special 
agreement  limiting  the  liability  of  a  common  carrier  were  under- 
stood and  entered  into  by  the  shipper,  and  assented  to  by  him, 
is  a  question  of  fact,  and  parol  evidence  is  admissible  for  the  pur- 
pose of  showing  whether  the  agreement  was  assented  to  by  both 

parties. 

Kirbv  vs.  C.  &  A.  E.  E.  Co.,  242  111.  418;  Wabash  E.  E.  Co.  vs. 
Thomas,  222  111.  337;  T.  C.  E.  E.  Co.  vs.  Carter,  165  111.  570;  C. 
&  N.  W\  Ev  Co.  vs.  Simon,  160  111.  64S ;  C.  &  N.  W.  Ev.  Co.  vs. 
Cal.  Stock  Farm,  194  111.  9;  C.  &  A.  E.  E.  Co.  vs.  Davis,  159  111.  53. 


ASSENT  129 

Evidence  that  shipper  had  upon  previous  occasions  received  })ills 
of  lading  like  the  one  in  question  is  competent  as  tending  to  show 

C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Shoot,  130  App.  139;  E.  &  W.  Trans.  Co. 
vs.  Dater,  91  111.  195:  W.  St.  L,  &  P.  By.  Co.  vs.  Jaggerman,  115 
131.  407. 

—  Weight  and  Sufficiency  of  Evidence:  The  mere  receiving  of 
the  bill  of  lading  without  notice  of  the  restrictions  therein  con- 
tained does  not  amovint  to  an  assent  thereto. 

C.  &  N.  W.  Ey.  Co.  vs.  Cal.  Stock  Farm,  194  111.  9 ;  C.  &  N.  W.  Ey. 
Co.  vs.  Simon,  IGO  111.  648;  Field  vs.  St.  L.  &  S.  F.  Ey.  Co.,  152 
App.  562;  E.  &  W.  Trans.  Co.  vs.  Dater,  91  111.  195;  M.  D.  T.  Co. 
vs.  Joesting,  89  111.  152. 

The  non-delivery  of  a  bill  of  lading  until  several  days  after  re- 
ceipt by  the  carrier  of  goods  shipped,  tends  to  prove  the  non-assent 
by  the  shipper  to  the  restrictive  provisions  contained  in  such  bill 

of  lading. 

Coates  vs.  C.  R.  L  &  P.  Ry.  Co.,  134  App.  216. 

—  Carrier's  Assent:  The  acceptance  by  a  earner,  for  transpor- 
tation, of  goods  marked  to  a  place  beyond  the  terminus  of  its  own 
line,  and  its  giving  a  receipt  therefor,  constitute  and  imply  a 
prima  facie  contract  to  carry  and  deliver  at  the  point  so  marked. 

Coates  vs.  C.  R.  I.  &  P.  By.  Co.,  239  111.  154;  Wabash  Rv.  Co.  vs. 
Thomas,  222  111.  337;  C.  &  N.  W.  Rv.  Co.  vs.  Simon,  IGO  111.  648; 
W.  St.  L.  &  P.  Ry.  Co.  vs.  Jaggerman,  115  111.  407;  Erie  Rv.  Co. 
vs.  Wilcox,  84  111!  239;  C.  &  N.  W.  Ey.  Co.  vs.  IMontefort,  60  111. 
175;  I.  C.  R.  R.  Co.  vs.  Frankenl)erg,  54  111.  88. 

CONTRACT  OF  TELEGRAPH  COMPANY: 

Burden  to  show  assent  to  restrictive  conditions  is  upon  the 
company. 

Beggs  vs.  Postal  Tel.  Co.,  258  111.  238 ;  Tyler  vs.  Western  Union  Tel. 
Co.,  60  111.  421. 
And  this  applies  to  receiver  as  well  as  sender. 
Webbe  vs.  West.  Union,  169  111.  610. 

CONVEYANCES: 
Voluntary  Settlements: 

AVhen  nothing  appears  to  show  a  contrary  intention,  if  the 
owner  of  an  estate  makes  a  conveyance  of  it,  and  places  the  deed 
upon  record,  without  the  knowledge  of  the  grantee,  the  title  will 
pass  if  the  latter,  on  being  informed  of  the  transaction,  assents 
to  it. 

When   conveyance   is   a   voluntary   settlement,    to   one   not  sni 

juris,  a  formal  assent  need  not  be  proven,  as  it  will,  if  nothing 

further  appears,  be  presumed. 

Spencer  vs.  Razor,  251  111.  278;  Hill  vs.  Kreiger,  250  111.  408;  Baker 
vs.  Hall.  214  111.  364;  Chapin  vs.  Nott,  203  111.  341;  Chilvers  vs. 
Eace,  196  111.  71;  Valter  vs.  Blavka,  195  111.  610;  Hiller  vs. 
Meers,  155  111.  284;  Winterbottom  vs.  Pattison,  152  111.  334;  Doug- 
lass vs.  West,  140  111.  455;  Weber  vs.  Cristin,  121  111.  91. 

—  Knowledge  of  Grantee:  Where  a  grantee,  who  is  under  no 
disability,  is  aware  of  the  conveyance  to  him,  and  does  not  dis- 
sent, and  the  conveyance  is  positively  beneficial  to  him  or  her,  the 
acceptance  will  be  presumed;  but  no  such  presumption  will  arise 
so  long  as  the  grantee  is  ignorant  of  the  conveyance. 

Moore  vs.  Flvnn.  135  111.  74. 

Ev. — D 


130  ASSIGNMENT 

—  Imposing  Ohligation :  While  the  recording  of  a  deed  for  land 
may  afford  pmna  facie  evidence  of  its  delivery  and  acceptance,  this 
must  be  understood  as  applying  to  a  deed  simply  conveying  the 
premises,  and  not  as  applying  to  a  deed  which  imposes  an  obliga- 
tion upon  the  grantee  to  assume  and  pay  a  pre-existing  incum- 
brance upon  the  property. 

Thompson  vs.  Dearborn,  107  Til.  87;  Wiggins  vs.  Lnsk,  12  111.  132.     , 

Extrinsic  evidence  may  be  admitted  to  show  condition  of  prop- 
erty with  a  view  to  arrive  at  the  true  intent  of  parties  in  the  terms 
used  by  them. 

Conk  vs.  Whiting.  Ifi  111.  480;  Seymore  vs.  Bowles,  172  111.  521. 

WORK  AND  SERVICES: 

General  Rule: 

The  mere  fact  that  a  party  renders  beneficial  service  with  the 
knowledge  of  the  party  benefited,  does  not  render  tlie  latter  lialile. 
Plaintiff  must  prove  defendant  knowingly  assented  to  and  accepted 
such  services  while  they  were  being  rendered,  with  knowledge  of 
plaintiff's  claim  for  compensation  therefor. 

Chi.  Heights  Land  Assn.  vs.  Butler,  55  App.  4(51 ;  Tascott  vs.  Grace, 

12  App.   639;   Sloan  vs.  C.  C.  C.  &  St.  L.  Ry.  Co.,  140  App.  31; 

Campbell   vs.   Day,   00   111.    363;    XI   111.    Notes    967,    §24.      (See 

Work  and  Services.) 

Physician : 

A  physician  called  to  attend  a  case  must  determine  the  fre- 
quency of  his  visits  and  if  the  patient  accepts  his  services  with- 
out recpiesting  him  to  come  less  frequently,  or  without  fixing  the 
time  for  visits,  assent  will  be  presumed,  and  he  cannot,  when  sued 
by  the  physician  for  such  services,  require  the  latter  to  prove  the 
necessity  for  making  such  visits  or  be  heard  to  say  that  the  visits 

were  unnecessary. 

Elmer  vs.  Mackey,  186  111.  297 ;  Gibson  vs.  0  'Gara  Coal  Co.,  151  App. 
424. 


ASSIGNMENT 

Presumptions : 

—  Negotiable  Insirument:    Where  made  without  date,  the  pre- 
sumption is  that  it  was  of  the  date  of  the  note,  and  the  presumption 

will  prevail  unless  rebutted. 

Johnson    vs.    Loar,    145    App.    443;    White   vs.   Weaver,    41    111.    409; 

Eodriguez  vs.  Merriman,  133  App.  372;   Kingsland  vs.  Koeppe,  35 

App.   SI;    Stewart   vs.   Smith,   28   111.   397;    Cook   vs.   Norwood,   106 

111.  558. 

This  presumption,   however,   is  slight,   and   weak,   and   may   be 

overcome  by  proof. 

Bussey  vs.  Hemp,  48  App.  195. 

And  such  presuniption  may  be  rebutted  by  evidence  of  actual 

date. 

Smith  vs.  Newlin,  89  111.  193. 

Where  a  promissory  note  is  indorsed  and  there  is  no  evidence  of 

the  time  of  the  indorsement,  or  tending  to  charge  the  assignee  with 

notice,  he  will  be  presumed  to  be  a  hoyia  fide  holder,  for  a  valuable 

consideration,  before  maturity,  and  the  question  of  a  want  or  fail- 


ASSUMPSIT  131 

lire  of  consideration  cannot  arise  in  a  suit,  on  tlie  note  by  sndi  as- 
signee. 

Cisne  vs.  Cliidester,   85  111.  523. 

Admissibility  of  Evidence : 

—  Opiiiioii  of  Witiusii:  A  witness,  witliout  pretondino;  to  state 
acts  or  facts,  may  not  answer  tliat  there  was  a  full  assignment  of 
a  note  and  inortgage. 

Barrett  vs.  Hinckley,  124  111.  32. 

Nor  are  statements,  merely  self-serving  and  hearsay,  admissil)h; 
to  impeach  assignment. 

Mahan  vs.  Sehroeder,  236  111.  392. 

—  Admissions:  Admissions  of  assignor,  of  non-assignable  in- 
strument, bind  assignee  and  are  admissible  against  hm. 

Anderson  vs.  Brew.  Co.,  173  111.  213. 

Declarations  of  assignor  against  his  interest,  and  in  support  of 
the  instrument  as  it  reads,  are  competent  evidence  against  those 
claiming  under  him,  but  declarations  by  him,  tending  to  over- 
throw the  assignment  or  to  give  it  a  meaning  other  than  that  which 
appears  on  its  face,  are  incompetent  against  the  grantee  in  the 
instrument. 

Oliver  vs.  McDowell,  100  App.  45. 
Admissions  of  noininal  plaintitf,  made  after  he  had  parted  with 
his  interest,  should  be  excluded. 
Dazel  vs.  Mills,  10  111.  67. 
Admissions  made  by  the  owner  of  a  chose  in  action,  already 
matured,  are  admissible  against  purchaser. 

Sandifer   vs.    Hoard,    59    111.    216;    Cnrtis   vs.    Martin,    20    111.    557; 
Ilatcliett  vs.  Kimbark,  ITS  111.  121. 

But  only  while  he  is  such  owner  or  in  possession,  unless  made  in 
presence  of  purchaser. 

Driskell  vs.  Flint,  181  App.  137. 

ASSUMPSIT 

See  Money  Counts,  Denial  of  Execution,  Non  Joinder,  For- 
eign Law,  Limitations,  Statute  op^  Frauds. 
Common  Counts: 

—  //(  Goicral:  The  common  counts  are  used  to  avoid  a  variance 
and  to  save  needless  prolixity  in  pleading  but  plaintiiT  must  show  a 
legal  cause  of  action  in  order  to  recover  under  them.     He  must 

prove  all  he  would  be  required  to  aver  in  a  proper  special  count. 
Godfrey  vs.  Wingert,  110  App.  563. 
Under  the  general  issue  the  plaintiff  has  the  burden  of  not  only 
proving  the  contract,  but  also  the  breach  of  it  as  assigned  in  his 
declaration. 

Ward  vs.  Athens  Mining  Co.,  98  App.  227. 
Under  the  general  issue,  it  devolves  upon  plaintiff  to  prove  de- 
fendant's promise  as  charged  in  the  declaration,  by  direct  proof. 
or  to  show  by  the  evidence  a  state  of  facts  from  which  the  law  will 
imply  such  promise. 

Bridge   Co.   vs.   Comrs.   of  Highwavs,    101    111.   518;    Baker  vs.   Eend, 
8  App.  409. 
To  admit  a  document  without  objection  to  its  competency,  under 


132  ASSUMPSIT 

the  common  counts,  is  to  waive  the  right  to  interpose  such  objec- 
tions to  like  documents. 

N.  A.  Cas.  Co.  vs.  Saloman,  165  App.  265. 

Indchitatns  assumpsit  will  not  lie  where  agreement  is  not  for 

payment  of  money,  but  for  the  doing  of  some  other  thing;  nor  on 

an  executory  contract ;  nor  for  the  non-delivery  of  goods.    In  such 

ease,  the  party  must  declare  specially  on  the  contract. 
Hollister  vs.  Lyon  &  Healy,  177  App.  652. 

— -Money  Had  and  Received:  In  action  to  recover  for  money 
had  and  received  by  defendant  for  plaintiff's  use,  plaintiff  must 
prove  that  defendant  holds  money  which  ex  aeejuo  el  bono  he  ought 
to  pay  to  plaintitf,  the  usual  test  being  does  the  money  in  justice 
belong  to  the  plaintiff. 

Eicholson  vs.  Moloney,  195  111.  575;  Natl.  Bank  vs.  Gatton,  172  111. 
625. 

Assumpsit  for  money  had  and  received  may  be  maintained  when- 
ever the  defendant  has  obtained  money  belonging  to  plaintiff  which, 
in  equity  and  good  conscience,  he  has  no  right  to  keep,  as  in  such 
case  the  law  implies  a  promise  to  pay,  notwithstanding  there  was 
no  privity  of  contract  between  the  parties. 

First  Natl.  Bank  vs.  Gatton,  172  111.  625;  Chicago  vs.  P.  C.  C.  &  St. 
L.  Ey.  Co.,  146  App.  403. 

The  test  is  whether  the  money  in  justice  belongs  to  plaintiff,  and 
has  defendant  received  the  money  and  should  he  in  justice  and 
right  return  it  to  plaintiff. 

Eosenbauni  vs.  Drum,  Com.  Co.,  146  App.  229. 
When  one  person  obtains  money  of  another  which  it  is  inequita- 
ble and  unjust  for  him  to  hold,  the  person  entitled  to  it  may  main- 
tain an  action  for  money  had  and  received  for  its  recovery. 

Donovan  vs.   Pnrtoll,   216   111.   629;    Gary  vs.   Niblo,   155   App.   338; 
Devine  vs.  Edwards,  101  111.  140;  XI  111.  Notes  438,  §44. 

An  action  under  the  common  counts  for  money  had  and  received 
will  not  lie  for  breach  of  defendant's  duty  as  an  agent  or  broker, 
as  in  such  case  a  special  count  averring  the  duty  and  the  breach 
thereof,  is  necessary. 

Morris  vs.  Jamieson,  205  111.  87. 

Plaintiff  assumes  the  burden  of  establishing  by  the  evidence 
facts  from  which  the  law  will  draw  the  conclusion  that  the  defend- 
ant had  received  money  which  in  justice  belonged  to  plaintiff  and 
ought  to  have  been  returned. 

111.  Glass  Co.  vs.  Chi.  Tel.  Co.,  234  111.  535. 

In  action  to  recover  sum  of  money  alleged  to  have  been  paid 
to  defendants  on  a  promise  to  return  it  if,  upon  an  accounting,  it 
should  be  found  that  plaintiff  was  not  indebted  to  them,  the  bur- 
den of  proof  is  upon  plaintiff  to  show  he  was  not  thus  indebted. 
Smith  vs.  Grant,  30  App.  150. 

In  order  to  justify  a  recovery  for  payment  made  under  duress, 
plaintiff  must  show  not  only  that  such  payment  was  made  under 
legal  compulsion,  but  also  that  it  is  against  equity  and  good  con- 
science for  defendant  to  retain  the  money. 

Koenig  vs.  People 's  Gas  Co.,  153  App.  432. 

—  Goods  Sold  ami  Delivered:  Recover}^  may  be  had  under  an 
executed  contract  and  where  nothing  remains  to  be  done  but  the 


ASSUMPSIT  133 

payment  of  the  purchase  price  for  goods  sold  and  accepted,  plain- 
tiff may  declare  in  indebitatus  assumpsit. 
Olcese  vs.  Mobile  Fruit  Co.,  211  111.  539. 

An  acceptance  may  be  shown  by  evidence  of  use  of  some  of  goods 
after  commencement  of  suit. 

T.  W.  &  W.  Ey.  Co.  vs.  Chew,  67  111.  378. 
In  ordinary  case  of  suit  to  recover  for  merchandise  sold  and 
delivered,  it  is  not  necessary  to  aver  or  prove  that  defendant  was 
requested  to  pay  and  did  not  do  so. 

Staudard  Varnisli  Co.  vs.  Jay,  149  App.  25. 
Under  an  indebitatus  count  in  assumpsit  or  debt,  the  plaintiff 
may  recover,  although  there  be  no  evidence  of  a  fixed  price. 
Bay  Lbr.  Co.  vs.  Jenks,  20  App.  369. 

—  Work  and  Services:  Performance  of  the  work  contracted  to 
be  done  under  a  contract  may  be  proved  under  the  common  counts. 

Leach  &  Sons  vs.  Cons,  Co.,  110  App.  338;  Hart  vs.  Carsley  Mfg.  Co., 
116  App.  159. 

Medical  services  may  be  recovered  under  common  counts. 

Co.  of  DeWitt  vs.  Spalding,  111  App.  364. 

"Board    and    lodging"    are    included    within    the   meaning    of 
"goods  delivered  and  services  performed." 
Berkowsky  vs.  Specter,  79  App.  215. 

Under  a  count  for  work  and  labor  and  materials  furnished,  and 
for  money  paid,  laid  out  and  expended,  and  for  money  had  and 
received,  the  plaintiff  cannot  recover  for  work  done  for  a  third 
person  by  showing  the  defendant  represented  he  held  the  money 
to  pay  for  the  same  and  promised  to  pay  for  the  same  upon  the 
completion  of  the  work,  and  that,  relying  upon  such  assurance, 
the  plaintiff  did  complete  the  work.  To  recover  on  such  state  of 
facts,  a  special  count  is  necessary,  showing  facts  which  estop  the 
defendant  from  denying  the  truth  of  his  representations. 
Maxwell  vs.  Longnecker,  89  111.  102. 

—  Special  Contract:  While  a  contract  continues  executory,  the 
plaintiff  must  declare  specially,  but  when  it  has  been  fully  per- 
formed on  his  part  and  nothing  remains  to  be  done  under  it  except 
for  the  defendant  to  pay,  plaintiff  may,  at  his  election,  declare 
generally  in  indebitatus  assumpsit  and  the  special  contract  may 
be  admitted  in  evidence  under  the  common  counts. 

Peterson  vs.  Pusey,  237  111.  204;  Union  Elec.  Ry.  Co.  vs.  Nixon,  199 
111.  235;  Foster  vs.  McKeown,  192  111.  339";  Galbraith  vs.  Chi. 
Iron  Works,  50  App.  247;  Chi.  Exhaust  Co.  vs.  Johnson,  44  App. 
224. 

A  special  contract  which  has  been  so  fully  executed  that  noth- 
ing remains  but  to  pay  the  amount  due,  may  be  admitted  in  evi- 
dence under  the  common  counts. 

Sands  vs.  Potter,  165  111.  397;  Adlard  vs.  Muldoon,  45  111.  193. 

And  this  though  the  contract  is  under  seal,  where  it  has  expired 
by  its  own  limitations  and  nothing  remains  to  be  done  except  to 
pay  plaintiff. 

Anier.  Splane  Co.  vs.  Barber,  194  111.  171. 

Performance  of  special  contract  question  for  jury. 
Shepard  vs.  Mills,  173  111.  223. 

And  literal  compliance  with  the  terms  of  a  contract  is  not  essen- 
tial to  be  shown  to  sustain  a  recovery  under  the  common  counts, 


134  ASSUMPSIT 

provided  there  has  been  performance  in  substantial  particulars, 

and  there  has  been  no  wilful  departure. 

Peterson  vs.  Puscy,  237  111.  204;  Bauer  vs.  Hundley,  222  111.  319; 
Evans  vs.  Howell,  211  111.  85;  Kleiuschnitter  vs.  Dorsey,  152  App. 
598. 

AVhere  plaintiff  relies  altogether  on  an  express  contract,  he  can 

recover  thereon  under  the  common  counts  only  ])y  proving  a  full 

performance  on  his  part. 

Parmley  vs.  Farrar,  169  111.  606;  Peoria  vs.  Fruin  Cons.  Co.,  109 
111.  36. 

—  Building  Contracts:  "Where  a  building  contract  has  been  fully 
performed  and  the  final  certificate  obtained  and  it  only  remains  to 
pay  the  balance  due,  the  contractor  may  sue  and  recover  under  the 
common  counts,  and  the  contract  may  be  read  in  evidence  for  the 
purpose  of  showing  its  terms  and  to  recover  damages. 

Concord  House  Co.  vs.  O'Brien,  228  111.  360;  Metal  Fire  Ins.  Co.  vs. 
Boyee,  233  111.  284. 

—  Abandoned  Contract:    Where  vv^ork  was  done  under  a  special 

contract,  which  was  subsequently  abandoned  by  mutual  consent, 

the  amount  due  may  l)e  recovered  under  the  common  counts. 
Amer.  Sand  Co.  vs.  McGarry,  68  App.  333. 

—  Obligation  by  Statute:  An  action  which  is  founded  upon  an 
obligation  created  by  statute  cannot  be  recovered  upon  under  the 
common  counts;  the  declaration  in  such  action  must  allege  all  the 
essential  elements  provided  by  the  statute  from  which  such  obli- 
gation arises. 

Harty  Bros.  vs.  Polkow,  151  App.  199. 

—  Policy  of  Insurance:  A  policy  of  insurance  is  not  admissible 
under  a  declaration  containing  only  the  common  counts. 

Heffron  vs.  Eochester  Ins.  Co.,  220  111.  514;  Concordia  Ins.  Co.  vs. 
Heffron,  84  App.  610;  Supreme  Lodge  vs.  Meister,  78  App.  649. 

Clauses  in  a  policy  which  limit  the  liability  of  the  insurer  by 
way  of  proviso  or  exception  are  solely  for  his  beneilt.  He  must 
intei-pose  and  prove  the  defense.  The  insured  need  not  notice 
them  in  his  pleading  or  proof  to  make  a  prima  facie  case. 

Supreme  Lodge  vs.  Matejowski,  190  111.  142;  Met.  Ins.  Co.  vs.  Mc- 
Keuna,  73  App.  286;  Phenix  Ins.  Co.  vs.  Stocks,  149  111.  319. 

—  Breach  of  Contract:  "Where  there  has  been  a  breach  of  con- 
tract and  damages  resulting  therefrom,  the  party  injured  can- 
not recover  upon  an  inelebiiatus  assumpsit,  but  he  must  declare 
specially  for  damages  for  the  breach  of  contract. 

Daugherty  vs.  Sclinipper,  157  App.  413;  Phoenix  Ins.  Co.  vs.  Baker, 
85  111.  410;  Smith  vs.  Young,  179  App.  364. 

—  Breach  of  Warranty:  There  can  be  no  recovery  in  an  action 
of  general  indebitatus  assumjjsit  where  the  claim  is  upon  a  war- 
ranty of  a  chattel,  for  such  a  declaration  would  not  apprise  de- 
fendant of  matter  he  is  to  defend. 

Eussel  vs.  Gilmore,  54  111.  147, 

—  Pay  in  Articles  of  Personal  Property:  Where  there  is  an 
agreement  to  pay  a  certain  sum  in  specified  articles  of  personal 
property  at  agreed  prices  on  a  particular  day,  a  failure  to  deliver 
the  articles  on  the  day  fixed  in  the  agreement  converts  the  trans- 
action into  a  money  obligation. 

McKinaie  vs.  Lane,  230  111.  544;  Sleuter  vs.  Wallbaum,  45  111.  44. 


ASSUMPSIT  135 

—  Promissory  Note:  A  promissory  note  is  a(lmissi])le  under  the 
common  counts,  and  execution  cannot  be  denied  in  absence  of  veri- 
fied plea. 

Clark  vs.  Newton,  235  111.  530. 

A  promissory  note  is  admissible  under  the  common  counts  upon 

proof  of  the  maker's  signature. 

Murcliie  vs.  Peck,  57  App.  396. 

A  promissory  note  executed  by  two  persons  is,  by  statute,  a  joint 
and  several  obligation,  and  in  suit  against  sui-ety  alone,  the  note  is 
admissible  in   evidence,   notwithstanding  the   declaration   declares 
against  both  maker  and  surety  jointly,  where  the  declaration  also 
contained  the  common  coujits,  which  declare  jointly  and  severally. 
Harrison    vs.    Thackaberry,    248    111.    512;    Boxburger   vs.   Scott,    88 
111.  477. 
A  promissory  note  and  a  guaranty  are  admissible  in  evidence 
under  a  declaration  containing  common  counts  only. 
Wilson  vs.  Hospital,  92  App.  413. 

—  Partnership  Account:  Money  advanced  by  one  partner,  not 
as  a  mere  loan  to  the  other,  but  in  furtherance  of  the  affairs  of 
the  partnership,  the  accounts  of  which  are  in  dispute  and  unsetth^d, 
cannot  be  recovered  in  an  action  of  assumpsit  against  the  latter, 
who  pleads  such  facts  in  defense. 

Hartzell  vs.  Murray,   224  111.   377. 

—  Bent:  If  possession  is  delivered  to  the  lessee  and  he  occupies 
the  premises  during  the  entire  period,  nothing  remaining  to  be 
done  except  to  pay  the  amount  due  for  rent,  a  recovery  may  be  had 
under  the  common  counts. 

Eiibens  vs.  Hill,  213  111.  523. 

General  Issue : 

— -Maltirs  Provable  Generally:  Under  general  issue  in  assump- 
sit, the  defendant  may  give  in  evidence  that  the  contract  was  void 
or  voidable  in  law.  Or  if  good  in  point  of  law,  that  it  was  per- 
formed by  payment  or  otherwise;  or  if  not  performed,  that  there 
was  some  legal  excuse  for  its  non-performance,  as  a  release  or  dis- 
charge before  breach  or  non-performance  by  the  plaintiff  of  a  con- 
dition precedent.  In  short,  the  question  in  assumpsit  upon  general 
issue  is  whether  there  was  a  subsisting  debt  or  cause  of  action  at 
the  time  of  commencing  the  suit.  Formerly,  matters  in  discharge 
of  the  action  must  have  been  specially  pleaded;  af tervv'ards,  dis- 
tinction was  made  between  express  and  imi)lied  assumpsit.  After- 
ward, it  was  universally  allowed  to  be  given  in  evidence  under  the 
general  issue.  Almost  anything  which  goes  to  the  discharge  of  a 
promise  is  admissible  in  evidence  under  the  general  issue,  so  any 
matter  which  shows  that  plaintiff  never  had  cause  of  action  may 
be  given  in  evidence  under  plea  of  non  assumpsit,  and  most  matters 
in  discharge  of  the  action,  which  show  that  at  the  commencement 
of  the  suit,  there  was  no  subsisting  cause  of  action,  may  be  taken 
advantage  of  under  the  general  issue.  Evidence  of  recission  of 
the  contract  sued  on  is  properly  admitted  under  the  general 
issue.  The  plea  of  the  general  issue  puts  upon  plaintiff  the  burden 
of  not  only  proving  the  contract  as  alleged,  ])ut  also  the  breach  as 

assigned  in  the  declaration. 

Ward  vs.  Athens  Mining  Co.,  98  App.  227. 


136  ASSUMPSIT 

In  action  of  assumpsit  the  general  rule  is  that  a  defendant  may- 
give  in  evidence,  under  the  general  issue,  any  matter  which  shows 
he  was  not  indebted  to  the  plaintiff,  when  the  action  was  brought, 
and  this  is  true  whether  the  defense  be  that  defendant  was  never 
indebted  to  plaintiff,  or  that  the  liability  had  been  extinguished 
after  it  was  incurred.  Tender,  the  Statute  of  Limitations,  alien 
enemy  and  some  other  defenses  must  be  specially  pleaded.  There 
are  a  few  special  pleas  that  may  be  pleaded,  but  are  not  required 

to  be,  but  usually  not,  where  they  amount  to  the  general  issue. 
Wilson  vs.  King,  83  111.  232 ;  Iron  Clad  Dryer  Co.  vs.  Bank,  50  App. 
461. 

Any  matter  of  defense  arising  after  the  commencement  of  the 

suit  cannot  be  pleaded  in  bar  of  the  action  generally.     If  such 

matter  arise  after  the  commencement  of  the  suit  and  before  plea, 

it  must  be  pleaded  to  the  further  maintenance  of  the  action.     But 

if  it  arise  after  plea,  and  before  replication,  or  after  issue  joined, 

whether  of  law  or  of  fact,  then  it  must  be  pleaded  pwu  darrein 

continuance. 

Mount  vs.  Scholes,  120  111.  394;  Delta  Bag  Co.  vs.  Kearns,  IGO 
App.  93. 

In  action  for  money  had  and  received,  under  the  general  issue 
every  equitable  defense  may  be  made ;  defendant  may  claim  every 
equitable  allowance,  etc.,  in  short,  may  defend  himself  by  every 
thing  which  shows  that  plaintiff  ex  aequo  ct  bono  is  not  entitled 
to  the  whole  of  his  demand  or  any  part  of  it. 

Fay  vs.  Slaughter,  194  111.  157;   Supervisors  vs.  Manny,  56  111.  160. 

A  plea  of  general  issue  in  action  of  assumpsit  admits  the  capacity 

in  which  defendant  is  sued,  together  with  a  change  of  company 

name  and  assumption  of  liability  as  alleged  in  declaration. 
111.  Life  Assn.  vs.  Wells,  200  111.  445. 

—  Abandonment  of  Contract:  That  plaintiff  assented  to  aban- 
donment of  contract  is  admissible  under  general  issue. 

McKenna  vs.  McKenna,  118  App.  240. 

—  Payment:    May  be  offered  in  evidence  under  general  issue. 

Coulter  vs.  T.  P.  A.  Co.,  144  App.  255;  O'Brien  vs.  O'Brien,  75  App. 
263;  Keyes  vs.  Fuller,  9  App.  528;  Kassing  vs.  Int.  Bank,  74  111. 
16;  Crews  vs.  Bleakly,  16  111.  20. 

In  action  of  assumpsit  for  goods  sold  and  delivered,  payment  is 
admissible  under  general  issue,  but  set-oft'  is  not. 
Kennard  vs.  Secor,  57  App.  415. 

—  Unlawful  Contract:  Evidence  showing  that  a  sale,  promise 
or  undertaking  upon  which  suit  is  brought  was  unlawful  is  admis- 
sible under  the  general  issue. 

Price  vs.  Burns,  101  App.  418. 

—  Becmipment  and  Set-off:  A  defense  of  recoupment  is  ad- 
missible under  the  general  issue. 

Hubbard  vs.  Eoche,  133  App.  602;  Bauer  vs.  Jerolman,  124  App. 
151;  Hart  vs.  Carlisle  Mfg.  Co.,  116  App.  159;  Baker  vs  Faw- 
cett,  69  App.  300;  XIV  111.  Notes  551,  §  37. 

But  only  to  the  extent  of  plaintiff's  demand. 
Register  Co.  vs.  Larash,  109  App.  236. 

Set-off  must  be  pleaded  or  interposed  under  notice,  recoupment 
may  be  had  under  general  issue. 

Lloyd  vs.  Mfg.  Co.,  102  App.  551. 


ASSUMPSIT  137 

But  special  damages  cannot  be  recovered  or  recouped  unless  they 

are  specially  set  forth  in  appropriate  pleas. 
Koch  vs.  Merk,  48  App.  26. 

But  set-off  need  not  be  specially  pleaded  where  no  affirmative 
relief  is  sought,  but  credit  for  payment. 
O'Brien  vs.  O'Brien,  75  App."263. 

Under  a  plea  averring  a  breach  of  warranty,  but  alleging  no 

damages  therefrom,  matters  of  set-off  are  inadmissible. 
Eegister  Co.  vs.  Larash,  109  App.  236. 

The  unliquidated  damages  that  cannot  be  set  off  has  reference 

only  to  unliquidated  damages  arising  out  of  tort. 
Lloyd  vs.  Mfgrs.  Ware  Co.,  102  App.  551. 

—  Custom  and  Usage:  When  custom  is  introduced  as  an  affivm- 
ative  defense,  or  for  the  purpose  of  recoupment,  it  must  be  spe- 
cially pleaded. 

Leggatt  vs.  Sands  Brg.  Co.,  60  111.  158;  McCurdy  vs.  Alaska  Conn., 
102  App.  120. 

—  Premature  Action:  Any  matter  may  be  given  in  evidence 
under  the  general  issue  which  shows  that  defendant  was  not  in- 
debted to  plaintiff  when  action  was  brought. 

Harrison  vs.  Thackaberry,  248  111.  512;  Wilson  vs.  King,  83  111.  232; 
Amer.  Cent.  Ins.  Co.  vs.  B.  &  L.  Assn.,  81  App.  258. 
The  cause  of  action  must  exist  at  the  time  of  institution  of  suit, 
and  where  the  demand  has  not  matured  and  the  general  issue  is 
pleaded,  defendant  may  avail  himself  of  the  objection  thereunder. 
It  is  always  proper  to  show  under  a  plea  of  non  assumpsit  plaintiff 
never  had  a  cause  of  action. 

Bacon  vs.  Schepflin,  85  App.  553 ;  Affd.,  185  111.  122.     Contra  Amer. 

Merch.  Mfg.  Co.  vs.  Kantrwoitz,  77  App.  155. 

Where  defense  is  that  by  a  separate  and  subsequent  agreement 

the  time  of  payment  fixed  upon  by  the  regular  contract  sued  upon 

had  been  extended,  such  separate  agreement  should  be  pleaded  in 

abatement. 

Pitt  Sons  vs.  Bank,  121  111.  582;  Culver  vs.  Johns,  90  111.  91.     See 

also  Grand  Lodge  vs.  Eandolph,  186  111.  89, 

An  extension  of  time  and  the  giving  of  further  day  of  payrnent 

by  the  creditor  on  a  valid  and  binding  agreement,  with  principal 

debtor,  without  assent  of  surety,  may  be  given  in  evidence  under 

general  issue. 

Harrison  vs.  Thackaberry,  248  111.  512. 

—  Failure  and  Want  of  Consideration:  Under  a  plea  of  no  con- 
sideration, or  total  failure  of  consideration,  a  partial  failure  of 
consideration  cannot  be  shown,  nor  under  a  plea  of  total  failure  of 
consideration  can  it  be  shown  there  was  no  consideration. 

Stocks  vs.  Scott,  188  111.  266;  Wadhanis  vs.  Swan,  109  111.  46;  Car- 
linhour  vs.   White,   157   App.   431;    Keelyn   vs.   Strider,   148   App. 
238;  Day  vs.  Milligan,  72  App.  324. 
Total  failure  of  consideration  and  partial  failure  of  consider- 
ation are  separate  and  distinct  defenses,  and  under  plea  of  the 

former  the  latter  cannot  be  proven. 

Chi.  Trust  Co.  vs.  Landfeldt,  73  App.  173. 
Failure  of  consideration  cannot  be  shown  without  first  showing 

the  consideration. 

Independent  Brewing  Co.  vs.  Klett,  114  App.  1;  Coding  vs.  McArthur 
Co.,  181  App.  378. 


138  ASSUIMPSIT 

Amount  of  partial  failure  must  be  shown. 

Topper  \t;.  Snow,  20  111.  435;  Day  vs.  Miilligau,  72  App._324.  ^ 
Under  plea  of  partial  or  total  failure  of  consideration,  it  may 
be  shown  that  defendant  was  induced  to  execute  the  instrument 
sued  on  by  false  and  fraudulent  representations  of  seller  as  to 
value  or  character  of  commodity,  which  formed  the  consideration. 
Taft  vs.  Myerseough,  197  111.  600;  Latham  vs.  Smith,  45  111.  23. 
But  not  breach  of  warranty. 

Leggatt  vs.  Brew.  Co.,  60  111.  158. 
Evidence  is  competent,  under  plea  of  want  of  consideration,  to 
prove  that  notes  in  suit  were  asked  for  by  plaintiff,  and  given 
by  defendant  as  a  matter  of  form  of  guaranty. 
Ind.  Brg.  Assn.  vs.  Klett,  114  App,  1. 
Failure  of  consideration  in  whole  or  in  part  must  be  pleaded. 
Eoliertson  vs.  Merriam,  106  App.  610;  Leggatt  vs.  Sands  Co.,  60  111. 
158.     Contra  Smith  vs.  Western  Trust  Co.,  150  App.  587. 
"Where  notes  are  introduced  in  evidence  under  common  counts, 
want  of  consideration  may  be  shown  under  general  issue. 

Clarke  vs.  Newton,  235  111.  530;  Morehouse  vs.  Fowler,  69  App.  50. 
Or  failure  of  consideration. 

Wilson  vs.  King,  83  111.  232. 
But  this  where  declaration  contains  common  counts,  only. 

Col.   Heating  Co.   vs.   O 'Halloran,    144   App.    74;    Smith   vs.   Western 
Trust  Co.,  150  App.  587;  Dickinson  vs.  Bank,  70  App.  405. 

—  Banlx-ruptcij:     P)ankruptcy  must  be  pleaded. 

Horner  vs.  Spelman,  78  111.  206. 

—  Statute  of  Frauds:     Where  declaration  upon  common  counts 

only,  and  seeks  to  recover  upon  a  contract  which  is  within  the 

statute  of  frauds,  it  is  proper  to  rely  upon  that  statute  without 

pleading  it,  and  advantage  may  be  taken  of  it,  on  the  evidence 

under  the  general  issue.       ..  ;. 

Beard  vs.  Converse,  84  111.  512;  Adams  vs.  Westlake,  92  App.  616. 

Where  a  contract  is  declared  on  specially,  the  statute  of  frauds 

must  be  pleaded. 

Hodges  vs.  Bankers  Surety  Co.,  152  App.  372. 

And  is  not  available  by  strangers  to  the  contract. 
Green  vs.  Johnson,  151  App.  63. 

—  Ultra  Vires:  The  defense  of  ultra  vires  can  be  set  up  by  a 
corporation  only  when  it  has  been  specially  pleaded  by  it. 

L.  St.  l?y.  Co.  vs.  Carmiehael,  184  111.  348;  Chi.  Tool  Co.  vs.  Munsell, 
107  App.  344. 

—  Breach  of  Warra)ttii:  Proof  of  breach  of  warranty,  result- 
ing in  partial  or  total  failure  of  consideration,  cannot  be  made 
under  general  issue,  where  declaration  contains  special  counts  on 

promissory  notes. 

Col.   Heating  Co.   vs.   O "Halloran,    144   App.   74;    Dickinson   vs.   Cit. 
Natl.  Bank,  70  App.  406. 
But  if  declaration  contains  common  counts  only,  such  defense  may 

be  made  in  recoupment. 

Col.  Heating  Co.  vs.   O 'Halloran,   144  App.   74;    Hoerner   vs.   Giles, 

53  App.  540. 

In  suit  on  note,  the  consideration  for  which  was  the  delivery  to 

makers  thereof,  by  payees  therein,  certain  merchandise,  defendants 

filed  general  issue  and  special  pleas,  averring  that  goods  were  to 

be  of  certain  quality  and  were  so  warranted,  but  that  the  goods 


ASSUMPSIT  139 

were  not  of  that  quality,  there  was  a  breach  of  warranty  constitut- 
ing failure  of  consideration.  To  render  evidence  of  breach  of  war- 
ranty competent  as  constituting  failure  of  consideration,  the  exist- 
ence of  the  warranty  must  be  first  established  or  proof  that  there 
were  false  representations  knowingly  made  in  regard  thereto. 
Leggatt  vs.  Brew.  Co.,  60  111.  158. 

—  Contracts  of  Guaranty:  In  action  upon  contract  of  guaranty, 
evidence  of  prejudice  by  want  of  notice  is  affirmative  proof,  ad- 
missible only  when  such  defense  has  been  specially  pleaded. 

Mamerow  vs.  Natl.  Lead  Co.,  98  App.  460. 

—  Tender:  A  plea  of  tender  is  a  conclusive  admission,  and 
defendant  who  files  it  is  estopped  from  denying  it,  by  the  record. 

Momoe   vs.    Clialdeek,    78    111.   429;    Co.    oi:   Jo   Daviess  vs.    Staples, 
108  App.  5.39. 

But  rule  is  otherwise  where  tender  before  trial  and  not  relied 
upon  in  pleadings.  Explanation  of  reason  for  tender  is  admis- 
sible. 

Maekey  vs.  Kerwin,  222  111.  371. 

A  party  cannot  plead  a  tender  of  a  part  of  the  sum  declared 
for  and  at  the  same  time  maintain  a  plea  of  the  general  issue  to  the 
whole  declaration. 

O  'Meara  vs.  Cardiff  Coal  Co.,  154  App.  321. 

—  Fraud  and  Circumvention:  Evidence  as  to  fraud  and  cir- 
cumvention is  admissible  only  under  a  special  plea,  and  not  under 
plea  of  general  issue. 

Cook  vs.  Pisaiio,  174  App.  609. 

—  Insurance  Contracts:  The  breach  of  a  condition  subsequent, 
if  relied  upon  to  avoid  the  policy,  must  be  specially  pleaded  and 
proof  of  such  breach  is  not  admissible  under  general  issue. 

Cont.  Ins.  Co.  vs.  Eogers,  119  111.  474. 

Breach  of  conditions  in  policy  of  insurance  may  be  shown  under 
general  issue  but  a  defense  of  misrepresentation  in  application, 
going  to  avoid  the  insurance,  is  not  admissible  under  general  issue, 
although  the  application  and  all  the  statements  therein  are  ex- 
pressly incorporated  in  the  policy  by  reference. 

Royal   Neighbors   vs.   Sinon,   135  Ajjp.  599;    Met.   Life  Ins.   Co.   vs. 
Zeigler,  69  App.  447. 

In  action  upon  a  fraternal  benefit  certificate,  the  defense  that  a 
member  was  addicted  to  the  excessive  use  of  intoxicating  liquor  is 
not  admissible  under  general  issue. 

Marren  vs.  N.  A.  Union,  145  App.  375. 

Defense  of  suicide  is  an  affirmative  defense.     It  is  substantially 
a  matter  in  confession  and  avoidance  and  should  be  pleaded. 
Supreme  Tent  vs.  Steusland,  105  App.  267. 

Payment  and  release  may  be  offered  in  evidence  under  general 

issue. 

Coulter  vs.  T.  P.  A.,  144  App.  256. 

Under  plea  of  non  est  factum,  fraud  in  execution  of  an  instru- 
ment may  be  offered. 

Mich.  Life  Ins.  Co.  vs.  Vierra,  116  App.  476. 

In  action  on  fire  insurance  policy  defendant  cannot  avail  itself 
of  the  defense  of  violation  of  the  conditions  of  the  policy  by  a 
change  of  possession,  without  specially  pleading  such  defense,  and 


140  ATHEIST 

giving  plaintiff  an  opportunity  to  set  up  by  replication  any  matter 
of  waiver  or  otherwise,  which  he  might  be  able  to  present. 

Phoenix  Ins.  Co.  vs.  Caldwell,  187  111.  73. 
Defendant  may  show  under  general  issue  that  after  date  of  policy 
and  before  loss  occurred,  plaintiff  had  mortgaged  the  property, 
and  same  was  still  unpaid. 

Am.  Cent.  vs.  Birds  B.  &  L.  Co.,  81  App.  258. 

Or  a  breach  of  any  of  the  covenants  of  the  policy. 
West.  Ins.  Co.  vs.  Mason,  5  App.  141. 

A  defense,  in  action  on  insurance  policy,  that  the  amount  of 
recovery  should  not  exceed  the  amount  of  the  award  fixed  by  arbi- 
tration, is  not  available  under  general  issue. 
Funk  vs.  Fire  Assoc,  157  App.  602. 


ATHEIST 


See  Witnesses. 


ATTACHMENT 

Burden  of  Proof  and  Presumptions: 

Burden  rests  upon  plaintiff'  to  establish  ground  of  attachment 
stated  in  affidavit,  when  same  is  put  in  issue  by  plea  in  abatement. 
Jaycox  vs.  Wing,  66  111.  182 ;  Wells  vs.  Parrott,  43  App.  656 ;  Towle 
vs.  Lamphere,  8  App.  399. 

A  party  wlio  intervenes  in  action  brought  by  attachment  and 
claims  the  property  attached,  must  show  that  he  is  owner  of  same. 
The  burden  of  proof  rests  upon  such  claimant  throughout  the  trial, 
and  not  uj)on  plaintiff  in  attachment. 

Ilollenbach  vs.  Todd,  119  111.  543;  Hutchinson  Natl.  Bank  vs.  Crow, 
56  App.  558;  Co.  Natl.  Bank  vs.  Canniff,  51  App.  579. 

By  a  preponderance  of  the  evidence. 
Martin  vs.  Duncan,  47  App.  84. 

Where  in  suit  in  attachment  a  party  interpleads,  claiming  owner- 
ship of  same,  fact  that  goods  bore  name  of  the  defendant  in  attach- 
ment does  not  raise  presumption  that  goods  belong  to  him,  unless 

goods  were  so  tagged  by  and  with  consent  of  interpleader. 
O'Farrell  vs.  Viekrage,  163  App.  519. 

Admissibility  of  Evidence: 

— 1)1  General:     Where  one  interpleads  claiming  property  at- 
tached, any  fact  in  disproof  of  his  title  may  be  shown  under  the 
traverse  in  the  general  replication. 
Hutchison  vs.  Crow,  56  App.  558. 

—  Possession:  Possession  of  property  by  attachment  defend- 
ant is  prima  facie  evidence  of  ownership. 

Kickham  vs.  Kane,  135  App.  628. 

—  Affidavit  Not  Evidence  of  Inclehtedness:  The  affidavit  for 
attachment,  the  bond  and  writ  are  not  evidence  of  defendant's 
indebtedness  to  plaintiff. 

Yost  Mfg.  Co.  vs.  Alton,  168  HI.  564. 

—  Acts  of  Ownership:  An  interpleading  claimant  of  attached 
property  may  prove  acts  of  his  own  tending  to  show  a  change  in 


ATTESTATION  141 

the  character  of  his  possession  after  he  took  possession,  under  a 
chattel  mortgage,  of  the  goods,  which  he  had  theretofore  controlled 
as  agent  of  the  mortgagor. 

Martin  vs.  Dimcau,  181  111.  120. 

When,  in  an  attachment  suit,  a  third  party  interpleads  claiming 
ownership  of  property  attached,  the  transactions  out  of  which  the 
attachment  suit  grew,  conducted  without  knowledge  of  interpleader, 
are  inadmissible  on  trial  of  issues  raised  by  the  interplea. 
O'f'ariell  vs.  Vickrage,  163  App.  519. 

—  Creditor  at  Time  of  Transfer:    Where  the  attaching  creditor 

seeks  to  impeach  transfer  of  property  by  debtor,  as  for  fraud,  he 

must  show  that  he  was  a  creditor  at  time  of  transfer. 

Springer  vs.  Bigford,  160  III.  495;  Com.  Natl.  Bank  vs.  Canniff,  51 
App.  579. 

Evidence  of  indebtedness  accruing  at  time  long  after  an  alleged 
voluntary  conveyance  of  realty  attached  in  aid  is  not  admissible  to 
show  insolvency  at  date  of  conveyance,  and  so  to  invalidate  con- 
veyance. 

Seaman  vs.  Bisbee,  163  111.  91. 

A  judgment  recovered  in  an  attachment  suit  against  a  chattel 
mortgagor,  and  offered  to  show  that  plaintiffs  were  creditors,  and 
as  such  entitled  to  attack  the  good  faith  of  the  mortgage  transac- 
tion, is  inadmissible  for  that  purpose  when  judgment  was  rendered 

more  than  a  year  after  the  execution  of  the  mortgage. 
Martin  vs.  Duncan,  181  111.  120. 

So  failure  by  attaching  creditor,  who  claims  that  a  bill  of  sale 
by  the  principal  debtor  was  fraudulent,  to  prove  that  he  was  a 
creditor  of  the  debtor  at  time  of  transfer,  is  not  remedied  by  the 
subsequent  recovery  of  judgment  against  principal  debtor  in  at- 
tachment suit,  since  the  transferee,  standing  in  attitude  of  stranger 
to  record,  was  chargeable  with  no  notice  of  attaching  creditor's 

rights. 

Springer  vs.  Bigford,  160  111.  495. 

—  Creditor  Impeaching  Deed:  An  attaching  plaintiff  introduc- 
ing in  evidence,  in  interpleader  proceedings,  a  deed  from  attach- 
ment defendant  to  the  intei'venor,  purporting  to  be  for  a  certain 
consideration,  does  not  thereby  admit  the  validity  of  the  deed, 
but  may  show  by  extrinsic  evidence  that  there  was,  in  fact,  no  con- 
sideration. 

Cassel  vs.  First  Natl.  Bank,  169  111.  380. 
So  the  testimony  of  a  witness  called  by  an  attachment  plaintiff 
in  interpleader  proceedings,  that  party  interpleading  had  told  him 
she  paid  for  attached  property  the  consideration  specified  in  her 
deed  thereto,  is  not  conclusive  upon  attachment  plaintiff. 
Cassell  vs.  First  Natl.  Bank,  169  111.  380. 


ATTESTATION 

See  Acknowledgments,  Wills. 


142  ATTORiNEYS      • 

ATTORNEYS 

See  Privileged  Communications. 
Judicial  Notice: 

Attorueys  licensed  to  practice  in  a  court  are  judicially  noticed 

by  it. 

Weber  vs.  Powers,  114  App.  411;  Kuehne  vs.  Gait,  54  App.  596; 
B.  &  L.  Assn.  vs.  Fifer,  71  App.  295 ;  XII  111.  Notes  473,  §  3. 

The  court  will  take  judicial  notice  that  the  members  of  a  firm 
appearing  in  behalf  of  a  party  to  a  suit  are  regularly  licensed 
attorneys  at  law  practicing  at  the  bar  of  the  state. 
Ferris  vs.  Com.  Natl.  Bank,  158  111.  237. 

As  Witnesses: 

—  Compdency:  An  attorney  who  is  called  upon  to  give  material 
testimony  in  a  case  with  which  he  is  connected,  should  withdraw 
from  the  case ;  but  the  fact  that  he  does  not  do  so  does  not  affect 
the  competency  of  his  testimony,  but  only  the  weight  to  be  ac- 
corded thereto. 

Nix  vs.  Thackaberry,  240  111.  352;  Bishop  vs.  Hilliard,  227  111.  382; 
Anstatt  vs.  Edel,  232  111.  201 ;  Glanz  vs.  Ziabek,  233  111.  22 ;  Grays 
vs.  Lum.  Co.,  163  App.  231. 

Fact  that  a  witness  is  assistant  prosecuting  attorney  does  not  ren- 
der him  incompetent. 

People  vs.  White,  251  111.  67. 

—  Nominal  Withdrawal:  Courts  are  not  inclined  to  give  great 
weight  to  the  testimony  of  an  attorney  who  conducted  tlie  case 
for  the  defendants  up  to  the  time  his  testimony  was  required, 
where  it  was  apparent  from  time  the  bill  was  filed  that  his  testi- 
mony would  be  important  to  his  clients  and  where  there  is  good 
reason  to  believe  that  his  withdrawal  from  the  case  to  testify  was 
merely  nominal. 

Grindle  vs.  Grindle,  240  111.  143;  Morgan  vs.  Eoberts,  38  111.  65; 
Eoss  vs.  DeMoss,  45  111.  448. 

Where  a  witness  intimates  in  her  testimony  that  the  adverse 
attorney  had  attempted  to  induce  her  to  give  false  testimony,  it 
is  not  error  to  permit  such  attorney,  though  actively  engaged  in 
the  trial,  to  be  sworn  and  give  his  version  of  the  matter  without 
withdrawing  from  the  case;  but' such  is  not  approved  practice. 
Eeavely  vs.  Harris,  239  111.  526. 

—  Attorney's  Minutes:  Although  an  attorney's  minutes  are  not 
competent  to  supply  the  place  of  a  lost  deposition,  and  the  witness 
being  alive,  it  is  not  admissible  to  prove  by  others  what  he  testified 
to  in  his  deposition,  it  does  not  follow  because  the  attorney's 
notes  are  not  admissible  as  evidence,  that  exhibits  referred  to  in  his 
notes  would  not  be  competent  evidence  on  a  subsequent  trial,  or 
that  the  attorney  could  not  testify  to  the  contents  of  the  lost 
exhibits,  or  refer  to  his  notes  for  the  purpose  of  refreshing  his 
memory  as  in  any  other  case. 

Stout  vs.  Cook,  57  111.  386. 


ATTORNEYS  143 

Authority : 

—  Fresiimption:  In  the  absence  of  evidence  to  the  contrary,  it 
will  be  presumed  that  an  attorney  was  authorized  to  represent  a 
party. 

People  vs.  Parker,  231  III.  478;  Patterson  vs.  N.  Trust  Co.,  230  111. 
33-1;  Ferris  vs.  Com.  Natl.  Bank,  158  111.  237;  Williams  vs.  P.iitler, 
35  111.  544;  Reed  vs.  Curry,  35  111.  53G;  Neff  vs.  HuMi,  111  111. 
100;  Cigler  vs.  Keiiiath,  1(J7  App.  65, 

The  presumption  that  an  attorney  who  appeared  in  a  case  had 
authority  to  act,  supported  by  the  testimony  of  the  generjd  agent 
who  had  charge  of  the  suit,  showing  his  employment,  is  not  over- 
come by  other  testimony  denying  he  had  authority. 

Famous  Mfg.  Co.  vs.  Wilcox,  180  111.  246. 

Where  attorneys  bringing  a  suit  upon  a  promissory  note,  pro- 
duce the  same  at  the  trial,  this,  of  itself,  affords  a  strong  presump- 
tion of  their  authority  to  sue  upon  it. 

W^oodward  vs.  Donovan,  167  App.  503;  Eeed  vs.  Curry,  35  III.  536; 
Williams  vs.  Butler,  35  111.  544. 

The  presumption  of  authority  will  prevail  over  the  bare  denial 

of  the  party,  unsupported  by  affidavit. 
'  -■  People  vs.  Barnet  T.  P.,  100  111.  332. 

In  the  absence  of  evidence  limiting  the  power,  an  attorney  of 
record  is  presumed  to  have  all  the  general  powers  that  the  law 
infers  from  the  relation  of  attorney  and  client. 
Cameron  vs.  Stratton,  14  App.  270. 

But  otliorwise  as  to  an  attorney  not  of  record,   employed  for 
■some  particular  service  in  connectioji  with  the  case  at  court,  the 
party  deals  with  such  an  attorney  at  the  peril  of  want  of  authority. 
Cameron  vs.  Stratton,  14  App.  270. 

It  must  be  presumed  that  the  court  knows  its  own  officers,  and 
under  a  power  of   attorney,   authorizing  an   attorney   at   law   to 
confess  a  judgment,  would  not  and  did  not  permit  any  person  but 
an  attorney  of  the  court  to  act  under  autliority. 
Iglehart  vs.  C.  M.  &  F.  Ins.  Co.,  35  111.  514. 

The  fact  that  an  attorney  at  law  prepares  a  bill  in  chancery 
in  a  party's  name  and  signs  the  party's  name  and  his  own  name  to 
it  is  unmistakable  evidence  of  the  relation  of  attorney  and  client. 
Burnham  vs.  Eoberts,  70  111.  19. 
The  presumption  of  authority  of  an  attorney  to  act  for  a  party 
in  bringing  a  suit  in  the  name  of  such  party  necessarily  carries  with 
it  the  presumption  of  the  existence  of  such  party. 
Woodward  vs.  Donavan,  167  App.  503. 

Fees  and  Services: 

—  Riyht  to  Practice:  If  a  person  testify  that  he  has  practiced 
law  in  the  particular  territory  in  question  for  a  period  of  years, 
this  establishes  iJ/Tma  facie  that  he  was  duly  licensed  to  practice. 

Markman  vs.  Forster,  170  App.  262. 

—  Retainer  Defined:  A  retainer  is  the  act  of  the  client  in  ein- 
ploying  his  attorney  which  prevents  the  latter  from  acting  for  his 
client's  adversary. 

Union  Surety  Co.  vs.  Tenny,  200  111.  349. 
It  is  not  necessary  to  a  retainer  that  there  be  an  express  contract; 
the  contract,  like  other  contracts,  may  be  express  or  implied. 
Johnson  vs.  Brown,  51  App.  549. 


144  ATTORNEYS 

—  Charged  on  Firm  Books :  Where  a  partner  in  a  firm  of  at- 
torneys receives  a  retainer  fee  and  conducts  the  trial  of  the  cause, 
and  charges  the  fee  on  the  firm  book,  presumption  is  of  retainer  of 
firm,  but  such  presumption  may  be  rebutted. 

Harris  vs.  Pearce,  5  App.  622. 

—  When  Services  Need  Not  he  Proven:  A  recovery  upon  a  spe- 
cial contract  for  retainer  fee  to  an  attorney  may  be  had  without 
proof  of  any  services  at  all,  or  that  the  contract  was  fair  and 
reasonable.  The  client  cannot  escape  liability,  for  a  stipulated 
retainer  fee  by  merely  electing  to  dispense  with  the  attorney's 

'  'union  Surety  Co.  vs.  Tenny,  200  111.  349. 
Where  client  settles  case  before  attorney  performs  services,  sum 
agreed  upon  cannot  be  recovered,  but  only  actual  value  of  services 

rendered. 

Pratt  vs.  Kerns,  123  App.  87. 
Client  not  authorizing  employment  of  assistant  by  an  attorney 

is  not  liable. 

C.  &  S.  Trac.  Co.  vs.  Flaherty,  222  111.  67. 

—  No  Special  Contract:  Where  there  is  no  agreement  as  to 
amount  to  be  paid  an  attorney  for  his  services,  he  will  be  entitled 
to  a  just  compensation,  to  be  determined  by  what  is  usually  charged 
and  paid  for  the  same  or  similar  services  where  contracts  have  been 
made  with  persons  competent  to  contract,  or  if  there  is  no  usual 
charge  for  the  particular  services  rendered,  then  a  just  compen- 
sation is  wliat  is  fair  and  reasonable  under  all  the  facts  of  the 

particular  case. 

Bingham  vs.  Sprnill,  97  App.  374. 

WTiere  the  only  question  is  as  to  the  amount  due  for  attorney's 
fees,  the  proper  question  to  be  put  to  an  expert  witness  is,  what  is 
the  usual  and  customary  charge  for  such  services  as  were  rendered ; 
but  if  there  is  no  usual  and  customary  charge  for  such  services, 
it  is  proper  to  ask  what  such  services  were  reasonably  worth. 

A  general  objection  to  a  question  inquiring  as  to  the  fair  and 
reasonable  value  of  attorney's  services  is  not  sufficient  to  raise  the 
question  that  the  inquiry  should  be  directed  to  what  is  the  usual 
and  customary  charge  for  such  services. 
Maneaty  vs.  Steele,  112  App.  19. 

To  aid  in  determining  what  should  be  reasonable  solicitor's  fee 
for  certain  services,  evidence  may  be  introduced  as  to  what  is  the 

usual  and  customary  fee  for  similar  services. 

Zetner  vs.  Kosminski,  171  App.  570;  Nathan  vs.  Brand,  167  111.  607; 
Gilbert  vs.  Lloyd,  170  App.  436. 
But  this  is  not  essential  where  charge  is  not  excessive. 

Kadison  vs.  Fortune  Bros.,  163  App.  276. 
A  court  may  form  an  independent  judgment,  based  on  its  own 
knowledge  and  the  testimony  of  two  reputable  attorneys,  as  to  what 
is  a  reasonable  attorney's  fee  though  there  is  no  testimony  as  to 
what  is  the  usual  and  customary  charge. 
Zentner  vs.  Kozmiuski,  171  App.  570. 
AVhere  the  compensation  is  not  fixed  by  contract,  there  is  an 
implied  contract  for  such  reasonable  fee  as  is  usually  paid  for 

like  services. 

Elmore  vs.  Johnson,  143  111.  513. 


ATTORNEYS  145 

Where  an  attorney  is  anthorized  to  appear  and  assist  in  a  case, 

the  litigant  is  bound  to  pay  what  his  services  arc  reasonably  worth. 
Price  vs.  Hay,  132  111.  543. 

Where  an  attorney  sues  for  his  fee,  he  need  not  prove  his  pro- 
fessional competency  further  than  to  prove  that  he  is  in  actual 
practice,  there  being  nothing  to  prove  malpractice. 

Artz  vs.  Robertson,  50  App.  27, 

Where  an  attorney  seeks  to  recover  for  services  under  a  con- 
tract for  reasonable  fees,  evidence  is  not  admissible  to  show  that 
an  attorney  of  one  of  the  parties  gave  attention  to  the  matter,  it 
not  appearing  that  the  labor  of  the  plaintiff  was  in  any  way 
lightened. 

Hutchinson  vs.  Dunham,  41  App.  107. 

What  is  a  reasonable  fee  in  a  given  case  is  a  question  of  fact  in 
view  of  the  circumstances. 

Casley  vs.  Byers,  129  HI.  657. 

Wliich  question  of  fact  is  to  be  determined  by  the  weight  of  the 
evidence. 

Lemar  Ins.  Co.  vs.  Pennell,  19  App.  212. 

And  the  amount  involved,  as  well  as  the  labor,  and  skill  required 
in  the  services  is  competent. 

Campbell  vs.  Goddard,  17  App.  385;  Bruce  vs.  Dickey,  116  HI.  527. 

A  question  as  to  what  would  be  a  fair  and  customary  charge  for 

certain  services  by  an  attorney  is  properly  refused  in  action  by  the 

attorney  for  fees,  where  a  considerable  portion  of  the  services  which 

plaintiff  was  emploved  to  perform  is  not  included  in  the  question. 
Fuchs  vs.  Tone,  218  111.  445. 

An  allowance  of  a  fee  to  an  attorney  as  compensation  for  sign- 
ing an  indemnity  bond  for  his  client  cannot  be  sustained  where  there 
is  a  total  absence  of  evidence  in  the  record  to  justify  the  allowance. 

An  allowance  should  be  the  usual  charge  for  the  services  be- 
tween parties  competent  to  contract,  and  the  court  should  see  that 
its  decree  does  not  represent  the  mere  opinion  of  friendly  attor- 
neys as  to  what  would  be  proper  in  that  particular  case. 
McMannomy  vs.  C.  D.  &  V.  Ey.  Co.,  167  111.  497, 

Where  the  petitioner  in  condemnation  elects  not  to  take  the 

property  and  dismisses  its  petition,  proof  that  the  attorneys  for  the 

defendant  have  rendered  services,  coupled  with  proof  of  what  is  a 

reasonable  and  just  fee  for  such  services,  justifies  an  allowance  for 

such  fees,  even  though  there  is  no  proof  that  the  defendants  have 

paid  any  amount  to  the  attorneys  for  their  fees. 
Deneen  vs.  Unversagt,  225  111,  378. 

The  introduction  in  evidence  of  a  trust  deed  fixing  the  amount 

of  an  attorney's  fee  is  prima  facie  proof  of  the  reasonableness 

thereof. 

Dorn  vs.  Eoss,  177  111.  225. 

Expert  opinion  is  inadmissible  where  the  sei'vices  are  of  such 
character  that  a  certain  charge  has  become  customary,  to  show  what 
the  customary  charge  is  for  the  particular  service;  this  is  a  ques- 
tion of  fact. 

L.  N.  A,  &  C.  Ey,  Co,  vs.  Wallace,  136  111.  87. 

But  othei-wise  where  there  is  no  customary  charge,  value  often 
depends  upon  various  considerations,  as  upon  the  skill  and  stand- 

Ev.— 10 


146  ATTORNEYS 

ing  of  the  attorney,  the  nature  of  the  controversy,  the  question 
at  issue,  the  importance  of  the  suit,  the  responsibility  in  its  manage- 
ment and  the  time  and  labor  expended,  as  to  which  a  practicing 
lawyer  may  testify  as  an  expert. 

L.  N.  A.  &  C.  Ry.  Co.  vs.  Wallace,  136  111.  87. 
So,  whether  certain  services  and  disbursements  by  an  attorney 
were  necessary,  in  accordance  with  good  practice  in  the  profession, 
is  a  question  upon  which  a  lawyer  may  testify  as  an  expert. 

Artz  vs.  Eobertson,  50  App.  27. 

Testimony  of  attorne,ys  as  to  the  reasonableness  of  another  at- 
torney's charge  is  in  tlie  nature  of  opinion  and  not  binding  upon 
the  court. 

Lee  vs.  Loniax,  219  111.  218;   Chi.  Chair  Co.  vs.  Kennedy,  141  App. 
196. 

Where,  in  action  for  fees,  a  witness  testifies  that  he  was  an  at- 
torney on  the  opposite  side  of  the  case,  stating  the  work  done  and 
the  fees  charged  by  him.  it  is  proper,  on  cross  examination,  to  ask 
if  the  sum  charged  by  Inm  was  the  usual  fee  for  such  services. 
Levinston  vs.  Sands,  7-4  App.  273, 

In  action  for  fees  by  an  attorney  of  two  years  experience  where 
a  witness  testifies  as  to  the  usual  compensation  for  such  services, 
cross  examination  is  j^roper  which  asks  if  the  sum  named  is  the 
usual  compensation  for  the  services  of  an  attorney  liaviug  that  lim- 
ited experience. 

Levinston  vs.  Sands,  74  App.  273. 

In  action  by  attorney  to  recover  for  professional  services,  such 
services  resulting  in  a  favorable  compromise  of  litigation,  opinions 
of  other  attorneys  may  be  received  as  to  the  value  of  such  services 
rendered,  but  opinions  as  to  the  benefits  of  the  compromise  to  the 
defendant  in  his  1)usiness  in  the  future  are  not  admissible. 

"While  the  amount  involved  in  litigation  may  not  improperly  be 
considered  in  fixing  the  value  of  the  services  of  an  attorney  in  the 
case,  which  led  to  settlement  of  the  matters  in  dispute,  and  the 
securing  of  certain  rights  and  privileges  to  his  client,  yet  it  is  not 
admissible  to  go  into  inqiury  concerning  prospective  l)enefits  which 
may  accrue  in  the  future  to  the  client  from  such  settlement. 
;:  In  proving  the  value  of  legal  services  of  an  attorney  in  the 
defense  of  a  suit,  and  attending  to  other  matters,  leading  to  a  favor- 
able settlement  of  the  litigation,  it  is  not  proper  to  present  to  the 
view  of  the  .jury  the  settlements  made  with  other  persons  by  those 
settling  with  the  client,  either  by  direct  evidence  or  by  form  of 
hypothetical  questions  to  witnesses.  It  is  not  proper  to  show  that 
the  settlement  with  the  client  was  much  more  favorable  than  with 
other  parties.  Such  comparisons  should  not  be  permitted. 
Haish  vs.  Payson,  107  111.  365. 

Proof  as  to  the  regular  per  diem  charges  made  by  an  attorney 
does  not  throw  any  light  upon  the  value  of  services  rendered  by 
him  in  the  matter  of  negotiating  a  consolidation  of  corporate 
interests. 

Hughes  vs.  Ferriman,  119  App.  169. 

—  hi  junction:  Upon  the  dissolution  of  an  injunction,  allow- 
ance of  damages  for  solicitor's  fees  is  unauthorized  where  there 


ATTORNEYS  147 

is  no  proof  that  defendant  has  paid  or  become  lial)le  to  pay  any 
solicitor's  fees. 

Eeed  vs.  N.  Y.  Ex.  Bank,  230  111.  50;  Lawrence  vs.  Traner,  136  111 
474. 

To  show  what  is  a  reasonable  fee,  it  is  not  sufficient  to  show  what 
is  the  reasonable  and  customary  charge  merely ;  the  inquiry  should 
be  what  is  usually  and  customarily  charged  and  paid  for  like  serv- 
ices in  the  court  where  such  services  were  rendered,  where  the  fee 
is  the  subject  of  contract  or  where  the  matter  is  between  parties 
competent  to  contract. 

Crane  vs.  Village,  157  App,  595. 

Negligence  of: 

—  Presumption:  There  is  no  presumption  that  an  attorney  is 
guilty  of  want  of  care  arising  merely  from  his  failure  to  be  sucess- 
ful.  He  is  entitled  to  the  presumption  that  he  has  performed  his 
duty. 

Priest  vs.  Dodsworth,  235  111.  613. 
In  action  by  attorney  on  note  given  by  client,  if  there  is  no  ques- 
tion of  fraud  or  bad  faith,  but  defendant  claims  damages  caused 
by    attorney's   negligence    in    managing    business,    defendant    has 

burden  of  proving  such  plea  by  a  preponderance  of  the  evidence. 
Priest  vs.  Dodsworth,  235  111.  617. 

In  action  by  client  against  attorney  for  negligence  in  permitting 
a  suit  to  be  dismissed,  only  actual  damages  are  recoverable,  and 
plaintiff  has  burden  of  proving  both  the  validity  of  the  claim  he 
lost  and  the  solvency  of  the  defendant  in  the  suit,  to  entitle  him 
to  more  than  nominal  damages. 

Goldizier  vs.  Poole,  82  App.  469. 

Dealings  with  Clients: 

—  Presumptions:  A  contract  made  by  an  attorney  with  his 
client  ill  relation  to  an  interest  acquired  by  him  in  the  subject 
matter  of  pending  litigation  is  presumptively  fraudulent. 

Fox  vs.  Fox,  250  111.  384;   Eoby  vs.  Colehour,   135  111.   300,  XI  111. 
Notes  491,  §  95. 

A  conveyance  from  client  to  attorney,  pending  the  fiduciary  rela- 
tion between  them,  will  be  regarded  as  constructively  fraudulent, 
where  fairness,  adequacy  and  equity  are  not  shown. 

Willin  vs.  Burdette,  172  111.  117;  Eolfe  vs.  Eich,  149  111.  436. 

Where  the  relation  of  attorney  and  client  exists  between  parties 
to  a  note  and  mortgage  and  fraud  is  charged,  equity  will  treat  the 
case  as  one  of  eonstrucive  fraud  unless  the  attorney  shows  fairness, 
adequacy  and  equity. 

Faris  vs.  Briscoe,  78  App.  242. 

One  seeking  the  benefit  of  the  rules  that  an  attorney  who  pur- 
chases from  his  client  the  subject  matter  of  the  litigation,  will  be 
regarded  as  trustee  for  the  client,  and  tbat  for  an  attorney  to 
acquire  the  subject  matter  of  the  litigation  is  presumptively  fraud- 
ulent, must  establish  the  relation  of  attorney  and  client  existing 

with  respect  to  the  transaction. 

Francisco  vs.  Dove,  231  111.  402. 
Attorney  has  burden  of  proving  client's  deed  to  him  to  be  abso- 
lutely fair. 

Day  vs.  Wright,  233  111.  218. 


148  ATTORNEY'S  OPENING  STATEMENT 

The  relation  of  attorney  and  client  being  one  of  special  trust  and 
confidence,  the  law  requires  that  all  dealings  between  them  shall 
be  characterized  with  the  utmost  fairness  and  good  faith,  and  it 
scrutinizes  all  transactions  between  them.  So  strict  is  the  rule,  that 
dealings  between  them  are  held,  as  against  the  attorney,  to  be  prima 
facie  fraudulent,  and  the  burden  is  not  upon  the  client  to  establish 
fraud  and  imposition,  but  rests  upon  the  attorney  to  show  fairness, 
adequacy  and  equity. 

An  attorney  who  bargains  in  a  matter  of  advantage  to  himself 
with  his  client,  is  bound  to  show  that  the  transaction  is  fair  and 
equitable ;  that  he  fully  and  faithfully  discharged  his  duties  to  his 
client  without  misrepresentation,  or  concealment  of  any  fact 
material  to  his  client;  that  the  client  was  fully  informed  of  his 
rights  and  interests  in  the  subject  matter  of  the  transaction,  and 
the  nature  and  effect  of  the  contract,  sale  or  gift,  and  was  so  placed 
as  to  deal  with  the  attorney  at  arm's  length. 

Dryenforth  vs.  Palmer  Tire  Co.,  240  111.  25;  Morrison  vs.  Smith, 
130  111.  304;  Mansfield  vs.  Wallace,  217  111.  610;  William  vs.  Bur- 
dette,  172  111.  117.     (See  Fiduciaey  Eelations.) 

ATTORNEY'S  OPENINa  STATEMENT 

Admissibility  of  Evidence  to  Disprove : 

Statement  of  counsel  as  to  what  he  expected  to  prove  does  not 
have  the  weight  of  testimony  and  if  no  evidence  is  offered  tending 
to  prove  the  fact  stated  and  referred  to  by  counsel  it  is  to  be  dis- 
regarded and  hence  evidence  not  otherwise  competent  cannot  be 
admitted  to  discredit  a  statement  which  there  is  no  attempt  made 

to  prove. 

Howard  vs.  111.   T.  &  S.  Bank,   189  111.   568;   Penn.  Co.   vs.'Baekes, 

35  App.  375. 


AUTHENTICATION 

See  Books  of  Account,  Foreign  Laws,  Copies,  Records,  Certi- 
ficates, Handwriting. 

BAD  CHARACTER 

See  Character,  Credibility,  Impeachment. 

BAD  FAITH 

See  Good  Faith. 

BAIL 

See  Bonds,  Recognizance. 


BANKRUPTCY  149 

BAILMENT 

See  Parol,  Bills  of  Lading,  Inn  Keepers,  Value. 
Breach  of  Contract: 

—  Presumptions  and  Burden  of  Proof:  In  action  of  bailment 
for  hire,  as  well  as  where  the  bailment  is  gratuitous,  where  it 
appears  that  the  goods  were  placed  in  the  hands  of  the  bailee  in 
good  condition,  that  when  they  were  returned,  were  in  a  damaged 
state,  or  were  not  returned  at  all,  in  an  action  by  the  bailor  against 
the  bailee,  the  law  will  presume  negligence  of  the  latter  and  impose 
on  him  the  burden  of  showing  that  he  exercised  such  care  as  was 
required  by  the  nature  of  the  bailment.  The  reason  of  the  rule 
is  that  often  bailor  would  have  no  means  of  showing  how  loss  or 
injury  occurred,  or  whether  bailee  had  caused  it  by  his  negligence, 
while  the  facts  would  be  within  the  knowledge  of  bailee,  or  he  would 
know  from  what  source  they  could  be  ascertained. 

Edgerton  vs.  C.  R.  I.  &  P.  Ry.  Co.,  240  lU.  311;  Funkhouser  vs.  Wag- 
goner, 62  111.  59;  Cunimings  vs.  Wood,  44  111.  416;  Bennett  vs. 
b  'Brien,  37  111.  250 ;  C.  &  A.  Ry.  Oo.  vs.  P.  &  P.  U.  Ry.  Co.,  157 
App.  583;  Sinsebaugh  vs.  Ry.  Co.,  149  App.  642;  Vogelson  vs. 
Fredkyn,  133  App.  356;  Brewster  vs.  Weir,  93  App.  588;  Hudson 
vs.  Bradford,  91  App.  218. 

Possession  by  gratuitous  bailee  for  own  benefit  and  injury  to 
res  raises  presumption  of  negligence. 

Apezynskl  vs.  Butkiewicz,  140  App.  375. 

"The  bailee,  when  called  upon  for  the  article  deposited,  must 
deliver  it  or  account  for  his  default  by  showing  a  loss  of  it  by  some 
violence,  theft  or  accident.  When  the  loss  is  shown,  the  proof  of 
negligence  or  want  of  due  care,  is  thrown  upon  the  bailor,  and 
the  bailee  is  not  bound  to  prove  affirmatively  that  he  used  reason- 
able care." 

Bryan  vs.  C,  &  A.  Ry.  Co.,  169  App.  181. 

The  production  of  a  check  claimed  to  have  been  given  as  a  receipt 
for  baggage  is  prima  facie  proof  of  delivery  to  and  possession  by 
the  carrier  issuing  such  check. 

Graham  &  Morton  Co.  vs.  Young,  117  App.  257. 

Demand  and  Refusal: 

It  is  not  necessary,  in  action  of  case  for  property  lost  by  the 

negligence  of  the  bailee,  to  prove  a  demand  and  refusal. 
Warner  vs.  Dunavan,  23  HI.  380. 

Question  for  Jury: 

Degree  of  negligence  is  for  jury. 

Mayer  vs.  Brensinger,  180  111.  110;  Saunders  vs.  Hartsook,  85  App. 
55;  Shelly  vs.  Kahu,  17  App.  170. 


BALLOTS 

See  Contested  Elections. 

BANKRUPTCY 

See  Fraudulent  Conveyances,  Insolvency,  Intent,  Presump- 
tions, Assumpsit. 


150  BANKS 

BANKS 

See  Burden  of  Proof,  Books  ok  Account,  Judicial  Notice, 
Custom  and  Usage. 


BASTAEDY 

PROCEEDINGS  IN  GENERAL: 

Civil: 

Prosecutions  under  the  l^astardy  net  are  civil  and  not  criminal 
proceedings,  a!  I  hough  criminal  in  form. 

Scliarf  vs.  People,   134  111.  240;    Maynard  vs.  People,   135  111.  416; 
Miiiijs  vs.  People,  111  111.  98;   People  vs.  Noxou,  40  111.  30;   Pease 
vs.  Hubbard,  37  111.  257;  Kanoiowski  vs.  People,  113  App.  468. 
But  it  is  not  an  action  " (\r  contractu"  nor  is  the  foundation  of 
the  right  of  recovery  a  penalty. 

Seharf   vs.    People,    134   111.    240.      Overruling   Eawlings   vs.   People, 
102  III.  475. 
Only  the  mother  can  make  the  complaint. 

Jones  vs.  People,  53  111.  366;  Cook  vs.  People,  51  111.  143. 

WHO  MAY  MAINTAIN: 
Ncn-Resident : 

Under  the  statute  relating  to  bastardy,   a  non-resident  female 
may  prosecute  the  putative  father  in  the  courts  of  this  state. 

Seharf  vs.  People,  134  111.  240;  Mings  vs.  People,  111  111.  98;  Kolle 
vs.  People,  85  111.  336;   LaPlante  vs.  People,  60  Ai)p.  340. 

And  fact  that  child  was  born  in  another  country,  and  citizen 
thereof  at  time  of  trial  is  no  bar  to  prosecution. 

"         "  People  vs.  Graft,  170  App.  309. 
Unmarried  Woman: 

It   is   suthcient   defense   to   show   that   the   complaining  witness 
was  a  married  woman  at  time  of  birth  of  child. 

Vetten  vs.  Wallace,  39  App.  390;  Baird  vs.  People,  66  App.  671. 
But  not  so  as  to  time  of  making  complaint.     Marriage  subse- 
quent to  birth  of  child  is  no  defense. 

People  vs.  Volksdorf,  112  111.  292;  Eev.  S.  C,  12  App.  534. 

Woman  married  at  time  of  conception  cannot  prosecute. 

People  vs.  Grinin,  142  App.  588;  Vetteu  vs.  Wallaee,  39  App.  390. 
A  jury  may  infer  that  the   mother  was  an  unmarried  w^oman 
from  the  fact  appearing  that  defendant  paid  his  attentions  to  her 

as  such. 

Cook  vs.  People,  51  111.  143. 
AVhere   complaining  witness  testified   that  at  time   of  trial  she 
was  unmarried,  and  spoke  of.  being-  engaged  to  and  expecting  to 
marry  defendant  when  the  sexual  intercourse  took  place,  same  is 
sufficient. 

LaPlante  vs.  People,  60  App.  340. 
So  it  may  be  inferred  that  the  mother  was  an  .unmarried  woman 
where  she  spoke  of  herself  as  an  unmarried  woman,  and  of  defend- 
ant as  having  kept  company  with  her  for  a  year  and  a  half. 
Durham  vs.  People,  49  111.  233. 
The  complaint  is  not  competent  for  purpose  of  showing  prose- 


BASTARDY  151 

cutrix  was  an  unmarried  woman  a  I  lime  of  conception  and  birth 

of  child.  I'lClir;     ;   .       ;: 

Harrison  vs.  People,  81  App.  9o.  i.'    ;i: 

But  where  bond  given  by  defendant  for  his  appearance  recited 
that   complaint  was   made   by   a   certain   person,   "an    unmarried 
woman,"  such  recital  was  held  to  be  an  admission  that  the  mother 
of  the  child  was  an  unmarried  woman. 
Cook  vs.  People,  HI  111.  143. 

ADMISSIBILITY  OF  EVIDENCE: 

Depositions : 

Are  admissible. 

Eichardson  vs.  People,  31  111.  170. 

Offers  of  Oompromise : 

Are   not   admissible. 

Gelm  vs.  People,  87  App.  158. 

Complaint : 

Is  inadmissible. 

Harrisou  vs.  People,  81  App.  93. 

Child: 

It  is  improper  to  inti-oduce  the  child  in  evidence  for  the  pur- 
pose of  showing  a  resemblance  between  it  and  the  defendant. 
Eobuett  vs.  People,  16  App.  299. 

But  at  the  request  of  a  juror,  the  child  was  shown  to  the  jury. 

It  was  not  ofifered  in  evidence  by  the  peoj^le.     There  was  an  effort 

made  by  defendant  to  prove  the  father  to  have  been  an  Italian, 

and  this  perhaps  justitied  the  court  in  complying  with  juror's 

request. 

Morrison  vs.  People,  52  App.  482. 

And  the  child  may  be  permitted  to  remain  in  the  court  room 
during  the  trial,  where  it  is  not  offered  in  evidence,  nor  exhibited 
to  the  jury,  nor  referred  to  in  their  presence. 
Eose  vs.  People,  81  App.  128. 

Naming"  Child: 

Evidence  is  not  admissible  to  show  that  the  mother  had  named 

the  child  after  the  reputed  father. 
Corcoran  vs.  People,  27  App.  638. 

Poverty  of  Mother : 

Improper  to  show. 

Corcoran  vs.  People,  27  App.  638. 

General  Reputation: 

—  Of  FroseciUing   Witness:     The  fact  that  prosecutrix  is  an 

unchaste  woman  is  immaterial. 

Hobson  vs.  People,  72  App.  436;  Scharf  vs.  People,  34  App.  400; 
Zimmerman  vs.  People,  117  App.  54;  Holcomb  vs.  People,  79  111. 
409. 

—  Of  Defendant:     Proof  is  incompetent  to  show  that  defend- 
ant is  father  of  another  illegitimate  child. 

LnPlante  vs.  People,  60  App.  340. 

Admissions  of  Defendant: 

—  Naming  Child:     The  fact  that  after  the  prosecutrix  became 

prpgnant  and  defendant  knew  it,  they  had  a  conversation  as  to 

what  name  the  child  should  have,  is  competent  as  a  circumstance 

showing  he  felt  he  was  the  father. 
Jlobson  vs.  People,  72  App.  436. 


152  BASTARDY 

—  Unexecuted  Agreement  of  Settlement:  While  an  offer  by 
way  of  compromise  is  not  admissible  in  evidence  against  party 
making  it,  admissions  of  independent  facts  made  in  course  of  at- 
tempts to  settle,  are  admissible,  unless  expressly  stated  as  made 

without  prejudice  or  in  confidence. 

Alminowiecz  vs.  People,  117  App.  415;  Miene  vs.  People,  37  App.  589; 
Moore  vs.  People,  13  App.  248. 
But  a  mere  unaccepted  offer  to  pay  a  sura  in  compromise  of  a 
claim  is  not  admissible  as  admission  and  cannot  be  given  in  evi- 
dence. 

Gelm  vs.  People,  87  App.  158. 

Admissions  of  Prosecuting  Witness: 

Admissions  and  declarations  of  prosecutrix  are  admissible  for 
purpose  of  impeaching  her,  but  her  attention  should  be  called  to 
the  testimony  thus  proposed  to  be  given,  during  her  examination 
as  a  witness,  otherwise  same  is  not  admissible. 

Johnson  vs.  People,  140  111.  350.     Overruling  McCoy  vs.  People,  71 
111.  111. 
Declarations  before  birth  of  child  and  recognition  by  relatrix 
of  one  as  father  other  than  defendant  is  proper. 
Zinunernian  vs.  People,  117  App.  54. 
And  may  show  that  prosecuting  witness  testified  differently  on 

a  former  trial. 

Conunon  vs.  People,  39  App.  31. 
But  her  self-serving  statements  during  pregnancy,  as  to  patern- 
ity, are  inadmissible. 

People  vs.  Welch,  143  App.  191. 
Nor  statements  of  prosecutrix  as  to  necessity  for  becoming  preg- 
nant to  compel  marriage. 

Johnson  vs.  People,  140  111.  350. 
Where  counsel,  on  cross  examination,  proposed  to  inquire  where 
complainant  went,  dined  and  passed  the  remainder  of  the  day  on 
which  she  said  the  child  was  begotten,  and  after  the  act,  with  view 
to  show  she  had  given  different  accounts  of  those  matters,  such 
proposed  inquiry  was  properly  excluded. 
Moore  vs.  People,  13  App.  248. 

Conception  and  Gestation: 

—  Date:  The  exact  date  on  which  the  child  was  begotten  is 
immaterial,  and  though  the  relatrix  is  mistaken  as  to  the  date, 
yet,  if  the  jury  believe  from  the  evidence  that  the  defendant  was 
the  father  of  the  child,  they  should  find  him  guilty,  as  it  matters 

not  at  what  time  he  became  so. 

Holcomb  vs.  People,  79  111.  409;  Beck  vs.  People,  115  App.  19;  Boss 
vs.  People,  34  App.  21. 
So  it  is  not  essential  that  it  should  appear  that  the  period  of 
gestation  was  for  the  usual  length  of  time,  the  evidence  being 
otherwise  satisfactory  in  that  regard. 
Cook  vs.  People,  51  111.  143. 
It  being  proven  that  the  woman  gave  birth  to  a  child  at  a  given 
date,  it  may  be  inferred  that  the  child  was  born  alive  and  is  still 

living. 

Mann  vs.  People,  35  111.  467;  Lewis  vs.  People,  87  App.  588. 

—  Inquiry  in  General:  Evidence  that  other  persons  had  sexual 
intercourse  with  the  prosecutrix,  at  or  near  the  time  the  child  was 


BASTARDY  153 

begotten,  is  competent  as  tending  to  raise  a  doubt  as  to  the  patern- 
ity of  the  child. 

Holconib  vs.  People,  79  111.  409;  Pike  vs.  People,  34  App.  112  j  People 
vs.  Gasner,  152  App.  54;  Ziinnierinan  vs.  Peoi)le,  117  App.  54. 
After  conception,  particular  acts  immaterial. 

Hobson  vs.  People,  72  App.  436;  Scharf  vs.  People,  34  App.  400. 
—  Cross  Examination:  In  this  class  of  cases  an  innovation  has 
been  made  on  the  strict  rules  of  cross  examination  so  far  as  to  per- 
mit defendant  to  ask  the  woman  whether,  within  the  period  of 
gestation,  she  had  had  intercourse  with  other  men,  for  purpose  of 
overcoming  the  probability  of  accused  being  the  father. 
Holcomb  vs.  People,  79  111.  409. 

The  mother  may  be  asked  if  she  has  had  intercourse  with  other 

men,  if  the  inquiry  is  limited  to  the  time  when,  according  to  the 

course  of  nature,  the  child  might  have  been  begotten. 
Holcomb  vs.  People,  79  111.  409. 

Error  to  refuse  to  require  the  mother  to  answer,  on  cross  exam- 
ination, the  following  questions:  "When  was  the  last  time  you 
had  your  monthly  sickness  previous  to  the  birth  of  the  child  ?  Did 
you  not,  at  defendant's  house,  in  presence  of  Miss  Preston,  tease 
and  pick  at  Wright  ?  Did  not  you,  at  the  house  of  Isham  Preston, 
a  short  time  before  you  left  defendant's  house,  in  presence  of  Miss 
Preston,  say  you  had  a  notion  to  kiss  Charles  Wright  and  see  what 
he  would  do?  Did  not  you,  at  house  of  defendant,  in  the  month 
of  July  or  August,  go  into  the  kitchen  where  Jack  Baldwin  was 
lying,  and  pull  up  your  clothes  and  show  him  your  legs,  and  look 

at  him  and  smile?" 

Eobnett  vs.  People,  16  App.  299. 

Wliere  child  was  born  June  18,  1888,  upon  inquiry  as  to  the 
paternity  of  child,  questions  for  purpose  of  ascertainng  whether 
or  not  prosecutrix  had  illicit  intercourse  with  other  men  than  de- 
fendant, between  August  14  and  September  18,  1887,  proper. 
Pike  vs.  People,  34  App.  112. 

And  where  child  was  born  September  20,  1886,  inquiry  improper 

as  to  conduct  of  prosecutrix  in  March,  June  and  July  of  that  year. 
Scharf  vs.  People,  34  App.  400. 

Evidence  is  relevant  and  admissible  to  show  that  mother  had 
sexual  intercourse  with  other  men  in  period  between  beginning  of 
shortest  and  longest  known  time  of  gestation. 
Pike  vs.  People,  34  App.  112. 

Defense  should  be  allowed  to  show  that  witness  for  defendant 
and  prosecutrix  were  on  friendly  and  intimate  terms  and  frequently 
in  the  society  of  each  other  prior  to  time  of  alleged  intercourse. 
Majmard  vs.  People,  135  111.  416. 
Any  circumstances  tending  to  show  that  condition  might  have 
been  caused  by  sexual  intercourse  with  other  men  is  properly  ad- 
n  itted  in  defense.     Therefore,  it  is  proper  to  permit  witness  to 
testify  that  about  time  of  alleged  pregnancy,  he  saw  such  woman 
out  late  at  night  wuth  men  and  boys. 
Maynard  vs.  People,  135  111.  416. 
Where   defendant   shows  gifts  by  another  man   to   prosecutrix, 
obligation  and  gifts  to  other  members  of  family  are  provable. 
Leek  vs.  People,  118  App.  514. 


154  BASTARDY 

On  issue  involving  question  whether  defendant  had  sexual  inter- 

eonrse  with  prosecutrix  it  being  shown,  as  a  eircunistance  against 

him,  that  he  bought  her  a  corset,  it  was  competent  for  him  to  prove 

that  the  mother  of  the  young  woman  sent  an  order  to  the  girl's 

brother,  requesting  him  to  get  a  corset  for  his  sister,  and  that,  being 

unacquainted  with  corsets,  he  got  defendant  to  get  it  for  him.     In 

such  case,  what  passed  between  defendant  and  girl's  brother  was 

part  of  res  gestae,  and  admissible  in  evidence. 
Maynard  vs.  People,  135  111.  416. 

Prosecution  may  show  that  defendant  and  mother  rambled  to- 
gether on  summer  evenings  about  time  she  became  pregnant,  and 

that  no  young  man  came  to  see  relatrix  except  defendant. 
Curran  vs.  People,  35  App.  275. 

—  Corroboration:     Testimony    of   other   young   men,    living   at 
home  of  relatrix,  that  they  had  never  had  sexual  intercourse  with 
her,  has  been  held  competent  under  circumstances  of  case. 
Corcoran  vs.  People,  27  Apj).  638. 

Where  prosecutrix  testifies  that  intercourse  was  at  a  hotel,  at 
which  she  stayed  with  defendant,  and  that  defendant  told  her  he 
had  registered  under  other  names,  and  in  character  of  husband  and 
wife,  the  hotel  register,  showing  the  registration  stated,  is  relevant 
to  corroborate  her  testimony. 

Seharf  vs.  People,  34  App.  400. 

Letters  of  defendant  to  rehitrix,  which  show  intimacy  and  rela- 
tions between  them,  are  admissible  in  corroboration  of  complain- 
ant's testimony. 

Seharf  vs.   People,  34  App.  400. 

Opinion  and  Expert: 

Upon  question  whether  child  had  seen  full  or  natural  period  of 
gestation,  a  physician  may  be  allowed  to  give  his  opinion,  based  on 
appearance  of  child  at  trial. 

And  on  question  whether  more  than  seven  months  had  elapsed 

between  act  of  connection  and  birth  of  child,  expert  witness  may 

be  allowed  to  testify  that  in  event  the  child  had  l^een  a  seven  months 

child,  and  had  been  treated  at  its  birth  in  the  manner  in  which  the 

evidence  showed,  its  chances  of  survival  would  have  been  small. 
People  vs.  .Toliiison,  70  App.  634. 

WEIGHT  AND  SUFFICIENCY: 

Burden  of  Proof: 

The  burden  of  establishing  paternity  of  child  is  on  complainant. 
Johnson  vs.  People,  140  111.  350;  Peek  vs.  People,  76  111.  289. 

Mother  Unmarried  Woman: 

May  be  implied  from  evidence,  when  not  directly  stated. 

Alniinowicz  vs.  People,  117  App.  415;  Durham  vs.  People,  49  111.  233. 

Degree  of  Proof: 

(hiilt  of  defendant  is  not  to  be  established  beyond  reasonable 
doubt.     A  preponderance  of  the  evidence  is  sufficient. 

Lewis  vs.  People,  .82  111.  104;  People  vs.  Chrisman,  66  III.  162;  Alli- 
son vs.  People,  45  III.  37;  Mann  vs.  People,  35  111.  467;  Gelm  vs. 
Peoi.le,  8T   A])p.   158;   XI  111.  Notes  559,  §22. 

Credibility  of  V/itnesses : 
Is  for  the  jury. 

Johnson  vs.  People,  140  111.  350;  Lewis  vs.  People,  87  App.  588; 
MeFarlan.l  vs.  People,  72  111.  368 ;  Kellev  vs.  People,  29  111.  287 ; 
Wilson  vs.  People.  26  111.  435. 


BEST  AND  SECONDARY  155 

And  it  is  improper  lo  instruct  jury  that  if  relatrix  and  defend- 
ant are  exactly  opposctl,  one  olf-sets  the  other,  and  ludess  lliere  is 
evidence  giving  a  preponderance  to  plaintilf,  tliey  should  tind  for 

defendant.  '  ',    "^ 

Johnson  vs.  People,  140  111.  350;   LaPlante  vs.  People,  60  App.  340. 
Overruling  Mcl^'arlaiid  vs.  I'eople,  72  111.  3(58. 

And  it  is  improper  to  instruct  jury  that  the  mother  of  the  child 

is  most  likely  to  know  who  its  father  is. 
Hoindsolman  vs.  People,  52  App.  542. 

SETTLEMENT : 
Impeachment  of  Receipt: 

A  receipt  given,  expressing  to  he  in  full  settlement  of  case,  is 
prima  facie  evidence  of  full  settlement,  so  that  hurden  of  assert- 
ing contrary  is  upon  party  seeking  to  impeach  receipt,  to  he  estal)- 

lished  hy  a  preponderance  of  the  evidence. 
iMeElbauey  vs.  People,  1  App.  550. 
And  a  release  of  defendant  may  be  avoided  hy.  proving  same 
was  obtained  by  fraud  or  duress. 
Gurley  vs.  People,  31  App.  465. 


BATTERY 

See  Assault  and  Battery, 

BEASTS 

See  Animals. 

BENEFICIARIES 

See  Insurance,  Witnesses. 

BENEFIT  ASSOCIATIONS 

See  Insurance. 

BEQUESTS 

See  Wills. 

BEST  AND  SECONDARY 

See   Lost   Instruments,    Production   of   Documents,    Copies, 
Age,  Kecords,  Letter  Press  Copies. 


156  BEST  AND  SECONDARY 

IN  GENERAL: 
Necessity  of  Production: 

The  best  evidence  of  which  the  nature  of  the  case  admits  must 

be  produced. 

Carter  vs.  Carter,  152  111.  434;  Prentice  vs.  Crane,  234  111.  302; 
Anderson  vs.  Irwin,  101  111.  411;  Farrell  vs.  Park  Comrs.,  182  111. 
250 ;  Mandel  vs.  Swan  Land  Co.,  154  111.  177 ;  Mariner  vs.  Saunders, 
10  111.  113;  XII  111.  Notes  489,  §  109. 

In  determining  what  is  the  best  evidence  the  nature  of  the  case 
will  admit  of,  and  what  is  secondary  evidence,  regard  must  be  had, 
to  some  extent,  of  the  nature  and  character  of  the  business  to  which 
the  evidence  relates,  and  the  method  of  its  conduct. 
P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Chicago,  242  111.  178. 

The  law  only  excludes  such  evidence  as,  from  the  nature  of  the 

case,  supposes  there  is  other  evidence  superior  in  grade  or  quality 

iu  the  power  of  the  party  to  produce. 

Vigus  vs.  O'Bannon,'  118  111.  334;  Mattingly  vs.  Crowley,  42  111.  300. 

Existence  of  Writing: 

It  is  competent  to  prove  the  existence  or  the  fact  of  the  execu- 
tion of  a  writing  by  oral  testimony,  without  the  production  of  the 

writing. 

Ashley  vs.  Johnson,  74  111.  392;  Massey  vs.  Farmers'  Natl.  Bank, 
113  111.  334. 

Document  Beyond  Jurisdiction: 

Where  books  are  out  of  the  state  and  beyond  the  jurisdiction 

of  the  court,  and  if  produced  could  not  be  conveniently  examine  1 

in  court,  results  of  examinations  by  competent  witnesses  may  be 

shown. 

Prov.  S.  L.  Assn.  vs.  King,  216  111.  417;  Smith  vs.  Peoria  Co.,  59 
111.  412;  Guaranty  Co.  vs.  M.  B.  &  L.  Co.,  57  App.  254. 

Where  an  original  paper  is  in  the  hands  of  a  third  party,  resid- 
ing out  of  the  state,  and  he  refuses  to  attach  same  to  his  deposition, 
when  taken,  on  request  to  do  so,  a  sworn  copy  taken  by  another 
person  present,  who  attaches  such  copy  to  his  deposition,  is  admis- 
sible in  evidence. 

Fisher  vs.  Greene,  95  111.  94;  McDonald  vs.  Erbes,  231  111.  295; 
Dreische  vs.  Jones,  133  App.  572. 

One  who  seeks  to  introduce  copy  of  a  written  instrument,  the 

original  of  which  is  beyond  jurisdiction  of  court  and  in  hands  of 

a  third  person,  must  show  in  addition,  that  he  has  made  due  effort 

to  obtain  the  original  for  use  at  the  trial. 

McDonald  vs.  Erbes,  231  111.  295;  Bishop  vs.  Amer.  Pres.  Co.,  157 
111.  284;  Dickison  vs.  Breeden,  25  111.  1S6. 

Secondary  evidence  proper  wiiere  party  against  whom  offered 
wrongfully  placed  writings  in  record  of  another  court. 

Mount  vs.  Scholes,  21  App.  192. 
Or  against  party  removing  writing  from  state. 

Mitchell  vs.  Jacobs,  17  111.  234. 

Voluminous  Documents: 

Where  the  results  of  voluminous  facts  contained  in  writings,  or 
of  the  examination  of  many  records  and  books,  are  to  be  proven, 
and  the  necessary  examination  of  the  documentary  evidence  can- 
not be  conveniently  or  satisfactorily  made  in  court,  it  may  be 
made  by  an  expert  accountant  or  other   competent  person,   and 


BEST  AND  SECONDARY  157 

the  results  thereof  proven  by  him,  if  the  books,  papers  or  records 
are  themselves  property  in  evidence. 
Welsli  vs.  8huiuway,  232  111.  54. 
The  evidence  of  a  book-keeper,  accountant  or  other  person  skilled 
in  the  work  of  that  character,  is  competent  to  show  footing  of  a 
column  of  figures  or  to  show  the  result  of  any  calculation  from  a 
complicated  set  of  figures  which  cannot  be  readily  carried  in  the 

mind  of  the  jury,  where  the  calculation  is  purely  mathematical. 

Estate  of  Smythe  vs.  Evans,  209  111.  376;  Guar.  Tr.  Co.  vs.  Mut.Bldg. 
Assoc,  57  App.  254. 
Where  books  and  documents  are  voluminous,  schedules  show- 
ing data  and  results  may  be  used  by  witness  in  testifying,  but 
even  in  such  case  the  originals  should  be  at  hand,  so  that  the  oppo- 
site party  may  have  an  opportunity  to  examine  them  to  verify 

the  correctness  of  such  schedules. 

Doyle  vs.  I.  C.  E.  E.  Co.,  113  App.  532;  Keinke  vs.  Sanitary  Dist., 
260  111.  380. 
Whether  or  not  the  records  or  waitings  show  a  certain  fact  can- 
not generally  be  proven  by  parol  evidence  unless  the  documents 

are  in  court. 

Welsh  vs.  Shiimway,  232  111.  54. 

Written  Instruments  in  General: 

Secondary  evidence  of  contents  of  a  writing  is  inadmissible  in 
absence  of  satisfactory  proof  of  inability  to  produce. 

Yoimg  vs.  People,  221  111.  51;  Massey  vs.  Farmers'  Natl.  Bank,  113 
111.  334;  Hazen  vs.  Pierson,  83  111.  241. 
Proof  of  loss  and  search  is  essential  to  admission  of  secondary 

evidence. 

Eeic'li  vs.  Berdell,  120  111.  499;  Pardee  vs.  Lindley,  31  111.  174. 

Where  destruction  is  not  established,  proof  of  diligent  search  in 

good  faith  is  essential. 

Chicago  vs.  Mandel,  239  111.  559;  Crane  Co.  vs.  Tierney,  175  111.  79; 
Worthing  vs.  Hall,  153  App.  587;  XII  111.  Notes  492,  §  130. 
Effort  must  be  as  thorough  as  if  party  would  otherwise  lose 

benefit  of  evidence. 

Prussing  vs.  Jackson,  208  111.  85;  Eankin  vs.  Crow,  19  111.  626. 

Proof  of  execution  of  instrument  must  be  as  strict  as  if  instru- 
ment itself  were  in  court. 

Dagley  vs.  Black,  197  111.  53;  Owen  vs.  Thomas,  33  111.  320. 

But  proof  of  execution  unnecessary  where  it  would  not  be  re- 
quired if  original  were  produced. 
Palmer  vs.  Logan,  4  111.  56. 
Secondary  evidence  of  contents  of  writing  in  hands  of  adver- 
sary inadmissible  without  notice  to  produce. 

Young   vs.  People,    221   111.   51;    Wright   vs.   Eaftree,   181   111.   464; 
Strader  vs.  Snider,  67  111.  404. 
Failure  to  produce  on  notice  is  ground  for  admission  of  second- 
ary evidence. 

Suburban  Ey.  Co.  vs.  Balkwill,  195  111.  535;   Bisho])  vs.  Amer.  Pres. 
Co.,  157  111.  284;  Marlow  vs.  Marlow,  77  111.  633. 

Wrongful  Withholding  or  Destruction  of  Evidence : 

—  In  General:    Where  adverse  party  has  possession  or  control 


158  BEST  AND  SECONDARY 

of  primary  evidence  and  fails  or  refuses  to  produce  same,  resort 
may  be  had  to  secondary  evidence. 

Mallow  vs.  Mallow,  77  111.  G33;  Mitchell  vs.  Jacobs,  17  111.  234; 
Eector  vs.  Eector,  8  111.  105. 

As  where  same  has  been  removed  from  State  and  beyond  adver- 
sary's  reach. 

Suburban  Ry.  Co.  vs.  Balkwill,  94  App.  454;  Affd.,  195  111.  535. 

When   a  party  voluntarily   destroys  a   written   instrument,   he 

cannot  prove  its  contents  by  secondary  evidence,  unless  he  repels 

every  presumption  of  a  fraudulent  design. 
Blake  vs.  Fash,  44  111.  303. 

—  Effect:     If  such  secondary  evidence  is  imperfect,   vague  or 

uncertain,  every  intendment  or  presumption  shall  be  against  party 

who  might  remove  all  doubt  by  producing  the  higher  evidence. 

Cartier  vs.  Troy  Lbr.  Co.,"  138  111.  533 -^  Rector  vs.  Rector,  8  111.  105; 
Princeville  vs.  Hitchcock,   101  App.  588. 
But  such  inference  does  not  mean  that  if  primary  proof  were 
produced  it  would  establish  the  facts  alleged. 

Cartier  vs.  Troy  Lbr.  Co.,  138  111.  533.  (See  Destruction,  Suppres- 
sion AND  Fabrication.) 

Lost  or  Destroyed  Writing-: 

AVhere  original  instrument  has  been  lost  or  destroyed  or  wrong- 
fully detained,  and  loss  or  destruction  was  not  at  instance  or  with 
consent  of  either  party,  secondary  evidence  is  admissible  to  prove 
contents. 

Concord  House  Co.  vs.  O'Brien,  228  111.  360;  Mavfield  vs.  Turner, 
180  111.  332;  Bishop  vs.  Amer.  Pres.  Co.,  157  111.  284;  Blakely 
Printing  Co.  vs.  Pease,  95  App.  341;  XII  111.  Notes  491,  §  125. 

In  order  to  introduce  secondary  evidence  it  is  not  necessary  that 
proof  of  loss  be  beyond  the  possibility  of  a  mistake. 
Union  Tel.  Co.  vs.  Kemp  Bros.,  55  App.  583. 
But   preliminary   proof  of  loss  is  preliminary   to  introduction 
of  secondary  evidence. 

Pardee  vs.  Lindley,  31  111.  174. 

Any  one  wdio  knows  the  facts  may  prove  contents  of  lost  paper, 
Rankin  vs.  Crow,  19  111.  62G. 

Where  records  are  lost  or  destroyed,  their  contents  may  be 
proven  bv  verbal  testimony. 

People  vs.  Cotton,  250  111.  338;  Ashley  vs.  Johnf^on,  74  111.  392. 

PRELIMINARY  PROOF: 

Discretion  of  Court: 

Preliminary   proof,   laying  the   foundation   for  introduction   of 
secondary  evidence  of  contents  of  lost  instrument,  is  addressed  to 
the  court,  and  the  court  determines  whetiier  sufficient  has  been 
shown  to  peraiit  secondary  evidence  to  go  to  the  jury,  and  recovery 
is  had,  ii  at  all,  upon  the  instrument  thus  proved. 
Grimes  vs.  Hilliary,  150  111.  141. 
Determination  of  sufficiency  is  discretionary'  with  court. 
Florsheim  vs.  Palmer,  99  App.  559. 

Affidavits : 

Affidavits  of  persons  not  parties  to  suit,  but  who  are  competent 
witnesses,  are  inadmissible  to  prove  loss  of  instrument  sued  on  so 
as  to  permit  secondary  evidence  of  contents. 

McFarland  vs.  Dey,  (39  111.  419;  Becker  vs.  Quigg,  54  111.  390. 


BEST  AxND  SECONDARY  159 

The  party  is  required  to  give  some  evidence  that  such  a  paper 
once  existed  and  that  a  hotut  fide  diliycnt  search  has  l)(H'n  unsuc- 
cessfully made.  If  it  belonged  to  the  custody  of  certain  persons, 
or  is  proved  or  may  be  presumed  to  have  been  in  their  possession 
they  must,  in  general,  be  called  and  sworn  to  account  for  it,  if  they 
are  in  reach  of  the  process  of  the  court.  If  the  search  has  been 
made  by  a  third  person,  lie  must  be  called  to  testify  respecting  it. 
The  affidavit  of  the  party  on  question  of  loss  of  a  paper  may  be 
admitted  to  exclude  any  presumption  that  he  may  have  it  in  his 
possession;  but  those  who  may  be  .admitted  as  witnesses  must  tes- 
tify in  the  usual  form  in  order  that  advantage  of  ci'oss  examina- 
tion may  be  preserved. 

Becker  vs.  Quigg,  54  111.  390. 

Can  only  be  made  by  part}^  to  suit,  his  agent  or  altornev. 
Bauer  vs.  Glos,  244  111.  627.  ,-, 

Except  where  deed  lost  made  to  antecedent  grantee,  preliminary 
proof  may  be  made  by  such  grantee. 
Pardee  vs.  Lindiey,  31  111.  174. 

An  affidavit  for  secondary  evidence  of  deed  which  stated  that 

instrument  was  "not  in  the  power  of  affiant  to  produce  and  use 

on  trial  of  cause,"  suthcient. 

Spitzer  vs.  Schlatt,  249  111.  416. 

Likewise  that  the  originals  of  such  deeds  are  "each  and  all 
acknowledged  and  entitled  to  be  recorded,  and  that  such  originals 
are  each  and  all  lost  and  destroyed,  and  not  in  power  of  complain- 
ant to  produce,  and  not  intentionally  destroyed  or  disposed  of  for 
purpose  of  introducing  copies." 
Ellison  vs.  Glos,  248  111.  275. 

But  not  an  affidavit  that  all  the  deeds  "were  not  so  destroyed  or 

disposed  of." 

Scott  vs.  Bassett,  194  111.  602. 

Affidavit  need  not  show  that  deed  is  lost  and  also  not  in  power 

of  party  wishing  to  use  it. 

"Culver  vs.  Waters,  248  111.  163.     Cf.  Scott  vs.  Bassett,  186  111.  98. 

Circumstances  showing  want  of  power  to  produce  must  be  al- 
leged. 

Booth  vs.  Cook,  20  111.  130. 

Showing  Purpose  for  Which  Evidence  Offered: 

When  secoudarj^  evidence  is  offered  as  to  contents  of  writing, 

it  is  clearly  necessary  for  court  to  be  informed  in  advance  what  is 

proposed  to  be  proven,  in  order  to  pass  intelligently  on  question 

of  admissibility  of  evidence,  and  if  this  is  not  done,  evidence  may  be 

properly  excluded, 

Berkowsky  vs.  Cahill,  72  App.  101. 

Notice  to  Produce: 

—  NecrssUij  For:    Fact  of  notice  must  be  shown. 
Holbrbok  vs.  Township  Trustees,  22  111.  539. 

Notice  to  produce  a  notice  is  not  necessary  in  order  to  admit  sec- 
ondary evidence  of  contents.  If  sent  by  mail,  the  address  on  the 
envelope  may  be  regarded  as  a  portion  of  notice  showing  to  whom 

it  was  directed. 

Williams  vs.  Mut.  Ins.  Co.,  68  111.  387;  Prairie  State  Bank  vs.  Gor- 
rie,  64  App.  325;   Ware  vs.  llursch,  19  App.  277. 


160  BEST  AND  SECONDARY 

—  Reasonable:  To  compel  production  of  books  to  be  read  in  evi- 
dence, the  part}^  must  have  reasonable  notice. 

First    Natl.   Bank  vs.    Mansfield,   48    111.   494;    Field   vs.   Zemansky, 
9  App.  479. 

—  When  Unnecessary:  When  paper  or  document  wanted,  if  in 
existence  at  all,  must  be  under  control  of  party  to  suit,  and  is  one 
which  he  must  know  will  be  indispensable  to  his  adversary,  notice 

to  produce  is  not  necessary. 

Con.  Ins.  Co.  vs.  Sogers,  119  App.  474;  Dawes  vs.  Dawes,  116  App. 

36 ;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Newlin,  74  App.  638. 

The  rule  that  when  a  paper  or  .document  is  one  which  party  must 

know  will  be  indispensable  to   his  adversary,  notice  to  produce 

may  be  dispensed  with,  does  not  apply  to  papers  which  are  not 

part  of  contract  sued  on,  nor  of  performance  of  any  duty  imposed 

by  such  contract. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.. Newlin,  74  App.  638. 

Notice  not  necessary  where  paper  in  court  at  time  of  trial. 
Field  vs.  Zemansky,  9  App.  479. 

Not  essential  where  originals  are  lost. 

C.  C.  C.  &  St.  L.  E.  Co.  vs.  Fatten,  104  App.  550. 
Where  evidence  shows  instrument  to  have  been  destroyed,  notice 

to  produce  is  not  essential. 

Ehode  vs.  McLean,  101  111.  467;  Stadler  Erg.  Co.  vs.  Weadley,  99 
App.  161. 
Where  proof  shows  opposite  party  has  not  the  instrument  in 
his  power,  notice  is  not  necessary  to  admit  parol  evidence  of  con- 
tents.    Proof  of  loss  is  sui^cient. 

Taylor  vs.  Melrviin,  94  111.  488;  Brew.  Co.  vs.  Weadley,  99  App.  161; 
Wells  vs.  Miller,  37  111.  276. 

—  When  Served:  Must  be  served  long  enough  before  trial  to 
enable  party  to  produce  documents  or  make  due  search  for  them. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Newlin,  74  App.  638;  Bushnell  vs.  B. 
H.  Colony,  28  111.  '204. 

—  3Iust  he  Specific:  A  notice  to  produce  books  and  papers  must 
describe  the  books  and  papers  intended  with  sufficient  particularity 
to  enable  party  to  determine  what  is  wanted. 

Nusbaum  vs.  U.  S.  Brew.  Co.,  63  App.  35;  Berkowsky  vs.  Cahill,  72 

App.  101. 

Parol  evidence  cannot  be  received  of  contents  of  writing  unless 

proper  foundation  has  been  laid  for  admission  by  notifying  party 

in  whose  possession  the  writing  is,  to  produce  it  upon  trial,  or  by 

showing  it  has  been  lost  or  destroyed. 

Young   vs.   People,   221   111.    51;    Y\^right  vs.   Eaftree,   181   111.   464; 
Wettig  vs.  Bowman,  39  111.  416;  Holbrook  vs.  Trustees,  22  111.  539; 
Text  Book  Co.  vs.  Mackliorn,  158  App.  543 ;  Pressed  Brick  Co.  vs. 
Coe,  53  App.  506 ;  XII  111.  Notes  492,  §  128. 
A  party  will  not  be  allowed  to  give  parol  evidence  of  contents 
of  paper  in  possession  of  adversary  unless  he  had  given  him  notice 
to  produce  same  on  trial.     But  if  a  deed  has  been  recorded,  a 
transcript  may  be  introduced,  the  party  swearing  that  original  was 
not  in  his  custody,  and  was  beyond  his  control;  or  if  party  has 
voluntarily  exhibited  his  deed  in  evidence,  the  instrument  is  under 
control  of  court  and  no  notice  to  produce  it  is  required. 
Ferguson  vs.  Miles,  8  111.  358. 
Certified  copy  of  a  deed  may  be  introduced  on  oath  of  party 


BEST  AND  SECONDARY  161 

offering  it  that  original  is  losl.     No  notice  to  adverse  party  to  pro- 
duce original  is  recjuired. 

Wettig  vs.  Bowman,  :5!)  111.  41G. 

Parol  proof  of  the  contents  of  a  letter  in  possession  of  opposite 
party  is  inadmissible  unless  party  having  possession  has  liad  due 
notice  to  produce  it. 

Wright  vs.  Eaftree,  181  111.  464;  Young  vs.  People,  221  111.  51. 
Where  a  letter  is  destroyed,  a  copy  is  the  best  evidence,  and 
notice  to  produce  a  copy  should  be  required  before  testimony  of 
the  contents  is  permitted. 

Mut.  Prot.  League  vs.  Langsdorf,  126  App.  50. 

—  Time:  Whether  the  notice  was  served  in  time  is  a  matter 
of  sound  discretion  with  the  court  as  such  question  must  always 
depend  upon  the  peculiar  circumstances  of  each  case.  Where  it 
appears  to  the  court  that  the  party  has  the  desired  paper,  notice 
to  produce  given  on  the  trial  would  be  sufficient;  but  when  this 
does  not  appear,  the  notice  should  be  served  a  reasonable  time 
before  the  trial  at  which  it  is  wanted. 

Cuminings  vs.  McKinney,  5  111.  57. 

Notice  to  a  counsel  two  days  before  the  trial  to  produce  a  paper 
to  be  used  as  evidence,  and  which  he  knew  would  be  wanted,  is 
sufficient,  and  if  not  produced,  a  copy  may  be  read. 
Warner  vs.  Campbell,  26  III.  283. 

But  two  days'  notice  is  not  in  time  when  it  is  admitted  that  the 
attorney  upon  whom  it  is  served  had  not  the  document  in  his  pos- 
session, and  which  is  probably  in  a  foreign  state. 
Bushnell  vs.  Bishop  Co.,  28  111.  204. 

Where  notice  is  given  a  day  previous  to  the  trial  to  produce  a 

paper  which  is  eighty  miles  distant,  and  in  the  control  of  another 

person,  the  court  will  not  take  judicial  notice  that  the  paper  could 

not  have  been  obtained  and  so  exclude  secondary  evidence. 
Cody  vs.  Hough,  20  111.  43. 

—  Form:  A  party  is  not  bound  to  pay  any  attention  to  a  ver- 
bal notice  to  produce  a  paper  on  the  trial  of  a  cause,  where  notice 
is  required  to  be  served  before  trial.  The  notice  should  be  in  writ- 
ing, that  the  party  may  know  with  certainty  and  precision  what 
paper  is  wanted ;  and  he  shall  not  be  compelled  to  rely  upon  his 
memory  alone  for  its  identity. 

Cummings  vs.  McKinney,  5  111.  57. 

—  Person  to  Be  Served:  Notice  to  produce  may  be  given  the 
party  himself  or  his  counsel. 

Bishop  vs.  Amer.  Pres.  Co.,  157  111.  284. 

—  Proof  of  Contents  of  Notice:  A  party  may  prove  contents  of 
notice  served  upon  the  opposite  party  without  first  giving  notice 
to  produce  the  original. 

Brown  vs.  Booth,  66  111.  419. 

—  Aetion  or  Pleading  as  Notice:  Where  the  plaintiff's  suit  is 
founded  upon  a  written  instrument  described  in  his  pleading,  the 
suit  itself  is  sufficient  notice  to  defendant  to  produce  the  original 
if  in  his  possession,  although  the  pleading  does  not  charge  him  with 
the  possession  of  it. 

Life  Ins.  Co.  vs.  Eogers,  119  111.  474;   Stadler  Brew.  Co.  vs.  Wead- 
ley,  99  App.  161 ;  Jack  vs.  Eowland,  98  App.  352. 
Ev.— 11 


162  BEST  AND  SECONDARY 

Loss  of  Original: 

Secondary  evidence  is  not  admissible  in  absence  of  proof  that 
the  original  document  was  ever  in  existence. 

Crane  Co.  vs.  Tieniey,  175  111.  79;  Mariner  vs.  Saunders,  10  111.  113. 

Under  section  36  of  Conveyance  act  (R.  S.  1874)  preliminary 
proof  for  introduction  of  secondary  evidence  of  a  deed  must  show 
that  the  original  is  lost  or  destroyed  or  not  in  the  party's  control, 
and  that,  to  the  best  of  the  latter 's  belief,  it  was  not  disposed  of 
for  the  purpose  of  introducing  a  copy. 
Scott  vs.  Bassett,  174  111.  390. 

Wliere  the  existence  of  a  deed  or  other  writing  is  directly  in- 
volved, whether  as  proof  of  the  precise  question  in  issue  or  of 
some  subordinate  matter  that  tends  to  establish  the  ultimate  fact 
or  facts  upon  which  a  case  turns,  such  deed  or  other  writing  itself 
must  be  produced  or  its  absence  accounted  for,  before  secondary 

evidence  of  its  contents  is  admissible. 
Massey  vs.  Bank,  113  111.  334. 

In  an  action  of  ejectment  by  a  purchaser  of  land,  under  execu- 
tion sale,  the  affidavits  of  plaintiff,  and  the  clerk  of  circuit  court, 
from  which  the  execution  was  issued,  are  competent  preliminary 
evidence  of  the  existence  and  loss  of  the  execution. 
Keith  vs.  Keith,  104  111.  397. 

There  is  no  error  in  the  exclusion  of  parol  evidence  tending  to 

prove  the  execution  of  a  deed  of  trust  under  which  a  sale  was 

claimed,  when  no  proper  foundation  is  laid  by  proof  of  loss  and 

search  for  original. 

Eeich  vs.  Berdel,  120  111.  499. 

It  is  error  to  admit  copy  of  lease  in  evidence  where  loss  or 
destruction  of  original  is  not  shown,  or  that  it  was  in  the  posses- 
sion of  the  adverse  party. 

Anderson  vs.  Jacobson,  66  111.  522. 
"When  a  deed  is  destroyed  or  lost,  secondary  evidence  or  an  in- 
ferior grade  of  evidence"  is  admissible  to  establish  fact  which 
would  be  most  satisfactorily  established  by  production  and  proof 
of  original  deed  itself.  The  highest  degree  of  this  secondary  evi- 
dence is  the  record  of  the  deed  in  the  recorder's  office  when  such 
record  exists;  and  the  next  is  an  examined  copy  of  the  deed,  and 
last  of  all,  parol  evidence  of  contents  of  the  deed. 

Bennett  vs.  Waller,  23  111.  97. 
Resort  must  always  he  had  to  the  best  evidence  within  the  power 
of  party  by  which  tlie  fact  is  capable  of  proof,  and  if  it  is  in  writ- 
ing the  original  must  be  produced,  unless  it  is  shown  that  it  is 
destroyed,  lost  or  not  within  the  power  of  the  party  to  produce  it, 
before  secondary  evidence  can  be  received  of  its  contents. 

Matteson\-s.  Noyes,  25  111.  591 ;  Chisholm  vs.  Lumber  Co.,  18  App.  131. 
It  is  not  competent  for  plaintiff  to  introduce  his  own  testimony 
to  jury  to  prove  loss  of  instrument,  in  order  to  admit  secondary 
evidence  of  contents.  Proper  course  is  to  present  affidavit  of  loss 
to  court  and  then  secondary  evidence  may  be  admitted  as  to  con- 
tents. 

Dormady  vs.  State  Bank,  3  111.  236 ;  Palmer  vs.  Lyon,  4  111.  59. 

In  order  to  admit  secondary  evidence,  proper  foundation  must 


BEST  AND  SECONDARY  163 

be  laid,  showing  papers  to  have  been  destroyed,  and  a  thorough 
search  made  in  good  faith  for  them. 

Prussing  vs.  Jackson,  208  111.  85;  McNemar  vs.  McKennan,  79  App. 
354. 

The  highest  and  most  satisfactory  degree  of  secondary  evidence 
is  an  office  copy  or  certified  copy  of  a  deed,  from  tlie  recorder's 
office,  and  when  such  certified  transcript  of  the  record  of  a  deed 
is  offered,  the  statute  dispenses  with  tlie  strict  proof  of  loss  of  the 
original,  which  is  recpiired  by  common  law,  and  the  party  is  only 
required  to  satisfy  the  court  that  it  is  not  in  his  power  to  pro- 
duce it,  as  where  it  is  shown  to  be  in  the  possession  of  the  oppo- 
site party  who,  upon  proper  notice,  refuses  to  produce  it. 

Mariner  vs.  Saunders,  10  111.  113;  Wettig  vs.  Bowman,  39  111.  416; 
Newsom  vs.  Luster,  13  111.  176. 

Due  Search: 

Where  evidence  of  destruction  is  not  conclusive,  plaintiff  must 
show  that  diligent  search  has  been  made  in  those  places  where  it 
would  be  most  likely  to  be  found,  if  in  existence. 
Palmer  vs.  Logan,  4  111.  57. 

Search  for  a  paper,  in  order  to  let  in  secondary  evidence,  must 
be  made  at  the  place  where  it  would  naturallv  be  found. 
Doyle  vs.  Wiley,  15  111.  576;  Eankin  vs.  Crow,"  19  111.  626. 

Where  a  paper  has  a  particular  place  of  deposit,  such  place 
must  be  searched. 

Cook  vs.  Hunt,  24  111.  536;  Mariner  vs.  Saunders,  10  111.  113. 

Every  remote  possibility  of  existence  need  not  be  negatived. 

Mayfield  vs.  Turner,  180  111.  332.  '.ii  tuilt  J..'  . 

It  is  for  the  court  and  not  for  the  party  to  draw  conclusions 
whether  or  not  it  is  in  his  power  to  produce  the  original ;  and  it 
is  the  duty  of  the  party  to  state  the  facts  and  circumstances  from 
which  the  court  may  be  enabled  to  draw  correct  conclusions  on  the 
subject.  He  must  show  the  court  that  he  has  in  good  faith  made 
every  reasonable  effort  to  produce  the  original,  and  he  must  show 
in  detail  what  those  efforts  have  been.  These  facts  must  appear 
to  the  satisfaction  of  the  court. 
Booth  vs.  Cook,  20  111.  130. 

Person  in  whose  possession  instrument  was  last  must  be  called, 

and  if  that  is  impossible,  search  among  his  papers  must  be  proven. 

Prussing  vs.  Jackson,  208  111.  85 ;  Mullanphy  Sav.  Bank  vs.  Schott, 
135  111.  655;  Hedenberg  vs.  Nash,  144  App.  252;  XII  111.  Notes 
493,  §  132. 

Except  where  destruction  is  shown. 
Ehodes  vs.  McLean,  101  111.  467. 

AVhere  deed  never  recorded,  search  of  recorder's  office  unneces-' 
sary. 

Dugger  vs.  Oglesby,  99  111.  405. 
Same  strictness  not  required  to  let  in  proof  by  certified  copies 
as  where  parol  proof  is  desired. 
Newsom  vs.  Luster,  13  111.  176. 
One  who  seeks  to  introduce  copy  of  written  instrument,  original 
of  which  is  beyond  jurisdiction  of  court,  and  in  hands  of  tliird 
person,  must   show,  in  addition   that   he   has  made  due  effort  to 

obtain  original  for  use  at  trial. 

McDonald  vs.  Erbs,  231  111.  295;  Bishop  vs.  Amer.  Pres.  Co.,  157  111. 
284;  Dickison  vs.  Breeden,  25  111.  186. 


164  BEST  AND  SECONDARY 

—  Weight  and  Sufficiency:  Testimony  that  original  is  not  in 
party's  possession  and  that  same  was  not  destroyed  is  not  suf- 
ficient, as  original  might  not  be  in  his  manual  possession  and  yet 

within  his  control. 

Scott  vs.  Bassett,  174  111.  390. 
Evidence  of  non-possession  alone  is  not  sufficient. 
B.  &  O.  S.  W.  Ey.  Co,  vs.  Brubaker,  217  111.  462. 

Proof  of  destruction  of  deed  without  recording  sufficient. 
Sawyer  vs.  Cox,  63  111.  130, 

Preliminary  proof  for  purpose  of  laying  foundation  for  intro- 
duction of  secondary  evidence  of  contents  of  deed,  party  proved 
that  the  deed,  when  last  seen,  was  most  probably  in  the  possession 
of  a  person  named,  and  that  latter  had  made  a  most  diligent  search 
for  it  in  every  place  where  there  was  the  slightest  possibility  it 
would  be  if  still  in  existence,  but  without  success.  The  witness 
also  stated  facts  showing,  beyond  reasonal)le  doubt,  that  the  deed 
must  have  been  destroyed  in  the  fire  which  occurred  in  Chicago 
in  1871,  and  which  destroyed  all  record  of  prior  deeds,  as  this  one 
was:  Held,  this  w^as  sufficient  foundation  for  the  introduction  of 
secondary  evidence  of  the  contents  of  the  deed. 
Beidel  vs.  Egan,  125  111.  298, 

An  affidavit  for  introducing  secondary  evidence  of  deeds  is  not 
sufficient  which  merely  shows  that  the  deeds  are  not  and  have  not 
been  in  the  possession,  custody  or  control  of  affiant,  that  affiant  has 
made  inquiry  of  the  grantees  but  has  not  received  any  of  the  deeds, 
and  that  he  does  not  believe  such  deeds  have  been  lost  or  destroyed 
or  disposed  of  for  purpose  of  introducing  copies. 
Scott  vs.  Bassett,  186  111.  98. 

The  loose  statements  of  a  party  that  he  had  heard  that  the  rec- 
ords of  a  court  were  destroyed,  or  had  read  it  in  a  newspaper,  is 
not  sufficient  to  admit  secondary  evidence  of  a  judgment. 
Wies  vs.  Tiernan,  91  111.  27. 

In  ejectment  suit,  where  attorney  testifies  that  he  had  original 
notice  to  quit  in  his  possession,  but  it  was  mislaid  or  lost,  and  he 
had  searched  for  it  but  was  unable  to  find  it,  a  copy  of  such  notice 

may  be  admitted. 

Naughton  vs.  Soucy,  245  111.  225. 

Where  satisfactoiy  evidence  is  made  of  the  loss  or  inability  of 
a  party  to  produce  an  instrument  for  which  the  law  does  not 
make  provision  for  recording,  copying,  etc.,  and  the  evidence  fails 
to  disclose  the  existence  of  any  copy  or  other  evidence  better  than 
parol,  known  to  the  offering  party,  within  his  power  to  produce, 
and  there  is  nothing  appearing  to  indicate  a  copy,  or  fraud  or 
deception,  then  the  presumption  arises  that  there  is  no  copy  of 
other  evidence  better  than  parol,  and  a  prima  facie  case  is  made 
for  the  admission  of  parol  testimony  of  the  contents  of  the  instru- 
ment, unless  party  objecting  produces  better  evidence,  or  shows 

that  it  exists  and  might  have  been  produced  by  party  offering  it. 
C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Newlin,  74  App".  638;   Miit.  Protective 
League  vs.   Langsdorf,    126   App.   572;    111.   Land   Co.   vs.   Bonner, 
75  111.  315;  Ellis  vs.  Huff,  29  111.  449. 
An  affidavit  reciting  that  affiant  is  agent  and  attorney  for  com- 
plainant and  that  complainant  desires  to  use  certain  deeds,  stat- 


BEST  AND  SECONDARY  165 

ing  that  orig^iiials  of  such  deeds  are  acknowledged  and  entilled 
to  be  recorded,  that  such  originals  are  lost  and  nut  in  power  of 
complainant  to  produce,  and  that  they  were  not  inteulionally 
destroyed  or  disposed  of  is  sutideieut  to  entitle  such  copies  to  admis- 
sion. 

Ellison  vs.  Glo.s,  24S  111.  275, 

Examination  of  Witnesses: 

Where  tlie  proof  otl'ered  to  lay  the  foundation  for  secondary 
evidence  of  a  deed  is  by  oral  testimony  instead  of  by  affidavit,  op- 
posing counsel  may  test  statements  of  Witness  by  proper  cross 
examination. 

Scott  vs.  Bassett,  174  111.  390. 

Where  an  affidavit  for  the  introduction  of  a  certified  copy  of 
a  deed  is  positive  in  its  terms  and  meets  requirements  of  statute, 
opposite  party  is  not  entitled  to  cross  examine  affiant  as  to  the 
truth  of  the  affidavit. 

Glos  vs.  Garrett,  219  111.  208, 

Degrees  of  Secondary  Evidence : 

If,  from  the  nature  of  the  case  itself,  it  is  manifest  that  a  more 
satisfactory  kind  of  secondary  evidence  exists,  the  party  will  be 
required  to  produce  it;  but  where  the  nature  of  tlie  case  does  not, 
of  itself,  disclose  the  existence  of  such  better  evidence,  the  objector 
must  not  only  prove  its  existence,  but  also  prove  that  it  was  known 

to  the  other  party  in  season  to  have  been  produced  at  the  trial. 

Wilson  vs.  S.  P.  C'onirs.,  70  111.  46. 

On  loss  of  original,  party  may  read  a  counterpart;  if  there 
is  no  counterpart,  an  examined  copy;  or  if  there  is  not  an  exam- 
ined copy,  he  may  give  parol  evidence  of  its  contents. 
Eankin  vs.  Crow,  19  111.  626. 

Next  best  obtainable  evidence  must  be  produced.  Where  it 
appeara  that  there  is  in  existence  no  other  writing  or  memorandum, 
parol  proof  may  be  resorted  to. 

Felix  vs.  Caldwell,  235  111.  159. 

To  prove  the  contents  of  a  written  instrument,  the  vague  recol- 
lections of  witnesses  are  not  sufficient  to  supply  its  place. 
Winter  vs.  Dibble,  251  111.  200. 

The  highest  degree  or  grade  of  secondary  evidence  of  a  deed 
is  the  record  of  the  deed  in  the  recorder's  office;  and  the  next  is 
an  examined  copy  of  the  deed,  and  last  of  all,  parol  evidence  of 
contents  of  the  deed. 

Bennett  vs.  Waller,  23  111.  97;   Mariner  vs.  Saunders,   10  111.  113. 

Where  it  is  shown  there  was  copy  of  an  instrument,  such  copy 

must  be  accounted  for  before  parol  is  admissible, 
111.  Land  Co.  vs.  Bonner,  75  111.  315, 

Degrees  and  grades  of  secondary  evidence  exist  and  best  access- 
ible evidence  must  be  produced,  whether  it  be  of  primary  or  sec- 
ondary character. 

Mariner  vs.  Saunders,  10  111.  113. 

Superior  degrees  of  secondary  evidence  take  precedence  in  order 
of  admissibility. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Newlin,  74  App.  638. 


166  BEST  AND  SECONDARY 

PRIVATE  WRITINGS: 

Newspapers : 

In  action  for  slander  and  libel,  a  printed  copy  of  the  alleged 
slanderous  article  is  inadmissible  as  secondary  evidence  where 
proper  foundation  has  not  been  laid. 

Prussing  vs.  Jackson,  208  111.  85;  Strader  vs.  Snyder,  67  111.  404. 

Abstract  of  Title: 

Affidavit  for  introduction  of  secondary  evidence  in  form  of  ab- 
stract of  title  must  not  only  state  that  original  deeds  or  instru- 
ments have  been  destroyed,  but  also  that  the  records  thereof  have 

been  destroyed. 

Bauer  vs.  Glos,  244  111.  627. 

And  such  affidavit  must  be  made  by  party  to  suit  or  his  agent, 
and  the  relation  of  agent  must  appear  from  the  affidavit  itself. 
Bauer  vs.  Glos,  244  111.  627. 

Letters  and  Letter  Press  Copies: 

Wliere   non-production   of  original   is   accounted   for,   the   best 
available  evidence  of  contents  should  be  admitted. 
West  Pub.  Co.  vs.  Lasley,  165  App.  256. 

In  a  case  where  proper  foundation  is  laid  for  the  proof  of  the 
contents  of  a  lost  writing,  the  fact  that  the  witness  cannot  tell 
particularly  the  contents  is  no  ground  for  the  rejection  of  his  tes- 
timony.    He  may,  in  such  case,  give  his  best  recollection  of  the 

contents. 

Case  vs.  Lynian,  66  111.  229. 
And  it  is  sufficient  to  enable  a  witness  to  testify  to  the  contents 
of  the  instrument  where  he  states  he  saw  it  signed,  had  it  in  his 
possession  more  than  a  year,  and  knew  its  contents,  without  stating 

he  had  read  it. 

Huls  vs.  Kimball,  52  111.  391. 
Upon  proof  that  instruments  offered  are  true  copies  and  of  notice 
to  opposite  party  to  Avhom  they  were  sent  to  produce  the  originals, 

copies  are  admissible. 

Richards  Iron  Works  vs.  Glennon,  71  111.  11. 
Contents  of  a  letter  may  be  shown  by  parol,  upon  laying  proper 
foundation  for  secondary  evidence. 
Doggett  vs.  Greene,  163  App.  369. 
Parol  proof  of  contents  of  a  letter  is  not  admissible  unless  proper 
foundation  has  been  laid  by  notifying  party  having  possession  of 
letter  to  produce  it  upon  the  trial,  or  by  showing  it  was  lost  or 

destroyed. 

Young  vs.  People,  221  111.  51;  Ober  Brg.  Co.  vs.  Adams,  35  App.  540. 

A  letter  press  copy  of  a  writing  is  not  an  original.  It  in  no  wise 
differs  from  any  other  accurate  copy  than  in  mode  in  which  it  is 
made,  and  can  be  used  in  place  of  original  in  no  case  where  a 
proved  copy  made  in  another  manner  would  not  be  equally  admis- 
sible. 

King  vs.  Wortington,  73  111.  161;  Text  Book  Co.  vs.  Mackhorn,  158 
App.  543. 
A  proper  foundation  for  admission  of  letter  press  copies  of  let- 
ters from  plaintiff  to  defendant  is  laid  where  notice  to  produce 
originals  is  given  defendant,  whose  counsel  admits  he  cannot  pro- 


BEST  AND  SECONDARY  167 

duce  them,  and  plaintiff  testifies  to  correctness  of  the  copies,  and 
that  the  originals  were  mailed  to  ad(hH'ssee. 
Union  Siuety  Co.  vs.  Tenny,  2U0  J 11.  348. 

A  copy  of  a  letter,  the  original  not  shown  to  have  been  mailed 
or  received,  is  not  adinissil)le  on  behalf  of  writer. 

Booth  vs.  Steffy,  l.-^O  A]ip.  584. 

Sale  of  Mortgaged  Property: 

Though  statute  requires  written  consent  to  mortgagor's  sale  of 
such  property,  evidence  of  verbal  consent  is  admissible  on  behalf 
of  purchaser. 

Anderson  vs.  Brew.  Co.,  173  111.  213. 

Memorandum : 

A  mere  memorandum  containing  a  quantity  of  figures  and  cal- 
culation is  not  a  contract,  agreement  or  writing  which  can  only  be 
proven  by  its  production.  It  does  not  fall  within  the  reason  nor 
rule  of  law  requiring  the  production  of  documentary  evidence.  It 
is  only  a  mere  calculation  of  amounts,  as  to  which  any  witness  who 
had  seen  and  remembered  them  might  testify. 
Weaver  vs.  Crocker,  49  111.  461, 

Telegram : 

The  original  telegram  filed  in  sending  office  is  best  evidence  of 
its  contents,  and  the  copy  retained  for  files  of  receiving  office  is 
not  admissible  where  it  is  not  shown  it  was  a  copy  of  the  original 
or  that  the  original  was  lost  or  destroyed. 

Young  vs.  People,  221  111.  51.     (See  Telkgrams.) 

Deeds : 

Sworn  copv  is  good  secondary  evidence  of  lost  deed. 

Golden  vs.  Bressler,  105  111.  419. 
AVhen  original  deeds,   as  well  as  record  books,  have  been  de- 
stroyed, resort  may  be  had  to  secondary  evidence  to  prove  contents. 
Miller  vs.  Shaw,  103  111.  277. 
Affidavit  to  lay  foundation  for  secondary  evidence  must  show 
original  instrument  was  not  intentionally  destroyed. 
Bauer  vs.  Glos,  244  111.  627. 
An  affidavit  for  introducing  secondary  evidence  of  deeds  is  not 
sufficient  which  merely  shows  the  deeds  are  not  and  have  not  been 
in   possession,    custody   or   control   of   affiant;   that   affiant   made 
inquiries  of  grantees  but  has  not  received  any  of  the  deeds;  and 
that  he  does  not  believe  such  deeds  have  been  lost  or  destroyed 
or  disposed  of  for  purpose  of  introducing  copies. 

Scott  vs.  Bassett,  186  111.  98;  B.  &  O.  Ry.  Co.  vs.  Brubaker,  217  111. 
463;   People  vs.  Weimers,  225  111.  17. 

The  execution  of  a  deed  cannot  be  shown  by  secondary  evidence 
unless  the  fact  of  the  loss  or  destruction  of  the  alleged  deed  is  first 

proven. 

Switzer  vs.  Honn,  254  111.  621. 

An  affidavit  which  states  instruments  "are  not  within  power  of 
affiant  to  produce  and  use  on  trial  of  above  cause"  is  in  substantial 

compliance  with  the  statute. 

Spitzer  vs.  Schlatt,  249  111.  416. 
The  substance  of  a  lost  paper  ought  to  be  proven  satisfactorily. 


168  BEST  AND  SECONDARY 

its  contents  must  have  been  known  to  the  witness  and  understood 
by  him,  so  as  to  not  leave  any  doubt  as  to  its  material  parts. 
Eaiikiii  vs.  Crowe,  19  111.  G26. 
Tlie  execution  of  tlie  instrument  nuist  be  strictly  proven  as  if 

the  instrument  itself  were  in  court. 

Dagley  vs.  Black,  ]97  111.  53;  Mariner  vs.  8aiuiders,  10  111.  113;  Crane 
vs.  Tierney,  175  111.  79. 

Record  of  Unacknowledged  Instrument: 

Certified  copy  of  record  of  an  unacknowledged  instrument  is 

incompetent  as  secondary  evidence. 
Winter  vs.  Dibble,  251  111.  200. 
But  a  deed  which  has  been  on  record  more  than  tliirty  years  is 
an  ancient  deed,  and  a  certified  copy  thereof  is  admissible  in  evi- 
dence although  the  deed  was  not  acknowledged  as  required  by  the 

law  in  force  when  it  was  executed. 

Bradley  vs.  Lightcap,  201  111.  511. 

Private  Books: 

Parol  evidence  of  the  contents  of  the  private  books  of  a  party, 
without  any  basis  being  made  therefor,  is  incompetent. 
Walker  vs.  Douglas,  70  111.  445. 

Contracts : 

A  contract  in  writing  is  the  best  evidence  of  its  terms,  and  it 
is  error  to  allow  in  evidence  what  purports  to  be  a  copy  of  the  con- 
tract from  a  volume  of  court  reports. 

Hoyt  vs.  Shepard,  70  111.  309;  Crane  Co.  vs.  Tierney,  175  111.  79. 

Upon  failure  of  wife  upon  notice  to  produce  a  written  ante- 
nuptial contract  in  her  possession,  parol  evidence  of  the  contents 

admissible. 

Spencer  vs.  Boardman,  118  111.  553. 

Articles  of  Partnership: 

A  stranger  may  prove  a  partnership  l\y  the  acts  and  admissions 
of  the  partners,  although  written  articles  of  partnership  may  exist 
between  them. 

Bridge  Co.  vs.  Shannon,  6  111.  15. 

Architect's  Certificate: 

Upon  loss  of  architect's  certificate,  contents  of  same  may  be 
proven  by  secondary  evidence. 

Apart.  House' Co.  vs.  O'Brien,  228  111.  3G0. 

Duplicates  and  Copies: 

Instruments  executed  in  duplicate  are  both  primary  evidence, 
and  if  one  of  the  duplicates  is  unaltered,  then  there  is  still  orig- 
inal evidence  of  the  contract,  although  the  other  duplicate  has  been 
destroyed  or  altered. 

Hays  vs.  Wagner,  220  111.  256. 

An  instrument  given  by  one  party  to  the  other  as  a  copy  or 
duplicate  of  the  original,  and  accepted  by  him  as  such,  is,  as  be- 
tween the  parties  thereto,  of  equal  authenticity  with  the  original 
and  next  to  the  original,  the  best  evidence  and  should  be  produced 
or  its  non-production  accounted  for  before  resorting  to  parol  evi- 
dence. 

White  vs.  Hermann,  62  111.  73. 

Where  an  original  paper  is  in  the  hands  of  a  third  person, 
residing  out  of  the  state,  and  he  refuses  to   attach  same   to  his 


BEST  AND  SECONDARY  16<J 

deposition  when  taken,  and  is  requested  to  do  so,  a  sworn  copy 
taken  by  another  person  present,  who  attaches  such  copy  to  Ids 
deposition,  is  admissible  in  evidence. 

McDonald    vs.    Erbs,    231    111.    295;    Fisher   vs.   Greene,   95    111.    94. 
(See  Alterations  and  Erasures.) 

Notes : 

Purpose  for  which  notes  were  given  may  be  shown  by  second- 
ary evidence  when  notes  have  been  left  at  comi)hdnant's  home  in 
another  state. 

Laughton  vs.  Brauer,  138  App.  524. 

Contents  of  lost  note  provable  by  chattel  mortgage  given  to 
secure  the  same. 

O'Neil  vs.  O'Neil,  123  111.  361. 

Parol  proof  is  admissible  to  prove  the  contents  of  an  instru- 
ment in  writing  which  is  lost,  of  which  there  is  no  second  higher 
grade  of  evidence,  after  a  foundation  has  been  laid  for  introduc- 
tion of  such  proof. 

Palmer  vs.  Logan,  4  111.  56. 

Receipts : 

Proof  of  payment  of  money  by  party  making  payment,  or  by 
those  who  witnessed  the  payment,  is  admissible  as  primary  evi- 
dence. ; 

West  Chicago  vs.  Piper,  165  111.  325;  Loughry  vs.  Mail,  34  App.  523. 
(See  Payment.) 

Mortgage : 

When  secondary  evidence  is  admissible  to  prove  the  contents  of 
a  written  instrument,  such  contents  may  be  proven  by  any  one  who 
can  swear  he  knew  them. 

Hills   vs.    Kimball,   52   111.   391;    Blakely  Printing  Co.  vs.   Pease,   95 
App.  341;  Gage  vs.  Schroeder,  73  111.  44. 

Wills: 

See  Lost  Instruments,  "Wills. 
OFFICIAL  WRITINGS: 
Required  To  Be  in  Writing: 

Unless  the  law  expressly  and  imperatively  requires  all  mat- 
ters to  appear  of  record  and  makes  the  record  the  only  evidence, 
parol  evidence  is  admissible  to  prove  things  omitted  to  be  stated 

in  the  record. 

School   Directors  vs.   Kimniell,  31   App.  537;   Bartlett  vs.  Board  of 
Education,  59  111.  364. 
Where  the  law  requires  records  of  proceedings  to  be  kept,  they 

are  the  best  evidence  of  the  action  to  which  they  refer. 
People  vs.  Madison,  125  111.  334. 

Not  Required  To  Be  in  Writing : 

Where  a  fact  or  transaction  is  not  required  by  any  law  or  rule 

to  be  reduced  to  or  evidenced  by  a  writing,  parol  evidence   to 

establish  such  fact  or  transaction  is  not  to  be  rejected  upon  the 

ground  that  it  is  secondary,  merely  because  there  is  a  writing 

evidencing  such  fact  or  transaction,  provided  the  evidence  offered 

is  not  substitutionary. 

Board  of  Education  vs.  Taft,  7  App.  571. 

Particular  Records: 

A  town  clerk's  record  is  the  best  evidence  of  meeting  of  official 
board, 

St.  Louis  Bridge  Co.  vs.  People,  128  111.  422. 


170  BEST   AND    SECONDARY 

The  official  acts  of  highway  commissioners  are  to  be  proved  from 

their  records,  not  by  parol  evidence. 
People  vs.  Finley,  97  App.  214. 
Ballots  are  the  best  evidence  of  the  result  of  an  election,  when 

properly  preserved. 

Perkins  vs.  Bertrand,  192  111.  58;  Catron  vs.  Craw,  164  111.  20;  Con- 
stant vs.  Shockey,  259  111.  496. 

Court  Records: 

—  In  General:  The  number  of  terms  of  court  in  a  certain  year, 
the  name  of  the  judge  who  presided,  and  whether  there  were 
juries  in  attendance,  though  they  are  facts  which  might  appear 
of  record,  are  in  the  nature  of  matters  in  pais  and  susceptible  of 

proof  by  parol  evidence  in  collateral  actions. 
Massey  vs.  Westcott,  40  111.  160. 
The  best  evidence  to  prove  who  was  an  administrator  is  the 

record. 

Williams  vs.  Jarrett,  6  111.  120. 

Levy  by  or  payment  to  officer  may  show  by  parol, 

Bryant  vs.  Dana,  8  111.  344;  Loughry  vs.  Mail,  34  App.  523. 

Ministerial  acts  are  provable  by  parol. 
Warden  vs.  McDowell,  31  111.  364. 

The  amount  of  an  appeal  bond  cannot  be  proved  by  parol. 

Becker  vs.  People,  164  111.  267. 
Record  of  conviction  for  violation  of  city  ordinance  is  best  evi- 
dence of  same. 

Dorrance  vs.  Dearborn  Power  Co.,  233  111.  354. 

Redemption  from  tax  sale  by  minor  heirs  should  be  proven  by 

records  in  auditor's  otfiee,  they  being  best  evidence  of  which  the 

nature  of  the  case  would  admit. 
Lane  vs.  Sharp,  4  111.  570. 

—  Lost  Records:  A  record,  when  lost  or  destroyed,  may,  like 
any  other  writing,  be  proven  by  secondary  evidence.  After  its 
loss  is  shown,  its  contents  may  be  shown  by  witnesses  who  knew 

them. 

Gage  vs.  Schroeder,  73  111.  44. 
Contents  of  lost  record  may  be  proven  by  parol,  although  uncer- 
tified copy  exists. 

People  vs.  Cotton,  250  111.  338. 

The  rule  that  the  record  of  a  judgment,  or  an  exemplified  copy 

or  sworn  copy  thereof,  must  be  produced  to  sustain  action  of  debt 

thereon,   is  limited  to  cases  in  which  it  is  within  the  power  of 

plaintiff  to  produce  such  evidence,  and  does  not  apply  where  the 

record  of  the  judgment  has  been  destroyed  by  fire,  and  for  that 

reason  cannot  be  produced. 

Forsythe  vs.  Vehmeyer,   176  111.  359. 

—  Acknowledgments:  Certified  copy  of  record  of  an  unac- 
knowledged instrument  does  not  prove  its  contents  without  proof 
of  the  execution  of  such  instrument  and  connecting  the  instru- 
ment executed  with  the  one  recorded. 

Winter  vs.  Dibble,  251  111.  200. 

—  Depositions:  The  witness  being  alive,  it  is  not  admissible  to 
prove  by  others  what  he  testified  to  in  a  lost  deposition,  nor  is 
proof  of  the  contents  of  the  lost  deposition  admissible. 

Stout  vs.  Cook,  47  111.  530. 


BEST  AND  SECONDARY  171 

The  contents  of  a  lost  deposition  may  be  proven  in  the  same 
manner  as  those  of  any  other  lost  paper. 

Stout  vs.  Cook,  47  111.  530;  Aulger  vs.  Smith,  34  111.  534. 

—  To  Establish  Judgments:  The  record  of  a  eonrt,  if  in  exist- 
ence, is  the  only  competent  evidence  to  establish  the  fact  of  the 
recovery  of  a  judgment  and  secondary  evidence  is  not  admissible 
until  the  destruction  of  the  record  is  sliown. 

Weiss  vs.  Tieruan,  91  111.  27;  Weiiiors  vs.  Cole,  157  App.  599;   Mc- 
Neill \s.  Donahue,  44  App.  42. 

And  the  judgment  must  be  proven  by  the  record. 
Mooi'e  vs.  Bruner,  31  App.  400. 

—  Executions:    If  an  execution  is  proven  to  have  been  lost,  the 

next  best  proof  of  its  having  existed  is  the  execution  docket. 
Ellis  vs.  Hough,  29  111.  449. 

—  Judicial  Proceedings:  Judicial  proceedings  must  be  proven 
by  record. 

Tynan  vs.  Weinharcl,  153  111.  598. 

—  Pleadings  and  Decrees:  Where  a  pleading  has  been  lost,  one 
cannot  file  an  alleged  copy  in  order  to  use  it  as  evidence,  but  the 
person  assuming  to  know  the  contents  must  take  stand  so  as  to  be 
subjected  to  cross  examination. 

Harley  vs.  Harley,  67  App.  138. 

In  an  action  by  a  sheriff  on  an  indemnity  contract,  parol  proof 

of  contents  of  an  answer  tiled  by  the  sheriff  in  tlie  suit  involving 

the  subject  matter  of  the  indemnity  is  admissible,  where  the  answer 

had  been  taken  from  the  files  to  be  used  as  evidence  in  another 

case  and  cannot  be  found. 

Meyer  vs.  Purecll,  214  111.  62. 

The  draft  of  a  decree  ordered  to  be  entered  in  a  cause  is  not  the  . 
best  evidence  of  the  decree  that  has  been  entered. 
Huntington  vs.  Aiirand,  70  App.  28. 
Affidavit  for  Avrit  of  replevin  not  provable  by  showing  custom 

of  clerk  to  copy  statements  into  writ. 
Franks  vs.  Matson,  211  111.  338. 

Corporate  Records: 

—  Public:  The  records  of  a  municipal  body  are  the  best  evi- 
dence of  its  acts. 

City  of  Paxton  vs.  Bogardus,  201  111.  628. 
If  a  municipal  body  act  illegally  and  makes  no  record  parol  evi- 
dence is  competent  to  prove  actual  transaction. 
People  vs.  Mayor  of  Alton,  179  111.  615. 
A  copy  of  a  record  required  by  law  to  be  kept  by  a  city,  duly 
certified  as  required  by  the  statute,  is  original  evidence,  and  its 
introduction  in  evidence  does  not  depend  upon  the  fact  the  record 

itself  is  lost  or  destroyed. 

City  of  E.  St.  Louis  vs.  Freels,  17  App.  339. 
But  in  contested  elections  the  ballots  are  better  evidence  than 

the  count  of  the  judges. 

Catron  vs.  Craw,  164  111.  20;   Beall  vs.  Albert,  159  HI.  127;  Collier 
vs.  Anlicker,  189  111.  34;  XII  111.  Notes  300,  §221. 

—  Private:  The  original  books  and  the  evidence  provided  for 
by  statute  are  each  original  evidence,  and  evidence  of  a  secondary 
nature  is  not  to  be  resorted  to  where  there  is  in  the  possession  of 
the  party,   evidence   of  a  higher  and  more   satisfactory  nature. 


172  BEST  AND  SECOiVDARY 

Proof  of  the  papers,  entries  and  records  of  a  private  corporation, 
in  possession  of  tliat  corporation,  cannot  be  sliown  by  an  opinion 
or  conclusion  of  a  witness ;  the  evidence  must  be  primary,  original 

evidence. 

Maiidel  vs.  Swan  Land  Co.,  154  111.  177. 

Records  of  the  transactions  of  boards  of  directors  may  be  proven 
in  this  state;  first,  by  duly  certified  copies  thereof;  second,  by  a 
copy  thereof,  proved  to  be  such  by  a  credible  witness;  third,  by 

the  production  of  the  original  records. 

Cantwcll  vs.  B.  &  L.  Sav.  Union,  88  App.  247. 
Papers,  records  and  entries  of  a  corporation  may  be  proven  by 
a  copy  thereof,  certified  under  the  hand  of  the  proper  keeper  of 
the  same,  and  such  evidence  is  original  evidence. 
Mandel  vs.  Swan  Land  Co.,  154  111.  177. 
In  the  absence  of  written  record  of  a  corporation,  oral  evidence 
of  the  facts  required  to  be  kept  is  admissible. 
DuQuoin  Coal  Co.  vs.  Thorwell,  3  App.  394. 

OBJECTIONS,  WAIVER  AND  CONSIDERATION: 

When  primary  proof  cannot  be  produced  and  secondary  evi- 
dence is  admitted  without  objection,  it  becomes  a  part  of  the  case, 
and  although  it  is  not  the  best  evidence,  it  must  be  considered,  as 
it  is  relevant  and  tends  to  elucidate  the  question  in  issue.  By 
permitting  it  to  be  introduced,  the  party  against  whom  it  is  offered, 
dispenses  with  the  production  of  the  superior  evidence. 
Mason  vs.  Truitt,  257  111.  IS. 

If   parol   proof  of   a   record   is   made   without   objection,    facts 

shown  will  be  considered  as  established. 
Pettys  vs.  Brew.  Co.,  150  App.  378. 
Objections  to  secondary  evidence  must  be  made  at  trial. 

Condon  vs.  Brockway,  157  111.  90;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Strong, 
56  App.  604. 
Objections  to   secondary   evidence  must  be  specific   and  made 

promptly. 

Huntington  vs.  Aurand,  70  App.  28;  Schroeder  vs.  Walsh,  10  App.  36; 
People  vs.  Wait,  237  111.  164;  Bank  vs.  Bawdy,  230  111.  199. 
A  general  objection  does  not  present  the  question  of  the  sec- 
ondary character  of  evidence  objected  to. 

Groom  vs.  Parables,  28  App.  153. 

Only  the  party  who  is  affected  by  the  introduction  of  evidence 

may  object  to  documents. 

Rice  vs.  Riee,  108  111.  199. 
Proof  of  the  execution,  contents  and  assignment  of  a  bond  for 
a  deed  may  be  made  by  parol  testimony  if  no  objection  is  made  to 
its  introduction,  but  if  it  is  objected  to,  the  instrument  itself 
must  be  produced,  or  proper  foundation  laid  for  admission  of  sec- 
ondary evidence. 

McVey  vs.  McQuality,  97  111.  93. 
If  evidence  introduced  is  not  best  evidence  objection  should  be 
made  and  the  specific  objection  pointed  out.     Failure  to  do  so  will 
be  regarded  as  w^aiving  objection. 

Famous  Mfg.  Co.  vs.  Wilcox,  180  111.  246. 


BIAS  AND  IIOSTTLTTY  17^ 

BIAS  AND  HOSTILITY 

See  Parties  and  Persons  Interested  as  Witnesses,  Credi- 
bility, Impeachment,  (contradiction  and  Sustaining  Witnesses. 
In  General: 

—  Admissibility:     The  character  and  extent  of  the  feeling  of 

hostility   entertained   by   a   witness   should   be   permitted   to   be 

shown. 

People  vs.  Strauch,  247  111.  220;   People  vs.  Roberts,  226  111.  296; 
People  vs.  Walsh,  05  111.  58. 

—  Cross  Examination:    Bias  and  hostility  may  be  shown  on  cross 

examination. 

People  vs.  Stranch,  247  111.  220 ;  Bevau  vs.  Atlanta  Natl.  Bank,  142 

111.  302;  Travers  vs.  Snyder,  38  App.  379;  Anneals  vs.  People,  134 

111.  401;   XIV  111.  Notes  1156,  §321. 

The   admissibility   of   the   surrounding   circumstances   must    be 

determined  by  the  trial  judge   according  to  the  degree  of  their 

relation  to  the  fact  in  controversy  and  in  the  exercise  of  a  sound 

discretion. 

People  vs.  Straiieh,  247  111.  220. 

—  Details:  Details  of  cause  or  merits  of  controversy  are  imma- 
terial and  tend  to  confuse. 

People  vs.  Roberts,  226  111.  296;  Bevan  vs.  Atlanta  Natl.  Bank,  142 
111.  302. 
The  direct  question  as  to  the  state  of  feeling  of  witness,  friendly 
or  hostile,  is  the  only  proper  one.     How  that  might  be  caused  is 

wholly  unimportant. 

Merritt  vs.  Merritt,  20  111.  66. 
So  conversations  of  witness  day  before  homicide,  merely  tend- 
ing to  show  subject  matter  of  dispute  between  accused  and  wit- 
ness may  be  excluded. 

Davison  vs.  People,  90  111.  221. 
The  court  may,  in  its  discretion,  permit  a  witness  to  be  asked  if 
there  had  not  been  a  feud  or  quarrel  between  his  family  and  that 

of  opposite  party. 

Schmidt  vs.  Sum  matt,  103  111.  160. 
Upon  cross  examination,  where  witness  stated  he  had  trouble 
with  one  of  the  parties,  it  is  error,  in  re-direct,  to  permit  such 
witness  to  state  the  particulars  of  such  trouble,  where  character 
of  recitals  w^ould  tend  to  prejudice  the  jury. 
Walker  vs.  C.  &  A.  R.  R.  Co.,  149  App.  406. 
Evidence  that  witness  stated  she  would  do  all  she  could  to  beat 

plaintitf  is  proper. 

Walker  vs.  C.  &  J.  Ey.  Co.,  142  App.  372. 
Examination  as  to  whether  witness  contributed  money  in  aid 

of  prosecution  is  proper. 

Gallagher  vs.  People,  29  App.  401. 
Maintenance  of  kindred  actions  by  witness  against  same  defend- 
ant may  be  brought  out. 

People  vs.  Peltz,  143  App.  181. 
Fact  that  witness  was  indebted  to  party  calling  him  is  proper. 

Moline  Wagon  Co.  vs.  Preston  Bros.,  35  App.  358. 
A  witness  may  be  asked  if  he  had  not  been  promised  money  if 

deal  went  through.  „,.  -r,,   .nr 

West  Skokie  Drain  Dist.  vs.  Dawson,  243  111.  175. 


174  BIAS  AND  HOSTILITY 

Inquiry  as  to  contuniaeious  action  and  exhibition  of  state  of  wit- 
ness' feeling  toward  party  on  former  trial  is  proper. 
Bay  vs.  Bell,  24  111.  445. 

—  A7isiver  Not  Conclusive:  The  fact  that  witness  stated  he  has 
an  unfriendly  feeling  against  a  party  will  not  stop  the  inquiry  of 
the  witness  as  to  particular  declarations  or  expressions  of  ill-will, 
resentment  or  revenge,  and  proof  of  them,  if  denied  by  him.  There 
is  a  wide  difference  between  a  mere  feeling  of  unfriendliness,  and 
one  of  hatred  with  willingness  to  do  a  personal  injury,  which 
implies  a  heart  disposed  to  the  commission  of  crime,  while  a  want 
of  friendly  feeling  may  be  consistent  with  the  highest  type  of 
morality.  A  party  is  not  compelled  to  put  up  with  the  statement 
of  a  witness  concerning  his  own  interest  or  personal  relation  to 

the  case  or  the  parties. 

Phoenix  vs.  Castner,  108  111.  207. 

It  is  error  to  restrict  the  right  of  cross  examination  on  question 
,"of  prejudice  to  the  single  question,  "Have  you  any  feeling  against 
the  party  ? ' '  Party  is  not  bound  liy  the  statements  of  witness 
on  cross  examination  that  he  has  no  ill-will  or  feeling  of  any  kind 
against  the  opposite  party,  but  he  may  be  cross  examined  further 
to  ascertain  whether  such  statements  are  true  or  not,  and  what 
weight  should  be  given  them.  It  is  one  of  the  objects  of  cross 
examination  to  discover  the  motives,  inclinations  and  prejudices 
of  the  witness  for  the  purpose  of  reducing  the  effect  which  might 
otherwise  be  given  his  evidence.  Accordingly,  it  has  been  well 
said  that  it  is  always  competent  to  show  the  relations  which  exist 
between  the  witness  and  the  party  against,  as  well  as  for,  whom  he  is 
called.  It  is  competent  to  inquire  of  the  witness  concerning  acts,  dec- 
larations and  circumstances  showing  the  existence  of  hostile  feel- 
ings or  prejudices.  The  state  of  mind  and  feeling  of  a  witness 
may  materially  affect  his  testimony,  and  the  credit  of  a  witness 
upon  whose  testimony,  in  part,  the  issue  is  to  be  determined,  is 
not  collateral  and  an  inunaterial  matter.  It  is  not  meant  that  the 
particulars  of  collateral  matters  and  transactions  may  be  inquired 
into  on  cross  examination,  thus  introducing  other  issues  into  the 
trial,  but  the  witness,  although  he  may  have  answered  that  he  has 
no  ill-will  or  prejudice  against  the  party,  may  be  asked  whether 
he  has  not  made  certain  statements  or  declarations,  (specifying 
them)  tending  to  prove  such  ill-will  or  prejudice,  and  this  whether 
the  proper  foundation  by  specifying  the  time  and  place  has  been 
laid  or  not,  for  the  witness  may  admit  having  made  such  state- 
ments or  declarations,  in  which  case,  no  impeaching  witness  need 

be  called  to  prove  them. 

Blanchard  vs.  Blancharcl,  101  111.  450. 
As  to  matters  purely  collateral,  when  the  party  calls  them  out 
on  cross  examination,  he  is  bound  by  the  answer  of  witness,  but 
not  so  in  respect  to  matters  relevant  and  material  to  issues  being 
tried.  The  feeling  and  disposition  of  a  witness  towards  a  party  is, 
however,  relevant  and  material ;  and  on  cross  examination,  it  is 
competent  to  test  the  witness  in  respect  to  his  feeling,  and  if  he 
has  not  done  acts  or  used  expressions  showing  hatred  or  ill-will 
toward  the  party  against  whom  he  is  testifying,  and  if  he  denies 


BIGAMY  175 

same,  to   introduce   contradictory   evidence   by   way  of  impeaxih- 
ment. 

Anneals  vs.  People,  134  111.  401. 

Where  inquiry  as  to  bias  and  prejudice  of  witnesses  is  made,  it 
should  go  far  enough  to  indicate  to  the  jury  the  basis  of  their  tes- 
timony, or  whether  or  not  there  was  any  improper  motive,  and  not 
leave  them  to  mere  surmise. 

Nagle  vs.  Schnadt,  239  111.  595. 

—  Direct  Evidence:  Where  witness  upon  cross  examination 
denies  the  doing  of  acts  or  speaking  of  words  which  tend  to  show 
hostility,  evidence  is  admissible  to  contradict  him. 

Phoenix  vs.  Castner,  108  111.  207;  Hope  vs.  West  Chi.  R.  R.  Co.,  82 
App.  oil;  Morris  vs.  Burgess,  44  App.  27. 
Or  when  he  gives  any  indirect  answer  not  amounting  to  an  ad- 
mission, as  when  he  says  he  does  not  remem*ber. 
Ray  vs.  Bell,  24  111.  445. 

Cross  Examination  of  Hostile  Witness: 

Great  latitude  in  cross  examination  of  witness  is  allowed  where 
they  show  a  bias  for  or  against  either  party. 

Blanehard  vs.  Blanehard,  191  111.  450;  Con.  Coal  Co.  vs.  Seniger    179 
111.  370;   Birr  vs.  People,   113  111.  645. 

Ill  feeling  and  ill-will  should  be  permitted  to  be  shown. 
Davids  vs.  People,  192  111.  176. 

Hostility  of  Dying  Declarant: 

Hostility  of  party  making  dying  declarations  may  be  shown. 

Nordgren  vs.  People,  211  111.  425. 


BIBLE 

See  Age,  Pedigree,  Admissions,  Eecords. 

BIGAMY 

See  Marriage. 
In  General: 

To  constitute  bigamy,  two  successive  marriages  must  be  shown, 

one  legal  and  innocent  and  the  other  penal. 

Hiler  vs.  People,  156  111.  511. 
In  prosecution  for  bigamy,  marriage  may  be  proven  by  such 
evidence  as  is  admissible  to  prove  marriage  in  other  cases. 

Lowry  vs.  People,  172  111.  466;  Jackson  vs.  People,  3  111.  231. 

And  it  is  optional  with  the  prosecuting  attorney  whether  to 

use  the  marriage  license  and  certificate  or  other  record  evidence, 

or  to  prove  the  marriage  by  such  other  evidence  as  is  admissible 

to  prove  marriage  in  other  eases. 
Jackson  vs.  People,  3  111.  231. 

Both  must  be  actual  marriages. 
Hiler  vs.  People,  156  111.  511. 

Actual  Marriage: 

Wliere  it  is  charged  that  two  successive  marriages  have  taken 

place,  the  presumption  in  favor  of  the  legality  of  each  is  equal, 

and  actual  marriage  must  be  proven. 
Lowry  vs.  People,  172  111.  466. 


176  BIGAMY 

Lawful  Spouse  Living : 

Proof  must  show  that  defendant's  hiwful  wife  was  living  when 
cohabitation  between  defendant  and  his  bigamous  wife  occurred. 
People  vs.  Price,  250  111.  109;  Cf.  l>eople  vs.  Pritchard,  149  111.  50; 
Tucker  vs.  People,  117  111.  SS. 

When  a  tirst  wife  is  living  before  a  second  marriage,  there  is 

a  presumption  of  continuance  of  life. 
Hoch  vs.  People,  219  111.  205. 

Question  of  Law  and  Fact: 

Fact  of  marriage  is  question  for  jury. 
Sokel  vs.  People,  212  Jll.  238, 

Validity  of  Marriage: 

The  former  marriage  must  have  been  a  valid  one. 

Canale  vs.  People,  177  111.  219;  Ililer  vs.  People,  156  111.  511. 

And  its  validity  is  to  be  determined  by  the  lex  loci  contractus. 
Canale  vs.  People,  177  111.  219;   xMcDeed  vs.  McDeed,  67  111.  545. 

When,  by  the  law  of  the  place  of  cohabitation,  the  provisions  of 
the  marriage  laws  must  be  complied  with,  non-compliance  ren- 
ders the  marriage  void. 

Canale  vs.  People,  177  111.  219. 

Thus  a  marriage  between  parties  who,  at  the  time,  were  under 

the  age  prescribed,  is  absolutely  void. 
Canale  vs.  People,  177  111.  "219. 

Where  the  evidence  shows  that  people  were  frequently  married 
at  a  certain  age  in  foreign  country,  the  fact  of  the  celebration  of 
the  marriage,  if  followed  by  cohabitation,  raises  a  presumption 
that  it  was  lawful. 

Sokel  vs.  People,  212  111.  238. 

When  the  relation  of  husband  and  wife  has  been  assumed,  the 

law  generally  presumes  in  favor  of  a  lawful  marriage. 
Lowry  vs.  People,  172  111.  466. 

Where  it  is  charged  that  two  successive  marriages  have  taken 
place,  the  presumption  of  the  legality  of  each  is  equal. 
Lowry  vs.  People,  172  111.  466. 

Where  a  first  marriage  is  proven,  there  is  a  presumption  in 
favor  of  its  validity. 

Hoch  vs.  People,  219  111.  265. 

Bigamy  is  not  presumed,  but  the  presumption  is  in  favor  of 
innocence,  and  of  the  legality  of  the  marriage  which  was  formally 
solemnized. 

Murphy  vs.  People,  213  111.  154. 

Capacity  of  Accused  to  Contract: 

Proof  of  celebration  of  marriage  once  shown,  the  contract  of 
marriage,  the  capacity  of  the  parties,  and  every  other  fact  neces- 
sary to  the  validity  of  the  marriage  will  be  presumed,  but  such 
presumption  is  not  conclusive. 

Barber  vs.  People,  203  111.  543 ;  People  vs.  Shaw,  259  111.  544. 

Proof  of  a  public,  ceremonial  first  marriage  in  a  foreign  coun- 
try, performed  by  one  in  holy  orders,  followed  by  cohabitation 
of  the  parties  as  man  and  wife,  raises  the  presumption  that  ac- 
cused was  capable  of  contracting  marriage  under  the  laws  of 
such  country. 

Sokel  vs.  People,  212  111.  238. 


BIGAMY  177 

Presumption  as  to  Compliance  with  Law: 

It  is  the  general  rule  that  if  the  eek'l)ration  of  the  marriage  is 
proven  by  witnesses  who  were  present,  it  is  not  neeessary  tliat  any 
preliminary  steps,  reipiired  by  law,  should  also  be  shown,  as  it  is 
presumed  the  officiating  person  performed  his  duty. 

Caiuile  vs.  People,  177  111.  2iy.  .,•:, 

But  this  presumption  does  not  prevail  where  there  is  direct  and 
positive  proof  as  to  the  invalidity  of  the  marriage. 
Canale  vs.  People,  177  111,  219. 

Record  Evidence : 

It  is  not  necessary  to  prove  either  of  the  marriages  by  the  reg- 
ister or  certificate  or  other  record  evidence. 

Lowiy  vs.  People,  172  111.  466. 

Ecclesiastical  Ceremony : 

Proof  that  a  marriage  in  a  foreign  country  was  solemnized  in 
a  church  by  the  officiating  clergyman  according  to  the  rites  of 
such  church,  is  sufficient  to  establish  the  marriage,  in  absence  of 
proof  of  the  marriage  laws  of  that  jDlace. 
Canale  vs.  People,  177  111.  219. 

It  is  requisite  to  the  admission  of  church  records  that  it  shall 

be  made  to  appear  that  the  entries  were  made  by  the  person  whose 

duty  it  was  to  make  them. 

Murphy  vs.  People,  213  111.  154. 

Admissions  of  Accused: 

"  Fact  of  marriage  may  l^e  established  by  admissions  of  defendant. 
Lowry  vs.  People,  172  111.  466. 

Where  an  indictment  for  bigamy  charges  the  second  marriage  to 
have  been  made  in  a  certain  other  state  named,  and  subsequent 
cohabitation  with  the  second  wife  in  this  state,  the  admission  of 
defendant  that  he  married  her  is  not  sufficient  proof  of  the  mar- 
riage in  such  other  state,  which  is  necessary  to  be  proven  as 
charged;  nor  is  such  admission  sufficient  evidence  of  a  marriage 

in  this  state. 

Tucker  vs.  People,  117  111.  88. 
Admissions    as    to    cohabitation    and    reputation,    without    any 
admissions  of  a  marriage  in  fact,  are  not  sufficient  to  prove  a  mar- 
riage. 

Lowry  vs.  People,  172  111.  466;  Hiler  vs.  People,  156  111.  511. 

Letters  and  Conversations: 

Letters  of  defendant  to  former  wife,  while  they  were  living 
together,  are  admissible  to  show  fact  of  prior  marriage. 

Tucker  vs.  People,  122  111.  583. 
Conversations  of  parties  are  competent. 

Tucker  vs.  People,  122  111.  583. 

Opinion  Evidence: 

Opinions  of  witnesses  that  parties  were  married  is  inadmissible. 

Sokel  vs.  People,  212  111.  238. 

Certificate  of  Person  Officiating: 

Certified  copies  of  records  of  county  clerk,  of  the  certificate  of 
person  who  performed  the  marriage  ceremony,  indorsed  on  license, 

is  competent. 

Tucker  vs.  People,  122  111.  583. 

Admissibility  of  Board  of  Health  Record  of  Marriage: 

Paper  purporting  to  be  transcript  from  records  of  marriages 

Ev.— 12 


178  BIGAMY 

reported  to  Board  of  Ilealtli,  showing  marriage  of  person  having 
same  name  as  defendant,  is  inadmissible  unless  shown  to  be  one 
required  by  law  to  be  kept. 

Sokel  vs.  People,  21^  111.  238. 

Dissolution  of  Former  Marriage: 

Must  have  been  a  valid,  legal  dissolution. 
Sokel  vs.  People,  212  111.  238. 

So  divorce  by  rabbi  in  foreign  country  is  not  a  valid  dissolution 

when  it  is  not  shown  rabbi  had  jurisdiction  to  grant  divorces. 
Sokel  vs.  People,  212  111.  238. 

Burden  of  Proof: 

Where  the  evidence  established  a  contract  of  marriage,  one  con- 
tending that  the  contract  falls  within  restrictions  imposed  by  the 

state  where  the  marriage  took  place,  has  the  burden  of  proof. 

Sokel  vs.  People,  212  111.  238. 
Where  a  legal  divorce,  granted  before  the  second  marriage,  is 
offered  as  a  defense,  the  burden  is  on  defendant  to  prove  valid- 
ity of  the  decree. 

People  vs.  Spoor,  235  111.  230. 

Degree  of  Proof: 

Where  the  former  of  tvvo  marriages  relied  upon  to  convict  of 
bigamy  is  a  common  law  marriage,  a  contract  per  verhi  de  presenti, 
with  cohabitation,  and  all  elements  necessary  to  constitute  such 
connnon  law  marriage  must  be  proven  in  order  to  sustain  convic- 
tion. Strict  proof  of  fact  of  marriage  is  required. 
Hiler  vs.  People,  156  111.  511. 

Intent: 

Evidence  that  second  marriage  was  entered  into  in  good  faith, 
under  an  honest  but  mistaken  belief  that  first  wdfe  was  dead  or 
had  obtained  a  divorce,  is  inadmissible. 
People  vs.   Spoor,  235  111.  230. 

Defendant's  voluntary  intoxication  at  time  of  first  marriage  no 

defense. 

Barber  vs.  People,  203  111.  543. 

Competency  of  Wife  as  Witness : 

When  a  second  wife  is  offered  as  a  witness,  the  question  of  her 
competency  is  for  the  court,  and  in  deciding  that  question,  the 
court  is  not  only  the  judge  of  the  law  but  also  of  the  questions  of 
fact  necessary  to  be  decided  to  determine  that  question. 
Hoch  vs.  People,  219  111.  265. 

If  first  marriage  is  clearly  proven  and  not  controverted,  then 
the  person  with  whom  the  second  marriage  was  had  may  be  ad- 
mitted as  a  witness  to  prove  the  second  marriage,  as  well  as  other 
facts  not  tending  to  defeat  the  first  or  legalize  the  second,  but 
when  first  marriage  is  controverted,  such  person  is  incompetent. 
Hoch  vs.  People,  219  111.  265;  Lowery  vs.  People,  172  111.  466. 

The  incompetency  of  the  alleged  second  wife  cannot  be  waived 

by  defendant. 

Barber  vs.  People,  203  111.  543. 
Where  the  relation  of  husband  and  wife  has  been  assumed,  the 
second  wife  can  never  be  admitted  as  a  witness  to  prove  the  first 
marriage,  because  that  fact  must  be  established  before  she  can 
testify  at  all. 

Hoch  vs.  People,  219  111.  265;  Barber  vs.  People,  203  111.  543. 


BILL  OF  LADL\G  279 

BILLS  OF  DISCOVERY 

See  Discovery. 

BILL  OF  EXCEPTIONS 

See  Certificates  of  Evidence. 
Admissibility  to  Show^  Former  Testimony : 

—  Of  Party  to  Suit:  Fornier  testimony  cannot  be  proven  by 
reading  from  a  bill  of  exceptions  by  counsel. 

Sargeant  vs.  Marshall,  38  App.  642. 

—  Of  Deceased  Witness:  The  testimony  of  a  witness,  since 
deceased,  cannot  be  shown  by  a  bill  of  exceptions  taken  at  the 
trial. 

I.  C.  R.  E.  Co.  vs.  Ashline,  171  III.  313;  M.  &  S.  E.  E.  Co.  vs.  Horan, 
131  111.  288;  Stern  vs.  People,  102  111.  540;  Roth  vs.  Smith,  54 
111.  431. 

—  Absent  Witness:  What  a  witness,  who  is  beyond  the  juris- 
diction of  the  court,  and  whose  deposition  cannot  be  procured, 
testified  to  at  a  former  trial  between  the  same  parties,  cannot  be 
proven  by  a  bill  of  exceptions  made  up  on  a  former  trial,  even 
though  his  testimony  mav  have  been  taken  in  shorthand. 

I.  C.  R.  R.  Co.  vs.  Ashline,  171  111.  313;  Contra  Plane  Mfg.  Co.  vs. 
Parmeuter,  56  App.  258. 

Effect  of  Admitting  by  Consent: 

Where  the  record  of  a  prior  suit,  relating  to  the  same  matter  in 
litigation,  but  not  between  the  same  parties,  and  a  bill  of  excep- 
tions taken  on  the  trial  of  a  former  suit  was  admitted  in  evidence 
by  consent,  it  was  not  error  to  permit  jury  to  carry  such  record 
to  their  room,  as  such  consent  did  not  assimilate  the  record  into  a 
deposition. 

O'Neall  vs.  Calhoun,  67  111.  219. 

BILL  OF  LADING 

See  Assent. 
Presumptions : 

—  Conelition  of  Goods:  Where  a  common  carrier  receives  goods 
for  shipment,  and  gives  the  consignor  a  bill  of  lading,  in  which 
goods  are  described  to  be  in  apparent  good  order,  the  bill  of  lad- 
ing is  prima  facie  evidence,  in  suit  against  the  carrier,  that  the 
goods  were  in  good  condition. 

Euddell  vs.  B.  &  O.  S.  W.  E.  E.  Co.,  152  App.  218;  I.  C.  E.  E.  Co.  vs. 
Cobb,  72  111.   148. 

—  Oivnership:    Indorsement  and  delivery  of  bill  of  lading  gives 

indorsee  a  prima  facie  title  in  property. 

Sanitary  Can  Co.  vs.  Hines,  149  App.  244. 

—  Contract  of  Carriage:  The  acceptance  by  a  common  carrier 
for  transportation  of  freight  to  a  place  beyond  the  terminus  of  its 
own  lines,  and  its  receipt  given  for  the  same  constitute  a  prima 
facie  contract  to  carry  and  deliver  such  freight  to  the  place  of  its 
destination. 

Coales  vs.  C.  R.  I.  &  P.  Ry.  Co.,  239  111.  154;  Wabash  R.  E.  Co.  vs. 
Thomas,  222  111.  337;  E.  J.  &  E.  E.  Co.  vs.  Bfites  Maeh.  Co.,  98 
App.  311;  I.  C.  E.  E.  Co.  vs.  Frankenbura-,  54  HI.  88;  I.  C.  E.  E. 
Co.  vs.  Johnson,  34  111.  389;  I.  C.  E.  R.  Co,  vs.  Copoland,  24  111. 
332;   XI  111.   Notes   763,  §  186. 


180  BILL  OF  PxVRTlCULARS 

Admissibility  of  Evidence:  . 

Where  bill  of  lading  issued  it  must  be  put  in  evidence. 

Biutless  vs.  Oregon  S.  L.  R.  R.  Co.,  ISO  App.  1^49. 
But  the  loss  of  it  does  not  defeat  right  of  action. 
Gamble  Conn.  Co.  vs.  V.  P.  E.  R.  Co.,  180  App.  256. 
Contract  limiting  liability  may  be  given  in  evidence  under  gen- 
eral issue  in  action  of  case.  -- 
Cole  &  Co.  vs.  L.  &  E.  St.  L.  E.  E.  Co.,  41  App.  607;  Wabash  St.  L. 
&  P.  E.  E.  Co.  vs.  Black,  11  App.  405;   B.  &  O.  S.  W.  R.  E.  Co. 
vs.  Eoss,  105  App.  54. 

—  Contradiction  hy  Carrier:  A  shipping  receipt  reciting  ship- 
ment of  certain  property  may  be  contradicted  by  carrier  to  show 

it  had  never  recieved  the  property  of  the  consignor. 

L.  S.  &  M.  S.  E.  R.  Co.  vs.  Natl.  L.  S.  Bank,  178  111.  506. 

A  bill  of  lading  is  prima  facie  evidence  of  the  matters  con- 
tained in  it,  but  it  is  subject  to  explanation ;  and  carrier  may  show 
any  injury,  loss,  fraud  or  deceit  occasioned  or  practiced  by  any 

previous  carrier  or  the  shipper  of  the  goods. 
G.  W.  E.  R.  Co.  vs.  McDonald,  18  111.  172. 

A  bill  of  lading  is  in  the  nature  of  a  receipt  and  may  be  ex- 
plained or  contradicted  by  parol  proof. 

A  bill  of  lading  is  prima  facie  evidence  and  the  carrier  must 
prove  that  the  goods  were  not  as  therein  described. 

Bissell  vs  Price,  16  111.  408;  Wallace  vs.  Long,  8  Ajrtp.  504. 

—  To  Prove  Verbal  Contract:  Although  a  common  carrier  in 
receiving  goods  for  transportation  may  issue  a  bill  of  lading  there- 
for, containing  provisions  restricting  his  common  law  liability, 
this  is  not  conclusive  upon  the  shipper  as  to  the  terms  upon  which 
the  goods  were  to  be  carried,  but  he  may  show  by  parol  evidence 
that  there  was  a  prior  verbal  agreement  upon  which  the  goods 
were  to  be  shipped  and  which  did  not  provide  for  the  restrictions 

upon  carrier's  lialiilitv  contained  in  bill  of  lading. 

Baker  vs.  M.  S.  R.  R.  Co.,  42  111.  73 ;  St.  L.  S.  Ry.  Co.  vs.  Elgin  Milk 
Co.,  74  App.  619. 

—  Forwarding  Line:  Where  a  bill  of  lading  is  silent  in  respect 
to  the  line  by  which  the  goods  are  to  be  forwarded,  its  effect  is 
the  same  as  if  a  provision  were  therein  inserted  that  the  carrier 
should  have  the  right  to  select  at  its  discretion  any  customary  or 
usual  route  which  is  regarded  as  safe  and  reasonable,  and  this 
provision  l)eing  thus  inserted  into  the  contract  by  law  is  as  unas- 
sailable bv  parol  as  anv  of  the  express  terms  of  the  contracts. 

S'hafton  Co.  vs.  St.  L.  I.  M.  &  S.  :Sij.  Co.,  174  App.  121. 


BILL  OF  PARTICULARS 

CIVIL  ACTIONS: 
Purpose : 

The  purpose  of  a  bill  of  particulars  is  to  inform  the  defendant 
of  the  claim  he  is  called  upon  to  defend. 

McKinuie  vs.  Lane,  230  111.  544;  Porter  vs.  Horton,  80  App.  333. 


BILL  OF  PxVPvTlCULARS  181 

Right  Tot 

—  In  General:  Whether  or  not  a  party  shnll  l)o  rnk>d  to  fur- 
nish a  bill  of  particulars  is  a  matter  resting  solely  in  the  sound 
legal  discretion  of  the  court. 

Greshain  vs.  ShoJits,  170  App.  296;  Amer.  Roll.  Mill  Co.  vs.  Iron  Co 
120  App.  614.  ' 

In  all  actions  where,  by  reason  of  the  generality  of  the  claim  or 
charge,  the  adverse  party  is  unable  to  know  with  reasonable  cer- 
tainty what  he  is  required  to  meet,  a  bill  of  particulars  may  be 
demanded. 

Amer.  B.  M.  Co.  vs.  O.  I.  &  M.  Co.,  120  App.  614. 
A  specification  or  bill  of  particulars  is  not  required  in  action  for 
damages  caused   by   negligence   stating  how,   when  and   by   what 
means  the  injury  occurred. 

C.  &  A.  Ey.  Co.  vs.  Smith,  10  App.  359. 
In  action  for  breach  of  warranty  of  sheep  as  sound,  but  which 
were  claimed  to  be  diseased,  where  declaration  fails  to  name  dis- 
ease with  which  they  were  claimed  to  be  atfected,  defendant  should 
have  a  discovery  thereof  by  a  bill  of  particulars. 
Heenan  vs.  Eedman,  101  App.  603, 

Where  the  allegations  in  action  for  slander  are  not  specific 
enough  to  fully  apprise  the  defendant  of  the  cause  of  action  in 
statement  of  the  actual  word  uttered,  or  to  whom  or  in  whose 
presence,  or  the  place  where  uttered,  court  should  order  filing  of 
a  bill  of  particulars. 

Amer.  R.  M.  Co.  vs.  0.  &  I.  M.  Co.,  120  App.  614. 

—  'Waiver:  Where  a  plea  of  set-off  has  been  on  file  for  more 
than  seven  weeks  and  plaintiff  does  not  call  for  a  bill  of  particu- 
lars under  it  until  after  the  case  is  called  for  trial,  and  a  jury  is 
called,  he  must  be  regarded  as  having  waived  his  rights. 

Fowler  vs.  Meyers,  59  App.  248;  Howe  vs.  Frazer,  117  111.  191, 

Requisites  and  Sufficiency: 

Slight  ambiguity  in  bill  of  particulars  is  not  fatal;  a  bill  of 
particulars  is  sufficient  if  it  informs  the  defendant  of  the  nature 
of  plaintiff's  claim. 

Maloney  vs.  Madden,  153  App.  271. 
An  omission  in  a  bill  of  particulars  of  a  matter  well  known  to 
defendant  is  immaterial. 

Yawoer  vs.  Bachs,  119  App.  61. 

Scope  and  Effect: 

Where  a  party  files  a  bill  of  particulars,  he  is  bound  to  prove 
such  a  case  as  is  stated  in  it  or  enough  of  it  to  warrant  a  recovery. 

City  of  Chicago  vs.  Rustin,  99  App.  47. 

A  bill  of  particulars  is  restrictive  of  the  right  of  recovery  stated 
in  the  declaration,  and  it  is  error  to  admit  proof  of  a  cause  of 
action  or  damages  not  therein  specified. 
Colwell  vs.  Brown,  103  App.  22. 

The  effect  is  to  limit  plaintiff  in  the  trial  to  proof  of  the  particu- 
lar cause  of  action  therein  mentioned. 

McKinnie  vs.  Lane,  230  111.  544;  Star  Brew.  vs.  Farnsworth,  172  111. 
247;  Waidner  vs.  Panlev,  141  111.  442;  Porter  vs.  Horton,  80  App. 
333;  Morton  vs.  McClure,  22  111.  257;  XIV  111.  Notes  44,  §  328. 

The  bill  of  particulars  limits  the  claims  for  which  recovery  can 


182  BILL   OF   PARTICULARS 

be  had  to  those  specifically  set  forth  in  it,  but  does  not  limit  the 
introduction  of  evidence  tending  to  prove  such  claims. 
Casey  vs,  Vandeventer,  76  App.  628. 

Where  a  bill  of  particulars  is  filed  embracing  many  charges  and 
a  credit  for  a  sum  as  paid,  the  whole  account  must  be  taken  to- 
gether like  an  admission  of  any  other  kind,  and  it  is  for  the  jury 

to  pass  upon  and  say  what  it  proves. 
Thompson  vs.  Hovey,  43  111.  197. 

Amendment : 

Although  a  bill  of  particulars,  when  filed,  restricts  plaintiff  to  the 
particular  cause  of  action  therein  set  forth,  it  is  subject  to  amend- 
ment as  any  other  pleading. 

Waidner   vs.   Pauly,    141   111.   442;    Brownell   Co.   vs,    Critchfield,   90 
App.  84. 

Court  should  allow  it  to  conform  to  the  evidence. 

McKinnie  vs.  Lane,  230  111.  544. 

Reading  to  Jury : 

A   bill  of  particulars   accompanying  notice   of  set-off   may  be 

treated  as  part  of  the  record  and  read  to  jury  and  commented  on. 
Miller  vs.  Miller,  16  111.  296, 

Admissibility: 

]\Iay  be  used  to  refresh  party's  memory,  where  same  was  made 

out  under  his  direction  and  he  knew  same  to  be  correct. 

C.  &  W.  Coal  Co.  vs.  Liddell,  69  111.  639. 

CRIMINAL  TRIALS: 
Right  To: 

—  In  General:  Defendant  is  not  entitled  to  a  bill  of  particulars 
as  a  matter  of  right.  The  requiring  of  it  rests  in  the  sound  dis- 
cretion of  the  court. 

People  vs.  Poindexter,  243  111.  68;  People  vs.  Nail,  242  111.  284;  Du- 
bois  vs.   People,   200    111.    157;    People   vs.   Walker,    154   App.    3; 
People  vs.  Joyce,  154  App.  13 ;  Christenson  vs.  People,  114  App.  40 ; 
XII  111.  Notes  989,  §  45. 
It  is  only  where  the  indictment  does  not  sufficiently  advise  the 
defendant  what  it  is  with  which  he  is  charged,  or  where  it  appears 
that  he  cannot  properly  prepare  his  defense  without  a  bill  of  par- 
ticulars that  it  is  the  duty  of  the  court  to  require  one  to  be  fur- 
nished. 

People  vs.  Poindexter,  243  111.  68 ;  Kelly  vs.  People,  192  111.  119. 

In  a  criminal  ease  it  is  not  necessary  where  the  indictment  itself 
sufficiently  informs  the  defendants  of  the  crime  with  which  they 
are  charged  to  enable  them  to  prepare  their  defense. 
Gallagher  vs.  People,  211  111.  158. 

• — Conspiracy:  Where  most  of  the  counts  of  an  indictment  for 
conspiracy  are  sufficiently  specific  to  apprise  the  defendants  fully 
of  the  offense  charged  and  the  means  whereby  the  conspiracy  was 
to  be  carried  into  effect,  and  no  evidence  is  offered  which  is  not 
properly  admissible  under  such  counts,  the  refusal  of  the  court  to 
require  the  People  to  file  a  bill  of  particulars  is  not  harmful. 
People  vs.  Smith,  239  111.  91, 

—  Crimes  Against  Nature:  An  indictment  which  informs  the 
defendant,  in  the  language  of  the  statute,  that  he  is  charged  with 
the  crime  against  nature  with  and  upon  a  named  person,  averred 
to  be  a  "man,  and  "a  male  person,"  is  sufficient. 

Kelly  vs.  People,  192  111.  119;  Honselman  vs.  People,  168  111.  172. 


BILL   OF   PARTICULARS  183 

—  Confidence  Game:  Bill  of  particulars  in  prosecution  for  con- 
ducting confidence  game  need  not  set  out  various  devices  and 
means  resorted  to. 

People  vs.  Weil,  244  111.  176;  People  vs.  DuBois,  200  111.  157. 

Whether  or  not  the  People  shall  be  required  to  furnish  a  hill 
of  particulars  under  a  count  charging  the  confidence  game  is  a 
matter  resting  in  the  sound  legal  discretion  of  the  court,  and  if 
such  count  is  sufficiently  specific  to  notify  the  defendant  of  tiie 
offense  with  which  he  is  charged,  a  refusal  to  require  a  bill  of 
particulars  is  not  an  abuse  of  such  discretion. 
People  vs.  Weil,  244  111.  176. 

If  an  indictment  for  obtaining  money  by  means  of  a  confidence 
game  names  the  victim,  the  offense  is  sufficiently  identified  and  a 
conviction  of  the  crime  would  bar  a  second  prosecution. 
DuBois  vs.  People,  200  111.  157. 

Scope  and  Effect : 

''Under  plainest  principles  of  law,  relating  to  the  admission  of 
evidence,  under  an  averment  in  pleading — treating  the  bill  of  par- 
ticulars as  a  pleading — the  evidence  should  be  confined  to  the 
offense  specified  in  the  bill  of  particulars;  otherwise  the  bill  of 
particulars  was  a  delusion,  a  legal  snare,  furnished  for  the  pur- 
pose of  deceiving  the  defendants." 

McDonald  vs.  People,  126  111.  150;  Sullivan  vs.  People,  108  App.  328. 

Effect  of  a  bill  of  particulars  is  to  limit  the  evidence  to  the 
transaction  therein  set  out.  But  the  prosecution  is  not  required 
to  set  out  in  the  bill  of  particulars  all  the  evidence  it  will  produce 
in  support  of  the  charge.  Any  evidence  tending  to  establish  the 
transaction  set  forth  therein  is  admissible.  If  the  bill  is  not  suf- 
ficiently specific,  defendant  may  demand  one  more  definite  and 
certain.  If  evidence  offered  is  not  limited  to  transaction  men- 
tioned, he  may  object  to  it  on  that  ground. 
People  vs.  Depew,  237  111.  574. 

In  case  the  prosecution,  by  order  of  court,  furnishes  a  bill  of 
particulars  showing  the  particular  transactions  relied  upon  to 
support  an  indictment  for  conspiracy  to  obtain  money  by  false  and 
fraudulent  representations,  it  will  be  limited  to  proof  of  the  acts 
or  transactions  named  in  such  bill  of  particulars,  and  it  will  be 
error  to  admit  evidence  of  other  and  different  transactions  and  not 
inseparable  from  those  named,  or  constituting  a  part  of  the  res 
gestae. 

McDonald  vs.  People,  126  111.   150. 

Reading  to  Jury: 

Upon  a  trial  for  conspiracy  under  a  general  conspiracy  indict- 
ment, the  bill  of  particulars  specifying  the  charges  the  accused 
is  required  to  meet,  which  was  filed  by  order  of  the  court  at  the 
request  of  the  accused,  may  be  read  to  the  jury  by  the  State's 

attorney  in  his  opening  statement. 
"  Cooke  vs.  People,  "231  111.  9. 
And  same  may  be  taken  to  jury  room. 
Cooke  vs.  People,  134  App.  41. 


184  BONDS 

BONDS 

See  Appeal  Bonds,  Principal  and  Surety,  Denial  of  Execu- 
tion. 
BURDEN  OF  PROOF : 

Plaiiititt'    has    burden    of    proving    that    act    complained    of 
occurred  during  the  term  of  the  bond. 

Mystic  Workers  vs.  U.  S.  F.  G.  Co.,  152  App.  223;  Stern  vs.  People, 
96  111.  475. 
But  where  an  officer  at  the  expiration  of  his  term  of  office  makes 
a  report  showing  the  .balance  in  his  hands,  and  thereupon  jsuc- 
ceeds  himself  and  gives  a  new  bond,  the  surety  in  the  new  bond 
cannot  be  permitted  to  show  in  action  brought  upon  the  bond  at 
the  expiration  of  the  last  term  of  office  that  a  shortage  then  found 
to  exist  arose  from  embezzlements,  misappropriations  or  losses 
which  actually  occurred  during  the  term  of  office  prior  to  the 
one  for  which  the  bond  sued  on  was  given. 

To^\ii   of   Cicero   vs.    Grisco,   240   111.    220;    Trustees   of  Schools   vs. 
Cowden,  240  111.  39. 
A  surety  on  a  bond  given  to  secure  the  faithful  performance  of 
a  contract  is  not  liable  for  defaults  of  his  principal  previous  to  the 
transaction  wherein  the  bond  and  contract  were  executed,  unless 
the  contract  is  retrospective  in  terms. 
Bartlett  vs.  Wheeler,  195  111.  445. 

ADMISSIBILITY  OF  EVIDENCE: 

Official  Capacity: 

In  action  on  an  officer's  bond,  the  sureties  cannot  be  permitted 

to  deny  that  he  is  such  officer. 

Meyer  vs.  Willshire,  92  111.  395 ;  Albee  vs.  People,  22  111.  533 ;  Shaw 
vs.  Haverskluft,  21  111.  127;  XIII  111.  Notes  1032,  §  38. 

Validity : 

If  a  public  offijcer  gives  a  bond  under  which  he  is  allowed  to 
receive  money  and  does  actually  receive  it  by  virtue  of  his  office,  he 
and  his  sureties  are  estopped  to  deny  the  validity  of  the  bond  when 
sued  for  breach  of  its  conditions. 

Estate  of  Eamscy  vs.  People,  197  111.  572. 

Recitals : 

In  action  on  a  bond,  the  obligors  and  sureties  are  estopped  from 
setting  up  defenses  that  contradict  the  recitals  therein. 

McCarthy  vs.  Construction  Co.,  219  111.  61(5;  Harding  vs.  Kuessner, 
172  111.  125;  Lucas  vs.  Beebee,  S8  111.  427;  Arnott  vs.  Friel,  50  111. 
174. 

Admissions : 

In  suit  on  bond,  an  admission  by  principal  that  he  owed  a  cer- 
tain amount  is  evidence  of  that  fact,  not  only  against  himself,  but 

against  his  co-obligors.  ^  o  ,     ,    s  o . 

Swisher  vs.  Deering,  204  111.  203;  Swift  vs.  Trustees  of  Schools,  1!59 
111.  584;  Ehode  vs.  McLean,  101  111.  467;  People  vs.  Title  G.  &  S. 
Co.,  156  App.  488;  Magner  vs.  Knowles,  67  111.  325. 
And  if  such  admission  be  proved,  his  successor  in  office  may, 
without  producing  the  books,  testify  that  the  books  showed  that 
party  had  received  such  amount  and  failed  to  turn  it  over. 
Swift  vs.  Trustees  of  Schools.  189  111.  584. 


BONDS  185 

Certified  Copy: 

Certified  copy  of  an  official  bond  is  admissible  in  evidence  with- 
out preliminary  proof  of  loss  of  original. 

Estate  of  Kamsey  vs.  People,  197  111.  572. 

Approval  of  Bond: 

Approval  of  officer's  bond  may  be  shown  by  parol. 

Estate  of  Ramsey  vs.  People,  197  Til.  572;  liartloss  vs.  P,oar(l  of 
Education,  59  111.  364;  School  Directors  vs.  Kimnioll,  31  Apji.  537. 
But  not  order  of  court  approvinsr  guardian's  bond. 

Mcliityre  vs.  People,  103  111.  142. 

Pleadings  in  Former  Suit: 

Defendant's  answer  in  former  suit  is  competent  as  an  admis- 
sion. 

Culley  vs.  People,  73  App.  501. 

Books  and  Records: 

Where  the  books  upon  which  the  entries  of  a  public  officer  are 
made  as  the  law  requires  to  be  kept  so  that  they  constitute  the 
official  record  of  the  acts  performed  by  him  in  the  discharge  of  his 
official  duties,  such  entries  are  on  general  principles  admissible  in 
evidence  for  or  against  all  persons  having  any  interest  in  them  or 
the  facts  to  which  they  relate,  including  the  officer  and  the  sure- 
ties on  his  bond. 

Cassidy  vs.  Trustees  of  Schools,  105  111.  561;  Building  Association 
vs.  Cochrane,  103  App.  29. 

And  this  whether  entries  were  made  by  official  or  his  bookkeeper, 
the  presumption  being  that  he  w^ould  not  permit  improper  or  incor- 
rect charges  to  stand  uncorrected. 
Cawley  vs.  People,  95  111.  249. 

So  the  report  of  a  county  treasurer,  in  his  handwriting,  pre- 
sented to  the  county  board,  as  well  as  the  record  of  the  board 
approving  same,  are  competent  evidence  against  his  sureties  in 
action  on  his  official  bond. 

Stern  vs.  People,  102  111.  541. 
—  When  Conclusive:  "Where  the  books  upon  which  the  entries 
of  a  public  officer  are  made,  are  such  as  the  law  requires  to  be 
kept,  so  that  they  constitute  the  official  record  of  the  acts  per- 
formed by  him  in  the  discharge  of  his  official  duties,  such  entries 
are  conclusive  upon  principal  and  sureties. 

Town  of  Cicero  vs.  Grisco,  240  111.  220;  Cowden  vs.  Trustees  of 
Schools,  235  111.  604;  Longan  vs.  Taylor,  130  111.  412;  Fogarty  vs. 
Ream,  100  111.  366. 

But  records  w^iich   require   an  adjudication  or  approval  of  a 
court  are  not  conclusive  until  so  approved  or  adjudicated. 
People  vs.  Huffman,  182  111.  390. 

Official  Orders: 

An  order  of  the  probate  court  finding  the  amount  due  from  a 
guardian  to  his  ward  on   his  final   account  is  admissible   in  suit 

against  the  sureties  on  his  bond. 

Ryan  vs.  People,  165  111.  143;  Gillett  vs.  Wylie,  126  III.  310;  Mould- 

'ing  vs.  Wilhartz,   169  111.  422. 

And  where  a  report  is  made  by  an  administrator  or  executor  and 

there  has  been  an  adjudication  by  the  court  approving  that  report 

and  ordering  payment  from  the  funds  in  the  hands  of  such  admin- 


186  BOOK  ACCOUNT 

istrator,  that  judgment  is  evidence  that  is  conclusive  on  such  ad- 
ministrator or  executor  and  also  upon  his  sureties. 
People  vs.  Huffman,  182  111.  390. 

Also  the  record  of  the  removal  from  office  of  a  county  treasurer 
by  the  county  board  is  admissible  in  evidence  in  suit  on  his  official 
bond  against  the  sureties  on  his  bond,  that  being  the  best  evidence 
of  the  fact  of  removal  and  the  cause  thereof.  Also  the  recitals 
showing  that  the  officer  was  found  to  be  a  defaulter  is  admissible 
as  well  as  that  part  of  the  record  showing  the  removal  itself. 
Stern  vs.  People,  102  111.  541. 

Judgments : 

—  When  Conclusive:     A  judgment  against  a   principal  where 

the  surety  has  been  notified  and  had  an  opportunity  to  defend  is 

prima  facie   evidence   as  to  amount  of  damages  in  suit  against 

surety, 

Henry  vs.  Heklmaier,  226  111.  152. 

So  a  judgment  against  an  executor  for  money  due  from  him  as 

such,  to  the  estate,  cannot  be  collaterally  attacked  in  suit  on  bond. 

Nevitt  \s.  Woodlnuii,  Ifin   111.  203. 

WEIGHT  AND  SUFFICIENCY: 
Bond  for  Payment  of  Money: 

Where  a  suit  is  brought  on  a  bond  for  payment  of  money  in  in- 
stallments, for  a  breach  of  the  condition  of  non-payment  of  the 
installments,  the  plaintiff  cannot  recover  without  proof  of  such 
breach,  and  the  mere  introduction  of  the  bond  does  not  make  out 
a  prima  facie  case.  And  the  rule  is  the  same  whether  suit  is  at  law 
or  in  equity. 

Barrett  vs.  Building  Assn.,  75  App.  98. 

Penal  Bond: 

In  action  on  a  penal  bond,  conditioned  for  payment  of  the  penal 

sum  at  a  specified  time,  the  introduction  of  the  bond  in  evidence 

will   establish   a  prima   facie   case   for   the    plaintiff   for   the   full 

amount,  as  debt,  and  if  interest  after  maturity  is  recoverable,  that 

should  be  allowed  as  damages. 

Hoxsey  vs.  Patterson,  59  111.  522. 

Bond  for  Deed: 

In  action  on  bond  for  deed  to  recover  money  paid,  the  only 
proof  necessary  is  the  bond  itself,  payment  of  money,  and  that 
before  payment  upon  the  bond  became  due  the  obligor  had  con- 
veyed away  the  land  to  another. 

Buck  vs.  Eaman,  18  111.  529. 

Attachment  Bond: 

If  only  the  plea  of  non  est  factum  stands  as  to  the  declaration, 
a  prima  facie  case  in  action  upon  an  attachment  bond  is  made  by 
due  proof  of  such  bond,  the  disposition  of  the  attachment  being 
admitted  by  the  state  of  the  pleadings. 

Strong  vs.  Hasterlik,  146  App.  346;  Goldstein  vs.  Reynolds,  190  111. 
124. 


BOOK  ACCOUNT 

See  Account  Stated,  Books  of  Account. 


BOOKS  187 

BOOKS 

See  Corporations,  Hearsay,  Books  op  Account,  Expert  and 
Opinion. 
On  Mechanics : 

—  Extracts  Inadmissible:  In  action  to  recover  for  injury  caused 
by  use  of  defective  machinery,  extracts  from  a  standard  work  on 
mechanics  cannot  be  read  in  evidence. 

N.  C.  II.  M.  Co.  vs.  Monka,  107  111.  340. 

Medical  Books: 

—  Reading  From:  It  is  not  competent  for  counsel  to  read  from 
medical  works,  and  much  less  is  it  competent  to  attempt  to  prove 
the  contents  of  such  books  by  witnesses  testifying  solely  from 
memory;  such  evidence  is  mere  hearsay  and  incompetent. 

Chi.  City  Ey.  Co.  vs.  Douglas,  104  App.  41;  Forest  City  Ins.  Co.  vs. 
Morgan,  22  App.  199;  Yoe  vs.  People,  49  111.  410. 

Nor  may  counsel  read  from  reported  cases  the  opinions  of  med- 
ical experts  who  testified  in  such  cases. 
Yoe  vs.  People,  49  111.  410. 

—  Experts:  A  physician  who  has  testified  as  an  expert  may  be 
asked,  on  cross  examination,  to  state  the  names  of  medical  authori- 
ties supporting  a  proposition  concerning  which  he  has  testified. 

Chi.  U.  Trac.  -Co.  vs.  Ertrachter,  228  111.  114. 

And  may  be  cross  examined  as  to  basis  of  his  opinion  as  to 
whether  authorities  do  not  lay  down  a  different  rule,  and  the  like. 
Donnelly  vs.  Chi,  City  Ey.  Co.,  163  App.  7. 

Scientific  books  cannot  be  read  from  to  contradict  experts  gen- 
erally. ^  , '     , 
Wevh  vs.  Chi.  City  Ey.  Co.,  148  App.   165;   Forest  City  Ins.  Co.  vs^ 
Morgan,  22  App.  199;  XII  111.  Notes  510,  §282. 

And  such  books  are  not  admissible  and  the  fact  that  witness  has 
examined  them  does  not  render  them  so.  Nor  can  books  be  sub- 
mitted to  witness  and  he  asked  as  to  whether  or  not  opinions  ex- 
pressed therein  were  at  variance  with  those  of  witness. 

Weyh  vs.  Chi.  City  Ey.  Co.,  148  App.  165;  Neiner  vs.  Chi.  City  Ey. 
Co.,  181  App.  449. 

The  weight  of  current  authority  is  decidedly  against  the  admis- 
sion of  scientific  books  in  evidence  before  a  jury,  and  against  allow- 
ing them  to  be  read  from  to  contradict  an  expert  generally.  Wlien, 
however,  an  expert  assumes  to  base  his  opinion  upon  the  work  of  a 
particular  author,  that  work  may  be  read  in  evidence  to  contra- 
dict him.  AVhere  a  witness  was  examined  as  an  expert,  and  gave 
evidence  tending  to  prove  that  a  party  had  been  guilty  of  negli- 
gence after  a  fall,  in  omitting  the  proper  care  to  avoid  an  abor- 
tion, but  did  not  quote  from  or  make  any  reference  to  any  med- 
ical works  on  the  subject,  the  court  allowed  counsel,  on  cross  ex- 
amination, to  ask  him  if  he  were  acquainted  with  Playfair  and  Bed- 
ford (treatises  on  midwifery),  and  upon  his  responding  in  the 
affirmative,  and  that  they  were  standard  authors  on  such  ques- 
tions, the  court  allowed  counsel  to  read  at  length  from  _  each 
of  these  authors,  consecutively,  and  then  inquire  of  the  witness 
whether  he  agreed  with  the  authors  as  to  the  parts  so  read,  and  it 
was  held  to  be  error  to  allow  the  reading  from  the  books  and  the 


188  BOOKS  OF  ACCOUNT 

questions  to  be  propounded  to  the  witness  as  to  his  agreeing  with 
the  authors. 

Since  medical  or  other  scientific  books  are  not  admissible  as 
original  evidence,  it  follows  that  they  are  not  admissible  on  cross 
examination,  when  their  introduction  is  not  for  the  direct  contra- 
diction of  something  asserted  by  witness,  but  simply  to  prove  a 

different  theory. 

City  of  Bloomington  vs.  Shrock,  110  111.  219;  Cbi.  M.  Life  Ins.  Co. 
vs.  Ellis,  89  111.  516;  Brodie  vs.  City  of  Lewistou,  164  App.  336. 
So  long  as  a  witness  testifying  has  not  assumed  to  base  his  opin- 
ion upon  the  authority  of  a  particular  author,  the  opinion  of  such 
author  as  expressed  in  the  treatise  (even  if  the  opinion  is  expressed 

by  the  witness)  is  incompetent. 

Weyb  vs.  City  of  Chicago,  148  App.  165. 
But  when  an  expert 'assumes  to  base  his  opinion  upon  a  par- 
ticular author's  book,  that  book  may  be  read  in  evidence  to  contra- 
dict him. 

Wcyh  vs.  City  of  Chicago,  148  App.  165. 

Law  Books: 

—  Criminal  Action:    The  law  as  laid  down  by  standard  authors 

and  as  contained  in  the  reported  cases  of  courts  of  last  resort,  may 

be  read  to  the  jury  by  either  side,  including  the  statements  of  fact 

upon  which  the  decisions  are  based, 
Wohlford  vs.  People,  148  111.  296. 

—  Civil  Aciions:    In  civil  actions  a  different  rule  prevails, 

Wohlford  vs.  People,  148  111.  296. 

Scientific  Books: 

In  a  prosecution  of  leaders  of  a  revolutionary  society,  for  mur- 
der by  a  member  thereof  throwing  a  boml)  during  a  meeting  ad- 
dressed by  defendants,  a  scientific  treatise  on  Revolutionary  War- 
fare used  and  adopted  by  the  society  is  competent  as  showing  ob- 
ject of  society  and  methods  to  be  used  in  its  attainment. 
►Spies  vs.  People,  122  111.  1. 


BOOKS  OF  ACCOUNT 

See  Memorandum,  Best  and  Secondary,  Production  op  Docu- 
ments, Advancements. 
Defined : 

—  In  General:    A  book,  to  be  admissible  in  evidence,  as  an  ac- 
count book,  must  contain  entries  or  transactions  as  they  occurred 

in  the  regular  course  of  business. 

Kibbe  vs.  Bancroft,  77  111.  18;  Taliaferro  vs.  Ives,  51  111.  247;  Dicki- 
son  vs.  l^lec.  Co.,  53  Ap^i.  379. 
And  should  have  been  fairly  and  honestly  kept. 
Chisholm  vs.  Beaman  Mach.  Co.,  160  111.   101. 

Must  be  book  of  original  entry. 

McDavids  vs.  Elli'^,  78  App.  381;  Meeth  vs.  Brick  Co.,  48  App.  602; 
MeConiiick  vs.  Elston,  16  111.  204;  XII  111.  Notes    508    §259. 

And  made  at  time  of  transaction. 

Hill  vs.  Homniers,  55  App.  345. 
Where  one  man  received  payments  and  notes  same  on  slips  whicli 


BOOKS  OF  ACCOUNT  189 

are  delivered  at  end  of  week  to  another  who  enters  same  on  books, 

the  books  are  to  be  regarded  as  books  of  original  entry. 
Trainor  vs.  Building  Assn.,  204  111.  (U6, 

Where  book  is  an  old  one,  laid  aside  as  a  book  of  accounts,  and 
used  only  for  one  entry  of  a  late  transaction,  it  is  not  admissible 
in  evidence  as  to  the  latter  entry. 

It  has  never  been  held  that  a  single  entry  makes  an  account 

book,  nor  has  it  ever  been  held  that  a  single  entry  of  cash  in  a 

book  is  competent  proof. 

Kibbe  vs.  Bancroft,  77  111.  18. 

—  Cash  Book:  A  book  is  not  an  account  book  which  does  not 
contain  an  account  with  a  person,  but  mere  memoranda  of  pay- 
ments of  cash. 

Sanford  vs.  Miller,  19  App.  536;  Schwarz  vs.  Eossler,  40  Ai:)p.  474. 

—  Ledger:     The  book  of  original  entry  must  be  produced;  the 

ledger  alone  is  not  sufficient. 

McCormick  vs.  Elston,  16  111.  204;  Harper  vs.  Ely,  70  111.  582. 

When  a  party's  day  book  is  admitted  in  evidence,  after  his  tes- 
tifying to  the  correctness  of  the  various  entries  therein,  there  is 
no  error  in  refusing  to  allow  him  to  give  in  evidence  his  ledger. 
Stickle  vs.  Otto,  86  111.  161. 
Ledger  may  be  competent  as  an  admission. 
McClurg  &  Co.  vs.  Williams,  180  App.  099. 

—  Agent's  Record  of  Business:  A  book  or  record  in  which  a 
person  makes  entries  of  matters  of  business  in  which  he  is  em- 
ployed, is  not  admissible  as  a  book  of  account. 

Boyd  vs.  Jennings,  46  App.  290. 

—  Engine  Inspection  Book:     Is  not  a  book  of  account. 

B.  &  O.  S.  W.  Ey.  Co.  vs.  Tripp,  175  111.  251. 

—  Order  Book  of  Merchant:    Is  not  a  book  of  account. 

Brooks  vs.  Funk,  85  App.  631. 

—  Pass  Book  of  Merchant -.  Wliere  a  person,  in  dealing  with  a 
merchant,  uses  a  pass  book  which  is  presented  to  the  merchant 
when  articles  are  purchased  and  they  are  entered  in  the  book,  which 
is  returned  to  the  buyer  with  the  goods,  in  suit  by  the  merchant 
to  recover  for  goods  sold,  the  pass  book  is  admissible  in  evidence. 

Hovey  vs.  Thompson,  37  111.  538. 

—  Memoranda:     Llere  memoranda  of  real  estate  firm  is  not  a 

book  of  account. 

Cairns  vs.  Hunt,  78  App.  420. 

—  Footings:     Footings  in  book  account  form  no  part  of  original 

entries  and  are  inadmissible. 

McAmore  vs.  Wiley,  49  App.  615. 
But  footings  exhibited  to  a  party,  when  whole  account  was  shown, 

may  be  competent  as  an  admission. 
Butler  vs.  Cornell,  148  111.  276. 

—  Onlij  Book:  An  account  book  shown  to  have  been  the  only 
book  is  necessarilv  the  book  of  original  entry. 

Patrick  vs."^Jack,  82  111.  81. 

Necessity  of  Production: 

Contents  of  account  l)ook  cannot  be  stated.     The  book  itself,  if 

competent,  should  be  received. 

Schlotte  vs.  Puselieck,  79  App.  31. 

Admissibility : 

—  In  General:     The  common  law  rule  relating  to  admissibility 


190  BOOKS  OF  ACCOUNT 

of  books  of  account  is  not  abrogated,  but  simply  enlarged,  by  the 
statute. 

Bank  vs.  Elledge,  99  App.  307;  Weigle  vs.  Brautigan,  7-4  App.  LlS.j. 
Or  of  the  character  of  the  books  nor  of  the  items  are  charges 
that  may  be  proved  by  it. 

Boyd  vs.  Jennings,  4G  App.  290. 

Books  of  account  are  not  admissible  to  prove  a  matter  collateral 
to  the  issue  of  debit  and  credit,  between  the  parties.  .     '<'.....-i 

Palmer  vs.  Goldsmith,  15  App.  544;  Sanford  vs.  Miller,  19  App.  536.' 
Books  of  account  admissible  for  goods  sold. 

Richardson  vs.  Benes,  115  App.  532. 
It  is  not  essential  to  the  admissibility  of  books  of  account  that 
the  claim  sued  on,  or  the  defense  intei-posed,  be  founded  on  a  book 
account. 

Bank  vs.  Elledge,  99  App.  307;  Eobertson  vs.  Carlson,  181  App.  251. 
So  in  a  suit  by  bank  oji  a  note,  when  defense  of  payment  is  inter- 
posed, books  of  bank  are  admissible  in  corroboration  of  cashier, 
testifying  in  denial  of  payment. 

Bank  vs.  Elledge,  99  App.  307. 
Although  entries  in  a  book  may  not  have  been  made  so  as  to  have 
been   competent  to   furnish  presumption  of  delivery,   yet   when 

offered  against  the  keeper  they  may  be  competent  as  admissions. 
Adair  vs.  Adair  Printing  Co.,  162  App.  511. 

The  usual  probative  force  of  accounts,  kept  in  books  in  the  usual 
course  of  dealings  between  parties  as  regards  transactions  of  mer- 
chandise and  the  like,  does  not  apply  to  an  account  for  money  lent 
as  that  is  not  usually  the  subject  matter  of  an  account,  notes  being 

usually  taken. 

Eothschild  vs.  Sessell,  103  App.  274. 
—  Preliminary  Proof:    AVhere  no  foundation  is  laid  for  the  in- 
troduction of  an  account  book  is  evidence,  it  is  error  to  permit  a 

witness  to  read  into  the  record  items  contained  in  such  book. 
Osgood  vs.  Poole,  165  App.  63. 

It  is  error  to  admit  books  of  account  in  evidence  without  making 

preliminary  proof  of  facts  required  by  statute. 

Jackson  vs.  Glos,  249  111.  388;  McAmore  vs.  Wiley,  49  App.  615. 
Effect  of  statute  is  solely  to  change  character  of  preliminarjr 
proof,  sufficient  to  admit  book  account. 
Brooks  vs.  Funk.  85  App.  631, 
Adds  to  but  does  not  repeal  common  law  rule. 

Presbyterian  Church  vs.   Emerson,   66  111.   269;   House  vs.  Beak,   141 
111.  290. 
]\Iust  be  shown  to  be  a  book  of  original  entry,  made  in  regular 
course  of  business,  and  that  entries  are  just,  true  and  correct. 

Eichardson  vs.  Bencs,  115  App.  532;   Garlick  vs.  B.  &  L.  Assn.,  129 
App.  402 ;   Presbvterian  Church  vs.   Emerson,  66  111.  269 ;   Stickle 
vs.  Otto,  86  111.  161;  West  Chi.  St.  Ey.  Co.  vs.  Moras,  111  App.  531. 
The  books  of  a  partnership  to  which  the  parties  have  or  are  en- 
titled to  have  access  at  all  times,  are,  as  between  the  partners,  pre- 
sumed to  be  correct. 

Donaldson  vs.  Donaldson,  237  111.  318. 

In  case  of  open  accounts  composed  of  many  items,  where  the 
entries  are  made  by  the  party  himself,  no  clerk  being  employed, 
the  book  of  accounts  is  admissible  in  evidence  upon  proof  being 
made  by  a  person  who  has  dealt  with  the  party  and  settled  by  such 


BOOKS  OF  ACCOUNT  191 

book,  that  it  is  the  party's  book  of  account,  and  is  fair  and  correct, 
and  that  some  of  the  articles  charged  were  delivered  about  the 
time  the  entries  purport  to  have  been  made,  and  that  the  entries 
are  in  the  handwriting  of  the  party  producing  the  book.  But  this 
rule  would  not  apply  to  an  account  for  money  loaned,  nor  to  an 
account  containing  a  single  charge  only. 

Boyer  vs.  Swett,  4  111,  119;  Buggies  vs.  Gatton,  50  Til.  412. 
Book  entries  are  not  competent  when  proof  of  their  correctness 
is  not  made,  either  by  the  maker  thereof  or  by  one  who  is  able,  of 
his  own  knowledge,  to  testify  to  their  correctness. 
Johnson  Coal  Co.  vs.  Foreade,  136  App.  21. 
When  entries  made  without  personal  knowledge  of  correctness 
inadmissible. 

Schnellbacher  vs.  McLaughlin,  108  App.  486. 

Are  not  rendered  competent  by  notice  to  produce  merely. 
Marsh  vs.  French,  82  App.  76. 

To  admit  a  party 's  books  of  account  in  evidence,  the  common  law 
requires  that  the  entries  therein  shall  be  proven  by  the  clerk  or 
servant  who  made  them,  if  he  be  alive  and  can  be  produced ;  and  it 
is  necessary  that  the  entries  shall  have  been  made  in  the  ordinary 
course  of  business  by  a  person  whose  duty  it  was  to  make  them, 
and  that  they  shall  have  been  made  contemporaneously  with  the 
delivery  of  the  goods  so  as  to  form  a  part  of  the  res  gestae. 

House  vs.  Beak,  141  111.  290;  Stettauer  vs.  White,  98  111.  72;  Kibbe 
vs.  Bancroft,  77  111.  18;   Taliaferro  vs.  Ives,  51  111.  247;  Buggies 
vs.  Gatton,  50  111.  412;  XII  111.  Notes  512,  §  297. 
Books  of  original  entry  kept  by  the  party  himself  are  admissible 
to  sustain  an  account  composed  of  many  items,  on  proof  that  some 
of  the  articles  were  delivered  at  or  about  the  time  the  entries  pur- 
port to  have  been  made ;  that  the  entries  are  in  the  handwriting 
of  such  party;  that  he  kept  no  clerk  at  that  time,  and  that  the 
persons   having   dealings   with   him   settled   by   such   books,    and 
found  them  to  be  fair  and  correct.    Where  the  clerk  who  made  the 
entries  has  no  knowledge  of  their  correctness,  but  makes  them  as 
the  items  are  furnished  by  others,  it  is  essential  that  the  party 
furnishing  the  items  should  testify  to  their  correctness,  or  that  sat- 
isfactory proof  thereof,  such  as  the  transactions  are  reasonably 
susceptible  of,  from  other  sources,  should  be  produced. 

House  vs.  Beak,  141  111.  290;  Stettauer  vs.  White,  98  111.  72;  Kibbe 
vs.  Bancroft,  77  111.  18;  Taliafferro  vs.  Ives,  51  111.  247;  Buggies 
vs.  Gatton,  50  111.  412;   McDavid  vs.  Ellis,  78  App.  381. 

It  must  be  shown  that  books  were  kept  in  some  regular  course 
of  business,  that  entries  were  made  in  chronological  order  and  con- 
temporaneous with  items  entered. 
Cahill  vs.  Printy,  138  App.  600. 

Book  accounts  are  only  admissible  in  favor  of  party  who  keeps 
them  w^hen  entries  are  made  contemporaneously  with  the  trans- 
actions recorded. 

Marshall  vs.  Coleman,  187  HI.  556. 

To  admit  charge  upon  a  party's  books,  transferred  from  min- 
utes originally  made  upon  tickets,  as  evidence  of  the  items  shown 
therein,  it  is  sufficient  if  the  entries  were  transferred  within  a  rea- 
sonable time  so  that  it  may  appear  to  have  taken  place  while  the 
memory  of  the  facts  w^as  recent,  or  the  source  from  which  a  knowl- 


192  BOOKS  OF  ACCOUNT 

edge  of  the  matters  were  derived  was  unimpaired,  and  it  is  shown 
the  entries  on  the  tickets  were  made  when  goods  were  delivered. 

Eedlich   vs.   Bauerlee,   98   111.    134;    Kicharclson  vs.   Benes,    115   App. 

532;  Wrij>ht  vs.  Charbonneaii,  V22  App.  52;  Wurlitzer  vs.  Dickinson, 

153  App.  36. 
A  party  who  sought  to  introduce  in  evidence  his  books  of  ac- 
count, did  not  state  that  they  were  books  of  original  entry,  and 
that  he  made  them;  that  they  were  true  or  that  they  were  made 
by  a  deceased  person,  or  a  non-resident  of  this  state,  and  that  such 
person  made  them  in  the  due  course  of  trade,  and  of  his  duty,  or 
in  the  course  of  his  employment,  but,  on  the  contrary,  a  witness 
stated  that  he  was  the  clerk  for  the  party,  and  sold  a  part  of  the 
goods  sought  to  be  recovered:  Held,  that  the  proper  foundation 
was  not  laid  to  render  the  books  admissible  in  evidence  under  act 

of  1867  relating  to  that  subject. 
Euggles  vs.  Gatton,  50  111.  412. 
Witness  in  his  own  behalf  was  asked,  "State  if  you  have  the 
book  of  account  of  original  entry,  kept  by  yourself,  between  your- 
self and  defendant?"     He  answered,  "Yes,"  and  was  then  asked 
to  produce  the  book,  which  he  did,  and  said,  "This  is  it."     Held, 

insufticient. 

Eiehardson  vs.  Almon,  40  App.  90. 
Party's  testimony  that  accounts  are  correct  equivalent  to  testi- 
mony that,  they  are  true  and  just. 

Pres.  Chnrch  vs.  Emerson,  66  III.  269. 
Loose  sheets  found  in  partnership  books,  not  shown  to  have  been 
in  the  book  during  the  existence  of  partnership,  and  it  not  being 
shown  anyone  saw  them  until  after  partnership  was  closed,  and 
there  being  blank  pages  in  the  book  where  the  entries  could  have 
been  made,  are  not  admissible  for  lack  of  proper  foundation. 
Donaldson  a-s.  Donaldson,  237  111.  318. 
Testimony  of  a  creditor  that  a  certain  account  book  "was  his 
book  of  account,  and  kept  by  him,"  in  absence  of  specific  objection, 
is  sufficient  preliminary  proof  to  warrant  introduction  of  same  in 

evidence. 

Ailing  vs.  Brazee,  27  App.  595. 

—  Copies:  Entries  confessedly  copied  into  the  book  produced 
from  the  original  entry,  by  a  person  not  produced,  are  not  com- 
petent. 

McDavid  vs.  Ellis,  78  App.  381. 
An  examined  copy  of  bank  books  is  admissible  to  show  state  of 
party's  account,  where  it  is  stipulated  the  copy  is  to  be  treated  and 
given  the  same  effect  as  the  books  themselves. 
Lelimann  vs.  Eothbortli,  111  111.  185. 
AVhere  charge  is  made  in  duplicate,  both  original  and  carbon 

copy  are  admissible. 

Wurlitzer  vs.  Dickison,  153  App.  36. 

—  Bool{s  Transcribed  from  Memoranda:  "In  order  to  entitle  a 
book  of  account  made  up  of  entries  transcribed  from  temporary 
memoranda  to  be  read  in  evidence,  such  book  must  be  supported 
not  only  by  the  suppletory  oath  of  the  party  who  made  the  entries 
in  the  book,  but  the  person  who  made  the  temporary  memoranda 
in  the  first  instance,  where  the  entries  in  both  cases  were  not  made 
by  same  person,  must  also  be  called  to  prove  that  at  or  about  the 


BOOKS  OF  ACCOUNT  193 

time  the  charges  were  made,  articles  were  delivered  or  work  per- 
formed of  a  character  similar  to  those  charged  in  the  book." 
Trainor  vs.  G.  A.  Building  Assn.,  204  111.  616. 
Where  an  entry  is  made  by  one,  in  the  performance  of  his  <luly, 
of  facts  reported  to  him  by  another  in  the  discharge  of  a  duty 
devolving  on  such  other  by  virtue  of  his  employment,  such  entry 
is  admissil)le  but  preliminary  to  the  admission  of  such  evidence  it 
should  be  shown  by  the  one  making  the  report,  if  he  be  living,  that 
such  report  was  true.  Where  the  clerk  who  makes  the  entries  has 
no  knowledge  of  their  correctness,  but  makes  them  as  items  are 
furnished  by  another,  it  is  essential  that  the  party  furnishing  the 
.items  should  testify  to  their  correctness  or  that  satisfactory  proof 
thereof, — such  as  the  transactions  are  reasonably  susceptible  of, 
from  other  sources,  should  be  produced. 

Griffith  vs.  San.  Dist.,  174  App.  100;  O 'Heran  vs.  Amer.  Bridge  Co., 
177  App.  405. 

—  Bool's  Compiled  from  Time  Cards:  Made  at  time  of  trans- 
action, are  competent  in  action  to  recover  for  labor  and  material. 

Rj-an  Car  Co.  vs.  Gardner,  154  App.  5G5. 

Entries  in  a  Ijook,  made  by  a  bookkeeper  who  had  no  personal 
knowledge  of  the  correctness  of  any  of  the  items,  but  who  copies 
them  from  time  books  kept  by  numerous  laborers,  and  from  other 
like  sources,  some  of  the  entries  not  being  made  until  long  after 
the  transaction  to  which  they  relate,  are  not  admissible  as  an  ac- 
count book. 

Schellbacker  vs.  McLaughlin  Co.,  108  App.  486. 

—  Entries  Made  hy  Third  Parties:    A  book  of  original  entries  is 

incompetent  against  a  litigant  when  the  entries  sought  to  be  proven 

were  made  bv  third  persons  with  whom  he  was  in  no  wise  connected. 
West'  Chi.  St.  Ry.  Co.  vs.  Moras,  111  App.  5Slj   Roche  vs.  Day,  20 
App.  417;  Boyd  vs.  Yerkes,  25  App.  527.  ,;  (,,   , 

And  where  the  entries  are  made  by  a  disinterested,  living  and 
resident  person,  such  person  must  be  called  to  prove  the  account. 
Stettauer  vs.  White,  98  111.  72. 

—  Entries  not  Relating  to  Business  Conducted:  Book  entries 
of  transaction,  not  in  itself  within  the  nature  of  the  business  con- 
ducted, are,  nevertheless,  admissible  to  show  the  nature  and  pur- 
pose of  the  transaction. 

Laughlin  vs.  Brauer,  138  Api"».  524. 

—  As  Part  of  Pes  Gestae:  The  rule  that  entries  in  account 
books,  to  be  admissible,  should  be  made  as  part  of  res  gestae,  is  sat- 
isfied w^lien  entries  were  made  on  day  after  the  w^ork  was  done, 
from  time  slips  made  by  the  workmen  themselves,  when  the  work 
was  done,  and  approved  by  the  foreman  on  the  following  morning. 

So  books  of  account,  showing  the  entries  for  the  time  of  work- 
men, are  admissible  in  evidence  against  a  party  who,  by  special 
contract,  was  to  pay  the  expense  of  such  workmen,  though  such 
entries  were  made  the  day  after  the  work  was  done,  from  time 
slips  made  by  the  workmen,  and  marked  ''approved"  by  the  fore- 
man, who  testified  to  their  correctness,  while  the  men  who  made 
the  entries  on  the  books  testified  the  slips  were  correctly  copied. 
Account  books  are  not  to  be  discredited  for  pui^jose  of  evidence 
by  the  fact  that  some  of  the  entries  are  made  therein  for  items 

Ev.— 13 


194  BOOKS  OF  ACCOUNT 

which  cannot  be  allowed  by  the  court,  if  there  is  nothing  to  indi- 
cate that  they  were  fravidulently  or  dishonestly  made. 
Chisholm  vs.  Beaman  Mach.  Co.,  IGO  III.  101. 

To  prove  the  giving  of  a  promissory  note  b.y  A  to  B,  which  was 
discounted  at  a  bank  and  afterwards  renewed,  the  entries  in  the 
bank  books  and  notices  given  by  the  cashier  to  A,  respecting 
the  note,  after  having  been  proved  and  identified  as  genuine,  and 
proof  of  the  death  of  the  person  making  them,  are  admissible  in 
evidence  against  A  in  a  suit  in  which  it  is  desired  to  show  his 
relation  to  the  transaction  in  respect  of  which  the  note  was  given. 
Such  entries  made  by  the  bank  officers  at  the  time  of  discounting 
and  renewing  the  note,  are  part  of  the  res  gestae,  and  being  made 
by  persons  having  no  interest  in  the  matter  in  litigation,  who  are 
since  dead,  are  competent  evidence. 
Reynolds  vs.  Sumner,  126  111.  58. 

Where  an  alleged  transaction  is  disputed,  anything  said,  done 
or  written  in  the  presence  of  the  parties,  as  the  immediate,  unpre- 
meditated and  spontaneous  result  of  such  transaction,  is  admissible 
in  proof  of  the  fact  that  the  transaction  occurred,  or  of  its  true 
significance. 

An  entry  made  by  a  party  in  his  own  books,  in  the  presence  of 
the  other  party,  at  the  time  of  an  interview  respecting  the  trans- 
action, is  admissible  as  original  evidence  of  such  matter. 

A  real  estate  broker,  employed  to  sell  real  estate,  during  an  in- 
terview with  his  principal,  and  in  his  presence,  entered  in  his  sales 
book  the  asking  and  also  the  selling  price  for  the  property,  tlie  lat- 
ter being  in  cipher.  In  suit  to  recover  compensation  for  finding  a 
purchaser,  there  was  a  dispute  as  to  the  selling  price,  and  plaintiff, 
in  connection  with  his  testimony,  offered  the  entry  in  his  books  as 
evidence  of  such  price,  which  the  court  permitted:  Held,  that  the 
entry  was  properly  received,  as  a  part  of  the  res  gestae,  of  the  trans- 
action, it  being,  as  such,  original  evidence. 

Monroe  vs.  Snow,  131  111.  126;  MeDavid  vs.  Ellis,  78  App.  381. 

Book  is  admissible  to  corroborate  witness  to  transaction,  though 
action  is  upon  note,  where  proper  evidence  is  laid,  showing  book 
to  be  book  of  original  entries,  correctly  made  and  entered  in  the 
usual  course  of  trade. 

Perry  State  Bank  vs.  Elledge,  99  App.  307. 

—  To  Explain  Payment  of  Note:  In  action  by  the  payee  against 
the  maker  of  promissory  notes,  it  appeared  there  were  mutual 
dealings  between  the  parties,  and  defendant  presented  in  evidence 
the  receipt  of  the  plaintiff,  subsequent  to  date  of  the  notes,  in  full 
of  all  demands.  It  was  held  he  had  the  right  to  give  in  evidence 
books  of  account  for  purpose  of  showing  by  entries  therein  how  he 
has  paid  the  notes,  and  so  account  for  the  giving  of  the  receipt  by 
the  plaintiff. 

Taliaferro  vs.  Ives,  51  111.  247.     (See  Accord  and  Satisfaction.) 

On  bill  for  an  account  by  a  cestui  que  trust  against  the  personal 
representative  of  the  trustee,  the  defendant,  at  instance  of  com- 
plainants, produced  a  book  of  accounts,  and  latter  introduced  it  in 
evidence,  which  showed  a  less  sum  due  complainant  than  was  de- 
creed.    Defendants  insisted  complainant  was  bound  by  the  book; 


BOOKS  OF  ACCOUNT  195 

but  the  court  held,  as  the  evidence  showed,  beyond  question  tliat 
the  book  did  not  contain  all  items  with  which  the  trustee  was 
chargeable,  that  the  court  below  was  not  concluded  by  the  balance 
shown  in  it. 

Clapp  vs.  Emery,  98  111.  523. 

—  To  Show  Failure  of  Paipnent:  Where  person  upon  whom 
order  is  drawn  pays  same  and  charges  it  to  the  account  of  the 
drawer,  and  subsequently,  suit  is  brought  against  drawer  for  the 
amount,  the  books  of  the  drawee,  showing  a  charge,  but  no  credit, 
are  inadmissible  to  prove  that  account  was  never  paid. 

Scliwarz  vs.  Eoessler,  40  App.  474. 

—  Corporate  Boohs:  Books  of  account  kept  by  officer  of  corpo- 
ration are  admissible  as  admissions  as  to  amounts  received  by  him 
in  action  against  surety. 

Delhridge  vs.  L.  H.  B.  &  L.,  98  App.  96;  Borrower's  Assn.  vs.  Coeh- 
rane,  103  App.  29. 

Books  of  a  private  corporation  as  to  matters  pertaining  to  the 
dealings  of  a  corporation  witli  one  of  its  members  as  an  individual, 
are  not  books  of  a  public  nature,  and  not  admissible  in  evidence  in 
a  suit  by  the  corporation  against  a  member,  director  or  stock- 
holder to  enforce  an  indebtedness  in  favor  of  the  corporation  upon 
that  ground,  but  only  when  brought  within  the  rule  established  by 
the  statute,  authorizing  the  introduction  of  private  books  of  account 
in  evidence. 

Trainor  vs.  Ger.-Amer.  B.  &  L.  Assn.,  204  111.  616. 

—  Partnership  Books:  On  bill  by  executrix  of  deceased  part- 
ner, for  an  accounting,  partnership  books  are  admissible  though 
they  were  kept  by  deceased  partner  and  son. 

DoaaLlson  vs.  Donaldson,  149  App.  28. 

—  Building  and  Loan  Association  Books:  Entries  made  by 
treasurer  of  building  and  loan  association,  in  books  of  association, 
by  him  or  under  his  supervision,  are  admissible  against  him  as 
admissions. 

Second  B.  &  L.  Assn.  vs.  Cochrane,  103  App.  29;  Delbridge  vs.  B. 
&  L.  Assn.,  98  App.  96;  Garlick  vs.  B.  &  L.  Assn.,  129  App.  402. 

The  books  of  a  building  and  loan  association  are  only  admissible 

in  evidence  for  the  purpose  of  proving  an  alleged  indebtedness  of 

a  member  of  such  association  after  a  foundation  for  admission  has 

been  made  by  the  requisite  preliminary  proof  as  is  required  to 

authorize  the  reception  in  evidence  of  the  books  of  account  of  a 

private  individual  or  lirm. 

Trainor  vs.  Ger.-Amer.  B.  &  L.  Assn.,  204  111.  616. 

—  Bank  Books:  The  entries  in  the  books  of  a  bank,  being  its 
own  declarations  in  writing,  are  competent  evidence  against  the 
bank  and  its  officers,  of  the  state  of  a  party's  account,  and  of 
moneyed  transactions  with  him,  and  neither  the  bank  nor  its  pres- 
ident, succeeding  to  its  rights  and  equities,  can  be  heard  to  find 
fault  with  the  manner  in  wliich  the  books  are  kept. 

Lowenthal  vs.  McCormich,   101  111.  143. 

In  suit  by  a  depositor  against  members  of  a  banking  firm  who 
were  partners  when  plaintiff  began  business  with  the  bank,  the 
depositor's  pass  book  is  admissible,  where  the  fact  of  the  partner- 


196  BOOKS  OF  ACCOUNT 

ship,  the  plaintiff's  dealings  with  the  bank,  and  the  authorized 
making  of  the  entry  of  deposits  and  withdrawals  have  been  proven. 

Arnold  vs.  Hart,  176  111.  442. 
The  officers  of  a  bank,  in  making  a  written  entry  of  deposit  in 
the  pass  book  of  a  depositor,  act  as  agent  and  representative  not 
only  of  the  corporate  entity,  but  also  of  the  stockholders,  regarded 
as  unincorporated  persons ;  and  such  entries  are  as  binding  on  them 
as  upon  the  bank  in  suit  by  a  depositor  to  enforce  their  individual 
liability,  and  such  pass  book  is  admissible  in  evidence. 

Schalueky    vs.    Field,    124   111.    617;    Jassoy   vs.    Horn,    64   111.    379; 
Fleischer  vs.  Eeutchler,  17  App.  402. 

Where  a  bank  depositor,  in  suit  against  bank,  shows  his  deposits 
of  money,  the  burden  will  rest  upon  the  bank,  to  establish,  by  com- 
petent evidence,  that  same  has  been  paid  out  by  or  under  authority 

of  depositor. 

DeLand  vs.  Dixon  Natl.  Bank,  111  111.  323. 

Burden  of  showing  that  payment  of  check  by  bank  was  proper 

is  upon  bank. 

Chi.  Savings  Bank  vs.  Bloch,  126  App.  128. 

Where  an  account  of  a  banker  is  rendered,  showing  sale  of  a 
party's  stocks,  which  latter  receives  without  objection,  in  ignor- 
ance of  the  facts,  his  acquiescence  in  same,  under  such  circum- 
stances, will  not  preclude  him  from  afterwards  disputing  the  ac- 
count. 

FoUausbee  vs.  Parker,  70  111.  11. 

Where  it  became  material  to  show  how  much  ready  money  a 
party  who  keeps  a  bank  account  has  on  hand  on  particular  days, 
the  state  of  his  bank  account  at  time  in  question  is  clearly  compe- 
tent and  proper  evidence  of  that  fact,  and  his  bank  account  is 

admissible  on  that  question. 

Lehniann  vs.  Kothbarth,  111  111.  185. 

A  parly's  bank  book  showed  two  deposits,  of  precisely  the  same 

amount,  on  the  same  day,  but  it  appeared  the  entries  in  such  book 

were  not  made  at  time  of  transaction,  but  afterwards,  from  the 

ledger  of  the  bank,  and  it  was  held,  that  the  party's  bank  book 

could  not  be  regarded  as  controlling  evidence  that  lioth  sums  were, 

in  fact,  deposited,  but  it  might  be  shown  that  the  entry  was  a 

mistake. 

McLean  Co.  Bank  vs.  Mitchell,  88  111.  52. 

In  action  on  note,  the  books  of  a  banker,  showing  entries  raads 

by  third  person,  without  knowledge  of  the  litigants,  are  not  proper 

evidence,  such  books  are  not  public  records,  nor  do  they  fall  within 

any  recognized  class  of  written  or  documentary  evidence. 
Barnes  vs.  Simmons,  27  111.  511. 

Entries  contained  in  books  of  account  of  a  bank  may  be  com- 
petent without  the  production  of  the  person  who  actually  made 
the  entries,  where  the  production  of  such  persons  is  practically 

impossible. 

Cook  vs.  People,  134  App.  41. 

Proof  that  a  pass  book  was  obtained  at  bank,  and  all  entries  in 
same  were  made  by  clerk  at  the  bank,  is  sufficient  preliminary 
proof  to  justify  admission  of  book. 

Arnold  vs.  Eger,  89  App.  312;   Arnold  vs.  Hart,  75  App.  165. 


BOOKS  OF  ACCOUNT  197 

—  Effect  of  Dilapidation:  Dilapidation,  in  itself,  is  not  suffi- 
cient to  exclude  books  of  account. 

Weigle  vs.  Brautigam,  74  App.  285. 

But  if  undeniably  mutilated  is  not  entitled  to  credit. 

Deimal  vs.  Brown,  35  App.  303. 

—  As  Part  of  Cross  Examination:  Although  the  books  of  de- 
fendant may  be  proper  and  competent  evidence  for  the  purpose 
of  rebutting  evidence  of  plaintiff,  if  offered  at  proper  time,  they 
cannot  be  given  in  evidence  on  cross  examination  of  plaintiff,  as 
part  of  cross  examination,  and  if  so  offered,  it  is  proper  to  exclude 
them. 

Peru  Coal  Co.  vs.  Merrick,  79  111.  112. 

Effect  of  Admission : 

Where  the  books  of  a  party  are  offered  in  evidence  to  prove  an 
account,  they  are  prima  facie  evidence;  and  however  they  may 
operate  to  conclude  him  as  to  matters  admitted  against  his  interest, 
the  adverse  party  taking  the  benefit  of  the  admission  by  them  in  his 
favor,  may  contest  the  accuracy  of  the  charge  to  his  prejudice 
Diston  vs.  Schorr,  19  111.  58. 

Testing  Accuracy: 

Proper  mode  of  testing  accuracy  of  books  is  to  ask  witness 
whether  upon  his  examination  of  same  he  found  any  errors  and  if 
so,  to  state  what  they  were. 

Schmidt  vs.  Pfau,  114  111.  494. 

Right  of  Jury  to  Take  : 

Jury  may  take  books  to  jury  room. 

Kau  Mfg.  Co.  vs.  Townsend,  50  App.  558:   Hovey  vs.  Thompson,  37 
111.  538. 

Use  by  Witness: 

—  In  General :  It  is  error  to  allow  a  witness  to  testify  as  to  effect 
of  books  of  account  instead  of  putting  books  themselves  in  evidence. 

Eau  Mfg.  Co.  vs.  Townsend,  50  App.  558. 

Evidence  of  a  bookkeeper,  as  to  a  portion  of  the  books,  when 

there  is  no  proof  of  their  correctness,  is  error. 
Meeth  vs.  Rankin  Brick  Co.,  48  App.  602. 

In  action  to  recover  price  of  coal  delivered  to  a  steamer,  the 
delivery  receipts  for  which  had  been  turned  over  to  counsel  for 
defendant  and  lost,  the  tug  captain  who  delivered  the  coal  read 
from  a  book  the  entries  and  amounts  of  the  deliveries,  he  testifying 
the  entries  were  made  by  him  at  time  of  delivery,  that  he  knew  them 
to  be  true,  though  he  had  no  independent  recollections  of  the 
amount  of  coal,  outside  of  that  shown  by  the  book. 
Eichardson  Fuelling  Co.  vs.  Seymour,  235  111.  319. 

"Where  it  became  material  to  show  amount  of  goods  purchased 
by  plaintiff's  and  price  paid,  it  was  not  erroneous  to  pennit  plain- 
tiff's bookkeeper  to  testify  to  the  facts,  although  he  did  not  make 
the  purchase,  he  testifying  that  he  knew  of  purchase  and  that  he 
kept  the  books,  one  of  which  he  produced  on  the  trial. 

Long  vs.  Conklin,  75  111.  32. 

—  Refreshing  Memory:  Books  of  account  regularly  kept  by 
the  plaintiff  in  his  own  handwriting  in  the  ordinaiy  course  of 
business  if  testified  to  as  true  and  correct  and  as  containing 
entries  contemporaneous  with  the  facts  sought  to  be  established 


198  BOOKS  OF  ACCOUNT 

and  known  to  be  correct  when  made  may  be  employed  for  the  pur- 
pose of  refreslwng  recollection. 

Sullivan  vs.  Miller,  169  App.  607. 

Books  in  which  daily  entries  of  transactions  are  made  are  legit- 
imate sources  of  information  as  to  amounts,  dates  and  current 
prices,  from  which  the  witness  may,  with  propriety,  refresh  his 
recollection. 

Wolcott  vs.  Heath,  78  111.  433. 

The  copy  of  a  writing  or  account,  as  well  as  the  original,  may 
be  referred  to  by  a  witness,  if  his  memory,  refreshed  thereby, 
enables  him  to  testify  from  his  own  recollection  of  the  original 
facts,  independently  of  his  confidence  in  the  accuracy  of  the  copy ; 
but  he  is  not  allowed,  in  sucli  case,  to  read  from  the  copy.  The 
original  entries,  if  shown  to  be  correct,  may  be  read  in  evidence, 
but  not  a  copy  of  them. 

In  case  the  witness  does  not  merely  speak  of  the  memorandum 
as  being  correctly  copied  from  the  book,  or  says  he  has  no  rec- 
ollection except  as  appears  from  the  paper,  but  testifies  that  it  is 
a  correct  account,  this  will  imply  that  he  testifies  from  inde- 
pendent recollection.  In  such  case,  the  extent  of  his  recollection, 
and  how  far  he  depended  upon  the  memorandum,  may  be  tested 
by  cross  examination. 

Bonnett  vs.  Gladfeldt,  120  111.  166. 

A  statement  of  an  account  prepared  simply  for  use  upon  the 
trial  is  incompetent  as  evidence,  nor  appropriate  to  aid  the  rec- 
ollection of  a  witness. 

Schellbaclier  vs.  MeLaiighlm  Co.,  85  App.  158. 

Witness  should  not  be  permitted  to  refresh  his  recollection  by 
referring  to  a  copy  of  a  memorandum  made  by  him  from  account 

book. 

Siegel  Cooper  Co.  vs.  People,  85  App.  301. 

Books  of  Third  Persons : 

—  In  General:    A  book  of  original  entries  is  incompetent  where 

the  entries  sought  to  be  proven  were  made  by  third  persons  in 

another  transaction,  and  with  whom  he  was  in  no  wise  connected. 

Same  is  res  inter  alios  acta. 

W.  Chi.  St.  Ry.  Co.  vs.  Moras,  111  App.  531;  Eoche  vs.  Day,  20  App. 
417;  Heller  vs.  Howard,  11  App.  554;  Lieserowitz  vs.  Fogarty, 
135  App.  610;  XII  111.  Notes  508,  §  260. 

—  To  Corrohorate  Witness:  An  account  book  of  original  en- 
tries, truly  and  .justly  made  by  the  person  testifying,  or  made  by 
a  deceased  person,  by  a  disinterested  or  non-resident  person, 
and  entered  in  the  usual  course  of  trade,  where  it  tends  to  con- 
tradict or  corroborate  a  witness,  on  material  points  of  his  testi- 
mony, is  admissible  and  should  go  to  the  jury  subject  to  contra- 
diction and  explanation. 

Perry  State  Bank  vs.  Elledge,  99  App.  307. 

—  County  Treasurer:  In  action  on  official  bond  of  county  treas- 
urer, his  books  as  such  officer,  and  the  entries  therein,  are  proper 
evidence  of  the  state  of  the  account  against  him  and  his  sureties, 
whether  the  entries  were  made  by  him  or  his  bookkeeper,  the  pre- 
sumption being  that  he  would  not  permit  improper  or  incorrect 
charges  to  stand  uncorrected. 

Cawley  vs.  People.  9o  111.  249. 


BOOKS  OF  ACCOUx\T  199 

—  Township  Treasurer:  Books  and  reports  kept  and  made  by 
a  township  treasurer,  as  required  by  law,  are  admissible  in  evi- 
dence against  sureties  on  his  bond,  and  the  sureties  are  liable  for 
amounts  shown  therefrom  to  be  unaccounted  for,  after  allowing 
credits  over  which  there  is  no  controversy. 

School  Trustees  vs.  Cowden,  240  111.  38. 

In  suit  on  official  bond  of  township  treasurer  of  school?,  en- 
tries in  his  book  of  account  of  moneys  in  his  hands  at  date  of  bond, 
and  his  report  at  the  last  day  of  his  term  of  office,  showing  amount 
of  school  moneys  then  in  his  hands,  are  conclusive  against  his 
sureties,  and  they  are  estopped  from  showing  such  entries  and 
reports  are  untrue. 

Longan  vs.  Taylor,  130  111.  412. 

The  fact  that  reports  of  a  town  treasurer  were  not  made  by 
him  personally,  but  by  the  town  clerk,  whom  the  treasurer  eni- 
ployed  to  keep  his  accounts  and  make  his  reports,  does  not  ren- 
der them  inadmissible  in  action  on  treasurer's  bond,  nor  lessen 
their  binding  effect  upon  the  sureties,  where,  though  the  reports 
were  not  signed  by  the  treasurer,  they  were  submitted  to  the  board 
of  trustees  by  his  direction. 

Town  of  Cieero  vs.  Grisco,  240  111.  221. 

—  ScJwol  Board  Treasurer:  In  suit  on  bond  of  a  treasurer  of 
school  board,  against  him  and  his  sureties,  for  money  received  and 
not  accounted  for  by  him,  it  is  not  error  to  admit  his  account  book, 
as  treasurer,  lo  show  the  amount  of  money  received  by  him,  and 
this,  too,  although  the  entries  were  made  by  his  clerk,  and  especi- 
ally so  when  the  treasurer  swore  that  there  w^as  in  his  hands  a 
sum  equal  to  that  shown  by  his  books. 

Bartlett  vs.  Board  of  "Eduealiou,  59  111.  364. 

—  County  Clerk:  A  book  of  tax  sales  and  redemptions  which 
the  county  clerk  is  required  to  keep,  and  in  which  to  enter  all  sales 
for  taxes,  the  quantity  sold,  name  of  purchaser,  etc.,  and  name  of 
person  redeeming,  date  and  amount  of  redemption  money,  is  com- 
petent evidence  of  facts  therein  entered,  and  of  a  redemption 
therein  appearing. 

Gage  vs.  Parker,  103  111.  528. 

—  Tax  Collectors:  Proof  of  loss  of  tax  receipts  will  authorize 
parol  evidence  of  their  contents,  but  will  not  authorize  the  intro- 
duction of  the  collector's  books,  to  prove  by  word  "paid,"  entered 
upon  them,  the  contents  of  the  lost  receipts. 

Irwin  vs.  Miller,  23  111.  401. 

—  To  Charge  Estate:  On  bill  by  creditors  against  estate  of  a 
deceased  assignee  of  the  debtors,  the  only  evidence  of  the  state  of 
the  account  was  the  entries  in  assignee's  books.  The  court  charged 
the  estate  with  all  the  debits  in  the  account  and  allowed  only  a 
portion  of  the  credits,  without  any  testimony  discrediting  any 
items  of  the  account.  The  books  should  have  been  received  as  an 
entirety  and  accei:»ted  as  a  whole  or  not  at  all. 

Wliere  complainant  introduces  in  evidence  the  book  of  another, 
for  purpose  of  charging  an  estate,  the  former  is  bound  to  admit 
those  items  or  entries  which  make  against  him  as  well  as  those 


200  BOOKS  OF  ACCOUNT 

which  operate  in  his  favor,  unless  he  can  show  the  items  of  his 
prejudice   have   been   improperly   inserted. 
Howell  vs.  Moore,  127  111.  69. 

Books  of  Deceased  Persons: 

—  In  Gentval:  Books  of  account  are  only  admissible  in  favor 
of  party  who  keeps  them,  when  the  entries  are  made  contempo- 
raneously with  the  transaction  recorded;  and  the  same  rule  ap- 
plies to  the  books  and  entries  of  deceased  persons.  Declarations  or 
book  entries  of  the  donor,  subsequent  to  the  transaction,  are  inad- 
missible unless  part  of  the  res  gestae  or  against  interest. 

Marshall  vs.  Coleman,  187  111.  556. 

—  Preliminary  Proof:  It  is  error  to  admit  an  account  book 
kept  by  a  deceased  person,  showing  amounts  of  cash  paid,  etc., 
without  proof  that  it  was  a  book  of  original  entry,  and  that  the 
entries  were  made  in  the  usual  course  of  business. 

Bradley  vs.  Gardner,  87  App.  404. 

Evidence  that  the  account  books  of  a  deceased  person  were  the 

only  books  kept  by  him,  is  equivalent  to  proof  that  they  are  books 

of  original  entry ;  and  if  there  is  further  proof  that  settlements 

had  been  made  by  them  with  others,  and  that  they  had  been  found 

correct,  this  is  substantial  compliance  with  the  statute,  and  they 

are  admissible  in  evidence. 

Patrick  vs.  Jack,  82  111.  81. 

—  Impeacliment  of  Witnesses:  On  trial  of  a  suit  to  recover  for 
services  of  an  attorney  at  law,  brought  by  his  personal  representa- 
tives, the  defendant  proved  by  a  witness  that  he,  the  witness,  paid 
the  attorney  his  fee  in  a  certain  suit,  brought  in  the  name  of  de- 
fendant. Plaintiffs  then  introduced  in  evidence  an  entry  in  de- 
ceased attorney's  books,  in  his  handwriting,  showing  that  such 
fee  was  paid  by  defendant:  Held,  that  there  was  no  error  in  ad- 
mission of  such  entry,  as  it  tended  to  contradict  statements  of  wit- 
ness that  he  paid  the  fee. 

Moshier  vs.  Frost,  110  HI.  206. 

—  When  Narrative:  An  entry  in  a  book,  at  dictation  of  intes- 
tate, just  before  his  decease,  of  items  of  personal  property  pre- 
viously given  to  his  several  children,  is  inadmissible  in  evidence 
to  prove  an  indebtedness  to  the  estate.  Such  entries  were  not 
made  in  usual  course  of  Imsiness,  but  were  mere  memoranda  of 

advancements  made,  and  do  not  come  within  the  statute. 
Treadway  vs.  Treadway,  5  App.  478. 

—  When  Self -Serving:  Entries  by  deceased,  in  private  ledger 
wherein  he  credited  claimant  with  certain  small  sums  for  part 
of  services  included  in  claim  filed,  and  with  which  entries  claim- 
ant is  in  no  way  connected,  are  self-serving  entries,  and  not  ad- 
missible in  favor  of  estate  against  claimant, 

Sherman  vs.  Whites  ides,  190  111.  576. 

Identification  of  Books: 

A  witness  is  competent  to  identify  a  book  of  original  entries  kept 
by  himself,  notwithstanding  he  has  a  pecuniary  interest  in  result 
of  litigation,   and   adverse   party  is  defending  in  representative 

capacity. 

McGlasson  vs.  HonPel,  127  App.  .360;  Ailing  vs.  Breeze,  27  ^pp.  595; 
Eichardsou  vs.  Allman,  40  App.  90;  Miller  vs.  Pratz,  179  App.  204. 


BOUNDARIES  201 

Rig-ht  to  Explain: 

Signs  used  in  account  book  should  be  permitted  to  be  explained. 
Singer  Mfg.  Co.  vs.  Leeds,  48  App.  297;  Monroe  vs.  Snow,  131  111.  126. 

Voluminous  Books: 

See  Best  and  Secondary,  Book-Keeper. 


BOOKKEEPER 

As  Expert : 

—  To  Show  Result  of  Calculation:  The  evidence  of  a  book- 
keeper, accountant  or  other  person  skilled  in  work  of  that  char- 
acter, is  competent  to  show  the  footing  of  a  column  of  figures  or 
to  show  the  result  of  any  calculation  from  a  complicated  set  of 
figures  which  cannot  be  readily  carried  in  mind  by  the  jury, 
where  the  calculation  is  purely  mathematical. 

Estate  of  Smythe  vs.  Evans,  209  111.  376;  Doyle  vs.  I.  C.  R.  E   Co.,  113 
App.  532. 

It  is  true  of  books  of  account  as  of  all  other  documents  in  writ- 
ing, that  they  furnish  the  best  evidence  of  what  they  contain,  but 
it  is  also  true  that  where  books  of  account  are  voluminous,  and 
intricate,  resort  to  the  aid  of  an  expert  book-keeper,  to  explain  the 
meaning  of  entries  and  the  true  account  to  a  jury  or  a  court,  may 
be  had. 

Guaranty  Trust  Co.  vs.  Mut.  Bldg.  Assn.,  57  App.  254. 

The  books  and  papers  themselves  must  be  properly  in  evidence 
Welsh  vs.  Shumway,  232  111.  54. 

—  Improper  Method  of  Bookkeeping:  Proper  way  of  proving 
improper  book-keeping  is  to  ask  the  witness  whether,  upon  his 
examination  of  the  books,  he  found  any  errors,  and  if  so,  to  state 
what  they  were. 

Schmidt  vs.  Pfau,  114  111.  494. 
A  mere  method  of  book-keeping,  in   absence  of  positive  proof 
of  intention,  is  not  enough  to  overcome  the  might  and  effect  of 
solemn  written  contracts  between  parties. 
Reed  vs.  McMillan,  189  111.  411. 

Method  of  book-keeping  is  not  conclusive  as  to  who  is  liable  on 
indebtedness. 

Union  Natl.  Bank  vs.  Post,  192  111.  385. 

Nor  may  a  book-keeper  testify  as  to  what  the  profits  of  a  trans- 
action were. 

Estate  of  Smythe  vs.  Evans,  209  111.  376. 


BOUNDARIES 

PRESUMPTIONS: 

The  adoption  of  a  division  line  may  be  implied  from  acts  and 
declarations  of  parties  and  their  acquiescence  for  a  considerable 
time. 

Sheets  vs.  Sweeney,  136  111.  336;   Fisher  vs.  Bennehoff,  121  111.  426; 
Sonneman  vs.  Murtz,  221  111.  362. 

"Where  the  boundaries  fixed  by  original  surveys  are  lost,  the 


202  BOUNDARIES 

intention  and  understanding  of  the  parties  will  be  presumed  from 
tlieir  long  acquiescence  in  the  location  of  a  line  fence,  and  occu- 
pancy thereof  on  either  side. 

Thomas  vs.  Sajles,  03  111.  363. 

ADMISSIBILITY  OF  EVIDENCE: 

Extrinsic  to  Identify  Monument: 

Where  land  is  described  by  reference  to  natural  or  artiticial 
monuments,  the  monument  nuiy  be  identified  by  extrinsic  evidence. 
The  monuments  mentioned  in  description  of  land  as  marking  its 
boundary  are  presumed  to  exist  until  contrary  is  shown. 

Kleinier  vs.  Bowman,  166  111.  537;  Stevens  vs.^Vait,  112  111.  544;  Col- 
cord  vs.  Alexander,  67  111.  5S1;   XI  111.   Notes  660,   §49. 

The  location  of  an  old  bridge,  which  is  a  monument  in  an  old 
road  survey,  may  be  established  by  extrinsic  evidence  in  contro- 
versy concerning  location  of  the  road. 

Village  oi'  Itasca  vs.  Schroe.ler,   182  111.  192. 
Monuments  placed  by  the  original  surveyor  mark  the  true  boun- 
daries of  city  lots  and  are  the  most  satisfactory  evidence  of  loca- 
tion of  boundary  lines,  controlling  field  notes  and  maps  of  sur- 
vey, as  well  as  distances,  courses  and  quantities. 

City  of   Decatur   vs.    Neidermeyer,    168   111.   68;    City  of   Mt.   Carmel 
vs.  McClintock,  155  111.  G08. 

Parol  is  admissilile  to  show  location  of  agreed  boundary. 
Sheets  vs.  Sweeney,  136  111.  336. 

Field  notes  and  survey  and  courses  and  distances  are  explain- 
able and  may  be  identified  by  parol. 

Hyde  Park  vs.   Andrews,  87  111.  229;   Williams  vs.  Warren,  21   111. 
541. 

Declarations  and  Statements: 

—  Prior  Owner:  On  question  of  a  boundary  line,  when  it  ap- 
pears that  the  prior  owner,  since  deceased,  built  his  fence  a  rod 
within  his  lines,  the  declarations  of  such  person,  while  the  owner 
and  in  possession  of  the  land,  explanatory  of  his  intention  of  leav- 
ing a  strip  of  land  open,  is  properly  admitted  in  evidence  in  be- 
half of  a  person  claiming  under  such  prior  owner,  as  a  part  of  the 
res  gestae,  as  accompanying  the  act  of  throwing  open  the  strip  of 
land  and  keeping  it  open. 

Quinn  vs.  "Eaglesou,  108  111.  248. 

—  Parfy  in  Interest:  Where  a  parol  partition  is  relied  upon, 
and  the  boundary  between  the  several  parts  is  brought  into  dis- 
pute, the  declaration  of  one  of  the  parties  to  the  division,  while 
still  the  owner  of  his  part,  as  to  the  boundary  line  of  his  claim, 

being  in  disparagement  of  his  title,  is  competent  evidence. 
Stiimpf  vs.  Osterhage,  111  111.  82. 

—  Of  Deceased  Surveyor:  In  ejectment,  involving  disputed 
boundary  line  between  two  lots  in  a  certain  addition,  alleged  error 
in  refusing  to  allow  a  witness  to  state  what  a  certain  deceased 
surveyor  had  told  him  in  reference  to  a  corner  of  an  addition,  not 
directly  involved  in  the  suit,  is  harmless,  where  the  witness  was 
allowed  to  testify,  without  objection,  where  such  surveyor  had 
located  such  corner. 

Rehfuss  vs.  Hill,  243  lU.  140. 

—  Grantor  After  Conveyance:  The  declarations  of  a  grantor 
in  reference  to  boundary  line  of  premises  conveyed  are  not  admis- 


BOUNDAT^IES  203 

sible  in  evidence  as  against  his  grantee,  if  made  after  his  con- 
veyance. 

Dunaway  vs.  School  Directors,  40  111.  247. 

General  Reputation: 

When  the  location  of  a  private  boundary  depends  upon  showing 
a  public  boundary,  the  latter  may  be  shown  by  proof  of  common  or 
general  reputation.  So,  when  in  ejectment  to  fix  the  boundary 
between  two  lots,  it  becomes  a  question  whether  the  center  of  the 
street  is  the  south  line  of  a  quarter  section,  it  is  proper  to  admit 
evidence  tending  to  show  that  the  center  line  of  the  street  had  for 
many  years  prior  been  recognized  and  reputed  to  be  the  line  of  the 
quarter  section. 

Judson  vs.  Glos,  249  111.  82;   Mullaney  vs.  Duffy,  145  111.  559;   Hol- 
brook  vs.  Debo,  99  111.  372. 

Plats : 

AVhere  a  surveyor  has  testified  fully  as  to  making  a  survey,  a 
plat  thereof  made  by  him  from  notes  of  the  survey  and  evidence 
of  its  correctness,  is  admissible  as  explanatory  of  his  testimony, 
and  this,  though  made  at  a  later  time. 

And  a  plat  of  a  survey  of  an  addition,  made  by  a  private  sur- 
veyor, is  admissi])le  to  prove  the  boundary  line  between  two  lots 
without  proof  of  its  execution,  authentication  and  record. 

Justin  vs.  Sclioaf,  175  111.  -15. 

WEIGHT  AND  SUFFICIENCY: 
Surveyor's  Monuments: 

]\Ionuments   of   the   original    survey   are   more   satisfactory   evi- 
dence of  the  boundaries  of  city  lots  than  field  notes,  maps  or  plats. 
Kuglin  vs.  Bock.   181  111.   165;   City  of  Mt.   Carmel  vs.   McClintock, 
155  111.  608;   Bauer  vs.  Gottenhauseu,  65  111.  499;   McClintock  vs. 
Eogers,  11  111.  279.  .:  -...^ 

Acquiescence : 

Long  acquiescence  by  a  city  in  the  location  of  an  alley  and  the 
improvements  abutting  thereon  as  so  located,  should  be  given 
rreat    weight    in    determining,    on   conflicting    evidence,    the    true 

boundarv  lines. 

City  of  Decatur  vs.  Neidermeyer,  168  111.  08;  City  of  Mt.  Carmel  vs. 
McClintock,  155  111.  608. 

Of  Parol  Agreement: 

The  establishment  of  undefined  boundaries  bv  parol  is  binding. 
Eoberts  vs.   Birks,   223  111.   291;    Purtell  vs.  Bell,   225   111.   52;5 ;    Hen- 
derson vs.  Dennis,  177  111.  547. 
And  when  followed  by  possession  for  over  twenty  years,  can- 
not be  questioned. 

Kinkade  vs.   Vickers,  217  111.  423. 
Such  agreement  cannot  be  implied  from  slight  acts,  though  it 

mav  he  from  unequivocal  acts. 

Quieh  vs.  Nitsebelm,  139  111.  251. 
But  if  agreement  founded  upon  mistake,  it  is  not  binding. 

Sonneman  vs.  Murtz,  221  111.  362. 
And  to  change  known  boundary,  there  must  be  clearly  proved 

practical  location  of  new  line. 

Eoberts  vs.  Birks,  223  111.  291. 
One   purchasing   a   lot   under   parol   agreement   by   grantor   to 
re-plat  his  ground,  changing  the  boundaries  of  all  lots,  cannot  set 


204  BRANDS 

up  such  agreement  in  defense  to  action  of  ejectment  by  subse- 
quent innocent  purchaser  of  adjoining-  lot,  according  to  the  orig- 
inal plat,  which  the  grantor  had  not  changed,  but  should  resort 
to  equity  for  relief,  and,  if  necessary,  enjoin  the  ejectment  suit 
until  the  equity  suit  is  determined. 
Grubbs  vs.  Boon,  201  111.  98. 

ESTOPPEL: 

The  declarations  of  a  party,  not  made  with  knowledge  of  the 
facts  or  with  the  intention  they  should  be  acted  upon,  or  which, 
in  fact,  have  not  been  acted  upon,  will  not  constitute  an  estoppel 
in  pais. 

Winslow  vs.  Cooper,  104  111.  235;  Noble  vs.  Chiisman,  88  111.  186. 


BRANDS 

See  Animals,  Ownership,  Trade  Marks. 

BREACH  OF  PEACE 

See  Assault  and  Battery. 

BREACH  OF  PROMISE 

CONTRACT  OF  MARRIAGE: 
Burden  of  Proof: 

The  burden  of  proving  promise  by  a  preponderance  of  the  evi- 
dence is  upon  plaintiff. 

MePhail  vs.  Trovillo,  65  App.  660. 

May  be  Inferred: 

A  general  engagement  to  marry  may  be  inferred  from  the  con- 
duct and  social  relations  of  the  parties,  extending  through  a  period . 

of  many  years,  independent  of  any  express  agreement  to  marry. 

Fritzinger  vs.  Ahrens,   151   App.   396;    Blaekburu   vs.   Mann,   85   111. 

222;  Judy  vs.  Sterrett,  52  App.  265. 

When  plaintiff  has  acted  as  housekeeper  for  defendant,  evidence 

to  show  household  duties,  care  of  defendant ;  that  they  went  to 

market  together ;  that  she  sold  produce  and  attended  to  the  buying 

of  groceries  is  admissible  to  prove  marriage  contract. 

Fritzinger  vs.  Ahrens,  151  App.  396. 

Letters  Admissible  to  Show  Contract : 

All  facts  and  circumstances  existing  between  parties  prior  to  or 

after  time  of  alleged  marriage  contract,  when  it  is  denied  to  ever 

have  existed,  tending  to  establish  an  engagement,  is  proper  evidence 

for  consideration  of  the  jury. 

Eichmoud  vs.  Roberts,  98  111.   472;   Prescott  vs.  Guyler,  32  111.  312; 
Law  vs.  Woodruff,  48  III.  399. 


BREACH  OF  PROMISE  205 

Hearsay  Incompetent:  s  ,.(  •/. 

Proof  as  to  what  plaintiff  had  told  witness  about  the  marriage 
engagement  is  hearsay  and  inadmissible. 
Walmsley  vs.  Eobiiisoii,  63  111.  41. 

Preparations  for  contemplated  marriage  withont  knowledge  of 
defendant  inadmissible  to  prove  contract. 
Duiilap  vs.  Clark,  25  App.  573. 

Engaged  to  Another: 

Defendant  may  show  plaintiff  was  engaged  to  another,  at  time 

of  his  attention,  as  tending  to  overcome  inference  of  contract. 
Daubet  vs.  Kirkham,  15  App.  622. 

Express  Contract: 

To  prove  a  contract  of  marriage,  an  express  contract  need  not 
be   shown.     A   mutual   engagement   may   be   inferred   from   con- 
stant and   devoted  attentions,   gladly  welcomed,   from  reciprocal 
affection  and  the  interchange  of  letters  expressive  of  earnest  love. 
Eockafellow  vs.   Newcoinb,   57   111.   186;    Judy  vs.   Sterrett,   52  App. 
265;  Townsley  vs.  Quinlan,  17  App.  610;  XI  111.  Notes  664,  §  3. 

—  No  Time  Fixed:  If  contract  is  made,  it  is  not  necessary 
to  a  right  of  action  that  any  definite  time  be  tixed  for  the  mar- 
riage.    The  law  infers  a  reasonable  time. 

Blaeklnirn  vs.  Mann,  85  111.  222 ;  Judy  vs.  Sterrett,  52  App.  265. 

—  Date  Alleged:  If  terms,  when  contract  to  be  fulfilled,  tender 
and  refusal,  are  laid  under  a  videUcit,  dates  need  not  be  proven 
as  laid. 

Preseott  vs.  Guyler,  .'^2  111.  312. 

BREACH  OF  CONTRACT: 

Where  parties  to  a  marriage  contract  sever  their  relations  as 

betrothed  lovers  for  a  time,  and  at  the  request  of  either  they  are 

resumed,  no  formal  new  promise  of  marriage  is  necessary  after 

such  resumption. 

Judy  vs.  Sterrett,  52  App.  265;  Affirm,  153  111.  94. 

An  agreement  to  marry,  until  a  breach  is  shown  that  termin- 
ates it,  may  be  regarded  as  a  continuing  contract  by  consent  of  the 
parties,  and  hence,  in  no  just  sense,  within  the  statute  of  frauds. 
Blackburn  vs.  Mann,  85  lU.  222, 

AVhere  parties  enter  into  a  mutual  promise  to  marry,  and  ex- 
pressly agree  that  their  marriage  shall  be  celebrated  under  and 
in  accordance  M'ith  the  rules  and  customs  of  a  particular  religion, 
and  church,  such  rules  and  customs  become  a  part  of  the  contract. 

And  where,  by  inadvertence  or  accident,  such  parties  happen 
to  fix  upon  a  day  for  their  marriage  which  turns  out  to  be  one  on 
which  such  ceremony  is  prohibited  by  such  rules  and  customs,  if 
either  party  on  that  account  refuses  or  declines  to  be  married 
at  such  prohibited  time  or  in  a  manner  other  than  that  agreed 
upon,  but  is  willing  and  oft'ers  to  be  married  at  any  reasonable  or 
proper  time  after  such  period  of  prohibition,  such  refusal  can  not 
be  considered  as  inconsistent  with  such  party's  promise,  or  amount 

to  a  breach  of  it. 

Stone  vs.  Appel,  12  App.  582. 

REQUEST  AND  REFUSAL: 

Positive  proof  of  a  request  and  refusal  is  not  required. 

Preseott  vs.  Guyler,  32  111.  312;  Judy  vs.  Sterrett,  52  App.  265. 


206  BREACH  OF  PROMISE 

And  may  be  proven  by  circumstances. 

Greenup  vs.  Stoker,  8  111.  202. 
The  recjuest  to  marry  need  not  be  made  by  the  plaintiff  her- 
self, but  may  be  made  by  her  father  or  other  friend,  whose  author- 
ity to  do  so  may  be  inferred  from  the  relations  existing  between 
the  parties. 

Prescott  vs.  Guyler,  32  111.  312. 
"When  a  party  agrees  to  do  an  act  at  a  future  day,  and  before 
the  day  arrives,  declares  he  will  not  keep  his  contract,  the  other 
party  may  act  on  his  declaration,  and  bring  an  action  for  a 
lireach  of  the  contract  before  the  time  for  its  performance  ar- 
rives. 

Zatlin  vs.  Davenport,   71   App.  292. 

DEFENSES: 
Married  Plaintifif: 

A  person  having  a  husband  or  wife  living,  and  undivorced,  is 
inea})able  of  entering  into  a  valid  marriage  contract,  and  no  right 
of  action  can  arise  for  its  breach. 

Dreunan  vs.  Douglas.  102  111.  341. 

Evidence  of  promises  made  when  both  parlies  were  married  and 
so  known  to  be  by  each  other,  is  inadmissible. 
Paddock  vs.  Kobinson,  63  111.  99, 

Infancy : 

An  infant  is  not  lial)le  on  his  executionary  contract  to  marry, 
the  statute  permitting  marriages  between  infants  means  only  that 
an  executed  contract  of  marriage  between  such  persons  sliall  ])e 
valid.  It  does  not  mean  that  an.  executory  contract  shall  impose 
lia])ility. 

MeConkey  vs.  Barnes,  42  App.  511. 

Lewd  Conduct  of  Plaintiff: 

The  carrying  on  by  one  suing  for  breach  of  promise  of  mar- 
riage,  of  a  lewd  and  immoral   correspondence   intending   an   im- 
proper relation  with   a   married   man,  justifies  a  breach   of  such 
promise  and  is  a  defense  to  the  action. 
O'Neill  vs.  Beland,  133  App.  594. 

Where  there  is  evidence  that  plaintiff  had  been  unchaste  for 
years  prior  to  the  engagement,  and  that  plaintiff  did  not  know  it 
when  the  promise  was  made,  it  is  error  to  instruct  the  jury  to  find 
for  plaintiff  if  defendant  has  failed  to  prove  "that  plaintiff  is 
not  a  chaste  and  virtuous  woman,"  for  defendant  had  a  right  to 
withdraw  from  the  engagement  if  she  had  previously  lieen  un- 
chaste, and  he  did  not  know  it  when  he  made  the  promise,  even 
though  she  afterwards  reformed  and  had  become  a  chaste  and  vir- 
tuous woman. 

LaPorte  vs.  "Wallace,  89  App.  517, 

If  a  man,  after  engaging  to  marry  a  woman,  has  sexual  inter- 
course with  her,  he  cannot,  for  that  reason,  break  off  the  engage- 
ment and  take  advantage  of  his  own  wrong. 
Dunn  vs.  Trout,  87  App.  432. 

If  the  lack  of  virtue  is  relied  upon  to  absolve  defendant  from 
fulfilment  of  his  contract,  his  knowledge  of  that  fact  must  have 
been  acquired  after  entering  into  the  agreement,  and  defendant 


BREACH  OF  PROMISE  207 

mnst  have  terminated  the  engagement  immediately  upon  beini;- 
apprised  of  the  truth. 

Burnett  vs.  Simi)kins,  24  111.  265;  Butler  vs.  Eschclman,  18  111.  44. 
And  defendant  may  show  in  mitigation  of  damages,  and  if  made 
in  good  faith,  cannot  be  taken  into  consideration  as  an  aggrava- 
tion of  damages. 

Fidler  vs.  MeKinley,  21  111.  308. 

But  if  an  attempt,  in  bad  faith,  to  blacken  and  defame  phiin- 
tiff's  character,  may  be  so  considered. 
Blackborn  vs.  "^  Mann,  85  111.  222. 

When  defendant   introduces  evidence   of  plaintiff's  unchastity, 
plaintiff  may  show  her  general  good  character. 
Sprague  vs.  Craig,  51  111.  288. 

Immoral  Consideration: 

A  promise  of  marriage  founded  upon  an  immoral  consideration 
of  illicit  intercourse  is  void. 

Judy  vs.  Sterrett,  52  App.  265;  To\\Tisley  vs.  Quinlan,  17  App.  610. 

But  another  promise  made  between  same  parties,  not  based  on 
such  consideration,  may  be  enforced. 

Judy  vs.  Sterrett,  153  111.  94. 

Sentiments  of  Plaintiff: 

Where  there  was  evidence  showing  that  plaintiff  had  been  re- 
jected by  defendant ;  that  she  had  used  strong,  if  not  indelicate,  lan- 
guage in  reference  to  him,  and  had  said  "that  she  would  not 
marry  him  now,"  it.  was  held,  that  if  expressions  were  made  after 
defendant  refused  to  marry  her,  they  ought  not  to  prejudice  her 
rights.  While  she  was  discarded  by  him,  he  had  no  right  to  ques- 
tion the  sentiments  she  entertained  for  him.  After,  if  he  wished 
to  place  himself  in  a  position  to  say  that  she  w^ould  not  fulfill  her 
engagement  with  him,  when  he  had  broken  his  with  her,  he  should 
have  renewed  his  oft'er  to  marry  her.  If  she  had  then  refused 
to  marry  him,  he  might  have  said  that  she  had  not  always  been 
ready  and  willing  to  man-y  him. 
Prescott  vs.  Guyler,  32  111.  312. 

We  will  not  be  understood  as  saying  that  even  this  would  defeat 

a  right  of  action. 

Prescott  vs.  Guyler,  32  111.  312. 

DAMAGES: 

Exemplary : 

—  3Iay  Be  Recovered:  Exemplary  damages  may  be  recovered 
if  defendant  was  guilty  of  fraud  or  deceit,  or  was  moved  by  evil 
motives  in  making  the  promise  or  in  the  breach  thereof. 

Jacoby  vs.  Stark,  205  111.  34. 

—  Need  Not  Be  Alleged:  Exemplary  damages  arising  out  of 
improper  motives  of  defendant  in  making  a  promise  or  in  the  breach 
thereof,  need  not  be  specifically  declared  upon. 

Jacoby  vs.  Stark,  205  111.  34. 

Pecuniary  Circumstances: 

Proof  of  pecuniary  circumstances  is  properly  admissible. 

Douglas  vs.  Gaiisman,  68  111.  170;  Sprague  vs.  Craig,  51  111.  288, 

Evidence  of  pecuniary  circumstances  at  time  of  engagement 
tends  to  prove  financial  worth  of  defendant  at  time  of  trial.     He 


208  BREACH  OF  PROMISE 

may  show  that  he  has  sustained  loss,  if  such  be  the  fact,  and  thus 
show  himself  to  be  worth  less. 

Douglas  vs.  Gausman,  (58  111.  170. 
Defendant  may  show  that  subsequent  to  suit  he  had  been  com- 
pelled to  dispose  of  property  to  pay  his  debts.     He  may  show  his 
indebtedness  at  date  of  alleged  contract.     But  questions  as  to  sol- 
vency at  time  of  trial  are  improper, 
Spragiie  vs.  Craig,  51  111.  288. 

Expense  of  Preparation: 

Admissible  as  furnishing  an  element  to  be  considered  in  contem- 
plation of  damages. 

Dunlap  vs.  Clark,  25  App.  573. 

Seduction : 

IMay  be  shown  in  aggravation  of  damages,  although  not  charged 
in  the  declaration,  if  it  occurred  in  consequence  of  the  promise. 

Poehlman  vs.  Kurtz,  204  111.  418;  Fidler  vs.  McKiiiley,  21  111.  308; 
Burnett  vs.  Simpkins,  24  111.  264;  Tubbs  vs.  VanKleek,  12  111. 
446;  Clunau  vs.  Sebasta,  131  App.  330. 

Venereal  Disease : 

Proof  of  communication  incompetent  in  aggravation  of  damages. 
Clunan  vs.  Sebasta,  131  App.  330. 

Money  Value  of  Home : 

The  assessment  of  damages  should  include  only  such  damages  as 

result   in   consequence   of   the   non-performance   of   the   contract. 

Where  the  evidence  does  not  show  the  loss  of  a  permanent  home, 

the  money  value  of  such  home  should  not  be  included  in  such 

assessment. 

Dunlap  vs.  Clark,  25  App.  573. 

Defamation  of  Character: 

Evidence  of  is  inadmissible  in  aggravation  of  damages. 

Dunlap  vs.  Clark,  25  App.    573;  Greenup  vs.  Stoker,  7  111.  688. 

Mitigation : 

—  Bad  Character  of  Plaintiff:  The  bad  character  of  plaintiff 
as  a  lewd  woman  may  be  shown  in  mitigation  of  damages.  The 
injury  to  the  character  of  a  virtuous  and  good  woman  Vv'ould  be 
greater  than  to  that  of  one  who  is  depraved  and  abandoned,  and 
the  breach  of  such  promise  will  not  occasion  the  same  anguish  of 
mind  or  produce  same  injury  to  reputation  of  a  prostitute  as  to  a 
pure  woman. 

O'Neill  vs.  Belaud,  133  App.  594;  Dunlap  vs.  Clark,  25  App.  573; 
Fidler  vs.  McKinley,  21  111.  308;  Kautzler  vs.  Grant,  2  App.   236. 

And  such  bad  character  may  be  shown  even  though  defendant 
was  cognizant  of  the  facts  at  time  of  making  contract. 

Burnett  vs.  Simpkins,  24  111.  265;  MePhail  vs.  Trovilla,  65  App.  660; 
Contra  Butler  vs.  Esehelnian,  18  111.  44. 

But   cannot  prove  general  character  or  particular  acts  which 
may  be  the  result  of  his  own  fault. 
Butler  vs.  Eschelman,  18  111.  44, 

—  Incurable  Disease:  Defendant  may  introduce  evidence  in 
mitigation  of  damages,  of  the  fact  that  he  was  afflicted  with  an 
incurable  disease  at  time  of  the  breach. 

Sprague  vs.  Craig,  51  111.  288. 

—  Affection  of  Par-ties:    Fact  that  defendant,  before  suit  with- 


BRIBERY  209 

drew  his  affections  witliout  cause  by  plaintiff  and  refused  to  marry 
lier,  will  not  mitigate  or  lessen  the  damages. 
Eichmond  vs.  Itoberts,  98  111.  472. 


BRIBERY 

See  Obstructing  Justice,  Immunity. 
Defined: 

Bribery  at  common  law  is  defined  to  be  "a  receiving  or  offer- 
ing any  undue  reward  by  or  to  any  person  whatever  whose  ordi- 
nary profession  or  business  relates  to  the  administration  of  public 
justice,  in  order  to  influence  his  behavior  in  office  and  incline  him 
to  act  contrary  to  the  known  rules  of  honesty  and  integrity."  But 
in  a  more  extended  and  enlarged  sense,  it  may  be  committed  by 
any  person  in  an  official  situation  who  shall  corruptly  use  the 
power  and  interest  of  his  place  for  rewards  or  promises  by  any 
person  who  shall  give  or  offer  or  take  a  reward  for  offices  of  a 
public  nature. 

Walsh  vs.  People,  65  111.  58. 

A  police  inspector  who  receives  money  collected  at  his  direc- 
tion from  keepers  of  houses  of  assignation  and  ill-fame,  for  the 
purpose  of  allowing  such  houses,  which  it  is  his  duty  to  close,  to 

be  kept  open  in  violation  of  law,  is  guilty  of  the  crime  of  bribery. 
People  vs.  MeC'ann,  247  III.  130. 

Admissibility  of  Evidence : 

AVhere  a  witness  testified  that  he  was  directed  by  defendant  to 
tell  the  keepers  of  houses  of  assignation  and  ill-fame  certain 
things  when  he  went  to  them  to  collect  money  paid  to  defendant 
to  protect  them  from  police  interference,  his  testimony  that  he 
told  them  what  his  principal  directed  him  to  tell  them  is  competent. 
McCaun  vs.  People,  247  111.  130. 

—  Cancelled  Cliccks  as  Corroboration:  "Where  the  witness  in  a 
bribery  prosecution  testifies  that  he  received  checks  from  a  certain 
person,  cashed  them  and  paid  the  money  to  defendant,  the  can- 
celled checks  are  admissible  in  evidence  as  tending  to  corroborate 
the  statements  of  the  witness  as  to  where  he  got  the  money  even 
though  there  is  nothing  on  the  checks  to  connect  the  defendant  with 

them. 

People  vs.  McCanii,  247  111.  130. 

—  Jurisdielion  of  Court:  It  is  no  defense  to  a  prosecution  for 
conspiracy  to  bribe  a  jury  that  the  court  hearing  the  case  in  which 
the  jury  attempted  to  be  bribed  were  sitting,  did  not  have  juris- 
diction of  such  case. 

O'Donnell  vs.  People,  110  App.  250, 

—  Animus:  A  defendant  may  prove  animus  and  hostility  on 
the  part  of  a  witness  for  prosecution  and  declarations  of  determina- 
tion to  convict  him  if  false  swearing  would  do  it. 

Walsh  vs.  People,  65  111.  58;  O'Donnell  vs.  People,  110  App.  210. 

Weig-ht  and  Sufficiency: 

Where  an  indictment  charging  a  police  inspector  with  the  crime 
of  bribery  shows  that  there  was  a  de  jure  office  and  that  the  de- 

Ev. — 14 


2]0  BROKERS 

fendant  assumed  to  occupy  such  office  and  exercise  its  powers  and 
functions,  it  is  not  necessary  for  People  to  allege  and  prove  he 
was  de  jure  officer. 

People  vs.  McCann,  247  111.  130. 

That  the  indictment  charges  defendant  with  receiving  a  bribe 
from  a  named  person  to  allow  certain  houses  of  ill-fame  to  Ije  main- 
tained without  police  interference,  where  proof  shows  that  the 
person  named  as  giving  the  bribe  first  collected  the  money  at  de- 
fendant's request,  from  the  persons  maintaining  the  houses,  is  not 

such  a  variance  as  precludes  a  conviction  for  bribery. 
People  vs.     McCann,  247  111.  130. 


BROKERS 

ACTIONS  FOR  COMMISSIONS: 
Valid  Contracts  of  Sale : 

—  In  General:  A  broker  is  entitled  to  commissions  if  the  pur- 
chaser presented  by  him  and  the  vendor,  his  employer,  enter  into 
a  valid,  binding  and  enforceable  contract. 

An  agreement  by  a  real  estate  broker  to  procure  a  purchaser 

not  only  implies  that  the  purchaser  shall  be  one  able  to  comply 

but  that  the  seller  and  purchaser  must  be  bound  to  each  other 

in  a  valid  contract. 

Fox  vs.  Eyan,  240  111.  391;  Wilson  vs.  Mason,  158  111.  304;  Eussell 
vs.  Hurd,  113  App.  63;  XI  111.  Notes  676,  §  46. 

It  is  only  wlien  a  conveyance  is  not  made,  or  no  contract  entered 
into,  that  tlie  broker  must  show  a  purchaser  was  ready,  able  and 
willing  to  buy  on  the  terms  proposed,  before  he  can  recover  his 
commissions. 

Springer  vs.  Oxr,  82  App.  558 ;  Greene  vs.  Hollingshead,  40  App.  195. 

—  Adniissibility  of  Contract:  In  a  suit  to  recover  commissions 
for  finding  a  purchaser  of  land,  a  written  contract  signed  by  the 
broker  and  the  purchaser  is  proper  evidence  as  tending  to  show 
the  making  of  a  valid  sale,  binding  on  the  purchaser  and  enforce- 
able against  him. 

Monroe  vs.  Snow,  131  111.  126. 

The  written  contract  of  sale,  made  by  a  real  estate  agent,  is  the 
only  legitimate  evidence  to  show  that  the  contract  is  within  the 
authority  given  and  the  terms  prescribed  by  the  terms  of  agency, 
and  the  Cjuestion  whether  the  contract  is  within  the  authority  is 
one  of  law. 

Oliver  vs.  Sattler,  233  111.  536. 

—  Conclusiveness  of  Contract:  "When  the  vendor  accepts  pur- 
chaser, uninfluenced  by  fraud  or  misrepresentation,  it  is  a  deter- 
mination by  him  of  the  purchaser's  ability  to  perform  his  con- 
tract, and  if  the  purchaser  afterwards  fails  to  perform  it,  the 
seller   cannot    defeat   broker's   commissions   on   grounds    that   the 

purchaser  was  not  able  to  buv  the  property. 

Fox  vs.  Eyan,  240  111.  391;  Off  vs.  Interrieden,  74  App.  105. 

It  is  not  essential  that  contract  may  be  specifically  enforced  by 
the  owner. 

Goodman  vs.  Eosenstein,  144  App.  243, 


BROKERS  211 

—  Vendor  in  Default:  A  broker  employed  to  make  a  sale  of 
land,  who  finds  a  purchaser  at  price  fixed  by  owner,  who  is  ready, 
able  and  willing  to  take  a  conveyance  and  ipiiy  the  purchase  pi-ice, 
has  earned  the  compensation  agreed  to  be  paid,  or  if  compensation 
has  not  been  fixed  by  parties,  he  will  be  entitled  to  recover  usual 
and  customary  reasonable  compensation  for  the  services  rendered. 

Monroe   vs.   Show,    131    111.    120;    Stone   vs.    Ferry,    144   App.    191; 
Harrison  vs.  Augerson,  115  App.  226. 

And  the  mere  fact  that  the  contract  was  within  the  Statute  of 
Frauds  does  not  preclude  recovery  for  commissions,  if  willin^iess 
to  perform  is  shown. 

Carter  vs.  Simpson,  130  App.  328;  Seott  vs.  Stuart,  115  App.  535; 
Pratt  vs.  Hotchkiss,  10  App.  603. 

(Note:  The  sale  in  cases  of  Wilson  vs.  Mason,  158  111.  304, 
Lawrence  vs.  Rhoades,  188  111.  96 ;  Parmly  vs.  Head,  33  App.  134, 
failed  because  the  purchaser  refused  to  consummate  contract.  See 
Fox  vs.  Starr,  106  App.  273.) 

Where  the  agent  has  found  a  purchaser  ready,  willing  and  able 

to  purchase  the  property  of  the  owner,  upon  terms  fixed  by  him, 

but  the  sale  is  not  consummated  because  of  owner's  inability  to 

perform,  agent  is  entitled  to  his  commissions. 

Whalen  vs.  Gore,  116  App.  504;  Lemon  vs.  Carter,  116  App.  421. 

Procuring  Cause: 

—  //(  General:    A  broker  is  entitled  to  commissions  upon  a  sale 

concluded  by  his  principal  if  he  is  the  procuring  cause  in  con- 

sununation  thereof. 

Eigdon  vs.  More,  226  111.  382;  Finch  Bros.  vs.  Betz,  134  App.  471; 
Finkelstein  vs.  Spnreh,  115  App.  321;  Shannon  vs.  Potts,  117  App. 
80;  Geer  vs.  Chapin,  163  App,  654. 

Notwithstanding  the  snle  was  not  actually  concluded  by  him. 

Gould  vs.  Eicard  Boiler  Co.,  136  App.  322. 
Or  sale  was  at  less  price  by  principal  than  agent  was  authorized 

to  sell. 

Wright  vs.  McCliutocL-,  136  App.  438 ;  Adams  vs.  Decker,  34  App.  17. 

—  Limit  of  Ihde:  The  rule  permitting  the  recovery  of  commis- 
sions by  broker  in  case  the  principal  sells  to  a  purchaser  produced 
by  the  broker,  upon  terms  different  from  those  of  the  broker's 
contract,  is  limited  to  mere  departures  from  the  contract,  such  as 
reduction  of  price,  extension  of  time  of  payment,  etc.,  and  does 
not  extend  to  a  transaction  wholly  different  from  the  one  contem- 
plated bv  tlie  brokerage  contract. 

Close  vs.  Browne,  230  111.  228. 

—  Abandonment:  But  broker  is  not  entitled  to  such  commis- 
sions where  proof  shows  he  abandoned  his  efforts  and  principal 
afterwards  re-entered  negotiations  and  concluded  sale. 

West  End  Dry  Goods  Co.  vs.  Mann,  133  A]»p.  544;  Singer  vs.  Hutchi- 
son, 61  App.  308;  Carlson  vs.  Nathan,  43  App.  364;  Lipe  vs.  Lude- 
wich,  14  App.  372;  XI  111.  Notes  676,  §49. 

—  Question  of  Fact:  Whether  broker  seeking  to  recover  a  com- 
mission for  services  rendered  in  effecting  a  sale  of  property  was 
the  procuring  cause,  the  effective  means  of  bringing  about  such 
sale,  is  a  question  of  fact  to  be  determined  by  the  jury. 

Reed  vs.  Young,  146  App.  210. 

—  Burden  of  Proof:    Plaintiffs  must  show  by  a  preponderance  of 


212  BKOKERS 

the  evidence  that  they  produced  a  purchaser  ready,  willing  and 
able  to  buy  the  property  in  question  upon  the  terms  at  which  the 
owner  v/as  v/ibing  to  sell. 

Waiss  vs.  Caniiou,  146  App.  379  j  Schmidt  vs.  Keeler,  63  App.  487. 

—  Other  Agency:  In  action  for  commissions  on  a  sale  of  real 
estate,  defendant  is  entitled  to  show  that  he  was  induced  to  enter 
into  negotiations  with  purchaser  through  some  other  agency  than 
the  efforts  of  plaintiff. 

!,>  Parmly  vs.  Farrar,  204  111.  38. 

In  suit  for  services  rendered  by  brokers  in  sale  of  real  estate, 

which  was  actually  concluded  by  another  broker,  an  unqualified 

question  to  purchaser  whether  he  ivould  have  bought  the  property 

through  the  plaintiffs,  is  properlv  excluded. 

Day  vs.  Porter,  161  111.  235 ;  Cf .  McGiiire  vs.  Carlson,  61  App.  295. 

—  Secret  or  Unlawful  Profits:  Must  be  established  by  prepon- 
derance of  the  evidence. 

Windsdor  vs.  Kelly  Coal  Co.,  147  App.  451. 

—  Ability  to  Ft)' form:  Where  the  purchaser  testifies  that  he 
was  ready  to  carry  out  the  contract,  it  may  be  assumed  that  he 
was  able  and  willing  and  that  thus  the  broker  was,  in  fact,  en- 
titled to  his  commission. 

Smith  vs.  Keeler,  51  App.  267. 

Intended  purchaser  may  testify  that  he  was  willing  and  readj' 
to  buy,  as  this  is  a  fact  and  not  simply  a  conclusion. 

Wolven  vs.  Shondy,  66  App.  42. 

When  Contract  and  Sale  Not  Essential: 

Where  seller  refuses  to  contract,  broker  is  entitled  to  commissions, 
if  he  prove  purchaser  produced  was  ready,  able  and  willing  to 
purchase  upon  terms  proposed. 

Fox  vs.  Eyan,  240  111.  391 ;  Wilson  vs.  Mason,  158  111.  304. 

Wliere  a  broker  seeks  to  recover  commission  in  procuring  an 
agreement  to  exchange  properties,  it  is  not  essential  that  a  valid 
and  enforceable  agreement  be  obtained.  It  is  enough  if  he  se- 
cures a  buyer  ready,  willing  and  able  to  make  the  exchange  upon 
the  terms  required. 

Sehulte  vs.  Meehan,  133  App.  491 ;  Hulten  vs.  Eenner,  74  App.  124. 

But  this  ability  is  not  proven  by  the  mere  production  of  deeds 

on  part  of  vendee,  without  some  showing  that  he  had  title  to  the 

properties  he  was  willing  to  deed.     His  ability  does  not  depend 

upon  general  financial  responsibility,  but  upon  his  being  owner  of 

the  lands  it  was  proposed  to  exchange. 
Hersher  vs.  Wells,  103  App.  418. 

License : 

Proof  in  the  first  instance  that  plaintiffs  were  licensed  real 
estate  brokers  is  unnecessary  to  a  recovery  under  the  common 
counts. 

Munsen  vs.  Fenno,  87  App.  655 ;  O  'Hara  vs.  Lieb,  66  App.  549. 

Possession  of  license  as  real  estate  broker  is  immaterial  to  right 

of  recovery  where  evidence  is  silent  on  that  subject. 
Packer  vs.  Shappard,  127  App.  598. 

It  is  not  essential  to  a  recovery  by  a  broker  that  he  have  a 

license  at  the  time  property  is  put  in  his  hands,  so  long  as  he  has 

it  at  time  his  work  is  complete. 

lo  Crilly  vs.  Yonng,  152  App.  72;  Loehne  vs.  Halsey,  88  App.  452. 


BUCKET  SHOPS  213 

The  fact  that  a  real  estate  agent  had  been  in  business  for  a  num- 
ber of  years,  or  was  licensed  at  time  of  a  certain  trial,  does  not 
raise  the  presumption  that  he  was  so  licensed  two  years  before. 

Eckert  vs.  Collet,  46  App.  361. 

An  ordinance  providing-  that  a  l)roker  must  have  a  license,  is 
admissible  for  defendant  under  plea  of  general  issue,  the  decla- 
ration being  on  the  common  counts  only. 
Eekert  vs.  CoUot,  46  App.  361. 

Chicago  ordinances  do  not  apply  to  stock  brokers. 
Ilately  vs.  Kizer,  253  111.  288.  ' 

BUCKET  SHOPS 

See  Gambling  Contracts. 
Presumptions : 

It  is  presumed  that  when  a  man  keeps  a  place  where  gambling 
in  grain  is  permitted,  he  must  necessarily  intend  to  permit  it; 
otherwise  he  would  not  keep  the  place  where  it  is  carried  on  by 
other  parties. 

Weare  Com.  Co.  vs.  People,  209  111.  528. 

Where  transactions  show  that  commodity  was  ordered  to  be 
delivered  in  the  future,  and  then  sold  out  upon  a  rise  in  the 
market  before  the  day  of  delivery  arrived,  and  such  transactions 
are  carried  on  in  the  office  of  a  particular  person,  and  with  his 
aid  and  consent,  a  presumption  of  his  knowledge  of  what  is  going 
on  is  made  by  the  law,  without  any  requirement  of  proof  on  the 

part  of  the  People. 

Weare  Com.  Co.  vs.  People,  209  111.  528. 

Weight  and  Sufficiency : 

—  Xo  Intcniion   to  Deliver:     Proof  that   the  main  part  of  a 

business  is  dealing  in  futures  on  margins  without  any  intention 

of  delivering  the  commodity  sold  or  receiving  that  purchased,  is 

sufficient  to  establish  the  keeping  of  a  bucket  shop. 
Stock  Exchange  vs.  Board  of  Trade,  196  111.  396. 

—  Intention  of  Keeper:  It  is  not  necessary  to  show  the -inten- 
tion of  the  keeper  of  an  office  or  place  of  business,  to  bring  the 
transaction  within  the  prohibition  of  the  statute. 

Soby  vs.  People,  134  111.  66 ;  Caldwell  vs.  People,  67  App.  367. 
The  intention  of  the  parties  in  such  case  may  be  determined 
from  the  nature  of  the  transaction,  and  from  the  method  and  man- 
ner of  carrving  on  the  business. 

Weare  Com.  Co.  vs.  People,  209  111.  528. 
If  parties  to  speculative  dealings  intend  merely  to  gamble,  in  the 
rise  and  fall  of  prices,  and  the  broker  is  privy  to  the  unlawful 
design  of  the  parties  and  brings  them  together  for  the  very  pur- 
pose of  entering  into  an  illegal  agreement,  he  is  particeps  cnminis. 
Weare  Com.  Co.  vs.  People,  209  111.  528 ;  Soby  vs.  People,  134  111.  66. 

—  No  huiuiry  of  Customer:  Where  office  or  place  is  kept  and 
buying  and  selling  upon  margins  is  proven,  the  keeper  cannot 
shield  himself  from  criminal  responsibility  behind  the  fact  that 
he  made  no  inquiry  of  his  customers;  the  keeper  must  show  that 

the  transaction  is  not  gambling. 

Soby  vs.  People,   134  111.   66;   Stock  Exchange  vs.  Board  of  Tradfc, 
196  111.  396. 


214  .  BUILDINGS 

—  Circulars  as  to  Requirements:  The  fact  that  circulars  sent 
to  customers  contained  a  statement  to  the  effect  that  "actual  de- 
livery of  property  is  contemplated,"  may  be  considered  as  show- 
ing that  something  other  than  the  securing  of  a  legal  right  was 
intended. 

Weare  Com.  Co.  vs.  People,  209  111.  528. 

—  Signing  by  Customer  of  Contract  to  Receive:  The  fact  that 
a  stock  and  grain  exchange  requires  its  customers  to  sign  con- 
tracts to  receive  the  commodities  purchased  does  not  establish  that 
the  purchases  were  not  within  the  prohibition  of  the  statute,  where 
the  evidence  also  shows  that  any  customer  objecting  to  delivery 
had  no  diliiculty  in  settling  with  the  exchange  by  payment  of  dif- 
ferences. 

Stock  Exchange  vs.  Board  of  Trade,  19G  111.  396. 

—  Corpora fc  Stocl's:  In  a  prosecution  under  section  137  of  the 
Criminal  Code,  for  keeping  a  bucket  shop,  the  state  must  establish 
that  the  pretended  sale  of  stocks  was  made  and  that  the  stocks 
were  the  stocks  of  a  corporation.  In  such  prosecution,  the  court 
will  not  taJce  .indicia]  notice  of  corporate  existence. 

People  vs.  Wirshing,  2^9  111.  522." 

Intention : 

The  question  of  intention  is  a  question  for  the  jury,  or  for  the 

court,  to  be  determined  bv  a  consideration  of  all  the  evidence. 
•'■'i    '''J   Weare  Com.  Co.  vs.  People,  209  111.  528. 

BUILDINGS 

Burden  of  Proof: 

— ■  Ftima  Fade  Realiij:  Buildings  are  prima  facie  part  of  the 
land  and  if  claimed  to  be  personalty,  burden  is  on  party  so  alleg- 
ing. 

Goff  vs.  O 'Conner,  16  111.  421. 

BUILDING  CONTRACTS 

Admissibility  of  Evidence: 

—  Li nder  Pleading:  Where  a  building  contract  has  been  fully 
performed,  and  the  final  certiticate  obtained,  and  it  only  remains  to 
pay  balance  due,  the  contractor  may  sue  and  recover  under  common 
counts,  and  the  contract  may  be  read  in  evidence  for  purpose  of 

showing  its  terms,  and  to  recover  damages. 

Metal  Fire  Proof  Co.  vs.  Boyce,  233  111.  284;  Concord  House  Co. 
vs.  O  'Brien,  228  111.  360. 
But  when  contract  provides  for  an  architect's  certificate,  such 
provision  is  a  condition  precedent  to  a  right  of  recovery  and  the 
excuse  for  the  non-production  of  such  certificate  must  be  alleged 
and  proven.  AVlien  contractor  has  not  procured  certificate  which 
contract  requires,  a  recovery  cannot  be  had  under  common  counts, 
but  only  upon  a  declaration  setting  out  the  contract  alleging  per- 
formance and  averring  reason  why  certificate  was  not  procured. 

Met.  Fire  Proof  Co.  vs.  Boyce,  233  111.  284;  Hart  vs.  Carsley  Mfg. 
Co.,  221  111.  4^4.  .-""" 


BURDEN  OF  PKOOF  215 

Wsight  and  Sufficiency  of  Evidence: 

Under  contract  providing  tiuit  no  payment  or  certificate  "ex- 
cept the  final  certificate  or  final  payment ' '  shall  be  conclusive  evi- 
dence of  the  performnace  of  the  contract,  the  final  certificate  is  cou- 
chisive  evidence  of  the  performance  except  for  fraud  or  mistake, 
and  it  is  not  essential  to  the  right  of  contractor  to  recover  upon 
such  certificate  that  he  prove  the  work  was  done  in  accordance 
with  plans  and  specifications. 

Weld   ^s.   Bank.    255   111.   43;    Concord   House   Co.   vs.   O 'Brien,  >  228 
111.  360;  Bottling  Co.  vs.  Ferguson,  223  111.  88;  Stilfssberg  vs.  City 
of  St.  Charles,  154  App.  531 ;  XI  111.  Notes  693,  g  65. 
And  evidence  to  contradict  such  certificate,  without  offering  to 

show  fraud  or  mistake,  is  inadmissible. 

Concord  House  Co.  vs.  O'Brien,  228  111.  360;  Hennessy  vs.  Metzger, 
152   111.   505;    Downey  vs.   0 'Donnell,   92   HI.   559;   Lolir  Bottling 
Co.   vs.   Ferguson,   223   111.    8S;    Barbee  vs.  Findley,   221   111.   251; 
Weld  vs.  First  Natl.  Bank,  255  111.  43. 
Where  the  final  certificate  of  building  superintendent,  showing 
amount  due  contractor,  has  been  lost,  and  proof  of  such  fact  is  made, 
secondaiy  evidence  of  contents  of  certificate  is  admissible  in  action 
by  contractor  to  recover  upon  the  common  counts. 
Concord  House  Co.  vs.  O'Brien,  228  111.  360. 
An  architect's  certificate  of  damages,  based  upon  matters  out- 
side the  contract  and  upon  ex  imrtc  statements  of  owner,  with- 
out notice  to  contractor,  is  void  as  an  award  of  damages,  and  is  not 
admissible  in  evidence  in  action  for  balance  due  under  contract. 
Young  vs.  Wells  Glass  Co.,  187  111.  626;  Mills  vs.  Weeks,  21  HI.  561. 


BURDEN  OF  PROOF 

Defined: 

The  term  "burden  of  proof"  has  two  distinct  meanings.  By 
the  one  is  meant  the  duty  of  establishing  the  truth  of  a  given 
proposition  or  issue  by  such  a  quantum  of  evidence  as  the  law 
demands  in  the  case  in  which  the  issue  arises;  by  the  other  is 
meant  the  duty  of  producing  evidence  at  the  beginning  or  at  any 
subsequent  stage  of  the  trial,  in  order  to  make  or  meet  a  jjnnia  facte 
case.  Generally  speaking,  the  burden  of  proof,  in  the  sense  of  pro- 
ducing evidence,  passes  from  party  to  party  as  the  case  progresses, 
while  ^the  burden  of  proof,  meaning  the  obligation  to  establish  the 
truth  of  the  claim  by  a  preponderance  of  the  evidence,  rests  through- 
out upon  the  party  asserting  the  affirmative  of  the  issue,  and  un- 
less he  meets  this  "^obligation  upon  the  whole  case,  he  fails.  This 
burden  of  proof  remains  with  him  to  the  end. 

Chi.  U.   Trac.  Co.  vs.  Mee,  218  111.  9;    Supreme  Tent  vs.   Stensland, 
206  111.  124;  Egbers  vs.  Egbers,  177  111.  82. 

General  Rules : 

The  burden  of  proof  to  establish  the  truth  of  a  claim  by  a  pre- 
ponderance of  the  evidence  rests  throughout  upon  party  assert- 
ing the  affirmative  of  the  issue.  ^^     ^     ■<  o^r- 
Chi.  U.  Trac.  Co.  vs.  Mee,  218  111.  9;  Supreme  Tent  vs.  Stenslana,  -06 
111.   124-    Egbers  vs.   Egbers,    177   111.   82;    Stevenson  vs.   Marony, 
29  111.  532 ;   XII  HI.  Notes  480,   §  46. 


216  BURDEN  OF  PROOF 

The  party  holding  the  affinnative  of  an  issue  must  prove  it,  and 

until  affirmative  is  established  by  proof,  negative  is  presumed  to 

exist. 

Union  Natl.  Bank  vs.  Baldenwick,  45  111.  375. 

The  burden  of  proof,  in  all  cases,  must  rest  upon  the  party 
against  whom  is  thrown  the  weight  of  the  presumption  as  to  the 
facts  which  the  law  raises. 

Wilbur  vs.  Wilbur,  129  111.  392. 

The  burden  of  proof  is  upon  him  who  has  the  affirmative  of  the 
issue,  but  there  is  an  obvious  distinction  between  the  affirmative 
of  the  issue  and  the  affirmative  of  the  question.  The  affirmative  of 
the  issue  is  with  him  who  affirms  or  asserts  a  matter  in  support 
of  his  claim  or  defense,  regardless  of  whether  he  affirms  or  as- 
serts the  affirmative  or  negative  of  the  question  at  issue. 
Postlewaite  vs.  Highby,  83  App.  414. 

AVhere  a  party  asks  a  court  to  believe  a  proposition,  and  to  base 
a  finding  thereon  in  his  favor,  the  law  casts  the  burden  on  him  of 
furnishing  the  evidence  upon  which  such  finding  can  legally  rest. 
Prentice  vs.  Crane,  234  111.  302. 

As  Determined  by  Pleadings: 

The  burden  of  proof  is  determined  by  the  pleadings,  and  the 
condition  of  the  proof,  and  notwithstanding,  where  plea  is  of  gen- 
eral issue,  that  defense  is  an  affirmative  one. 

Adams  vs.  Pease,  113  App.  356;  Abhau  vs.  Grassie,  262  J 11.  636. 

"Whenever,  whether  in  plea  or  replication  or  rejoinder  or  surre- 
joinder, an  issue  of  fact  is  reached,  then  whether  the  party  claim- 
ing the  judgment  of  the  court  asserts  an  affirmative  or  negative 
proposition,  he   must  make  good  his  assertion.     On  him  lies  the 

burden  of  proof. 

Osgood  vs.  Groseclose,  159  111.  511. 

Affirmative : 

The  burden  of  maintaining  the  affirmative  of  the  issue  involved 
in  an  action  is  upon  party  alleging  fact  which  constitutes  the  issue, 
and  this  burden  rests  upon  him  throughout  the  trial. 

Chi.  U.  T.  Co.  vs.  Mee,  218  111.  9;  Cont.  Ins.  Co.  vs.  Kogers,  119  111. 
474 ;  Abhau  vs.  Grassie,  262  111.  636. 

As  to  Shifting  of  Burden: 

Technically,  the  burden  of  proof  in  any  case  is  determined  by 

the  issues  and  does  not  shift,  and  at  the  end  of  the  case,  the  pleader, 

upon  whom  burden  rests,  must  have  sustained  his  position  by  a 

preponderance. 

Michael  vs.  Marshall,  201  111.  70. 

Negative  in  Issue : 

—  Quantity  of  Proof:  The  effect  of  the  negative  form  of  issue 
is  not  to  relieve  the  party  making  such  charge  of  burden  of  intro- 
ducing any  proof,  but  the  law  will  be  satisfied  with  less  quantity 
of  proof;  and  this  is  particularly  so  where  there  is  concurring 
circumstance  of  the  facts  being  within  the  knowledge  of  the  ad- 
verse party.  Evidence  which  renders  the  existence  of  negative 
probable  may  be  sufficient  in  absence  of  proof  to  contrary.  Full 
and  conclusive  proof  where  a  party  has  burden  of  proving  a  nega- 
tive is  not  required,  but  even  vague  proof  or  such  as  renders  the 


BURDEN  OF  PROOF  217 

existence  of  the  negative  probable  is,  in  some  cases,  sufficient  to 
change  the  burden  to  the  other  party.  .,!,.|,, 

Preiitiee   vs.   Cnine,   234   111.   302;    Welsh   vs.   Shumway,   232  111.   54; 

Eexroth  vs.  Schein,  206  111.  80;  Dorsey  vs.  Brigham,  177  111.  250; 

Beardstowu  vs.  Virginia,  76  111.  34;  Graves  vs.  Bruen,  11  111.  431; 

Cf.  Union  Natl.  Bank  vs.  Baldeuwiek,  45   111.  375. 

.  —  Where  License  Required:  In  prosecutions  for  a  penalty  for 
doing  an  act  which  the  statute  does  not  permit  to  be  done  by  any 
person  except  those  who  are  duly  licensed  therefor,  when  the  act 
is  proven  the  burden  is  on  the  party  to  show  such  license,  and  neg- 
ative of  the  license  is  not  required. 

Prentice  vs.   Crane,  234  111.  302;   Harbaugh  vs.  City  of  Monmouth, 
74  111.  367;  Chandler  vs.  Smith,  70  App.  658. 

Such  evidence  as,  in  absence  of  counter  evidence,  affords  rea- 
sonable ground  for  presuming  that  a  negative  averment  is  true,  is 

sufficient  to  throw  the  liurden  of  proof  upon  the  adversary. 

Cole  vs.  Cole,  153  111.     585;  Eyan  vs.  Hamilton,  205  111.  191;  Vigus 
vs.  O'Bannon,  118  111.  334;  Parry  vs.  Squair,  79  App.  324. 

—  Knowledge  of  Adversary:  Where  a  fact  is  peculiarly  within 
the  knowledge  of  one  of  the  parties,  he  has  the  burden  of  proving 
it  whether  the  proposition  is  affirmative  or  negative. 

City  of  Chicago  vs.  Dunham,  161  App.  307;  Robinson  vs.  Robinson, 

51  App.  317;  Williams  vs.  People,  121  111.  84;  People  vs.  Nedrow, 

16  App.  192. 

But  where  a  party  is  bound  to  aver  a  negative,  he  is  also  bound 

to  prove  it,  if  the  means  of  proof  are  equally  within  the  control 

of  both  parties. 

G.  W.  R.  E.  Co.  vs.  Bacon,   30  111.   347;   Berner  vs.  Brotherhood  of 
Yoemen,  154  App.  27;  Abhan  vs.  Grassie,  262  111.  636. 

Abandonment : 

—  Contract:  Where  one  seeks  to  evade  the  enforcement  of  a 
written  contract,  alleging  that  same  was  abandoned  and  the  sub- 
stitution of  an  oral  contract,  he  has  the  burden  of  proving  alleged 

new  agreement. 

Croft  vs.  Perkins,  174  111.  627. 
, — Highway:     Is  upon  party   alleging,  to  prove  abandonment, 

by  clear  and  satisfactory  evidence. 

Highway  Comrs.  vs.  Kinahan,  240  111.  594;  Cox  vs.  Comrs.  of  High- 
ways," 194  111.  355. 

—  Easement:     The  burden  of  proving  abandonment  rests  upon 

partv  asserting  it. 

Hunt  vs.  Sain,  181  111.  372. 

Abduction : 

Burden  is  on  defendant  to  show  female's  past  life  and  conversa- 
tion unchaste. 

Bradshaw  vs.  People,  153  111.  156;  Slocum  vs.  People,  90  111.  274. 

Abortion : 

Burden  of  proof  is  upon  defendant  alleging  same,  in  action  on 

benefit  certificate,  to  prove  each  and  every  element  constituting 

the  crime. 

Brown  vs.  Mystic  Workers,  151  App.  517. 

Abstracts  of  Title: 

Burden  is  upon  party  offering  them  to  bring  them,  by  proper 

proof,  within  terms  of  statute. 

C.  &  A.  R.  R.  Co.  vs.   Keegan,  152  111.  413;   Pumphrey  vs.  Giggey, 
150  App.  473. 


218  BURDEN  OF  PROOF 

Acceptance : 

Of  orders  for  payment  of  money,  burden  is  upon  plaintiff. 
Dillon  vs.  Moritz,  97  App.  1. 

Accident : 

In   action  upon   accident  policy,   burden   to   establish   death   of 

assured  by  accident  is  upon  plaintiff. 

Wilkinson  vs.  Service,  240  111.  205;  Moore  vs.  I.  C.  M.  A.,  166  App.  38; 
Cent.  Ace.  Ins.  Go.  vs.  Spence,  126  App.  32. 

Accord  and  Satisfaction: 

The  burden  of  proving  an  accord  and  satisfaction  or  a  release 
is  upon  party  asserting  it. 

Wallner  vs.   Chi.   Con.   Trac.   Co.,   150   App.   242;   McDavitt  vs.   Mc- 
Kay, 78  App.  396;  American  vs.  Eumpfert,  75  111.  228. 

Account  Stated: 

A  defendant,  in  action  charging  an  account  stated,  may  show 
fraud  or  mistake  but  burden  of  proof  is  upon  such  defendant. 
Wurlitzer  vs.  Dickinson,  153  App.  36. 

Acknowledgment : 

One  seeking  to  impeach  certificate  of  acknowledgment  to  a  deed 

has  burden  of  establishing  his  claim  by  clear  and  convincing  proof. 

Duncan  vs.  Duncan,  203  111.  461;  Critten  vs.  Dickerson,  202  111.  372. 

Adoption : 

One  claiming  to  be  an  adopted  child  for  purpose  of  inheritance 
must  prove  the  petition  for  adoption  contained  the  necessary  re- 
quirements to  confer  jurisdiction  upon  the  court. 
Kennedy  vs.  Borah,  226  111.  243. 

Adultery : 

The  burden  of  proving  adultery  is  upon  the  party  alleging  same 

to  establish  it  by  a  preponderance  of  the  evidence. 

Heyman  vs.  Heynian,  210  111.  524;  Lenningf  vs.  Lenning,  176  111.  180; 
Jenkins  vs.  Jenkins,  86  111.  340;  Carter  vs.  Carter,  62  111.  439. 

Adverse  Possession : 

A  party  claiming  by  adverse  possession  must  prove  his  posses- 
sion was  adverse  to  the  true  owner,  by  clear  and  positive  evidence. 
Kirby  vs.  Kirby,  236  111.  255. 

Age: 

—  Eape  WitJiout  Force:     Age  of  accused,  burden  is  upon  People 

to  prove. 

Wistrand  vs.  People,  213  111.  72. 
Burden  is  upon  People  to  show  female  was  under  age  of  consent. 
Wistrand  vs.  People,  213  111.  72;  Addison  vs.  People,  193  111.  40?. 

—  Rape  with  Force:    Burden  of  proof  is  upon  defendant  to  show 

that  he  was  under  the  age  of  fourteen  years. 

Sutton  vs.  People,  145  111.  279;  People  vs.  Schultz,  260  111.  35. 

Agency : 

The  burden  of  establishing  agency  rests  upon  party  alleging  it. 

Schmidt  vs.  Shaver,  196  111.  108;  Cabiness  vs.  Texas  Tie  Co.,  152  App. 

406;  Chesley  vs.  Woods  Motor  Co.,  147  App.  588;  Good  vs.  Akin, 

147  App.  390;   Kearney  vs.  Aetnae  Ins.  Co.,  109  App.  609;   XIV 

111.  Notes  106,  §  224. 

"Wliere  defendant,  in  action  on  warranty,   defends  on  ground 


BURDEN  OF  PROOF  219 

that  in  warranting  lie  acted  as  agent,  he  has  tlie  bitrden  of  show- 
ing that  he  had  authority  to  bind  his  alleged  principal. 
Wheeler  vs.  Eeed,  36  111.  81. 

Alibi:  ;,.   . 

The  burden  of  establishing  an  alibi  is  on  defendant. 

Flannegan  vs.  People,  2l4  111.  170;  Iloiiser  vs.  People,  210  111.  253; 
Carletou  vs.  People,  150  111.  181;  Anneals  vs.  People,  13-1  ID.  401. 

Alterations : 

—  Ill  General:  After  proof  by  defendant  tending  to  show  alter- 
ation, the  burden  of  proof  on  the  whole  ease  is  upon  plaintiff  to 
show  that  no  alter;ition  was  made,  or  that  it  was  made  with  the 

consent  of  defendants  or  that  they  ratified  same. 

Merritt  vs.  Dewey,  218  111.  599;  Catlin  Coal  C9.  vs.  Lloyd,  180  11). 
398;  Esgman  vs.  Nutter,  155  App.  390;  Dewey  vs.  Merritt,  106 
App.  15(5.  , 

—  Apparent:  If  a  document  produced  in  court  appears  to  have 
been  materially  altered  and  under  circumstances  which  may  be  sus- 
picious, the  burden  of  explaining  its  appearance  rests  upon  party 

otfering  it. 

Landt  vs.  MeCulloiigh,  206  111.  214;  Webster  vs.  Yorty,  194  111.  408; 
Gage  vs.  City  of  Chicago,  225  111.  218;  Hodge  vs.  Gilliman,  20 
111.  437;  Gillett  vs.  Sweat,  6  111.  475;  Grand  Lodge  vs.  Young,  123 
App.  628;  XI  111.  Notes  95,  §22. 

—  Non  Apparent:  If,  upon  inspection,  alteration  is  not  appar- 
ent, court  may  admit  instrument  in  evidence,  leaving  defendant  to 

show  fact  of  alteration. 

Merritt  vs.  Boyden,  191  111.  136;  Lowman  vs.  Auljrey,  72  111.  619; 
McAllister  vs.  Avery,  17  App.  568;  Conkling  vs.  Olnistead,  63  App. 
649. 

—  Deite  of:  The  law  indulges  no  presumption  as  to  when  a 
change  in  a  written  instrument  was  made,  but  reciuires  the  party 
otfering  an  altered  instrument  in  evidence,  if  the  alteration  is 
material,  to  explain  such  alteration  satisfactorily  to  the  court,  before 

the  instrument  will  be  admitted  in  evidence. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Catlin  Coal  Co.  vs.  Lloyd, 
180  111.  398;  Milliken  vs.  Marliu,  66  111.  13;  DeLoug  vs.  Soucie, 
45  App.  235, 

Ambiguity : 

Burden  of  proving  a  latent  ambiguity  is  upon  one  claiming  exist- 
ence and  benefit. 

Bradish  vs.  Yocum,  130  111.  386. 

Animals: 

Plaintiff  has  burden  of  proving  owner's  laiowledge  of  vicious 

character  of  domestic  animals. 

Feldnian  vs.  Sellige,  110  App.  130;  West  Chi.  8t.  Ry.  Co.  vs.  Walsh, 
78  App.  595;  Breitnian  vs.  Brauu,  37  App.  17;  Domm  vs.  Hollen- 
bech,  259  111.  382. 

Ante-Nuptial  Contract: 

If  the  provision  made  for  the  wife  in  an  ante-nuptial  contract 
is  disproportionate  to  the  husband's  means,  burden  is  upon  those 
claiming  under  husband  to  prove  that  the  wife  had  full  knowl- 
edge  of  all   the   facts  and  circumstances  which  materially  alfect 

the  contract. 

Miner  vs.  Phee,  254  111.  60;  Warner  vs.  Warner,  235  111.  448;  Col- 
bert vs.  Eings,  231  111.  4.Q4  ;  Murdock  vs.  Murdock,  219  111.  123. 


220  BURDEN  OF  PROOF 

Assault  and  Battery: 

—  Civil  Action  for  Damages:     The  burden  of  proof  is  upon 

plaintiff  to  show  either  that  the  intention  was  unlawful  or  that 

defendant  was  in  fault. 

Paxton  vs.  Boyer,  67  111.  132 ;  Eazor  vs.  Kinzie,  55  App.  605 ;  See 
also  People  vs.  Hart,  156  App.  523. 

—  Under  Pleadings:    On  issue  taken  upon  replication  de  injuria 

to  a  plea  of  son  assault  demesne,  burden  is  upon  defendant  to 

prove  that  the  assault  was  made  in  neecessary  defense,  and  that, 

in  making  the  assault  he  used  no  more  force  than  was  necessary 

to  protect  himself. 

Gizler  vs.  Witzel,  82  111.  322 ;  Hulse  vs.  Tolman,  49  App.  490. 

Where  a  defendant  has  pleaded  son  assault  demesne,  burden  is 

upon  him  notwithstanding  the  interposition  likewise  of  a  plea  of 

the  general  issue,  to  estal)]ish  a  justification  for  the  assault. 

Spenler  vs.  Tiivley,  158  App.  146;  Wells  vs.  Englehart,  118  App.  217. 

True  rule  under  such  pleadings,  the  general  issue  requires  plain- 
tiff to  prove  an  assault  by  defendant,  but  when  that  assault  is 
proven,  the  burden  of  proving  prior  assault  by  plaintiff  is  upon 
defendant. 

Kehl  vs.  Burgener,  157  App.  468. 

Where  a  defendant  has  pleaded  moderate  castigavit,  and  plain- 
tiff replied  de  injuria,  burden  is  upon  defendant. 
Swigart  vs.  Ballou,  106  App.  226. 

Assent : 

—  Contract  of  Carrier:  Where  a  contract  limiting  the  liability 
of  the  carrier  is  contained  in  a  bill  of  lading,  constituting  both  a 
receipt  and  contract,  burden  is  upon  carrier  to  show  that  shij^per 
assented  to  terms  and  conditions  of  contract. 

Pflaff  vs.  Pacific  Express  Co.,  251  111.  243;  Wabash  E.  E.  Co.  vs. 
Thomas,  222  111.  337;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Patton,  203  111. 
376;  Tobermann  vs.  T.  St.  L.  &  W.  Ey.  Co.,  159  App.  200;  Warica 
vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  156  App.  Ill;  Childers  vs.  C.  &  A. 
Ey.  Co.,  166  App.  391;  XI  111.  Notes  762,  §  181. 

—  Restrictive  Conditions:     Burden  is  upon  telegraph  company 

to  show  assent  to  restrictive  conditions. 
Beggs  vs.  Postal  Cable  Co.,  258  111.  238. 
And  this  rule  applies  to  receiver  as  well  as  sender  of  message. 
Webbe  vs.  West  Un.  Tel.  Co.,  169  111.  610. 

Assignment. 

—  Ecpdtahle:  Where  a  person  claims  an  equitable  assignment, 
of  a  portion  of  a  demand,  he  has  the  burden  of  showing  the  assign- 
ment by  satisfactory  evidence. 

Matheson  vs.  Magni;sou,  226  111.  368;  Wyman  vs.  Snyder,  112  111.  99; 
Crandall  vs.  Lumber  Co.,  164  111.  474. 

—  Bad  Faith:     One  who  assails  title  of  assignee  of  bill  before 

maturity,  has  burden  of  proving  by  a  preponderance  of  evidence 

that  he  acted  in  bad  faith. 

Bradwell  vs.  Pry  or,  221  111.  602. 

But  after  defendant  has  shown  title  of  payee  to  have  been  de- 
fective, burden  of  proof  is  upon  assignee  to  establish  that  he  took 
the  instrument  in  suit  in  good  faith  and  for  value. 
Schintz  vs.  American  Bank,  152  App.  76. 

Assumpsit : 

Under  the  general  issue  in  assumpsit,  it  devolves  upon  the  plain- 


BURDP]N  OF  PROOF  221 

tiff  to  prove  the  defendant's  promise  as  charged  in  the  declaration, 
by  direct  proof,  or  to  show  hy  the  evidence  a  state  of  facts  from 
which  the  hiw  will  imply  such  a  promise. 

Bridge  Co.  vs.    Comrs.  of  Highways,  101  111.  518;  Matier  vs.  Beaird, 
8  App.  409. 
So,  also,  under  the  general  issue,  plaintiff  has  burden  not  only 
of  proving  the  contract,  but  also  the  breach  of  it  as  assigned  in 

his  declaration. 

Ward  vs.  Athens  Mfg.  Co.,  98  App.  227. 

Attachment : 

—  Pica  ill  Abatement:     Burden  of  proof  rests  upon  plaintiff  to 

establish  grounds  of  attachment  stated  in  his  affidavit,  when  same 

is  put  in  issue  by  plea  in  al)atement. 

Jaycox  vs.  Wing,  66  111.  182;  Wells  vs.  Parrott,  43  App.  656;  Towle 
vs.  Lamphere,  8  App.  399. 

—  Owncrsliip:  Where  a  person  intervenes  in  proceeding  by 
attachment,  claiming  to  o-wn  the  property  attached,  he  has  the 
burden  throughout  of  showing  his  ownership. 

Hollenbeck  vs.  Todd,  119  ill.  543 ;  Bank  vs.  Crow,  56  App.  558. 

—  Fraudulent:  Burden  of  establishing  fraudulent  character 
of  attachment  proceedings  is  upon  party  asserting  such  claim. 

Smith  vs.  Berz,  125  App.  122. 

Attorneys : 

The  relation  of  attorney  and  client  having  been  shown,  burden 
rests  upon  attorney  to  show  fairness,  accuracy  and  equity  in  trans- 
actions between  him  and  his  client. 

Day  vs.  Wright,  233  111.  218;  Mansfield  vs.  Wallace,  217  111.  GIO; 
Willis  vs.  Burdette,  172  III.  117;  Morrison  vs.  Smith,  130  111.  304; 
XI  111.  Notes  491,  §  95. 

Authority: 

—  In  General:  Where  there  is  prima  facie  proof  of  a  right  in 
a  person,  burden  of  disproving  it  is  upon  person  who  disputes  the 

right. 

Eobiuson  vs.  Eobinson,  51  App.  317, 

—  Of  Laic:  Burden  is  upon  plaintiff  to  show  that  law  was  not 
complied  with  and  not  upon  defendant  to  show  that  it  was. 

People  vs.  Moore,  240  111.  408. 

—  Agent:    Party  relying  upon  authority  of  agent  has  burden  of 

proof. 

U.  S.  Wringer  Co.  vs.  Cooney,  214  111.  520;  Cabiness  vs.  Texas  Pres. 
Co.,  152  App.  406;  Jackson  Co.  vs.  Com.  Bank,  199  111.  151. 

—  Corporate  Officer:  Where  authority  of  ofticer  to  bind  cor- 
poration is  contested,  hurden  is  upon  party  asserting  want  of  au- 
thority to  sustain  his  position. 

Hanover  Coal  Co.  vs.  Piillne,  137  App.  559. 

—  Partner:  A  note  or  bill  made  by  one  partner  in  the  name  of 
the  firm,  will  be  presumed  to  have  been  made  in  the  course  of 
partnership  dealings,  and  the  burden  of  proof  is  upon  him  who 
seeks  to  impeach  it,  to  show  the  contrary,  and  that  such  fact  was 

within  the  knowledge  of  the  payee. 
Gregg  vs.  Fisher,  3  App.  261. 


222  BURDEN  OF  PROOF 

Burden  of  proving  authority  to  bind  partners  in  non-trading 

firm  is  upon  plaintiff. 

Teed  vs.  Paisous,  202  111.  455;  Ulery  vs.  Ginrich,  57  111.  531. 

iif^ Stranger:     Burden  of  showing  authority  to  indorse  a  check 
is  upon  party  asserting. 

Jackson  Paper  Co.  vs.  Com.   Natl.  Bank,   199  111.   151. 

Award: 

Burden  of  proof  is  upon  objectors  to  impeach  validity  of  award. 
Seaton  vs.  Kendall,  171  111.  410;  Darst  vs.  Collier,  86  111.  96;   Hay- 
wood vs,  Harmon,  17  111.  477. 

Banks : 

—  State  of  Account:  Where  a  bank  depositor,  in  a  suit  against 
a  bank,  shows  his  deposits  of  money,  the  burden  will  rest  upon  the 
bank  to  establish  by  competent  evidence  that  same  has  been  paid 
out  by  or  under  authority  of  depositor. 

UeLand  vs.  Dixon  Natl.  Bank,  111  111.  323. 

—  Paifment  of  Chech:     Burden    of    proving   that   payment   of 

check  bv  bank  was  proper  is  upon  bank. 

'Chi.  Savings  Bank  vs.  Block,  120  App.  129. 

Bankruptcy : 

Where  defendant  pleads  a  discharge  in  bankruptcy,  his  proof 
of  such  discharge  is  prima  facie  a  bar  to  the  claim  sued  upon,  and 
burden  of  proof  is  upon  plaintiff  to  show  claim  sued  upon  is  not 
within  the  terms  of  the  bankrupt's  discharge. 

Van  Norman  vs.  Young,  228  HI.  425;   Ailing  vs.  Stratka,  118  App. 
184. 

Bad  Faith : 

—  Negotiable  Instrument :  One  who  asserts  bad  faith  in  holder 
of  title  to  negotiable  instrument  has  burden  of  proof. 

Bradwell   vs.  Pryor,  221   111.   602;    Meritt  vs.  Boyden,   191   111.   136; 
Bemis  vs.  Horner,  165  111.  347. 

—  Color  of  Title:     Burden  of  proof  is  upon  party  alleging  bad 

faith  by  the  holder  of  color  of  title. 

Peabody  Coal  Co.  vs.  Burri,  255  111.  592;   Dawson  \f.  Edwards,  189 
111.  60. 

Bailment: 

Where  goods  are  placed  in  the  hands  of  bailee  in  good  condition, 
and  they  are  returned  in  a  damaged  state  or  not  returned  at  all, 
in  action  by  bailor  against  bailee,  the  law  will  presume  negligence 
on  part  of  latter  and  impose  upon  him  the  burden  of  showing  he 
exercised  such  care  as  was  required  bN^  the  bailment. 

Miles  vs.  Int.  Hotel  Co.,  167  App.  440 ;  Tate  vs.  M.  P.  Co.,  157  App. 

105;  C.  &  A.  Ey.  Co.  vs.  P.  &  P.  U.  Ey.  Co.,  157  App.  583;  Sinse- 

bautjh  vs.  Ey.  Co.,  149  App.  642;  Brewster  vs.  Weir,  93  App.  588; 

Burlingame'vs.   Horn,   30   App.   330;    Punkhouser   vs.   Wagner,   62 

111.  59. 

Bastardy : 

Burden  of  establishing  paternity  of  child  is  on  complainant. 
Johnson  vs.  People,  140  111.  350;  Peek  vs.  People,  76  111.  289. 

Bonds : 

Plaintiff  has  burden  of  proving  breach  complained  of  occurred 

during  term  of  l)ond. 

Mystic  Workers  vs.  U.  S.  F.  G.  Co.,  152  App.  223;  Stern  vs.  People, 
96  111.  475. 


BURDEN  OF  PROOF  223 

Breach  of  Promise: 

Burden  of  proving  promise  by  preponderance  of  evidence  is 
upon  plaintiff. 

McPhail  vs.  Trovell,  65  App.  660.    • 

Breach  of  Covenant : 

The  burden  of  proof  is  upon  party  asserting  damage  from  breach 
of  covenant  of  title,  lioth  to  show  amount  paid  is  an  incumbrance, 
and  to  show  that  such  amount  was  the  reasonable  value  of  interest 

acquired. 

MeCord  vs.   Massey,  155  111.   123. 

Breach  of  Contract: 

One  suing  on  contract,  must  aver  and  prove  performance  by  him 
of  conditions  necessary  to  fix  defendant's  liability,  or  he  must  aver 
either  his  rejected  offer  to  perform  such  conditions  or  his  willing- 
ness to  perform  until  defendant's  conduct  excused  performance. 

Tichenor   vs.   New^nau,    186   111.    264;    Watson   vs.    Mickleberiy,    145 
App.  624. 

So,  in  action  upon  contract  for  non-delivery  of  personal  prop- 
erty contracted  for,  where  obligation  to  pay  and  deliver  were  con- 
current, in  order  to  recover,  plaintiff  must  aver  and  prove  his 
readiness  and  willingness  to  perform  his  part  of  the  contract,  and 

a  demand  for  articles  to  be  delivered. 

Pahlman  vs.  King,  49  111.  266;  Hoiigli  vs.  Eawson,  17  111.  5S8;  Hun- 
gate  vs.  Eankin,  20  111.  639. 

Brokers : 

Plaintiff  must  show  by  a  preponderance  of  evidence  that  he 
produced  a  purchaser  ready,  willing  and  able  to  buy  the  prop- 
erty in  question,  upon  the  terms  at  which  owner  was  willing  to  sell. 
Waiss  vs.  Cannon,  146  App.  379;  Schmidt  vs.  Keeler,  63  App.  487. 

In  action  by  brokers  for  commission  for  purchasing  stock,  bur- 
den of  proof  is  upon  the  broker  to  show  purchase  and  defendant 
is  not  estopped  from  requiring  such  proof  by  reason  of  having 
given  the  order  to  purchase. 

Hately  vs.  Riser,  253  111.  288. 

The  burden  is  upon  the  shipper  to  establish  the  contention  that 

the  broker  did  not  follow  instructions  relative  to  sale  of  grain  and 

mat  loss  was  sustained  thereby. 

Cleveland  Grain  Co.  vs.  Vant,  171  App.  104. 

Building's : 

Are  priiiia  facie  part  of  the  land  and  burden  is  on  party  alleg- 
ing building  to  be  persona  It  v. 

Gobb  vs.  O 'Conner,  16  111.  421. 

Cancellation  of  Instruments : 

—  General  Rule:  Burden  of  proof  is  upon  party  seeking  can- 
cellation to  establish  grounds  for. 

Oliver  vs.  Oliver,  110  111.  119. 

—  Fraud  and  Undue  Influence:     The  burden  of  proof  is  upon 

complainant  to  show  truth  of  charges  of  fraud  and  undue  influence 

as  ground  for  setting  aside  his  deed. 

Beatty  vs.  Hood,  229  111.  562;  Willenou  vs.  Dunn,  93  111.  511. 

—  Insanity:  On  bill  by  conservator  to  set  aside  a  conveyance 
made  by  his  ward  on  the  ground  of  insanity  of  grantor,  and  un- 
due influence  of  grantee  over  him,  burden  of  is  upon  complainant 


224  BURDEN  OF  PROOF 

to  prove  one  or  both  of  these  allegations  by  a  preponderance  of  the 
evidence. 

Blanchard  vs.   Blanchard,   191   111.  450:   English  vs.  Porter,   109  111, 

285. 

—  Fact  Of:  Cancellation  of  insurance  policy,  burden  is  upon 
defendant  company  to  prove. 

Natl.  Fire  Ins.  Co.  vs.  Lumber  Co.,  119  App.  67. 

Burden  is  upon  party  alleging  cancellation  of  contract. 
Bartellot  vs.  Int.  Bank,  119  111.  259. 

Carriers : 

In  action  for  injury  to  stock,  burden  of  proving  exemption  is 

upon  carrier. 

Ey.  Co.  vs.  Hamilton,  76  HI.  393. 

Upon  loss  of  goods  by  express  compan}^,  burden  is  upon  com- 
pany to  show  a  legal  excuse. 

Express  Co.  vs.  Sehier,  55  111.  140. 

Chancery : 

—  Upon  Replication:  Where  a  defendant  in  chancery,  in  his 
answer,  admits  all  allegations  of  the  bill,  and  seeks  to  avoid  them 
by  setting  up  new  matter,  not  responsive  to  the  bill,  and  a  repli- 
cation is  interposed,  onus  of  proving  new  matter  is  upon  defend- 
ant, and  complainant  has  no  facts  to  prove,  as  a  party  is  not  re- 
quired to  prove  facts  alleged  in  his  pleadings  which  are  admitted 
by  pleadings  of  opposite  party.  This  is  the  rule,  though  the  an- 
swer which  sets  up  such  new  matter  be  sworn  to. 

Pankey  vs.  Eaum,  51  111.  88;  Cooper  vs.  Tyler,  40  111.  462. 

—  In  Absence  of  Replication:  Where  a  case  is  fieard  upon  bill 
and  answer,  or  upon  bill,  answer  and  exhibits,  without  challenge 
by  replication,  the  answer  is  taken  as  true.  Comiolainants  thereby 
admit  that  all  that  is  stated  in  the  answer  is  true,  and  whether 
it  be  responsive  to  the  bill  or  not,  they  have  no  ground  of  relief 
except  the  facts  which  are  substantially  admitted  in  the  answer  to 

be  true. 

Kingman  vs.  Mowrey,  182  111.  256;  Cook  County  vs.  G.  W.  E,  E.  Co., 
119  111.  218;  Fordyce  vs.  Striver,  115  111.  530;  Mason  vs.  McGirr, 
28  111.  322;  Goddard  vs.  C.  &  N.  W.  Ey.  Co.,  104  App.  526; 
Medical  College  vs.  Zeigler,  86  App.  360;  Cf.  Chambers  vs.  Eowe, 
36  111.  171;  Kaegbein  vs.  Higgre,  51  App.  538. 

Chastity : 

Presumption  in  prosecution  for  abduction  is  that  female's  pre- 
vious life  and  conversation  were  chaste  and  onus  is  upon  defend- 
ant to  show  otherwise. 

Bradshaw  vs.  People,  153  HI.  156;  Slocum  vs.  People,  90  111.  274. 

Citizenship : 

AVhere  one  assumes  to  prove  that  another  person  is  not  a  citi- 
zen of  this  state,  the  burden  of  proving  a  negative  is  necessarily 
imposed  upon  him  who  raises  the  question  of  the  citizenship.  The 
one  so  questioning  the  right  is  not  re(iuired  to  produce  full  and 
conclusive  proof  but  is  only  bound  to  introduce  such  proof  as 
renders  the  existence  of  the  negative  probable,  and  when  that  is 
done,  it  is  deemed  sufficient  to  shift  the  burden  of  proof  to  the 

opi30site  party. 

Behrensmeyer  vs.  Kreitz,  135  111.  591;  Eexroath  vs.  Sehein,  206  III. 
80. 


BURDEN  OP  PROOF  225 

Cloud  on  Title : 

The  burden  of  proving  an  allegation  in  bill  to  remove  cloud  from 
title,  that  complainant  was  in  possession  of  the  property  at  time 
bill  was  filed,  is  on  complainant,  and  such  proof  is  essential  to  the 
granting  of  the  relief  prayed. 

Glos   vs.   Archer,   214   111.   74;    Glos  vs.  Kemp,    192   111.    72-    Glos  vs 
Bec'kman,   188    111.   158;    Glos   vs.   O 'Toole,   173    111.   ;J6();'   Glos  vs! 
Eandolph,  133  111.  197;  Stanuard  vs.  A.  E.  Ry.  Co.,  220  111.  469. 
Such  averment  must  be  proven. 
Lister  vs.  Glos,  236  111.  95. 

And  it  is  essential  that  the  owner  either  sliow  that  he  is  in  pos- 
session or  that  property  was  vacant  and  unoccupied. 

Glos  vs.  Hiiey,  181   111.  149;  Johnson  vs.  Huling,  127  111.  14. 

Competency  of  Witnesses: 

Burden  is  upon  party  ol)jecting  to  competency  of  a  witness  to 
show  his  incompetency. 

Standley  vs.  Moss,  114  App.  612. 

Compromise  and  Settlement: 

Where  fact  of  settlement  is  established,  burden  of  proof  is  upon 
party  assailing  same. 

Beebe   vs.    Smith,    194    111.    634;    Straubher   vs.    Mohler,    80    111.    21; 
MeElhaney  vs.  People,  1  App.  550. 

Computation : 

Where  deductions  upon  a  contract  in  suit  is  a  mere  matter  of 
computation,  and  the  proof  is  equally  in  possession  of  the  parties, 
the  burden  of  proof  is  upon  claimant. 

Bernor  vs.  Brotherhood  of  Yeoman,  154  App.  27. 

Confession  and  Avoidance: 

Where  issue  is  taken  on  a  plea  of  confession  and  avoidance, 
burden  of  proving  the  defense  set  up  in  the  plea  rests  on  pleader. 
Miller  vs.  Solott,   131   App.   196;   Micheals  vs.  West,  109   App.  419- 
C.  B.  &  Q.  Co.  vs.  Bryan,  90  III.  126. 

Confusion  of  Goods: 

The  burden  is  upon  party  confusing  his  goods  with  those  of 
another,  to  identify  his  own  property. 

First   Natl.   Bank  vs.   Sehween,    127   111.   573;    Diversy  vs.   Johnson, 
93  111.  547. 

Consideration : 

—  Instruments  Under  Seal:    Where- a  contract  under  seal  recites 

an  adequate  consideration,  the  burden  is  on  him  who  seeks  to  avoid 

the  contract  to  impeach  the  recital  by  a  clear  preponderance  of 

the  evidence. 

McFarland  vs.  Williams,  107  111.  33;  Ruppert  vs.  Frauenknecht,  146 
App.  397. 

—  Release:  The  burden  of  proof  is  upon  plaintiff  to  establish 
that  a  release  set  up  by  defendant  as  a  defense  to  an  action  for 
personal  in.juries  was,  as  set  up  in  his  replication,  without  valu- 
able consideration  and  procured  by  fraud. 

St.  L.  &  B.  E.  Ry.  Co.  vs.  Erli'nger,  112  App.  506;  Coats  vs.  :\Iiller, 
99  App.  227;   E.  St.  L.  Packing  Co.  vs.  Hightower,  9  App.  297. 

—  Illegal:  Where  a  part.y  alleges  that  his  written  promise  is 
invalid  because  founded  in  part  upon  an  illegal  consideration,  bur- 
den of  establishing  such  contention  is  upon  him. 

Douthart  vs.  Congdon    98  App.  487;  Johnson  vs.  Milmine,  150  App. 
208. 

Ev.— 1  5 


226  BURDEN  OF  PROOF 

—  Promissory  Note:  Burden  of  proof  is  upon  defendant  to  prove 
want  of  consideration. 

Cleiiieut  vs.  Bladvvorth,  166  App.  68;  Jones  vs.  Bales,  161  Apj).  194; 
Eweu  vs.  Templetou,  148  App.  46;  Holmes  vs.  Horn,  120  App.  359; 
Chi.  T.  &  T.  Co.  vs.  Ward,  113  App.  327;  XI  111.  Notes  632,  §407. 

—  Partial:  Where  plea  of  partial  failure  of  consideration  is 
interposed,  burden  of  proof  is  upon  defendant. 

Kelly  vs.  Strider,  148  App.  238;  Chi.  T.  &  T.  Co.  vs.  Laiidfield,  73 
App.  173;  Topper  vs.  Snows,  20  111.  434;  Honeyinau  vs.  Jarvis, 
64  111.  366;  Jones  vs.  Bates,  161  App.  194. 

—  Different  Consideration:  Burden  is  on  party  claiming  a 
different  consideration. 

Pbelps  vs.  Jenkins,  5  111.  48. 

Conspiracy : 

Burden  of  proof  is  upon  prosecution  to  prove  beyond  reasonable 
doubt  conspiracy  alleged. 

Johnson  vs.  People,  124  App.  213. 

Contempt : 

The  party  bringing  the  accusations  is,  in  absence  of  an  admis- 
sion of  defendant,  bound  to  prove  existence  of  order  and  its  vio- 
lation. 

People  vs.  Weigley,  155  111.  491. 

Failure  to  pay  alimony  as  ordered  is  prima  facie  contempt  and 
the  burden  is  upon  respondent  to  show  a  valid  reason  for  such 

failure. 

Boyden  vs.  Boyden,  162  App.  77. 

Contested  Elections: 

—  In  General:  Burden  of  showing  that  illegal,  irregular  and 
wrongful  acts  affected  the  result  of  the  election,  rests  upon  party 
alleging  same, 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 

—  Illegal  Voting:     One  alleging  illegal  voting  has  burden  of 

proof,  as  a  crime  is  thus  charged  which  will  be  presumed  has  not 

been  committed. 

Uorsey  vs.  Brigham,  177  111.  250. 

—  Condition  of  Ballots:  The  contestant  in  an  election  case  is 
the  moving  party,  and  burden  is  upon  him  to  show  that  the  ballots 
are  those  cast  at  the  election  and  that  they  are  in  the  same  condi- 
tion as  when  cast,  and  it  is  not  incumbent  upon  defendant  to  show 
that  the  ballots  offered  to  impeach  his  title  have  been  changed. 

Graham  vs.  Peters,  248  111.  50;  West  vs.  Sloan,  238  111.  330. 

Contracts : 

—  Terms  anel  Conditions:    The  burden  of  proof  lies  upon  a  party 

seeking  the  enforcement  of  a  contract  to  establish  the  terms  and 

conditions  of  same  as  alleged  by  him. 

Young  vs.  Farwell,  146  111.  466;  Thom.  Express  Co.  vs.  Kemper 
Bros.,  159  App.  85;  Ward  vs.  Mining  Co.,  98  App.  227. 

—  Construction:  Where  a  suit  is  brought  upon  a  contract,  bur- 
den of  proof  is  upon  plaintiff  to  establish  his  version  by  a  pre- 
ponderance of  the  evidence. 

Bracewell  vs.  Self,  109  App.  140. 

—  Illegal  Consideration:     When  a  party  alleges  that  his  writ- 


BURDEN  OF  PROOF  227 

ten  contract  is  invalid  because  founded  in  part  npon  an  illegal 
consideration,  burden  of  establishing  such  contention  is  upon  hini. 
Douthart  vs,  Congdon,  98  App.  487;  Johnson  vs.  Milmiue,  150  App. 
208. 

—  Of  Sale:  In  forcible  entry  and  detainer,  burden  is  upon 
tenant  who  alleges  contract  for  purchase  of  premises. 

Leary  vs.  Pattison,  66  111.  203. 

—  Different  Contract:    Burden  is  upon  party  alleging. 

Osgood  vs.  Groseclose,  159  111.  511;  Miller  vs.  Mandcl,  259  HI.  314. 

Conveyances : 

—  Fraud:  To  impeach  a  conveyance,  complainant  must  aver 
and  prove  that  he  was  a  creditor  at  the  date  thereof. 

Clayton  vs.  Clayton,  250  111.  433;  State  Bank  vs.  Barnctt,  250  IH. 
312;  Bittinger  vs.  Kasten,  111  111.  260;  Moritz  vs.  Hoffman,  35 
111.  553. 

Fraud  must  be  proven  by  a  preponderance  of  the  evidence  and 

burden  is  upon  party  alleging. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  McGinnis  vs.  Stowe,  153 
App.  454;  Wood  vs.  Clark,  121  111.  359;  Sawyer  vs.  Moyer,  109 
111.  461. 

—  Voluntary  Conveyances:  The  conveyance  being  voluntary, 
and  grantor  having  become  insolvent,  burden  of  proof  devolves 
upon  him  to  disprove  implication  of  fraud  as  to  pre-existing  credi- 
tors, arising  from  making  of  convevance. 

Kennard  vs.  Curran,  239  111.  122;  Victor  vs.  .Swiski,  200  111.  257; 
Dillman  vs.  Nadelhofer,  162  111.  625. 

—  CJiihl  to  Parent:  Where  a  deed  is  procured  by  a  parent  from 
a  child  for  the  real  estate  of  the  child,  without  consideration,  bur- 
den is  upon  parent  to  show  the  transaction  was  fair  and  entered 
into  by  child  fully  understanding  his  rights  and  fully  comprehend- 
ing the  transaction  by  which  he  parted  with  title  to  his  land,  and 

that  transaction  was  for  benefit  of  child. 

McLaughlin  vs.  McLaughlin,  241  111.  366;  Ferns  vs.  Chapman,  211 
111.  597 ;  White  vs.  Ross,  160  111.  56. 

—  Parent  to  Child:  The  presumption  of  delivery  of  a  voluntary 
deed  from  father  to  infant  child  is  strong  and  burden  is  upon 
grantor  to  show  clearlv  that  there  was  no  delivery. 

Abbott  vs.  Abbott,  189  111.  488. 

Corporations : 

—  Pica  of  Nul  Ticl  Corporation:    Burden  is  upon  plaintiff  to 

show  corporate  existence. 

Cozzens  vs.  Chi.  Press  Brick  Co.,  166  111.  213;  Stono  vs.  G.  W.  Oil 
Co.,  41  111.  85;  Concord  A.  H.  Co.  vs.  Refrigerator  Co.,  78  App. 
683;  Dean  &  Son  vs.  Conkey  Co.,  180  App.  162;  XI  111.  Notes  1054, 
§51. 

—  Execution  of  3Iortgagc:  The  execution  of  a  mortgage,  under 
seal  of  a  corporation,  regular  on  its  face,  and  by  the  properly  con- 
stituted officers,  is  prima  facie  evidence  the  mortgage  was  executed 
by  authority  of  the  coi'poration,  and  parties  objecting  take  on 
themselves  the  burden  of  proving  it  was  not  so  executed. 

Wood  vs.  Wheeler,  93  111.  153. 

Credit: 

A  party  who,  by  way  of  defense,  seeks  to  obtain  credit  for  a  par- 
ticular item,  is  bound  to  assume  and  prove  by  a  preponderance  of 

the  evidence  that  he  is  entitled  to  such  credit. 
Chapman  vs.  Meiling,  147  App.  411. 


228  BURDEN  OF  PROOF 

Creditor's  Bill: 

A  debtor  who,  when  largely  indebted  and  shortly  before  becom- 
ing insolvent,  makes  a  voluntary  conveyance  to  his  wife,  has  the 
burden  of  disproving  the  implication  of  fraud,  as  to  existing  credit- 
ors, arising  from  the  making  of  the  conveyance. 
Kennard  vs.  Curran,  239  111.  122, 

Death : 

In  civil  action,  the  facts  from  which  the  law  presumes  the  death 
of  a  missing  person  must  be  proven  by  a  preponderance  of  the  evi- 
dence, but  it  is  not  necessary  that  the  evidence  shall  be  sufficient 

to  remove  all  reasonable  doul)t  that  such  person  is  alive. 
Keunedy  vs.  Modern  Woodmen,  243  111.  560. 

Debt: 

When  plaintiff  in  action  of  debt  joins  issue  upon  plea  of  nil  debit, 

he  must  prove  every  allegation  of  his  declaration. 
Foster  vs.  People,  121  App,  165. 

Dedication : 

To  establish  a  common  law  dedication  of  highway,  it  is  essential 

that  the  proof  be  clear  and  unequivocal  as  to  the  intention  of  the 

proprietor  to  dedicate  to  public  use. 

City  of  Chicago  vs.  Wilder,  2-10  111.  215;  Wheatfield  vs.  Gruneman, 
16-4  111.  250, 

Default : 

The  burden  of  proof  is  upon  society  to  establish  an  alleged  de- 
fault in  the  payment  of  an  assessment,  and  such  burden,  likewise, 
extends  to  showing  that  such  assessment  was  regularly  levied  in 
accordance  with  its  own  laws  providing  therefor. 

N.  W.  T.  M.  Assn.  vs.  Schauss,  148  111.  304;  Supreme  Council  vs. 
Haas,  116  App.  587. 

Deed: 

—  As  Mortgage:  One  asserting  a  deed  absolute  on  its  face  to 
be  a  mortgage  has  burden  of  proving  such  assertion  by  clear,  sat- 
isfactory and  convincing  proof. 

Eankin  vs.  Eankin,  216  111.  132;  Gannon  vs.  Moles,  209  111.  180; 
Heaton  vs.  Gaines,  198  111.  479;  Williams  vs.  Williams,  180  111. 
361;  Bartoletti  vs.  Hoerner,  154  App.  336. 

—  Bill  to  Set  Aside:     On  bill  to  set  aside  deed  as  cloud  on  title, 

burden  is  upon  complainant  to  prove  allegations  of  his  bill,  and  to 

show,  by  competent  evidence,  the  invalidity  of  the  deed  attacked 

thereby. 

Gage  vs.  Bissell,  119  111.  298. 

—  Duress:  Where  a  husband  conveys  land  to  his  wife,  pre- 
sumption is  that  it  was  intended  as  a  gift,  and  burden  is  upon 
husband  to  overcome  presumption  when  seeking  to  set  aside  the 
deed. 

Huston  vs.  Smith,  248  111.  396;  Lewis  vs.  McGrath,  191  111.  401. 

—  Insanity  anel  Undue  Influence:  Burden  of  proving  is  upon 
complainant. 

Beatty  vs.  Hood,  229  111.  562 ;  Blanchard  vs.  Blanchard,  191  111.  450 ; 
Francis  vs.  Wilkinson,  147  111.  370. 

—  Delivery  on  Condition:  One  claiming  that  deed  in  usual 
form  was  conditional  in  effect,  has  the  burden  of  proving  such 
claim. 

McComb  vs.  McComb,  241  111.  453 ;  Allen  vs.  Allen,  157  App.  362. 


BURDEN  OF  I'ROOF  229 

But  if  delivered  in  escrow  upon  condition  ])urden  is  upon  grantee 
to  show  what  conditions  were  and  peri'orniance. 
Kavanaugh  vs.  Kavanaugh,  2G0  111.  17!). 

—  Lost  Deeds:  Party  claiming  that  lost  deeds  were  executed 
has  burden  of  proof. 

Metropolitan  Bank  vs.  Perry,  259  111,  183. 

Denial  of  Execution: 

Under  plea  of  non  est  factum,  verified,  burden  is  on  plaintiff  to 
prove  execution  of  instrument. 

Wolverton  vs.  Sumner,  53  App.  115. 

Descent  and  Distribution: 

—  Existence  of  Hdrs:  The  presumption  of  law  is  that  a  per- 
son dying  intestate  has  left  heirs  capable  of  succeeding  to  his  estate, 
and  burden  of  proof  is  upon  party  asserting  contrarv. 

Harvey  vs.  Thornton,  14  111.  217;  Fell  vs.  Young,  ('.3  111.  lOG;  Chicago 
vs.  Major,  18  111.  349;  Pyle  vs.  MeBratley,  15  111.  314. 

—  Intestacy:     It  is  presumed  that  each  person  dies  intestate. 

Sielbeck  vs.  Grothnian,  248  111.  435;  Schmidt  vs.  Brown,  226  111.  590; 
Lyon  vs.  Kain,  36  HI.  362. 

—  Will  Established:  It  is  presumed  testator  intends  to  dispose 
of  his  entire  estate. 

Lewis  vs.  Sedgewick,  223  HI.  213;  Hawkins  vs.  Boehling,  168  111.  214, 

If  other  persons  than  the  heirs  claim  as  devisees,  it  devolves 
upon  them  to  establish  their  rights. 
Schmidt  vs.  Brown,  226  Hh  590. 

Descent  of  Realty: 

Burden  of  proving  descent  of  realty  and  insufficiency  of  per- 
sonalty to  pay  debts  is  upon  party  alleging. 

Van  Vuren  vs.  Longstreet,  108  App.  159;  Laughlin  vs.  Heer,  89  HI. 
119;  Gage  vs.  Gerichs,  85  111.  428, 

Desertion : 

Burden  of  proving  desertion,  in  action  for  divorce,  is  upon  com- 
plainant to  show  that  defendant  wilfully  deserted  and  absented 

himself  without  reasonable  cause  for  the  space  of  two  years. 
Gust af son  vs.  Gustafson,  66  App,  40, 

Discount : 

Defense  to  effect  that  defendant  is  entitled  to  a  discount  is  affirm- 
ative and  burden  to  establish  same  is  on  defendant. 
N,  W,  Fuel  Co,  vs.  Western  Fuel  Co.,  144  App.  92. 

Divorce : 

A  defendant  in  a  bigamy  prosecution  who  relies  upon  a  divorce 
as  a  defense  to  the  chnrge  must  prove  not  only  that  the  divorce 
was  obtained,  but  that  it  was  granted  by  lawful  authoritv. 
People  vs.  Spoor,  235  III,  230, 

Domicile : 

A  domicile,  once  acquired,  is  presumed  to  continue,  and  one  alleg- 
ing that  a  change  has  taken  place  has  the  liurden  of  proof. 

People  vs.  Estate  of  Mohr,  207  HI.  ISO;  Moffit  vs.  Hill,  131  111.  239. 

Dower : 

To  entitle  a  widow  to  recover  dower  in  land,  the  l)urden  of  proof 

is  upon  her  to  show  that  her  deceased  husband,  during  coverture, 

was  seized  of  a  legal  and  equitable  estate  of  inheritance  in  the 

premises. 

Cobb  vs.  Oldfield,  151  111.  540. 


230  BURDEN  OF  PROOF 

She  must  show  marriag'e  and  death  of  her  husband. 
Whiting  vs.  Nicholl,  46  111.  230. 

Due  Care: 

The  burden  of  proof  to  establish,  is  upon  phiintiff. 

Slack  vs.  Ky.  Co.,  245  111.  308;  Stollery  vs.  Cicero  St.  Ey.  Co.,  243 
111.  290;  Collison  vs.  E.  C.  K.  E.  Co.,  239  111.  532;  West  Chi.  St. 
Ey.  Co.  vs.  Liderman,  187  111.  463;  I.  C.  E.  E.  Co.  vs.  Cozby,  174 
111.  109;  C.  B.  &  Q.  Ey.  Co.  vs.  Levy,  160  111.  385;  I.  C.  E.  E.  Co. 
vs.  Nowichi,  148  111.  29;  Jones  vs.  I.  C.  E.  E.  Co.,  106  App.  597; 
Wilson  vs.  I.  C.  E.  E.  Co.,  109  App.  542. 

Duress : 

Where  a  husband  conveys  land  to  his  wife,  the  presumption  is 
that  it  was  intended  as  a  gift,  and  burden  is  on  husband  to  over- 
come the  presumption  when  seeking  to  set  aside  the  deed  on  ground 
of  duress. 

Huston  vs.  Smith,  248  111.  396;  Lewis  vs.  McGrath,  191  111.  401. 

Ejectment: 

Burden  of  proof  is  upon  plaintiff  to  establish  title  in  himself. 

Phelps  vs.  NazTV'orthy,  226  111.  254;  Terhune  vs.  Porter,  212  111.  595; 
Boyer  vs.  Thornberg,  115  111.  540;  XII  111.  Notes  268,  §  99. 

Embezzlement : 

Bilrden  of  proving  ownership  is  upon  People,  to  show  with  same 

accuracy  as  is  required  in  an  indictment  for  larceny. 
People  vs.  Brander,  244  111.  26. 

Eminent  Domain: 

—  Right  to  Condemn :  Burden  of  proof  is  upon  petitioner  to 
clearly  establish  its  right  to  take  and  appropriate  the  lands  sought. 

Eeed  vs.  O.  &  M.  Ey.  Co.,  126  111.  48. 

—  Value:     Burden  is  upon  petitioner  to  prove  value  of  prem- 

1S6S> 

C.  B.  &  Q.  Ey.  Co.  vs.  Eeisch,  247  111.  350. 

—  Title:  Where  petitioner  alleges  title  in  party  in  possession, 
he  is  not  required  to  establish  his  title  by  proof,  in  order  to  con- 
test matter  of  compensation.  The  relation  of  the  parties  in  respect 
to  burden  of  proof  is  different  in  such  case  than  where  alleged 
owner  applies  for  assessment  of  damages  against  corporation. 

P.  &  P.  Q.  Ey.  Co.  vs.  Bryant,  57  111.  473. 

—  Leasehold  Estate:     Burden  is  upon  party  claiming. 

C.  &  N.  W.  Ey.  Co.  vs.  Glos,  239  111.  24. 

—  Damages:     To  property  not  taken,  burden  is  upon  land  owner 

to  prove. 

Stockton  vs.  City  of  Chicago,  136  111.  434. 

Estoppel : 

The  burden  of  establishing  an  estoppel  is  on  him  who  invokes  it. 
Sawyer  vs.  Nelson,  160  111.  629. 

Exemption : 

Where  a  party  claims  property  as  exempt  from  levy  and  sale 

which  is  not  made  specifically  exempt,  the  burden  of  proof  rests 

upon  him  to  show  that  it  is  exempted.     The  law  does  not  presume 

that  a  person  does  not  have  the  property  exempted  by  statute,  nor 

does  the  mere  claim  that  property  is  not  enumerated  prove  that  it 

is  exempt. 

McMasters  vs.  Alsop,  85  111.  157. 

The  burden  under  the  general  exemption  law  is  on  the  garnishee 

or  judgment  debtor  to  show  that  wages  are  exempt  by  proof  that 


BURDEN  OF  PROOF  231 

such  judgment  debtor  does  not  have  property  to  exceed  in  value 
the  amount  exempted. 

Kosiba  vs.  Galinski,  171  App.  643, 

Experiments : 

Burden  of  proof  is  upon  party  desiring  to  show  results,  to  estab- 
lish conditions  are  similar  when  experiment  is  made  with  those 
existing  at  time  fact  sought  to  be  ilhistrated  occurred. 

Upthegrove  vs.  C.  G.  W.  Ey.  Co.,  154  App.  460 ;  C.  &  E.  I.  R.  R.  Co. 
vs.  Crose,  113  App.  547. 

False  Imprisonment: 

Where  an  arrest  and  imprisonment  are  shown,  burden  is  on 
defendant  to  show  justification. 

Mexican  Ceut.  Ey.  Co.  vs.  Gehr,  66  App.  173. 

But  where  plaintiff  shows  imprisonment  was  caused  by  complaint 

and  a  trial  and  examination  under  it,  burden  is  on  him  to  show 

that  proceedings  were  invalid  or  irregular. 
Hermanson  vs.  Goodyear,  139  App.  374. 

Fellow  Servant: 

The  burden  of  proving  existence  of  relation  of  fellow  servant 
is  upon  defendant,  notwithstanding  plaintiff  alleges  a  negative  in 
his  declaration. 

Hartley  vs.  C.  &  A.  Ey.  Co.,  197  111.  440 ;  C.  &  A.  Ry.  Co.  vs.  House, 
172  111.  601;  S.  V.  Coal  Co.  vs.  Buzis,  115  App.  196;  Sou.  Ey.  Co.  vs. 
Stewart,  108  App.  652. 

Fiduciary  Relation:  .-^ 

AVhere  such  relation  is  proven,  presumption  is  raised  against 
validity  of  contract,  and  casts  upon  party  desiring  to  uphold  it  the 
burden  of  proving  affirmatively  that  such  contract  is  not  against 
equity  and  good  conscience. 

Fox  vs.  Fox,  250  111.  384;  Zeigler  vs.  I.  T.  S.  Bank,  245  111.  180; 
Beech  vs.  Wilton,  244  111.  413;  Fish  vs.  Fish,  235  111.  396;  Walker 
vs.  Shepard,  210  111.  100. 

But  the  rule  is  not  applied  where  parent  makes  a  will  or  other 
provision  for  his  child. 

Sears  vs.  Vaughn,  230  111.  572;  Bishop  vs.  Hilliard,  227  ^11.  382;  Hurd 
vs.  Eeed,  260  111.  154. 

Tile  rule  casting  upon  recipient  of  a  gift  or  conveyance  from 
another  to  whom  he  stands  in  a  fiduciary  relation,  the  burden  of 
proving  the  absence  of  undue  influence,  when  the  gift  or  convey- 
ance is  attacked,  does  not  apply  to  wills. 

Micheal  vs.  Marshall,  201  111.  70;  Cf.  Weston  vs.  Teufel,  213  111.  291, 

Fires: 

If  the  fact  of  the  communication  of  the  fire  by  defendant's  engine 
is  proven  or  admitted,  the  burden  is  upon  defendant  to  overcorae» 
the  statutory  presumption  of  negligence  arising  from  that  fact, 
by  showing  that  the  engine  was  properly  equipped  to  arrest  sparks 

and  that  it  was  in  good  order  and  skillfullv  managed. 

Amer.  S.  B.  Co.  vs.  C.  &  A.  Ey.  Co.,  177  111.  513;  C.  C.  C.  &  St.  L. 
Ey.  Co.  vs.  Stevens,  173  111.  430;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs. 
Hornsbv,  105  App.  67;  St.  L.  A.  &  Th.  Ry.  Oo.  vs.  Montgomery, 
39  111.  336;  XIV  111.  Notes  291,  §  919. 

Forfeiture : 

The  burden  is  on  him  who  claims  benefit  of  a  forfeiture  to  clearly 

establish  the  right. 

Harley  vs.  Sanitarv  District,  226  111.  213;  Aetnae  Ins.  Co.  vs.  Jacob- 
son,  105  App.  283. 


232  BURDEN  OF  PROOF 

An  obligor  in  a  bond  for  deed  who  has  granted  a  temporary 

indulgence  of  time  to  the  obligee,  has  burden  of  proving  that  he 

gave  the  requisite  notice  of  liis  intention  to  declare  a  forfeiture. 
Eaton  vs.  Schneider,  185  111.  508. 

Fraud : 

Must  be  proven  by  a  preponderance  of  evidence,  and  burden  is 
upon  party  alleging  it. 

Dixon  vs.'Albers,  243  111.  231;  Ofle  vs.  Jack,  204  111.  79;  Mortimer  vs. 
McMullen,  202  III.  413;  McGinnis  vs.  Storrs,  152  App.  454. 

Fraudulent  Conveyances : 

(See  Conveyances.) 
Fraud  and  Deceit : 

Burden  of  proof  is  upon  plaintiff  to  show  representation,  falsity, 
scienter,  deception  and  injury. 

Cantwell  vs.  Harding,  249  111.  354;  Foster  vs.  Oberreich,  230  111.  525. 

Gifts: 

Where  title  to  property  is  claimed  as  a  gift,  burden  is  upon 

one  claiming  the  gift. 

Gilmore  vs.  Lee,  237  111.  403;  Mer.  Loan  Co.  vs.  Egan,  222  111.  494; 
Millar  vs.  Millar,  221  111.  86;   Bamum  vs.  Reed,  136  111.  388. 

And  where   relations   of  the  parties  were   those  of   confidence, 
burden  is  upon  donee  to  establish  that  the  gift  was  the  free  and 
voluntary  act  of  the  donor,  made  with  full  knowledge  of  the  facts, 
kittle  vs.  Brown,  161  App.  98. 

Gambling  Contracts: 

Where  a  defendant,  in  suit  to  recover  money  invested  in  option 
deals,  claims  items  of  the  account  sued  upon  were,  in  their  nature, 
mere  gambling  in  options  or  differences,  the  burden  is  on  him  to 

prove  it. 

Pellonze  vs.  Shlanghter,  241  111.  215;  Marvel  vs.  Marvel,  96  App.  609; 
Hall  vs.  Barrett,  93  App.  642;  see  also  Kerting  vs.  Sturtevant,  181- 
App.  517. 

Garnishment : 

In  garnishment  proceeding  against  maker  of  a  note,  the  bene- 
ficial plaintiff  has  burden  of  showing  that  a  transfer  of  the  note 
to  a  third  person  was  after  maturity  or  not  in  good  faith. 

Hennessey  Bros.  vs.  St.  Mary's  Acad.,  171  App.  470;  Wilhelmi  vs. 
HaffneV,  52  111.  222. 

—  Ansiver:     Burden  of  disproving  is  on  plaintiff. 

Payne  vs.  C.  E.  I.  &  P.  Ry.  Co.,  170  111.  607;  I.  C.  R.  R.  Co.  vs.  Cobb, 
48  111.  402;  Reid  vs.  Bank,  135  App.  49;  Kosiba  vs.  Galiuski,  171 
App.  643. 

Guardian  and  Ward : 

Burden  of  proof  is  upon  guardian  to  establish  satisfactorily  that 

the  act  proceeded  from  the  independent  and  uninfluenced  will  of 

the  ward,  in  action  between  guardian  and  ward. 

Banm  vs.  Hartman,  226  111.  160;  Dowie  vs.  DriseoU,  203  111.  480; 
Thomas  vs.  Whitney,  186  111.  225. 

Guaranty: 

Where  general  issue,  verified,  is  filed,  burden  is  on  plaintiff  to 

prove  execution  of  the  instrument. 

B.  I.  Bridge  Co.  vs.  Froatz,  123  App.  27. 

Heirship : 

(See  Descent  and  Distribution.) 
Highways : 

—  Prescription:     Burden  of  proof  is  upon  one  who  asserts,  to 


BURDEN  OF  PROOF  233 

show  that  user  was  open,  notorious,  exclusive,  continuous  and  un- 
interrupted for  fifteen  years,  and  was  under  claim  of  right  with 
knowledge  of  the  owner  and  without  his  consent. 

Palmer  vs.  City  of  Chicajj^o,  1^48  111.  201 ;   Rose  vs.  Citv  of  Farmine- 
ton,  196  111.  226;  O 'Conncl  vs.  Chi.  Tenii.  Co.,  184  111.  ;iU8. 

—  Abandonment:     Burden  is  on  party  alleging  a])andoninent  to 

prove  same  by  clear  and  satisfactory  evidence. 

Highway  Conirs.  vs.  Kinahau,  240  111.  593;  Cox  vs.  Coiiirs.  of   Ilh'h- 
ways,  194  111.  355. 

—  Dedication:  To  establish  a  common  law  dedication  it  is  es- 
sential that  the  proof  be  clear  and  unci] ui vocal  as  to  the  intention 
of  the  proprietor  to  dedicate  to  public  use.  ■       - 

City  of  Chicago  vs.  Wilder,  240  111.  215;  Wheatfield  vs.  Grundenmn, 
164  111.  250. 

—  Existence:    Burden  of  proof  is  upon  party  alleging. 

Owens  vs.   Crossett,   105   111.   354;    Mclntyre  vs.  Stoiy,   80   111.    127; 
Hudson  vs.  Miller,  97  App.  74. 

—  Ohstnicting:  Burden  of  proof  is  upon  the  prosecution  to 
establish  averments  by  a  preponderance  of  the  evidence. 

Town    of   Pardridge   vs.    Snyder,    78   111.   519;    Town  of   Havana   vs. 
Biggs,  58  111.  483. 

Homestead : 

—  In  General:  Burden  of  proving  homestead  is  upon  party 
relying  upon  it. 

Gillespie  vs.  Fulton  Gas  Co.,  236  HI.  188. 

—  Assertion  of  Lien:  AVhere  estate  is  not  set  off,  burden  of 
proving  excess  value  is  upon  one  asserting. 

Kilmer  vs.  Garlick,  185  111.  406. 

—  Abandonment:  Where  there  is  removal,  burden  is  upon 
party  claiming  homestead. 

Kloss  vs.  Wylezalek,  207  111.  328;  Jackson  vs.  Sackett,  146  111.  646. 

Husband  and  Wife: 

—  Agency  of  Wife:  While  the  husband  and  wife  live  together, 
she  is  presumed  to  have  authority  to  bind  him  for  necessaries  suit- 
able to  his  estate  and  station,  and  the  burden  is  upon  the  husband 
to  show  that  such  authority  did  not  exist. 

Bonney  vs.  Perham,  102  App.  634;  Schnuckle  vs.  Biernan,  89  111.  612. 
Where  they  are  living  apart,  permanently,  the  burden  is  upon 
the  tradesman  to  show  that  the  wife  was  in  need  of  the  goods ;  that 
the  husband  failed  to  supply  her  and  that  the  wife  was  not  at  fault, 
or  that  the  husband  authorized  or  assented  to  the  pui'ehase. 

Bonney  vs.  Perham,  102  App.  634;  Rea  vs.  Durkee,  25  111.  503;  Wil- 
son vs.  Bishop,  10  App.  588. 

—  Agency  of  Husband:  Burden  of  proof  is  upon  party  alleg- 
ing. 

Wallace  vs.  Monroe,  22  App.  602. 
But  when  husband  has  possession  of  obligations  payable  to  the 
wife,  the  burden  of  proving  that  he  had  no  authority  to  receive 
same  rests  upon  party  alleging  it. 

Yazel  vs.  Palmer,  81  111.  82. 

Identity : 

—  Property  Sold  by  Description:  The  onus  as  to  identity  of 
property  sold  by  description,  being  the  subject  matter  of  the  per- 


234  BURDEN  OF  PROOF 

formance  of  the   contract,  is  upon  the  vendor  in  action  for  the 

price, 

Morris  vs.  Wibaux,  159  111.  627;  Wolf  vs.  Dietszch,  75  111.  205; 
Shields  vs.  Kiebe,  9  App.  598. 

—  Stock  of  Goods:  In  distress  for  rent,  burden  is  upon  land- 
lord to  establish. 

Powell  vs.  Daily,  163  111.  646. 

—  Larceny:  Burden  is  upon  State  to  estalilish  identity  of  sub- 
ject matter  of  larceny  beyond  reasonable  doubt. 

Bishop  vs.  People,  194  111.  365. 

—  Persons:  Where  deed  is  to  one  of  two  persons  of  the  same 
name,  and  being  father  and  son,  burden  of  proof  lies  upon  one 
asserting  grant  to  son. 

Graves  vs.  Colwell,  90  111.  612. 
Same  name  as  prior  grantee,  burden  of  proof  lies  upon  one  as- 
serting different  persons. 

Brown  vs.  Metz,  33  111.  339. 

Infancy : 

—  Civil  Action:  Where  a  party  files  a  plea  of  infancy,  he  as- 
sumes the  burden  of  proving  his  plea  by  a  preponderance  of  the 
evidence. 

Goodwin  vs.  Acton,  97  App.  11;  Peak  vs.  Prieer,  21  111.  164. 

—  Criminal:     If  defendant  asserts  infancy  as  a  defense,  he  is 

required  to  prove  it. 

Sutton  vs.  People,  145  111.  279;  Mark  vs.  People,  204  111.  248. 

Inn-Keeper : 

The  relation  of  guest  and  inn-keeper  and  the  loss  being  shown, 
the  burden  of  proof  is  then  cast  upon  inn-keeper  to  exonerate 
himself. 

Eockhill  vs.  Congress  Hotel  Co.,  237  111.  98;  Metcalf  vs.  Hess,  14  111. 
129;  Eden  vs.  Drey,  75  App.  102;  Johnson  vs.  Richardson,  17  lU. 
303. 

Insanity : 

—  Civil  Action :  The  presumption  of  law  before  inquest  found 
is  in  favor  of  sanity,  and  one  alleging  insanity  has  the  burden  of 
proof. 

Kelly  vs.  Nusbaum,  244  111.  158;  Isle  vs.  Cranby,  199  111.  39; 
Blanchard  vs.  Blanchard,  191  111.  450;  Egbers  vs.  Egbers,  177  111. 
82. 

But  if  a  party  not  insane  seeks  to  avoid  a  release  given  while 
mental  faculties  were  temporarily  impaired,  the  burden  of  proof 
is  upon  such  party  to  show  the  mental  incapacity  and  not  upon  the 
other  party  to  show  mind  was  not  impaired. 
C.  b.  W.  Ey.  Co.  vs.  Mills,  91  111.  39. 

—  Cnminal  Action:  The  legal  presumption  that  all  men  are 
sane  makes  it  unnecessary  for  the  People  to  prove  in  the  first  in- 
stance the  sanity  of  the  accused ;  but  if  he  prove  facts  or  cir- 
cumstances tending  to  prove  his  insanity,  the  burden  of  proof  then 
develops   upon   prosecution   to   prove   the  sanity   of  the   accused 

beyond  a  reasonable  doubt. 

People  vs.  Casey,  231  111.  261. 

—  Lucid  Interval:  Where  a  party  is  insane  except  at  inter- 
vals when  insanity  is  alleged  as  a  defense  to  a  contract  made  by 


BURDEN  OF  PROOF  235 

him,  he  who  claims  the  performance  of  the  contract,  must  prove  it 
was  entered  into  while  tli(>  party  had  a  lucid  interval. 
Emery  vs.  Hoyt,  46  ill.  258. 

—  Restoration:     Burden  of  proof  is  upon  party  alleging. 

Menkins  vs.  Lightner,  18  111.  282 ;  8everns  vs.  Brofl'ery,  155  App.  10. 

—  Will  Proponents:  If  the  evidence  in  a  will  contest  shows  that 
the  testatrix  was  afflicted  with  insanity  of  a  permanent  nature 
before  the  execution  of  the  will,  the  burden  is  upon  proponents  to 
show  that  tlie  will  was  executed  during  a  lucid  interval. 

White  Mem.  Home  vs.  Haeg,  20-1  111.  422. 

Insolvency : 

It  is  not  presumed  that  a  person  is  insolvent.  Such  fact  must 
be  proven. 

Bittinger  vs.  Kasten,  111  111.  260;  Eogers  vs,  Dimon,  106  App.  201; 
Tumison  vs.  Chambliu,  88  111.  378. 

Insurance : 

—  Benefit  Society:  In  action  upon  benefit  certificate,  burden  of 
proof  is  upon  transferee  company  to  show  deceased  was  not  in 

good  standing. 

Brown  vs.   Mutual  Life  Assn.,  224  111.  576;   Bolles  vs.  Mutual  Life 

Assn.,  220  111.  400. 

The  burden  of  showing  that  before  his  death  the  insured  had 

lost  his  good  standing  as  a  beneficial  "member,  is  upon  the  society. 

United  Brotherhood  vs.  Fortin,  107  App.  306. 

Or  that  beneficiary  is  not  one  who  can  take  under  restrictive 

bylaws  of  society. 

Eezzo  vs.  Foresters,  176  App.  165. 

—  Deduction:  Where  deduction  upon  a  contract  in  suit  is  a 
mere  matter  of  computation,  and  the  proof  is  equally  as  well  in 
possession  of  each  party,  the  burden  of  proof  is  upon  complainant. 

Berner  vs.  Brotherhood  of  Yeomen,  154  App.  27. 

—  Death:    Burden  of  proof  is  upon  beneficiary  to  establish  such 

facts  from  which  the  law  will  presume  death. 
Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

—  Assessment:  The  burden  of  proof  is  upon  society  to  establish 
an  alleged  default  in  the  payment  of  an  assessment  and  such  burden 
likewise  extends  to  the  showing  that  such  assessment  was  regularly 
levied  in  accordance  with  its  own  laws  provided  therefor. 

N.  W.  T.  M.  Assn.  vs.  Schauss,  148  111.  304;  Supreme  Tent  vs.  Haas, 
116  App.  587;  Chi.  G.  F.  Soc.  vs.  Wilson,  91  App.  667. 

—  Notice :  When  the  contract  between  a  benefit  society  _and_  its 
members  provides  that  assessments  shall  be  due  a  certain  time 
after  a  particular  notice  has  been  given,  the  society,  before  it  can 
claim  that  a  member  has  been  suspended  for  failure  to  pay  such 
assessment  must  show  affirmatively  that  it  has  given  notice  of  that 
assessment  which  the  contract  requires. 

Farmers  Federation  vs.  Croney,  106  App.  423. 

—  Amendment :  Burden  is  upon  society  to  show  that  constitu- 
tion has  been  amended  in  accordance  with  its  provisions  before  the 
amendment  offered  becomes  competent  evidence. 

U.  B.  of  C.  &  J.  vs.  Fortin,  107  App.  306;  M.  S.  F.  A.  vs.  Windover, 
137  111.  417. 

—  Violation  of  Law:  If  the  defense  is  predicated  upon  a  pro- 
vision in  the  certificate  to  the  effect  that  if  the  death  of  a  member 
''shall  occur  in  consequence  of  any  violation  or  attempted  viola- 


236  BURDEN  OF  PROOF 

tion  of  the  law  of  any  state,  territory,  province  or  country,"  the 

same  must  be  established  by  a  preponderance  of  the  evidence,  and 

each  and  every  element  which  constituted  the  crime  charged  must 

likewise  be  established  by  a  preponderance  of  the  evidence. 
Brown  vs.  Mystic  VVorkeis,  151  Api>.  517. 

—  Forfeiture :  Where  a  party  claims  a  right  based  on  a  for- 
feiture, it  is  incumbent  upon  such  party  to  show  that  a  forfeiture 
has  taken  place. 

Supreme  Council  vs.  O'Neill,  108  App.  47. 

—  Accident  Company:  In  action  upon  an  accident  policy, 
burden  to  establish  cause  of  death  by  accident  is  upon  plaintiff. 

Cent.  Ace.  Ins.  Co.  vs.  Spcnce,  126  App.  32. 

In  action  upon  an  accident  policy,  where  it  is  admitted  the  in- 
sured died  as  a  result  of  injuries  effected  by  violent  and  external 
means,  plaintiff  has  burden  of  proving  that  the  injuries  were  acci- 
dental and  not  self-inflicted;  but  such  fact  may  be  established 
by  circumstantial  evidence  in  connection  with  the  rebuttable  pre- 
sumption that  the  injuries  were  not  self-inflicted. 
Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205. 

—  Fire  Insurance:  Burden  of  proof  is  upon  company  to  show 
forfeiture. 

Aetnae  Ins.  Co.  vs.  Jaeobson,  105  App.  283. 

Burden  of  proving  cancellation  is  upon  defendant  company. 
Natl.  Fire  Ins.  Co.  vs.  Lumber  Co.,  119  App.  67. 

—  Premium:  AVhen  once  policies  are  issued  and  delivered  at  an 
estimated  and  agreed  premium,  the  burden  of  establishing  a  right 

to  additional  compensation  is  upon  the  company. 
New  Amsterdam  Co.  vs.  Saloman,  165  App.  264. 

—  Identity  of  rroperty:  It  is  incumbent  upon  the  plaintiff  to 
show  that  defendant  company  had  insured  the  property  destroyed 
at  the  particular  place  where  its  destruction  took  place. 

Krol  vs.  Royal  Ins.  Co.,  162  App.  202. 

Intestacy : 

Is  presumed,  and  burden  of  proof  is  upon  party  alleging  de- 
ceased was  testate. 

Schmidt  vs.  Brown,  226  111.  590;   Lyon  vs.  Kain,  36  111.  362. 

Interest : 

—  Usury :     Burden  of  proving  a  note  or  contract  to  be  usurious 

under  the  law  of  a  sister  state  is  upon  party  alleging  it. 

Walker  vs.  Lovitt,  250  111.  543 ;  Dearlove'  vs.  Edwards,  166  111.  619 ; 
Eeid  vs.  Northern  Lbr.  Co.,  146  App.  371. 

—  Payment  to  Extend  Note:  Burden  of  proof  to  show  that  pay- 
ment of  interest  in  advance  operated  to  extend  time  of  payment  so 
as  to  release  surety  or  lien  of  trust  deed,  is  upon  party  pleading 

release. 

Prussing  vs.  Lancaster,  234  111.  462. 

Joint  Liability: 

—  Partnership:  Where  put  in  issue  by  plea  verified  by  affi- 
davit, burden  of  proof  is  upon  plaintiff  to  establish  partnership 

by  a  preponderance  of  the  evidence. 

Walker  vs.  Wood,  170  111.  463;  Smith  vs.  Knight,  71  111.  148;  Lasman 
vs.  Hart,   112  App.  82;   Merchant  vs.  Manion,  97  App.  43;   Dowie 
vs.  Tyler,  64  App.  110. 
But  in  suit  against  members  of  an  alleged  partnership,  defended 


BURDEN  OF  PROOF  237 

by  certain  members  on  groniul  tlmt  tboy  bad  retired  from  tbe  firm, 
tlie  burden  of  proof,  tiie  plaintiff  liavin^  sliown  the  existence  of  the 
partnership,  is  on  such  defendants  to  show  that  plaintiff  had  notice 
of  the  dissolution,  before  they  can  escape  liability. 
Arnold  vs.  Hart,  75  App.  165. 

—  On  Note:  The  effect  of  an  at^davit  or  verified  plea  denying 
the  joint  liability  of  a  defendant  on  a  promissory  note,  places 
burden  of  proving  such  joint  liability  on  plaintiff. 

McEae  vs.   Heudosehcll,  88  App.  428;   Edwards  vs.  Cleveland  Dryer 
Co.,  83  App.  643 ;  Clark  vs.  Hoffman,  128  App.  422. 

Judgment : 

Burden  of  proof  is  upon  party  seeking  to  impea(ih. 

Stout  vs.  Oliver,  40  111.  245;  Whittaker  vs.  Wbittaker,  151  HI,  266. 

Jurisdiction : 

The  burden  of  proving  the  facts  tending  to  impeach  the  juris- 
diction of  a  court  of  general  jurisdiction  of  a  sister  state  is  upon 
party  denying  the  jurisdiction. 

Cigler  vs.  Keinath,  167  App.  65. 

Justification : 

Burden  of  proof  is  always  upon  party  holding  affirmative  in 

presenting  an   issue ;  so  in   trespass,   plaintiff'  has   the  burden  of 

proof  upon   the  issues   presented   by   his   declaration ;   and   where 

defendant  pleads  a  justification,  he  tenders  a  new  and  different 

issue,  and  assumes  burden  of  proving  it. 

Hudson  vs.  Miller,  97  App.  74;  Lindblom  vs.  Eamsey,  75  HI.  246. 

Knowledge : 

—  Contents  of  Writing:  Where  the  signature  to  a  written  in- 
strument is  proven  to  be  genuine,  the  instrument  affords  prima 
facie  evidence  that  its  contents  were  known  to  the  subscriber,  and 
that  it  was  his  act  and  the  burden  of  overcoming  such  prima  facie 

showing  is  upon  those  who  assert  the  contrary. 
Jones  vs.  Abbott,  235  111.  220. 

—  Of  Defect:  A  servant,  in  order  to  recover  for  an  injury,  for 
defect  in  the  appliances  in  the  business,  is  called  upon  to  establish 
three  propositions :  first,  that  the  appliance  was  defective ;  second, 
that  the  master  had  notice  thereof  or  knowledge,  or  ought  to  have 
had;  third,  that  the  servant  did  not  know  of  the  defect,  and  had 
not  equal  means  of  knowledge  with  the  master. 

Eoss  vs.  C.  E.  I.  &  p.  Ey.  Co.,  243  111.  440;  Swift  vs.  Gaylord,  229 

111.  330 ;  Jones  vs.  George,  227  111.  64 ;  C.  &  E.  I.  E.  E.  Co.  vs.  Heery, 

203   111.   492;   Goldie  vs.   Werner,   151  111.   551;   Althardt  vs.  Con. 

Coal  Co.,  155  App.  364. 

Knowledge  or  want  of  knowledge  of  a  defect  may  be  inferred 

from  the  circumstances,  but  by  whatever  evidence  the  fact  must  be 

shown,  the  burden  of  proof  in  that  regard  rests  upon  plaintiff'. 

Swift  &  Co.  vs.  Gavlord,  229  111.  330;  Wilson  vs.  Monmouth  Pottery 

Co.,  150  App.  477. 

(Note:     C.  &  E.  I.  R.  R.  Co.  vs.  Hines,  132  111.  162;  City  of 

LaSalle  vs.  Kostka,  190  111.  130,  explained  in  229  111.  330,  and 

cases  cited.     See  also,  Wilson  vs.  Monmouth  Pottery  Co.,  150  App. 

477.) 

—  Of  Danger:     Burden  of  proof  is  not  upon  plaintiff  to  show 

that  servant  employed  in  a  different  work,  did  not  have  notice  of 

the  danger. 

Chi.  Terminal  Co.  vs.  O'Donnell,  114  App.  345.     Affd.,  213  111.  545. 


238  BURDEN  OF  PROOF 

But  where  servant  has  equal  means  of  knowledge  with  master 

of  defect,  burden  is  upon  him  to  show  that  he  did  not  know  the 

danger. 

Dougherty  vs.  111.  Steel  Co.,  164  App.  551. 

—  Principal  and  Surety:  Burden  of  proving  surety  had  knowl- 
edge of  creditor's  acts,  sufficient  to  release  surety,  is  upon  cred- 
itor. 

English  vs.  Landon,  181  111.  614. 

Larceny : 

Burden  is  upon  State  to  establish  identity  of  subject  of  lar- 
ceny beyond  a  reasonable  doubt. 

'Bishop  vs.  People,  194  111.  365. 

Lease : 

Burden  is  upon  party  asserting  execution  and  delivery  to  estab- 
lish same. 

Eogan  vs.  Arnold,  233  111.   19;   Skarowska  vs.  Bartholomae  Co.,  152 
App.  48. 
Burden  is  upon  party  alleging  verbal  lease  to  prove  terms. 

East  vs.  Crow,  70 'ill.  91. 

Legislative  Acts  and  Journals: 

Burden  of  proving  illegality  is  upon  party  alleging. 

Erf ord  vs.  City  of  Peoria,  229  111.  546 ;  I.  C.  R.  R.  Co.  vs.  Wren,  43 
111.  77. 

Legitimacy : 

The  burden  of  proof  is  upon  party  alleging  illegitimacy. 

Zachmann  vs.  Zachmaiin,  201  111.  380;  Metheny  vs.  Bohu,  IGO  111.  263; 
Orthwein  vs.  Thomas,  127  111.  554. 

Libel  and  Slander : 

—  Criminal  Rcsponsihility:     Burden  of  proving  truth,  is  upon 

defendant. 

People  vs.  Strauch;  247  111.  220;  People  vs.  Fuller,  238  111.  116. 

—  Civil  Action:     Burden  of  proof  in  general  is  upon  plaintiff. 

Schofield  vs.  Baldvs'in,  102  App.  560. 
The  burden  is  upon   defendant  to  show  that   occasion  of  his 
speaking  the  alleged  slanderous  words  was  privileged. 

Earth  vs.  Hanna,  158  App.  20 ;  Everett  vs.  DeLong,  144  App.  496. 

License : 

When  a  license  has  been  issued  to  a  person,  it  is  peculiarly 

within  his  knowledge  and  the  burden  is  upon  him  co  show  such 

license. 

Shendorf  vs.  Gorman,  86  App.  276. 

Life  Tables: 

Courts  take  judicial  notice  of  standard  tables.     (Wigglesworth, 

Northampton  and  Carlisle.) 

Marshall  vs.  Marshall,  252  111.  568;  Wain  vs.  C.  C.  C.  &  St.  L.  Ey. 
Co.,  239  111.  132;  Henderson  vs.  Harness,  184  111.  520. 

Limitations : 

The  statute  of  limitations  is  an  affirmative  defense,  and  bur- 
den of  proving  it  is  upon  party  pleading  it. 

Schell  vs.  Weaver,  225  HI.  159;  Bartelott  vs.  International  Bank,  119 
111.  259;  Chi.  Chronicle  Co.  vs.  Franklin,  119  App.  384;  Moflfett  vs. 
Farwell,  123  App.  528;  XIII  111.  Notes,  343,  §  115. 
But  party  relying  upon  a  disability  to  avoid  operation  of  statute 

must  prove  it. 

Fritz  vs.  Joiner,  54  111.  101;  Wachter  vs.  Albie,  80  111.  47. 


BURDEN  OF  TROOF  239 

Malicious  Prosecution: 

—  Want  of  Vrohable  Cause:  The  burden  of  proof  is  upon  plain- 
tiff to  show  clearly  the  want  of  pro))al)le  cause. 

McElroy  vs.  Catholic  Press  Co.,  254  ]11.  290;  Davie  vs.  Wisher,  72 
III.  262;  Palmer  vs.  Eichardsoii,  70  111.  544;  Youug  vs.  Lindstroni, 
115  App.  239;  Skala  vs.  Euss,  60  App.  479. 

—  Malice :     Onus  is  upon  plaintiff  to  show  that  the   criminal 

prosecution   was   the    offspring-   of   malice,   without   any   probable 

cause  to  justify  it. 

Barrett  vs.  Spaid,  70  111.  408;  Ross  vs.  Innes,  35  111.  487. 

Malpractice : 

Burden   is  upon  plaintiff   to   show   injury   complained   of   was 

not  caused  by  his  own  act. 

Melhvain  vs.  Gaebe,  128  App.  209;  Holtzman  vs.  Hay,  118  111.  534;^ 
Phebus  vs.  Mather,  181  App,  274. 

Mandamus : 

If  a  corporation  has  reason  to  believe  that  the  motives  actuating 
an  inspection  of  corporate  records  are  illegal,  and  refuses  inspec- 
tion, on  that  ground,  it  assumes  the  burden  of  proving  such  im- 
proper or  illegitimate  purpose. 

Pease  vs.  Chi.  Crayon  Co.,  167  App.  31;  Stone  vs.  Kellogg,  165  111. 
192. 

Manslaughter : 

After  it  is  shown  that  accused  participated  in  killing  of  de- 
ceased, burden  is  upon  him  to  prove  circumstances  mitigating  or 

justifying  or  excusing  his  acts. 

People  vs.  Hubert,  251  111.  514;  Murphy  vs.  People,  37  111.  447. 

Marriag-e : 

One   attacking  a  ceremonial  marriage  has  burden  of  proving 

illegality. 

Winter  vs.  Dibble,  251  111.  200 ;  Potter  vs.  Clapp,  203  111.  592 ;  John- 
son  vs.    Johnson,    114   111.    611;    Eeifsehneider,   vs.   Eeifschneider, 
241  111.  92. 
Where  evidence  establishes  a  contract  of  marriage  per  verhi  dc 
presenti,  one   contending  that  such  contract  falls  within  the  re- 
strictions imposed  by  the  state  where  the  marriage  took  place,  has 

the  burden  of  proof  upon  that  point. 

Sokel  vs.  People,  212  111.  238;  Laurence  vs.  Laurence,  164  111.  367. 
The  presumption  of  a  valid  marriage  arising  from  proof  of  cer- 
emony is  destroyed  and  burden  shifts  to  person  asserting  it,  where 
it  appears  that  the  wife  of  alleged  husband,  by  a  former  marriage, 
is  living,  has  been  true  to  her  vows,  and  that  such  first  marriage 
was  not  dissolved  in  the  jurisdiction  where  she  lived. 

Cole   vs.   Cole,    153   111.    585;    Potter   vs.    Clapp,    203    HI.    592.       Cf. 
Sehmisseur  vs.  Beatrie,  147  111.  210. 

Master  and  Servant : 

—  Negligence:  Burden  is  upon  plaintiff  to  prove  one  causing 
injury  was  not  a  fellow  servant. 

Wolf  vs.  Deahl,  152  App.  357. 

—  Promise  to  Repair:  Servant  has  burden  of  proving  that  mas- 
ter's promise  to  repair  induced  him  to  remain  at  work. 

Morden  Frog  Works  vs.  Fries,  228  111.  246. 

Medical  and  Surgical  Services: 

—  Action  for  hy  Physician:  Plaintiff  must  establish  the  con- 
tract of  employment  and  rendering  of  services.         =■    '"'  _J 

Dorion  vs.  Jacobson,  113  App.  563 ;   Thomas  vs.  Leavy,  62  App.  34. 


s 


240  BURDEN  OF  PROOF 

—  Contract  of  Corporation:  Burden  of  proof  is  upon  party 
pleading  ultra  vires. 

Gibson  vs.  O 'Gara  Coal  Co.,  151  App.  424. 

—  Recovery  as  Damages:  In  order  to  recover,  burden  of  proof 
is  upon  plaintitf  to  prove  two  things,  first,  that  he  has  paid  or 
become  liable  to  pay  a  specific  amount ;  and  second,  that  the 
charges  were  the  usual  and  reasonable  charges  for  services  of 
that  nature. 

Ammon  vs.  Chi.  Traction  Co.,  243  111.  263;   Schmidt  vs.  Kurrus,  234 
111.  578;  N.  Chi.  St.  Ey.  Co.  vs.  Cotton,  140  111.  486. 

Mental  State: 

Where  the  condition  of  mind  is  a  material  fact,  like  any  other 
fact,  the  burden  of  proof  is  upon  party  in  whose  interest  it  is  to 
show  it. 

Eoyal  Circle  vs.  Achterrath,  106  App.  439;  Johnson  vs.  Watson,  169 
App.  218. 

Money  Paid: 

In  order  to  maintain  an  action  for  money  paid  for  the  use  of 
another,  it  must  appear  that  it  was  paid  at  such  other's  request, 
express  or  implied,  or  that  after  such  payment  there  was  an  ex- 
press promise  to  pay  it  back. 

City  of  Chicago  vs.  C.  &  N,  W.  Ey.  Co.,  186  111.  300 ;  North  vs.  North, 
63  App.  129. 

Money  Had  and  Received: 

Plaintiff  assumes  the  burden  of  establishing  facts  from  which 
the  law  will  draw  the  conclusion  that  the  defendant  had  received 
money  which,  in  justice,  ought  to  belong  to  plaintiff  and  ought 
to  be  returned. 

Glass  Co.  vs.  Telegraph  Co.,  234  111.  535. 

In  action  to  recover  money  alleged  to  have  been  paid  defendants 
on  a  promise  to  return  it  if,  upon  accounting,  it  should  be  found 
that  the  plaintiff  was  not  indebted  to  them,  the  burden  of  proof 
is  upon  plaintiff  to  show  that  he  was  not  indebted. 
Smith  vs.  Grant,  30  App.  150, 

Negative  in  Issue: 

Where  the  means  of  proving  a  fact  are  equally  within  the  con- 
trol of  either  party,  the  burden  of  proof  is  upon  the  party  averring 
the  negative,  but  where  the  opposite  party  is  in  possession  of  full 
and  plenary  proof  to  disprove  the  negative  averment,  and  such 
proof  is  not  in  control  of  the  other  party,  the  law  will  presume  that 
the  fact  does  not  exist  unless  tlie  evidence  to  establish  it  is  adduced. 
G.  W.  E.  Co.  vs.  Bacon,  30  111.  347. 

Evidence  rendering  negative  probable  sufficient  to  shift  bur- 
den. 

Beardstown  vs.  Virginia,  76  111.  34. 

Negligence : 

AVhere  an  injury  is  shown  and  that  it  arose  from  something 
within  the  control  of  the  carrier  or  from  some  danger  which  it 
was  his  duty  to  anticipate  and  provide  against,  a  presumption  of 
negligence  on  the  part  of  the  carrier  or  his  servants  arises.  The 
presumption  does  not  arise  from  the  injury  itself,  but  from  the 
injury  and  the  source  or  cause  of  it,  but  when  the  injuiy  is 
proven,  and  the  cause  connected  with  the  carrier,  a  prima  facie 


BURDEN  OF  PROOF  241 

case  is  made  out  for  the  plaintiff.  The  carrier  is  then  called 
upon  to  meet  and  overcome  the  i)nnia  facie  case,  and  this  is  often 
spoken  of  as  the  burtlen  of  proof,  whicli,  in  the  sense  of  necessity 
of  producing  evidence  to  meet  a  prima  facie  case,  passes  from 
party  to  party  as  the  case  progresses,  but  the  burden  of  establisli- 
ing  the  truth  of  the  issue  by  a  preponderance  of  the  evidence  rests 
and  remains  with  the  party  having  the  aifirmative. 
Vischer  vs.  N.  W.  El.  Ey.  Co.,  256  111.  572. 
Burden  of  proof  as  to  negligence  is  upon  plaintiff. 

Chi.  U.  Trac.  Co.  vs.  Mee,  218  111.  9;  C.  &  E.  I.  Ey.  Co.  vs.  Driseoll 
176  111.  330;  Sack  vs.  Dolese,  137  111.  129;  C.  &  E.  I.  E    E.  Co   vs' 
Geary,    110   111.   383;    EanJall   vs.    S.    D.   &   E.   Co.,    l.')8   App  '56  • 
Stafford  vs.  C.  B.  &  Q.  E.  E.  Co.,  114  111.  244;  XIll  111.  Nolos  Do:/, 
§  140. 

In  actions  for  negligence,  the  burden  is  upon  plaintifl'  to  allege 
and  prove  such  negligent  acts  of  defendant  as  will  entitle  him  to 
recover. 

Joliet  Steel  Co.  vs.  Shields,  134  111.  209;  Blanehurd  vs.  L.  S.  &  M.  S. 
Ey.  Co.,  126  III.  416;   Tul>elo\\  ish  \8.  Lathrop,  104  App.  82;   West 
Wheel  Works  vs.  Staeliuick,  102  App.  420;    Tybula  vs.  Plainoiulon 
Mfg.  Co.,  153  App.  299;  Eandall  vs.  S.  D.  E.  Ey.  Co.,  158  App.  56. 
Where  passenger,   without  fault,  is  injured  by  collision,  over- 
turning of  vehicle,   defective  roadway  or  appliance;  omission   or 
mistake  of  servants,  burden  is  upon  carrier  to  rebut  presumption 
of  liability. 

Barnes  vs.  Danville  St.  Ey.  Co.,  235  111.  566;  Elgin  Trac.  Co.' vs. 
Wilson,  217  111.  47;  McFadden  vs.  C.  E.  I.  &  P.  Ey.  Co.,  149  App. 
298.  ' 

Negotiable  Instruments : 

Burden  is  on  one  alleging  assignee  is  not  a  bona  fide  holder  to 
prove  same. 

Peterson  vs.  Emery,  154  App.  294. 

Burden  is  on  assignee  to  show  he  took  instrument  in  good  faith 
when  maker  shows  title  of  payee  to  be  defective. 
Schintz  vs.  Bank,  152  App.  76. 

Notaries  Public: 

The  official  seal  and  jurat  of  a  foreign  notary  public  are  not 
prima  facie  evidence  of  his  authority  to  administer  oaths,  if  the 
jurat  contains  no  recital  of  such  authority. 

DesNoyers  Shoe  Co.  vs.  First  Natl.  Bank,  188  111.  312;  Trevor  vs. 
Colgate,  181  111.  129. 

Proof  of  authority  to  take  acknowledgments  is  not  required. 
Eamsey  vs.  People,  197  111.  594;  Harding  vs.  Curtis,  45  111.  252. 

Notice  of  Injury: 

Burden  is  upon  plaintiff  to  show  notice  to  city. 

Oiiimette  vs.  City  of  Chicago,  242  111.  501 ;  Sclioeler  vs.  City  of  Eock- 
ford,  160  App.  217. 

But  does  not  apply  to  action  for  wrongful  death. 

Prouty  vs.  City  of  Chicago,  250  111.  222.  Eev.  Prouty  vs.  City  of 
Chicago,  159  App.  82. 

Novation : 

The  burden  of  establishing  a  novation  is  upon  the  party  who 
asserts  same.     Novation  is  not  easily  presumed.     It  must  clearly 
appear  before  the   court  will  recognize  it. 
Netterstrom  vs.  Gallistel,  110  App.  352. 
EV.— 16 


242  BURDEN  OF  PROOF 

Officers : 

—  Existence  of  Office:     In  quo  warranto,  burden  of  proof  is 

upon  relator  to  show  legal  existence  of  office. 

People  vs.  Freeman,  242  111.  152;  Hediick  vs.  People,  221  111.  374. 

—  Duty:    Where  the  legality  of  the  acts  of  a  public  officer  are 

questioned    collaterally,    burden   of   proof   is   upon    one    charging 

non-performance  of  duty. 

City  of  Peoria  vs.  Cent.  Natl.  Bank,  224  111.  43;  Hogue  vs.  Corbet, 
156  111.  540;  School  Directors  vs.  Parks,  85  111.  338. 

—  False  Return:  Sheriff  refusing  to  make  levy  has  burden  of 
proving  property  not  subject  to  levy,  where  property  is  in  pos- 
session of  debtor. 

Second  National  Bank  vs.  Gilbert,  174  111.  485;  People  vs.  Palmer, 
46  111.  398;  Bonnell  vs.  Bowman,  53  111.  460. 

Ordinances : 

—  Existence  of:    Burden  of  proof  is  upon  party  asserting. 

People  vs.  Busse,  248  111.  11;  People  vs.  Heidleberg,  233  111.  290; 
Stott  vs.  City  of  Chicago,  205  111.  284. 

—  Continuance  in  Force:  Ordinance  shown  to  have  been  in 
force,  burden  of  proof  is  upon  one  asserting  repeal. 

St.  L.  A.  &  T.  H.  Ky.  Co.  vs.  Elggman,  161  111.  155. 

—  Unreasonableness :  Ordinance  is  presumptively  valid  and 
burden  is  upon  those  who  assert  the  contrary. 

Springfield  vs.  Postal  Tel.  Co.,  253  111.  346;  People  vs.  Grand  Trunk 
Ky.^Co.,  232  111.  292;  C.  &  A.  Ry.  Co.  vs.  City  of  Carlinville,  200 
111.  314;  Marshall  vs.  People,  219  111.  99;  Village  vs.  McWherter, 
152  App.  114;  XIII  111.  Notes  751,   §93. 

Ownership : 

—  Personal  Property:     Possession   is  "prima  facie   evidence   of 

ownership. 

P.  Ft.  W.  &  C.  Ry.  Co.  vs.  Callaghan,  157  111.  406 ;  Peters  vs.  Smith, 
42  111.  417;  Bergan  vs.  Riggs,  34  111.  170;  P.  C.  C.  &  St.  L.  Ry. 
Co.  vs.  Chicago,  144  App.  293. 

—  Streets  and  Alleys:  Burden  of  proof  is  upon  city  to  show 
that  land,  long  in  possession  of  abutting  owners,  is  part  of  streets. 

Mt.  Carmel  vs.  McClintock,  155  111.  608. 

—  Notes:     In    action   upon   note    by    administrator,    burden    is 

upon  him  to  show  note  is  property  of  estate. 
Wight  vs.  Worden,  162  App.  182. 

—  Insurance:     In  action  upon  insurance  policy  requiring  the 

insured  to  be  the  owner  of  goods  insured,  it  is  incumbent  upon 

the  company  to  establish  its  defense  that  the  insured  was  not  the 

owner  of  goods  insured. 

Milhelm  vs.  Hawkeye  Ins.  Co.,  171  App.  262. 

Parent  and  Child: 

See  Parent  and  Child. 
Partnership : 

—  Existence:     Burden  of  proof  is  upon  party  alleging  it. 

Ferber  vs.  Page,  143  111.  622;  Smith  vs.  Knight,  71  111.  148;  Martin 
vs.  Trainor,  125  App.  474;  Bensley  vs.  Brockway,  27  App.  410. 

—  Secret:  Where,  to  all  outward  appearances,  and  in  their 
relations  to  third  persons,  there  has  been  a  dissolution  of  the  part- 
nership, and  a  transfer  of  the  firm  property  to  one  partner,  one 
asserting  the  continuance  of  a  secret  partnership  has  the  burden 

of  proof. 

Wright  vs.  Cudahy,  168  111.  86. 


BURDEN  OF  PROOF  243 

Payment : 

Payment  is  an  affirmative  defense,  and  burden  of  proving  it 

is  on  party  pleading. 

Turner  vs.   Turner,   164  App.   1;   Eoss  vs.   Skinner,    107  App.   579; 
Howard  vs.  Bennett,  72  111.  297. 

Burden  of  proof  to  show  payment  in  full  or  upon  account  is 

upon  defendant. 

Evans  vs.  Ross  Construe.  Co.,   142  App.  375;   Duffy  vs.  Leavitt,  81 
App.  410. 
Burden    of   proving   payment    was   authorized   hy   person   for 
whom  same  was  made  is  on  party  so  alleging. 
Master  vs.  Bank,  163  App.  645. 

Penalties: 

Burden  of  proof  in  actions  for  penalties  is  upon  plaintiff,  and 
more  than  preponderance  of  evidence  is  necessary  to  authorize  a 

recovery. 

A.  T.  &  S.  F.  Ry,  Co.  vs.  People,  227  111.  270;  Gunkel  vs.  Bacbs,  103 
App.  494. 
But  when  the  act  is  proven,  the  burden  is  on  the  party  alleg- 
ing license  or  leave. 

Prentice  vs.  Crane,  234  111.  302 ;  Harbau^^h,  vs.  City    of  Monmouth, 
74  111.  367;  Chandler  vs.  Smith,  70  App.  658. 

Physician  and  Surgeons: 

In  action  for  malpractice,  burden  of  showing  want  of  profess- 
ional skill  is  on  plaintiff. 

Holtzman  vs.  Hay,  118  111.  534;  Phebus  vs.  Mather,  181  App.  274. 
In  actions  for  compensation,  burden  of  showing  fact  of  employ- 
ment and  rendition  of  services  is  upon  plaintiff. 
Doran  vs.  Jacobson,  113  App.  563. 

Plat: 

Presumption  is  that  record  is  correct,  and  burden  of  proof  is 
upon  objector   to  show  that  public  officer  who   copied   it  did  so 

incorrectly. 

City  of  Peoria  vs.  Cent.  Natl.  Bank,  224  HI.  43. 

Pleading : 

Where  an  answer  to  a  bill  in  chancery  sets  up  new  matter,  not 
responsive  to  the  bill,  the  onus  is  upon  defendant  to  prove  the 
allegations  as  charged. 

Cooper  vs.  Tyler,  46  111.  463. 

Possession : 

—  Bill  to  Remove  Clond:  Burden  of  proving  possession  at  tune 
bill  was  tiled  is  upon  complainant. 

Glos  vs.  Archer,  214  111.  74. 

—  Burglary  and  Larceny:  Burden  is  not  upon  accused  to  sat- 
isfactorily explain  recent  possession. 

Miller  vs.  People,  229  111.  376;   Watts  vs.  People,  204  111.  233. 

—  Forcible  Entry  and  Detainer:  One  who  is  in  the_  actual  and 
peaceable  possession  of  lands  will  be  presumed  to  be  rightfully  in 
possession,  and  burden  of  proof  is  upon  him  who  disputes  that 

possessory  right.  _ 

FitzGerald  vs.  Quinn,  165  111.  354;   Gosselin  vs.  Smith,  154  111.   /4; 
Hammond  vs.  Doty,  184  111.  246. 

Principal  and  Agent: 

Burden  is  on  agent  purchasing  property  of  same  class  as  that 


244  BURDEN  OF  PROOF 

which  he  is  purchasing  for  his  principal  to  show  same  was  done 
with  principal's  knowledge  and  consent. 
Fox  vs.  Simnious,  251  111.  ol6. 

Principal  and  Surety : 

Burden  is  upon  surety  to  show  discharge  of  liability. 

Lancaster  vs.  Priissing,  139  App.  33;  Trussdale  vs.  Hunter,  28  App. 
292. 
Burden  of  proof  is  upon  surety  to  show  mental  incapacity  of 
surety.     A  preponderance  of  the  evidence  is  sufficient. 
Gaar  Scott  Co.  vs.  Hulse,  90  App.  548. 

Promise  to  Repair: 

Servant  seeking  to  recover  for  an  injury  received  by  continu- 
ing work  with  a  defective  machine,  after  he  had  complained  of 
the  defect  and  received  the  master's  promise  to  repair,  has  the 
burden  of  proving  that  he  was  induced  to  remain  at  work  by  the 

promise  to  repair. 

Mordcn  Frog  Works  vs.  Fries,  228  111.  246. 

Quo  Warranto: 

A  defendant  justifying  to  an  information  in  quo  tvarranto 
whether  an  individual  or  a  corporation,  has  the  entire  burden  of 
showing  by  what  authority  the  powers  complained  of  are  exercised, 
and  the  People  are  entitled  to  a  judgment  of  ouster  if  a  prima 

facie  case  is  not  made  out. 

People  vs.  O  'Conner,  239  111.  272 ;  McGahan  vs.  People,  191  111.  493 ; 
People  vs.   City   of   Peoria,    166   111.   517;    People   vs.   Eidgley,   21 
111.  67;  People  vs.  Burns,  212  111.  227;  XIV  111.  Notes  ISO,  §  54. 
Burden  is  upon  defendant  to  show  petition  for  enlargement  of 

drainage  district. 

People  vs.  Cooper,  139  111.  461. 

Receipt : 

Burden  of  explaining  or  impeaching  is  upon  party  who  gave  it. 

Ennis  vs.  Pullman  Car  Co.,  165  111.  161;  Long  vs.  Long,  132  App. 
409;  FitzGerald  vs.  Coleman,  114  App.  25;  McElhaney  vs.  People, 
1  App.  550. 

Receiving  Stolen  Property: 

—  Larceny:  It  is  absolutely  essential  to  a  conviction  for  hav- 
ing received  stolen  property  for  gain,  knowing  it  to  have  been 
stolen,  that  the  prosecution  should  prove  beyond  a  reasonable 
doubt  that  a  larcenv  had  been  committed. 

Williams  vs.  People,  101  111.  382. 

—  Guilty  Knowledge:     Burden  of  proving  is  upon  the  People. 

Cohn  vs.  People,  197  111.  482;  Huggins  vs.  People,  135  111.  243. 

—  Identitij  of  Propciiy:     Burden  is  upon  People. 

Schuitz  vs.  People,  210  111.  196. 

Rescission: 

Burden  of  proving  facts  justifying  rescission,  or  that  contract 
has  been  rescinded  is  upon  party  seeking  to  establish  these  facts. 
Schroeder  vs.  Walsh,  120  111.  403;  Hall  vs.  Jarvis,  65  111.  302. 

One  seeking  to  evade  the  enforcement  of  a  written  contract  on 
the  ground  that  the  same  was  rescinded  and  an  oral  contract  sub- 
stituted,  has   burden   of  proving   the   making   of   alleged   verbal 

agreement. 

Croft  vs.  Perkins,  174  HI.  627. 


BURDEN  OF  PROOF  245 

Recog'nizance : 

On  plea  of  death  of  principal  in  a  recognizance,  burden  rests 
upon  defendant. 

People  vs.  Meachaiii,  74  111.  292. 

Recoupment : 

Althoui>h  recoupment  considered  as  a  right,  enables  a  delin- 
quent defendant  conceding  to  the  plaintitf  a  right  of  action  to 
prevent  a  recovery  or  reduce  its  amount,  it  is  not  upon  any  merit 
of  his  own,  but  for  a  fault  of  the  plaintiff  in  connection  with  the 
same  transaction  on  which  he  sues.  The  burden  of  proving  such 
fault  rests  upon  him  and  it  is  the  same  that  it  would  be  if  he 
were  plaintiff  suing  for  the  damages  caused  by  it;  and  if  that 
fault  consists  in  the  breach  of  another  agreement,  independently 
of  the  one  in  which  the  plaintiff  sues  but  contained  in  the  same 
instrument,  and  relating  to  the  same  subject  matter,  he  must  show 
in  like  manner  that  he  is  not,  himself,  in  default  on  that  agree- 
ment. 

Harber  Bros.  vs.  Moflfat  Cycle  Co.,  151  111.  84;  Pnrcell  vs.  Sage,  200 
111.  342;  N.  S.  Lumber  Co.  vs.  S.  S.  Lbr.  Co.,  176  App.  96. 

Reformation  of  Instruments : 

Burden  of  proof  is  upon  party  alleging  mistake  to  prove  same 
by  clear,  convincing  and  satisfactory  evidence. 

Lines  vs.  Wiley,  253  111.  440;  Stanley  vs.  Marshall,  206  111.  20; 
Eexroat  vs.  Vaughn,  181  111.  167;  Schwarze  vs.  Herchey,  125  111. 
653 ;   XIV  111.  Notes  326,  §  46. 

Refusal  to  Produce  Evidence: 

Tlie  presumption  of  law  arising  from  the  non-production  or 
destruction  of  evidence  by  one  party  cannot  relieve  the  other 
party  from  the  burden  of  proving  his  ease. 

Gage  vs.  Parmalee,  87  111.  329;  Cough  vs.  Kyne,  40  App.  234. 

Release : 

The  burden  of  proving  a  release  is  upon  party  alleging  it. 

Wallner  vs.  Chi.  Con.  Trac.  Co.,  150  App.  242 ;  Davis  vs.  Weatherly, 
119  App.  238;  McDavitt  vs.  McMay,  78  App.  396;  Messmore  vs. 
Larson,  86  111.  268. 

Burden  of  proof  is  upon  plaintiff'  to  establish  allegations  of 
fraud  and  covin  interposed  by  way  of  reply  to  defendant's  plea 
setting  up  release. 

C.  &  A.  Ry.  Co.  vs.  Jennings,  114  App.  622;  Miller  vs.  St.  L.  S.  & 
P.  Co.,  176  App.  439. 

Replevin : 

Where  defendant  pleads  property  in  himself,  burden  of  proof 
is  upon  plaintiff  to  show  that  the  property  rej^levied  and  delivered 
to  him  under  the  wi'it  was  his  own  property. 

Second  Natl.  Bank  vs.  Thuet,  124  App.  501 ;  Jones  vs.  Glathart,  100 
App.  630. 
If  the  replication  to  a  plea  charging  that  the  plaintiff  sold  prop- 
erty without  defendant 's  consent,  in  violation  of  mortgage,  consists 
merely  of  a  denial  of  the  allegations  of  the  plea,  the  burden  is  on 
defendant  to  prove  plea. 

Mathews  vs.  Granger,  196  111.  164. 
Burden  of  proof  is  upon  defendant  who  pleads  that  lie  took  the 
property  as  an  officer  under  execution. 
Shue  vs.  Ingle,  87  App.  522. 


246  BURDEN  OF  PROOF 

Replevin  Bond: 

In  action  upon  a  replevin  bond,  the  burden  of  proof  rests  upon 
defendant  (plaintiff  in  replevin  suit),  to  establish  his  title  to  the 
property  in  question. 

Fabian  vs.  Traeger,  117  App.  176.     Affd.,  215  111.  220. 

Replication : 

Burden  on  plaintiff  to  prove  new  facts  set  up  in  replication,  if 
an  independent  fact. 

Can  tr ell  vs.  Faweett,  2  App.  569. 
But  where  replication  is  a  mere  denial,  defendant  must  estab- 
lish plea. 

Mathews  vs.  Granger,  196  111.  164. 

Residence : 

A  student  is  not  presumed  to  have  right  to  vote,   and  if  he 
attempts  to  do  so,  burden  is  upon  him  to  prove  his  residence. 
Welsh  vs.  Shumway,  232  111.  54. 

Resisting  Arrest: 

Resistance  being  first  shown,  burden  is  upon  accused  to  show 
that  resistance  was  not  for  purpose  of  avoiding  arrest  and  prose- 
cution on  thq  charge  upon  which  he  is  being  tried. 
McKeavitt  vs.  People,  208  111.  460. 

Resulting  Trust: 

Burden  of  proof  is  upon  party  asserting. 

Metropolitan  Bank  vs.  Perry,  259  111.   183;   Lord  vs.  Eeed,  254  111. 
350;    Deuter  vs.   Center,   214   111.  308;   Hogue   vs.   Steele,   207   111. 
340;  Lewis  vs.  McGrath,  191  111.  401. 
Burden  is  upon  dominant  party  to  show  transaction  is  not  against 
equity  and  good  conscience,  where  fiduciary  relations  exist. 

Beaeh  vs.  Wilton,  244  111.  413;  Thonias  vs.  Whitney,  186  111.  225. 

Reward : 

To  entitle  a  person  to  a  reward,  he  must  show  a  rendition  of 

the   services   required,   after   knowledge   of   and   with   a   view    to 

obtaining  the  reward. 

C.  &  A.  R.  E.  Co.  vs.  Sebring,  16  App.  181. 

Sales : 

—  Identity:  The  onus  as  to  identity  of  property  sold  by  de- 
scription, being  the  subject  matter  of  the  performance  of  the 
contract,  is  upon  the  vendor  in  action  for  the  price. 

Morris   vs.   Wibaux,    159    111.    627;    Wolf   vs.    Dietzsch,    75    111.   205; 
Schields  vs.  Riebe,  9  App.  598. 

—  Compliance  ivith  Order:  Burden  is  on  vendor  to  show,  where 
order  calls  for  articles  of  a  certain  kind  and  particular  brand. 

Lohiv  vs.  Fleischman,  165  App.  312. 
Where  there  is  evidence  tending  to  show  the  sale  and  delivery 
of  merchandise  and  its  acceptance  by  the  vendee,  the  burden  of 
showing  that  such  merchandise  w^as  not  such  as  was  called  for  by 
the  contract  rests  upon  such  vendee. 

Waukesha  Canning  Co.  vs.  Horner  Co.,  138  Apj).  564. 

—  Under  Trust  Deed:     On  bill  to  impeach  sale  of  land  under 

power  in  a  deed  of  trust,  the  burden  of  showing  the  invalidity  of 

the  sale  is  upon  complainant. 

Bowman  vs.  Ash,  143  111.  649. 


BURDEN  OF  PROOF  247 

School  Teacher: 

—  Eight  to  Teach:    Burden  is  upon  plaintiff  to  show,  in  action 

for  services. 

Stevenson  vs.  School  Directors,  87  111.  255;  Stanhope  vs.  School 
Directors,  42  Ai)p.  570;  School  Directors  vs.  Jennings,  10  App. 
643. 

—  Incompetency:  If  a  school  teacher  is  discharged  before  ex- 
piration of  contract  on  ground  of  incompetency,  burden  is  upon 

directors  to  show  same. 

Darter  vs.  Board  of  Education,  161  App.  284;  School  Directors  vs. 
Reddick,  77  111.  628;    School  vs.   Stericher,  86  111.  595. 

Seduction : 

Burden  is  upon  plaintiff  to  show  relation  of  master  and  servant. 
Garretsou  vs.  Becher,  52  App.  255. 

Servant : 

The  l)urden  of  showing  good  and  sufficient  grounds  for  dis- 
charge rests  upon  the  employer  invoking  such  defense,  when  the 
servant  has  proven  the  contract,  its  performance,  up  to  the  time  of 
his  discharge  and  his  readiness  to  perform  at  the  time  of  dis- 
charge 

Ludwich  vs.  Eock  Eng.  Co.,  148  App.  632;  Campbell  vs.  Tierlein, 
134  App.  207;  Morris  vs.  Taliferro,  44  App.  359. 

Set-Off: 

Burden  of  proving  is  upon  defendant. 

McArthur  vs.  Whitney,  202  111.  527;   Osgood  vs.  Groseclose,  159  111. 

511;    Ellis  vs.   Cochran,   117   111.   458;    Holmes  vs.   McKennan,   120 

App.  320;  Messmore  vs.  Larson,  86  111.  268. 

A  plea  of  set-off,  counter-claim  or  recoupment  does  not  relieve 

plaintiff'  of  his  burden  in  the  first  instance  of  making  out  a  prima 

facie  case. 

Robinson  vs.  Parrish,  62  111.  130. 

Settlement : 

In  a  suit  in  chancery,  for  an  accounting  by  defendant,  as  agent 
and  trustee  of  complainant,  where  defense  set  up  was  that  there 
had  been  a  full  settlement  between  the  parties,   the  burden   of 
proving  fact  of  settlement  is  upon  defendant. 
Pratt  vs.  Grimes,  48  111.  376. 

Signature : 

Signature  is  prima  facie  evidence  of  knowledge  of  contents  of 
instrument  and  burden  is  upon  those  who  assert  the  contrary. 

Jones  vs.  Abbott,  235  111.  220;  Todd  vs.  Todd,  221  111.  410;  Com- 
phcr  vs.  Browning,  219  111.  429. 

Specific  Performance: 

Party  seeking  specific  performance  is  required  to  show  that 
he  has  been  in  no  default  in  not  having  performed  the  agreement 
and  that  he  has  taken  all  proper  steps  toward  performance  on  his 
part,  or  can  show  a  reasonable  and  just  excuse  for  non-perform- 

ance 

Bothwell  vs.  Schmidt,  248  111.  586;  Fortham  vs.  Deters,  206  111.  159; 

Tryce  vs.  Dittus,  199  111.  189. 

Suicide : 

—  Benefit  Society:  Has  burden  of  showing  that  deceased  com- 
mitted suicide,  where  such  defense  is  relied  upon. 

Knights  Templar  vs.  Crayt-on,  209  111.  550;  Supreme  Tent  vs.  Stens- 
land,  206  111.  124;  Rumbold  vs.  Eoyal  League,  206  111.  513;  Wil- 
kinson vs.  Aetna  Ins.  Co.,  144  App.  38. 


248  BURDEN  OF  PROOF 

—  Accident  Company:    Burden  is  upon  plaintiff  to  show  assured 

met  accidental  death. 

Wilkinson  vs.  Aetna  Ins.  Co.,  240  111.  205. 

Survivorship : 

AYhen  two  or  more  persons  perish  in  a  common  disaster,  burden 
is  on  one  claiming  survivorship. 

Middeke  vs.  Balder,  198  ill.  590. 

Taxes: 

—  Validity:  Presumption  is  that  assessment  was  legally  made 
and  for  lawful  purpose,  and  ])urden  of  proof  is  upon  ol'.ieetor. 

Montk-ello  Sem.  vs.  Board  of  Eeview,  242  III.  477;  People  vs.  Gu- 
zenhauser,  237  111.  262;  In  re  Maplewood  Coal  Co.,  213  111.  283; 
Tolnian  vs.  Eaymond,  202  111.   197. 

A  tax  payer  who  o]>jects  to  the  levy  on  the  gronnd  cf  the  insuf- 
ficiency of  the  certificate  has  burden  of  showing  sucU  insufficiency. 
People  vs.  C.  I.  &  St.  L.  Ry.  Co.,  249  111.   102. 

—  Exemption:     Burden   is  upon  one  who  asserts  property  is 

exempt. 

Montieello  Sem.  vs.  Board  of  Eeview,  242  111.  477;   I.  C.  E.  E.  Co. 
vs.   People,   119   111.   137. 
Burden  is  on  one  alleging  he  is  not  an  able-bodied  person  liable 
to  pay  a  poll-tax,  in  prosecution  for  failure  to  pay  same. 
Braves  vs.   People,   97  App.    151. 

—  Payment:  Burden  is  on  the  party  claiming  title  under  seven 
years  limitations  to  prove  payment  by  clear  and  satisfactory'  evi- 
dence. 

Manternacht  vs.  Studt,  230  111.  356;  White  vs.  Harris,  206  111.  584; 
Bell  vs.  Neiderer,  169  111.  54. 

Tax  Deed: 

Burden  is  on  party  claiming  under  tax  deed  to  show  validity. 
Keller  vs.  Egaii,  256  111.  45;  Gage  vs.  Parker,  178  111.  455. 

On  bill  to  remove  tax  deed  as  a  cloud,  burden  is  upon  complain- 
ant to  prove  invalidity. 

Langlois  vs.  People,  212  111.  75;  Gage  vs.  Curtis,  122  111.  520. 

And  rule  is  same  when  proceedings  are  for  partition  and  to  can- 
cel tax  deed. 

Glos  vs.  Carlin,  207  111.  192. 

Tender : 

Burden  of  proof  is  upon  party  alleging  tender. 
Piilsifer  vs.  Shepard,  36  111.  "513. 

Timber : 

In  action  for  cutting  timber,  plaintiff  suing  as  owner  lias  bur- 
den of  showing  title. 

David  vs.  Correll,  68  App.  123;  Behymer  vs.  Odell,  31  App.  350. 

Proof  of  actual  possession  by  person  claiming  title  in  fee  sim- 
ple is  sufficient  to  cast  burden  of  contesting  title  upon  defendant. 
Abney  vs.  Austin,  6  App.  49. 

Title: 

In  action  for  breach  of  covenant  of  seizin,  burden  is  upon  plain- 
tiff to  show  title. 

Baker  vs.  Hunt,  40  111.  264. 

A  faction  of  a  religious  society  has  burden  of  proving  title  where 
property  has  been  in  possession  of  other  faction  for  years, 
Kuns  vs.  Eobertson,  154  111.  394. 


BURDEN  OP  PROOF  249 

Trade  Mark : 

Where  a  person  seeks  to  establish  a  trade  mark,  proof  must  be 
clear,  leaving  the  question  bevond  a  reasonable  doubt. 
Candee  Co.  vs.  Deere  Co.,  54  111.  439. 

Trespass : 

Burden  is  upon  plaintiff  to  establish  acts  complained  of. 

Fort  Dearborn  vs.  Klein,  115  111.  177;  Mead  vs.  Pollock,  9!)  App.  151. 
Under  plea  of  general  issue,  burden  of  proving  trespass  is  upon 
plaintiff. 

West  Chi.  St.  Ey.  Co,  vs.  Morrison,  160  111.  1'88. 

Trover : 

Burden  of  proof  is  upon  plaintiff  to  show  right  of  property  at 
time  of  conversion,  and  actual  possession  or  right  to  possession 
thereof. 

Stock  Yards  vs.  Mallory,  157  111.  554;  Frink  vs.  Pratt,  130  111.  3L'7; 
Hays  vs.  Mass.  Life  Ins.  Co.,  125  111.  626. 

Trust: 

Burden  is  on  party  alleging. 

State  Bank  vs.  Barnett,  250  111.  312;  Keuper  vs.  Mette,  239  111.  586. 

Trust  Funds: 

Burden  is  on  corporate  officer  to  whom  funds  were  entrusted  to 
show  due  and  proper  disposition. 

Herald  Dispatch  Co.  vs.  Hostetler,  130  App.  179. 

Undue  Influence: 

—  Will:     Burden  is  upon  the  contestant. 

Kellau  vs.  Kellan,  258  111.  256;  Michael  vs.  Marshall,  201  111.  70; 
Webster  vs.  Yorty,  194  111.  408;  Sears  vs.  Vaughn,  230  111.  572; 
XIV  111.  Notes  1039,  §  108. 

—  Deed:    Burden  of  proving  is  upon  complainant. 

Lord  vs.  Beed,  254  111.  350;  Beatty  vs.  Hood,  229  111.  562;  Blanch 
ard   vs.   Blanchard,   191    111.  450;    Francis  vs.   Wilkinson,   147   111. 
370. 

Usury : 

One  alleging  that  a  transaction  is  usurious  has  the  burden  of^ 

establishing  the  fact  by  a  preponderance  of  the  evidence. 

Garlick  vs.  Mutual  B.  &  L.  Assn.,  236  111.  232;  Hotchkiss  vs.  Park 
Assn.,  229  111.  248;  Ganzler  vs.  Schmeltze,  206  111.  560;  Wright 
vs.  Curtis,  137  App.  267;  Cobe  vs.  Guyer,  139  App.  580. 

Vagabond : 

AVhere  defendant  is  shown  to  be  an  associate  of  pickpockets  and 
two  witnesses  testify  they  have  known  him  for  five  years  and  never 
knew  him  to  be  employed,  his  means  of  support  being  a  fact  pe- 
culiarly within  his  knowledge  the  burden  is  upon  him  to  show 

same. 

People  vs.  O'Keefe,  178  App.  86. 

Value : 

In  action  for  physical  loss  of  a  promissory  note  through  neg- 
ligence of  carrier,  the  burden  is  not  upon  the  plaintiff,  in  the  first 
instance,  to  prove  the  actual  value  of  such  note,  its  face  value 
being  its  actual  Aalue  until  contrary  is  established. 

Hoflf  vs.  Parmelee  Co.,  140  App.  458;  Anier.  Ex.  Co.  vs.  Parsons,  44 
111.   312. 

Vendor's  Lien: 

Burden  of  proof  is  upon  purchaser  to  show  deed  to  wife  of  orig- 
inal vendor  discharges  lien. 

Martin  vs.  Field,  135  111.   240. 


250  BURDEN  OF  PROOF 

Venue : 

Burden  is  upon  State,  in  default  of  specific  proof  of  venue,  to 
prove  "that  it  cannot  be  readily  determined  in  what  county  the 

offense  was  coniinitted. " 

Watt  vs.  People,  126  111.  9. 

Voluntary  Conveyance: 

In  the  case  of  deeds  executed  to  effect  a  voluntary  distribution 
or  settlement,  the  law  will  presume  a  delivery,  and  this  presump- 
tion is  especially  strong  where  a  father  makes  a  conveyance  for 
the  benefit  of  his  infant  child.  The  burden  of  proof  shifts  in  such 
eases  and  it  is  required  that  any  one  claiming  adversely  to  such 
grantee  must  show  there  was  no  delivery. 
Thurston  vs.  Tubbs,  257  111.  465. 

Waiver : 

The  burden  of  proof  is  upon  party  relying  upon  waiver  of  con- 
ditions or  terms  of  contract. 

North  Ins.  Co.  vs.  Steger,  124  111.  81. 
Burden  of  establishing  waiver  of  vendor's  lien  is  upon  party 

alleging  such  waiver. 

Weddell  vs.  Pinneo,  127  App.  319;  Wilson  vs.  Lyon,  57  111.  166. 

So  where  purchaser  conveys  property  to  wife  of  vendor,  and  she 

surrenders  his  note  to  him,  and  this  is  relied  upon  as  a  discharge 

of  the  debt  and  lien  burden  is  on  purchaser  to  show  vendor  agreed 

to  accept  deed  in  discharge  of  lien. 
Martin  vs.  Field,  135  111.  240. 

Warranty : 

Burden  is  upon  plaintiff  to  show  warranty. 

Burns  vs.  Nichols,  89  111.  480;   Nichols  vs.  Williamson,  44  111.  48. 

"Where  vendor  delivers  the  identical  thing  sold,  and  has  per- 
formed his  contract  in  that  behalf,  if  vendee  alleges  that  it  fails 
to  possess  the  attributes  it  was  warranted  to  possess,  on  that  issue 

the  buyer  has  the  burden  of  proof. 

Burt  vs.   Garden   City   Sand  Co.,   237   111.   473;    Morris  vs.   Wibaux, 
159  111.  627. 

Waters  and  Watercourses: 

—  Boundary:  A  riparian  owner  who  claims  to  the  thread  of  a 
stream,  must  show  that  the  water  is  a  stream  and  that  the  stream 

is  the  boundary. 

School  Trustees  vs.  Schroll,  120  111.  509. 

—  Navigahility:     Artificial  slip  or  ditch,  burden  is  upon  party 

assertin*-"" 

Ligare  vs.  C.   M.   &  N.  Ey.   Co.,   166  111.   249;   People  vs.   Economy 
Power  Co.,  241  111.  C90. 

Water  Rate : 

Water  rate  fixed  by  city  presumed  to  be  reasonable  and  burden 

is  on  one  alleging  contrary. 

Water  Co.  vs.  Lake  Forest,  249  111.  382. 

Wills: 

—  Testamentary  Capacity:  The  proponents  have  the  burden, 
in  the  first  instance,  of  proving  the  testator's  sanity. 

Ilollenbeck  vs.   Cook,    180  111.    65;    Wilbur  vs.  Wilbur,    129   111.   392; 
Voodry  vs.  University,   251  111.  48;   XIV  111.  Notes   1029,   §30. 
The  testimony  of  the  subscribing  witnesses  as  to  the  sanity  of 
the  testator  is  sufficient  to  make  out  a  prima  facie  case  in  support 


BURDEN  OF  PROOF  251 

of  the  validity  of  the  will.    The  burden  is  then  upon  contestants  to 

show  the  contrary. 

Wilkinson  vs.  Service,  249  111.  146;   Waters  vs.  Waters,  222  111.  26: 
Baker  vs.  Baker,  202  111.  595. 

And  contestants  have  burden  of  overcoming  added  presumption 

of  sanity  by  a  preponderance  of  the  evidence  on  the  whole  case. 

Egbers  vs.  Egbers,  177  111.  82. 

And  instruction  should  give  proponents  benefit  of  presumption 
of  sanity, 

Todd  vs.  Todd,  221  111.  410. 

—  Undue  Influence:    Burden  of  proving  undue  influence  is  on 

contestant. 

Kellan  vs.  Kellau,  258  111.  256;  Conipher  vs.  Browning,  219  111.  429; 
Swearinggen  vs.  In  man,  198  111.  255. 

As  a  matter  of  law,  the  burden  of  proof  in  any  case  is  deter- 
mined by  the  issue,  and  it  does  not  shift  but  at  the  end,  the  party 
upon  whom  the  burden  rests  by  the  pleadings,  must  have  sustained 

his  position  by  a  prepcniderance  of  the  evidence. 
Michael  vs.  Marshall,  201  111.  70. 

Where  proponents  make  a  prima  facie  proof  of  the  validity  of 

the  will,  it  is  incumbent  upon  contestants  to  overcome  the  prima 

facie  case  by  a  preponderance  of  the  evidence. 

Compher  vs.  Browning,  219  111.  429;  Webster  vs.  Yorty,  194  111.  408. 

The  general  rule  as  to  gifts  or  conveyances  to  one  standing  in  a 
fiduciary  relation,  is  not  applicable  to  wills. 

Michael  vs.  Marshall,  201  111.  70;  Hurd  vs.  Eeed,  260  111.  154. 

A  distinction  exists  between  undue  influence  arising  from  coer- 
cion or  active  fraud,  and  undue  influence  resulting  from  the  abuse 
of  a  fiduciary  relation  existing  between  the  parties.  Proof  of  the 
relationship  and  of  the  fact  that  the  beneficiary,  in  whom  trust 
and  confidence  were  reposed  by  the  testator,  prepared  or  procured 
the  preparation  of  the  will  by  which  he  profits,  may  or  may  not  be 
a  preponderance  of  all  the  evidence  on  that  subject.  When  that 
proof  is  made,  the  presumption  arises  therefrom  that  undue  influ- 
ence induced  the  execution  of  the  document.  That  proof  casts 
upon  the  proponent,  if  he  is  to  sustain  the  will,  the  necessity  of 
showing  that  the  execution  of  the  will  was  the  result  of  free  delib- 
eration on  the  part  of  the  testator,  and  the  deliberate  exercise  of 
his  judgment,  and  not  the  imposition  or  Avrong  practiced  by  the 
trusted  beneficiary.  This,  however,  does  not  change  the  general 
rule,  which  is  that  upon  the  whole  case  the  burden  of  proof  is  upon 
the  contestants  to  establish  the  undue  influence. 
Weston  vs.  Teufel,  213  111.  291. 

Witnesses : 

—  Disqualifying  Interest:  Burden  is  upon  one  who  objects,  to 
state  and  prove  the  grounds  of  his  objection. 

Boyd   vs.    McConnell,    209   111.    396;    Southern   Inst.   vs.   Avery,    157 
App.  568. 

—  Written  Statements  to  Impeach:  Burden  of  showing  gen- 
uineness and  unchanged  condition  as  when  made,  is  upon  party 
offering. 

Helgesen  vs.  Chi.  S.  W.  Co.,  156  App.  541. 


252  BURGLARY 

Work  and  Services : 

Party   aftirniing-  that  a   certain  compensation  was  agreed  upon 
has  the  burden  of  proving  same.  ^ 

HoAvard  \s.  Goebel,  62  App.  497. 
Where  pkiintitt'  declares  generally  for  work  and  labor  done  and 
materials  furnished,  and  defendant  files  general  issue  with  notice 
that  he  will  insist  on  the  trial  that  the  work  was  performed  under 
a  written  contract,  the  burden  of  proof  is  not  thrown  on  plaintiff 
to    show    abandonment    of   spc/ial    contract    until    defendant    has 

proven  the  averment  in  his  notice. 

Robinson  vs.  Parrish,   62  111.    130. 
Tile  burden  of  proving  a  special  plea  setting  up  a  contract  dif- 
ferent from  that  set  up  by  the  plaintiffs  is  on  defendants. 

Osgood  vs.  Groseclose,  159  111.  oil. 


BURGLARY 

Building : 

—  lltdtl:  Is  included  within  the  meaning  of  the  words  "other 
buildinu'/'  used  in  statute  relating  to  crime  of  luirglary. 

"Brueu  vs.  People,  206  111.  -117. 

—  Stable:    Indictment  need  not  aver  stcible  to  be  building,  same 

will  be  presumed. 

Orell  vs.  People,  9-1  111.  4-56. 

—  Dwelling:     Actual  residence  in  the  house  at  the  time  of  the 

burglary  need  not  be  shown. 

Schwabacker  vs.  People,   16-5  111.  618. 

—  Engine  Roam:  It  cannot  be  said  that  the  designatiou  "en- 
gine room"  falls  within  the  ordinary  understanding  of  the  term 
buildino'.     It  must  be  described  as  a  building. 

"Kinkaid  vs.  People,  139  111.  213. 

Ownership : 

—  Possession:  Proof  of  actual  or  constmctive  possession  is  suf- 
ficient to  establish  the  alleged  ownership. 

Smith  vs.  People,  115  111.  17. 

An  allegation  that  defendants  forcibly  broke  and  entered  "the 

office  of  the  city  of  Roekf ord ' '  is  sustained  by  proof  that  the  offices 

burglarized   were   leased   by   the   city   and   were   occupied  by   the 

officers  of  the  city  for  the  sole  purpose  of  transacting  the  city's 

business. 

People  vs.  Everett,  242  111.  62 S. 

—  By  Partnership:  That  a  partnership  exists  may  be  implied 
from  circumstances  and  positive  proof  is  not  indispensable. 
Whether  certain  persons  are  partners  or  not,  is  purely  a  question 
of  fact  to  be  determined  from  the  evidence. 

Bruen  vs.  People,  206  111.  417. 

—  Corporations:    User  is  sufficient.     Rule  applicable  to  foreign 

corporations. 

Kinkaid  vs.  People,  139  111.  213;  Groff  vs.  People,  108  App.  168. 

But  oral  proof  as  to  fact  of  being  a  corporation  is  improper. 
People  vs.  Burger,  259  111.   284. 

Intent : 

—  Intoxication:    When  it  is  neeessaiy  to  prove  a  specific  intent, 


BURGLARY  253 

before  a  couvietion  can  be  had,  it  is  eoiiipelenl  to  prove  Jind  it 
may  be  shown  in  defense,  that  accused  was,  at  the  time,  so  intoxi- 
cated as  to  be  incapal)le  of  forming  the  intent. 

Bruen  vs.  People,  200  111.  417;  Schwa) nu-ker  vs.  People,  1G5  111.  G18: 
Feister  vs.  People,   12.5    111.  848. 

—  Consent  of  Owner:    May  be  siiown. 

Lyon  vs.  People,  (18  Til.  271. 

Identification  of  Burglar: 

—  Fussission  of  Stolen  Properly:  The  possession  of  property 
recently  stolen  is  prima  facie  evidence  tliat  the  person  in  possess- 
ion committed  tbe  l)nrg]ary.  The  rule  in  regard  to  possession  of 
stolen  property  innuediately  after  tlie  theft  being  evidence  of 
guilt,  applies  in  cases  of  burglary  as  well  as  larceny. 

People   vs.   Everett,   242    111.   628;    McCee  vs.   People,    139  111.    108; 
Cf.  Miller  vs.  People,  229  111.  376. 

—  Disposition  of  Stolen  Goods:  Evidence  that  defendant  had 
the  opportunity  to  place  the  stolen  articles  where  they  were  found 
shortly  after  the  larceny,  is  a  circumstance  which,  taken  in  con- 
nection with  other  circumstances  in  proof,  tends  to  establish  his 
guilt,  and  the  further  fact  that  other  persons  had  a  like  oppor- 
tunity oidy  weakens  the  force  of  such  circumstances,  but  will 
not  render  it  incompetent  as  criminating  evidence. 

Padfield  vs.  People,  146  111.  660. 

—  Burglar's  Tools:  Found  upon  the  person  of  accused  when 
arrested,  may  be  put  in  evidence,  even  though  the  carrying  of 
burglar's  tools  constistutes  a  separate  crime,  where  the  property 
stolen  at  the  time  of  the  burglary  is  found  in  the  possession  of 
accused  who  claimed  he  acquired  the  same  by  purchase. 

Williams  vs.  People,  196  111.   173. 

Broken  burglar's  tools   found   in   possession  of  defendant  and 

exactly  fitting  the  broken  otf  part  found  in  the  door  jamb  of  the 

burglarized  house  is  a  strong  circumstance  of  guilt. 
White  vs.  People,  179  111.  3-56. 

—  Keys:  Where  charge  is  that  of  burglary  in  entering  a  hotel, 
proof  that  the  keys  of  other  hotels  were  found  upon  person  of  ac- 
cused one  of  which  unlocked  the  door  of  the  room  where  he  Avas 
discovered,  is  admissible. 

Bruen  vs.  People,  206  111.   117. 

—  Experiments:  Evidence  of  actual  experiments  made  by  wit- 
nesses, as  to  the  view  which  could  be  had  of  persons  and  objects 
under  the  conditions  testified  to  by  witnesses  identifying  defend- 
ants, as  being  the  same  conditions  existing  when  he  first  saw  such 
defendants,  is  admissible,  the  discrepancies  in  conditions,  if  any, 

affecting  the  weight  of  the  testimony,  not  its  competency. 
Hauser  vs.  People,  210  111.  253. 

Time  of  Entry: 

If  an  indictment  for  burglary  is  framed  under  first  part  of 
statute  in  relation  to  such  crime,  without  alleging  whether  the 
crime  was  committed  in  the  day  time  or  the  night,  it  is  not  a  fatal 
variance  if  the  proof  shows  the  offense  was  committed  at  night. 

Bruen  vs.  People,  206  111.  417;  Schwabacker  vs.  Peoi)le,  165  111.  618; 
XI  III.  Notes  713,  §  4. 


254  BURNING 

But  if  alleged  committed  in  night  time  and  proof  shows  it  was 
committed  in  day  time,  there  is  a  fatal  variance. 

Bromley  vs.  People,  150  111.  297. 

Conduct  and  False  Statements: 

Admissible.  ,     ,„„  t,,    o^^ 

Williams  vs.  People,   196   111.   173;   White  vs.  People,   1*9   111.   356; 
McGee  vs.  People,  139  111.  138;  Spahn  vs.  People,  137  111.  538. 


BURNING 

See  Arson,  Fires. 

BURNT  RECORDS 

See  Abstracts  of  Title,  Copies,  Records. 

BUSINESS 

See  Admissions,  Account  Stated,  Books  op  Account,  Custom 
AND  Usage,  Judicial  Notice,  Res  Gestae. 

BYLAWS 

See  Corporations,  Insurance. 

BY  STANDER 

See  Admissions  and  Declarations,  Res  Gestae. 

CALENDAR 

See  Judicial  Notice. 

CANADA  THISTLES 

Admissibility  of  Evidence: 

Evidence  is  admissible,  in  defense,  of  a  bona  fide  effort  to  pre- 
vent maturing  of  seed,  and  where  there  is  evidence  that  defendant 
has  made  an  honest  effort  to  destroy  the  thistles  in  question,  con- 
viction can  not  be  had. 

C.  M.  &  St.  P.  By.  Co.  vs.  People,  132  App.  531;  Storey  vs.  People, 
79  App.  562. 


CANCELLATION  OF  INSTRUMENTS  255 

CANCELLATION  OF  INSTRUMENTS 

See  Rescission  op  Contracts,  Weight  and  Sufficiency. 
Burden  of  Proof: 

—  General:  Burden  is  upon  party  seeking  cancellation  to  es- 
tablish grounds  alleged. 

Uliver  vs.  Oliver,   110  111.   119. 

—  Fraud  and  Undue  Influence:  The  burden  of  proof  is  upon 
complainant  to  show  truth  of  charges  of  fraud  and  undue  influ- 
ence as  grounds  for  setting  aside  his  deed. 

/  Beatty  vs.  Hood,  229  111.  562;   Willeniou  vs.  Dunn,  9;?   111.  511. 

—  Insanity:  On  bill  by  conservator  to  set  aside  a  conveyance 
made  by  his  ward,  on  ground  of  insanity  of  grantor  and  undue 
influence  of  grantee  over  him,  the  burden  is  upon  complainant  to 
prove  one  or  both  of  these  allegations  by  a  preponderance  of  the 
evidence. 

Blanchard  vs.  Blanchard,   191   111.  450;   English  vs.  Porter,   109  111. 
285. 
And  at  time  of  execution  of  the  instrument. 

Titconib  vs.  VanTyle,  84  111.  371. 
Presumption  of  law  before  inquest  found  is  in  favor  of  sanity, 
and  burden  of  proof  is  upon  party  alleging  insanity. 

Kelly   vs.   Nnsbaiim,   244  111.    158 ;    Stevens   vs.   Shannahan,   160   111. 
330;   Lilly  vs.  Waggoner,  27  111.  395;   XII  111.  Notes  477,  §26. 

Parol  Evidence : 

Parol  evidence  of  the  circumstances  connected  with  a  transaction 
and  the  declared  intention  of  the  parties  in  executing  a  written 
instrument,  is  admissible  for  purpose  of  showing  fraud,  accident 

or  mistake. 

Race  vs.  Weston,  86*111.  91. 
The  rule  that  parol  evidence  is  inadmissible  to  vary  the  terras 
of  a  written  instrument  has  no  application  to  a  suit  to  set  aside 

a  written  instrument  on  ground  of  fraud. 

G.  T.  &  C.  G.  K.  E.  Co.  vs.  Walton,  150  111.  428;  Wilson  vs.  Haecher, 
85  111.  349. 

Weigtit  and  Sufficiency: 

—  Fraud:  To  justify  a  court  in  rescinding  a  contract  executed 
by  both  parties  on  ground  that  one  of  the  parties  was  induced  to 
enter  it  through  fraud  practiced  by  the  other,  the  testimony  must 
be  of  the  strongest  and  most  cogent  character  and  the  case  a  clear 

one. 

Tuck  vs.  Downey,  76  111.  71;  Walker  vs.  Hough,  59  111.  375,  Con- 
dit  vs.  Dady,  56  App.  545. 
And  must  be  aliout  a  material  and  existing  matter  or  one  import- 
ant to  the  interests  of  the  party  complaining,  for  if  it  is  shown  to 
be  of  an  immaterial  thing,  or  if  the  other  party  did  not  tnist  to 
it  or  if  it  was  a  matter  of  opinion  or  facts  equally  open  to  inquiry 
of  both  parties,  and  in  regard  to  which  neither  of  them  could  be 
presumed  to  trust  in  the  other,  there  is  not  sufficient  reason  for 

equity  to  grant  relief  on  ground  of  fraud. 

Tuck  vs.  Downey,  76  111.  71;  Brady  vs.  Cole,  164  111.  116;   Burwash 
vs.  Ballou,  230  111.  34. 


256  CAPACITY 

Party  must  not  only  prove  the  fraud,  but  also  that  he  relied  upon 
the  fraudulent  representations  and  acted  thereon. 

Hooker  vs.  Midland  Steel  Co.,  215  111.*  444;  Dady  vs.  Condit,  163  111. 
511;  Jones  vs.  Foster,  175  111.  459. 

Delay : 

Uni'easonal)le  delay  on  part  of  one  seeking  cancellation  after 
lie  has  discovered  the  ground  on  which  he  relies,  is  evidence  of 
acquiescence,  and  failing  to  act  promptly,  he  must  be  presumed 

to  have  waived  irregularities. 

Eastman  vs.  Littlefield,  164  111.  124;  Bush  vs.  Sherman,  80  111.  160; 
Hay  vs.  Baugh,  77  111.  500. 


CAPACITY 

See  Character,  Experiments,  Expert  and  Opinion,  Infants, 
Sanity  and  Insanity,  Wills,  Witnesses. 


CARE 

See  Habits,  Burden  of  Proof,  Due  Care. 

CARNAL  KNOWLEDGE 

See  Adultery,  Incest,  Rape,  Seduction. 

CARRIERS 

See  Admissions  and  Declarations,  Assent,  Bailment,  Bill  of 
Lading,  Experiments,  Parol,  Res  Gestae. 

CAUSE 

See  Expert  and  Opinion,  Insurance,  Suicide,  Experiments. 

CENSUS 

See  Judicial  Notice. 

CERTIFICATES 

See  Copies,  Objections,  Certificates  of  Evidence,  Acknowl- 
edgments, Anti-Saloon  Territory. 
Admissibility : 

Non  Existence  of  Record:     Official  certificates  of  officers  are 

not  admissible  to  create  proof  of  non-existence  of  any  fact  of  record. 
Boyd  vs.  C.  B.  &  Q.  Ry.  Co.,  103  App.  199;  Cross  vs.  PmckneyviUe 
Mill  Co.,  17  111.  54. 


CERTIFICATES  257 

So  certificate  of  Secretary  of  State  is  iiia(lmissil)le  to  show  that 
certificate  of  organization  of  corporation  had  not  been  filed  in  his 
office. 

Cross  vs.  Pinckneyville  Mill  Co.,  17  111.  54. 

Certificate  of  clerks  of  county  and  circuit  courts  are  inadmissible 
to  show  that  there  exists  no  record  of  a  certain  matter, 

Beardstown  vs.  Virginia,  81  111.  541. 

Or  certificate  of  city  clerk. 

Boyd  vs.  C.  B.  &  Q.  Ey.  Co.,  103  App.  199. 
The_  certificate  of  a  county  clerk  showing  that  a  party  was  not 
a  justice  of  the  peace  at  the  date  of  an  acknowledgment  purport- 
ing to  have  heen  taken  by  him  is  some,  though  not  conclusive,  evi- 
dence of  such  fact. 

Boss  vs.  Hole,  27  111.   104. 

Any  person  who  has  examined  an  official  record  may  state  that 
it  shows  nothing  with  reference  to  a  certain  matter. 

Welsh  vs.  Shumway,  232  111.  54;  Beardstown  vs.  Virginia,  81  111.  541. 
But  bankruptcy  schedules  are  not  records,  and  parol  evidence 
is  inadmissible  to  show  they  do  not  embrace  certain  items. 
Thompson  vs.  Caverly,  148  App.  295. 

—  Certificate  of  Probate  Judge:  Inadmissible  to  show  who  are 
the  heirs  of  a  deceased  person. 

Greenwood  vs.  Spiller,  3  111.  504, 

—  Municipal  Clerk:  Certificate  of  a  municipal  clerk,  contain- 
ing mere  conclusions  as  to  citizenship  of  a  person,  and  not  purport- 
ing to  be  issued  by  the  authority  admitting  such  person  to  citizen- 
ship, or  to  be  an  exemplification  of  any  record,  is  not  admissible. 

Schafer  vs.  Wimderle,  154  111.  577. 

—  Clerk  of  Foreign  District  Court:  Certificate  of  clerk  of  dis- 
trict court  of  foreign  state,  that  there  appeared  in  his  office  the 
record  of  a  marriage  license  and  certificate  of  marriage,  giving 
copy  of  same,  is  inadmissible  on  question  of  marriage,  unless  such 
record  is  shown  to  be  required,  by  the  laws  of  such  state,  to  be 
kept. 

Tucker  vs.  People,  117  111.  88. 

—  Clerks  of  County  and  Circuit  Court:  Certificate  of  magis- 
tracy by  county  clerk  must  be  attached  to  certificate  of  justice 
where  proceedings  are  in  another  county. 

Crosset  vs.  Owens,  110  111.  378. 

Parties  are  bound  to  take  notice  of  the  fact  that  the  clerk  of  the 
county  court  is  county  clerk. 

People  vs.  Phinney,  231  111.  180;  People  vs.  Monroe,  227  111.  604. 

The  objection  that  a  paper  filed  in  application  for  judgment  and 
order  of  court  for  special  assessment  bears  file  mark  of  county 
clerk  instead  of  clerk  of  county  court,  is  one  which  may  be  obvi- 
ated by  amendment. 

People  vs.  Phinney,  231  111.  180;  People  vs.  Monroe,  227  III.  604. 

If  the  office  of  the  county  clerk  and  that  of  clerk  of  the  county 

court  are  both  held  by  the  same  person,  a  certificate  to  records  of 

the  Board  of  Supervisors,  signed  by  such  person,  is  not  vitiated 

by  the  fact  that  he  appends  to  his  signature  the  designation  of 

clerk  of  the  county  court. 

People  vs.  Lyons,  168  App.   396. 

Copies  of  records  and  certificates  of  which  the  count}^  clerk  is 

Ev.— 17 


258  CERTIFICATES 

the  legal  custodian  are  not  admissible  in  evidence  if  certified  by 
tlie  "clerk  of  the  county  court,"  since  the  offices  are  distinct,  al- 
though held  by  the  same  person. 
Tifft  vs.  Greene,  211  111.  389. 

—  Comptroller  of  Currency:  In  action  by  bank  on  note,  a  cer- 
tificate of  the  comptroller  of  currency,  showing  compliance  with 
law  and  authority  to  do  business,  is  admissible  on  issue  raised  by 
plea  of  iiul  tiel  corporation. 

Mix  vs.  Bank,  91  111.  20. 

—  Comptroller  of  City:  Certificate  of  city  comptroller  as  to  in- 
debtedness of  city,  and  amount  thereof,  is  incompetent  in  proof  of 
such  fact.  It  is  not  a  certified  copy  of  any  record,  papers  or  en- 
tries, but  a  mere  statement  of  facts  by  the  comptroller,  or  a  state- 
ment of  his  conclusion  from  the  records  in  his  office,  and  is  not  evi- 
dence. 

City  of  Chicago  vs.  English,  180  111.  476;  See  Norton  vs.  City  of  E. 
St.  Louis,  36  App.  171. 

—  Register  of  Land  Office:  The  official  certificate  of  any  regis- 
ter or  receiver  of  general  land  office  of  the  United  States,  to  any 
matter  or  fact  of  record  in  his  office,  is  competent  in  civil  cause 

to  prove  fact  so  certified  to. 

Black  vs.  C.  B.  &  Q.  Ey.  Co.,  237  111.  500;  Wilcox  vs.  Jackson,  109 
111.  261;  Seeley  vs.  Wells,  53  111.  120;  Wyman  vs.  City  of  Chicago, 
254  111.  202. 

A  register's  certificate,  to  be  evidence  of  title,  under  the  statutes, 
must  show^  entry  and  purchase  of  land;  it  is  not  enough  that  the 
register  certify  that  a  certificate  had  been  granted  to  a  certain 
person  as  claimant  to  a  certain  claim  and  sui'vey. 
Aides  vs.  Abbott,  23  111.  61.  ■ 

The  certificate  of  the  receiver  of  land  office,  of  the  receipt  of 
purchase  money  for  a  tract  of  land,  is  not  evidence  of  title  thereto. 
Carson  vs.  Merle,  5  111.  363;  Eoper  vs.  Clabaugh,  4  111.   166.      (See 
Title.) 

—  ClerTi  of  Supreme  Court:  A  certificate  issued  by  the  clerk 
of  the  Supreme  Court,  stating  that  a  writ  of  error  had  been  issued 
from  that  court  to  reverse  a  certain  judgment,  wliieh  writ  had  been 
made  a  supersedeas,  is  not  admissible  to  prove  those  facts,  the 
proof  thereof  being  a  copy  of  writ  and  supersedeas  order,  duly  au- 
thenticated. 

Steidl  vs.  People,  173  111.  29. 

—  Secretary  of  State:  The  certificate  of  the  Secretary  of  State, 
showing  what  proceedings  were  had  in  either  branch  of  the  Gen- 
eral Assembly,  in  relation  to  the  passage  of  a  bill,  is  competent 
evidence  to  shoW'  whether  or  not  the  same  was  passed  in  the  consti- 
tutional mode ;  and  wiiere  such  certificate,  in  due  form,  purports  to 
give  all  the  proceedings,  there  can  be  no  inference  that  any  other 
proceedings  were  had  in  relation  to  passage  of  the  bill. 

Eyan  vs.  Lynch,  68  111.  160. 
In  prosecution  for  using  a  counterfeit  or  imitation  of  a  label, 
trade-mark  or  forai  of  advertistment  of  any  person,  union  or  asso- 
ciation, knowing  same  to  be  a  counterfeit,  the  certificate  of  Sec- 
retary of  State,  under  his  hand  and  seal,  issued  in  conformity  with 
section  3  of  act  1891,  to  protect  associations,  etc.,  in  their  labels. 


CERTIFICATES  259 

is  siifificient  proof  of  the  adoption  of  such  lahel,  trade-mark  or 
advertisement,  and  of  ri,c:lit  to  adopt  same. 
Colm  vs.  People,  149  111.  48G. 

—  Election  Canvassers:  Certificates  of  officers  who  canvassed 
the  election,  which  state  tlie  meetino-  of  the  canvassing  board,  and 
the  canvassing  of  the  returns;  the  number  of  votes  cast  and  tlie 
majority,  is  sufficient.  They  need  not  recite  legal  votes  nor  copy 
the  official  ballot.    Presumption  is  that  votes  were  legal. 

People  vs.  Walker,  154  App.  3;  People  vs.  Joyce,  1.54  App.  13. 

—  Aiiditofs  Certificate:  The  auditor's  certificate  that  speci- 
fied lands  within  a  county  were  ceded  to  it  as  swamp  lands  is  made 
evidence  of  that  fact  by  act  of  1854. 

Grand  Pass  Shooting  Club  vs.  Crosby,  181  111.  266;   W.  St.  I^    &  P 
Ey.  Co.  vs.  McDougal,  113  111.  603. 

The  absence  of  seal  froin  such  certificate  cannot  avail. 
Cilbreath  vs.  Dilday,  152  111.  207. 

A  clerical  error  or  mistake  of  the  printer,  in  naming  the  year 
for  which  taxes  were  assessed,  in  the  printed  proceedings  of  the 
State  Board  of  Equalization,  cannot  control  a  correct  statement 
of  the  year  in  a  certificate  of  Auditor,  which  the  state  makes  evi- 
dence of  action  of  the  board. 

K.  &  H.  Bridge  Co.  vs.  People,  161  111.  514. 
_  _  —  Surveyor's  Certificate:    Is  not  evidence  in  a  cause.    A  copy  of 
his  record  of  survey  is  prima  facie  evidence. 

Kyle  vs.  Town  of  Logan,  87  111.  64. 

—  Certificate  of  Evidence:  A  certificate  of  evidence  in  chan- 
cery may  be  read  in  evidence  on  later  trial  of  same  cause. 

O 'Conner  vs.  INfahoney,  159  111.  69. 

Weight  and  Sufficiency: 

—  Certificate  of  Acknowledgment:  Certificate  of  acknowledg- 
ment to  a  deed  is  evidence  only  of  those  matters  to  which  an  offi- 
cer is  required  to  certify,  and  it  may  be  shown  that  the  grantor 

was  incapable  of  contracting  at  time  acknowledgment  was  taken. 
Walker  vs.  Shepard,  210  111.  100. 

Certificate  of  acknowledgment  is  prima  facie  proof  of  execution 
of  a  deed. 

Spencer  vs.   Razor,   251  111.   278;   Scliroeder  vs.  Smith,  249   111.  574. 
(See  Acknowledgments.) 

—  Mine  Engineer:  The  fact  that  the  law  proliibits  a  mine 
owner  from  employing  a  hoisting  engineer  not  having  a  certificate 
of  competency  from  the  State  Board  of  Mine  Examiners  does  not 
make  such  certificate  conclusive  of  the  competency  of  an  engineer, 
so  as  to  debar  a  miner  injured  by  his  negligence  from  showing 
that  he  was  incompetent,  and  that  the  employer  had  notice,  either 
actual  or  constructive,  of  that  fact. 

Con.  Coal  Co.  vs.  Seniger,  179  111.  370. 

Presumptions : 

A  certificate,  under  seal,  by  a  foreign  notary,  is  not  prima  facie 
evidence  of  his  authority  to  administer  oaths  unless  it  contains  a 
recital  of  the  fact  of  his  authority. 

DesNoyers  Shoe  Co.  vs.  Bank,  188  111.  312;   Trevor  vs.  Colgate,  181 
111.  129;  Ferris  vs.  Bank,  158  111.  238;  Smith  vs.  Lyons,  80  111.  600. 

A  certificate  of  acknowledgment  is  prima  facie  evidence  of  au- 
thority of  officer  making  it. 

Harding  vs.  Curtis,  45  111.  252;  Ramsey  vs.  People,  197  111.  594. 


260  CERTIFIED  COPIES 

A  certificate  of  acknowledgment  of  deed  is  prima  facie  evidence 
of  material  facts  therein  stated. 

Hogan  vs.  Waldo,  168  111.  646;  Blackmail  vs.  Hawkes,  89  111.  512; 
O 'Donald  vs.  Kelliher,  62  App.  6-41;  Warrick  vs.  Hull,  102  111. 
280;   XI  111.  Notes  38,  §42. 

Amendment : 

Certificate  of  acknowledgment  cannot  be  amended  by  parol. 
Eunor  vs.  Thompson,  46  111.  214. 


CERTIFICATES  OF  EVIDENCE 

Admissibility : 

A  certificate  of  evidence  in  chancery,  being  a  part  of  the  record 
for  all  pnrjDOses  of  the  litigation,  and  for  the  support  and  preserva- 
tion of  the  decree  may  be  read  in  evidence  on  a  later  trial  of  the 
same  ease. 

"While  there  is  some  analogy  between   certificates  of  evidence 

in  chancery,  and  bills  of  exceptions  at  law,  still  they  are  governed 

by   essentially  different  rules.     Bills  of   exceptions   are  prepared 

merely  for  the  purpose  of  presenting  the  proceedings  and  evidence 

at  the  trial  for  review  on  appeal  or  writ  of  error,  and  when  that 

object  is  accomplished,  they  are  functus  officio.     Not  so,  however, 

Avitli  certificates  of  evidence  in  chancery.    They  become  part  of  the 

record  for  all  purposes. 

O'Connor  vs.  Mahoney,  159  111.  69. 

And  is  admissible  to  show  former  adjudication  and  what  issues 

were  tried. 

Chi.  Term.  vs.  Barrett,  252  111.  86. 


CERTIFIED  COPIES 

See  Copies,  Certificates,  Records. 

CERTIORARI 

Admissibility  of  Evidence : 

—  Before  Writ  Issued:  Evidence  extrinsic  to  the  record  may  be 
very  properly  received  before  issuing  of  the  writ  to  show  that  no 
injustice  has  been  done. 

Deslauries   vs.   Soucie,   222   111.   522;    Sampson   vs.   Comrs.   of   High- 
ways, 115  App.  443. 

—  After  Writ  Issued:  On  motion  to  quash  the  writ  and  dismiss 
the  petition,  extrinsic  evidence  may  then  be  heard,  not  for  the 
purpose  of  contradicting  or  enlarging  the  record,  but  to  show  that 
public  detriment  and  inconvenience  might  result  from  quashing 
the  original  proceedings. 

Deslauries  vs.   Soucie,  222  111.   522;   Drainage  Comrs.  vs.  Volke,   163 
111.  243;  Hyslop  vs.  Finch,  99  111.  171. 

—  Return  of  Writ:  On  return  of  writ,  court  will  look  only  to 
the  record.     It  is  not  permissible  to  form  issues  of  fact  or  hear  evi- 


CHANCERY  261 

dence  relative  to  questions  involved  upon  the  trial  of  the  original 
proceeding  or  heard  upon  that  trial. 

Joyce  vs.   City  of  Chicago,  216   111.  466;   People  vs.  Lindblom,   182 

111.   241;    Scheiwe  vs.   Holz,    168   111.   432;   Donahue  vs.   County  of 

Will,  100  111.  94;  XI  111.  Notes  825,   §47. 


CHANCERY 

See  Answers,  Former  Ple^vdings,  Garnishment. 
BURDEN  OF  PROOF: 
When  Upon  Defendant: 

Where  a  defendant  in  chancer)^,  in  his  answer,  admits  all  the 
allegations  of  the  bill,  and  seeks  to  avoid  them  by  setting  up  new 
matter,  not  responsive  to  the  bill,  and  a  replication  is  interposed, 
the  onus  of  proving  the  new  matter  is  upon  defendant,  and  com- 
plainant has  no  facts  to  prove,  as  a  party  is  not  required  to  prove 
facts  alleged  in  his  pleadings  which  are  admitted  by  the  pleadings 
of  the  opposite  party.  And  this  is  the  rule  though  the  answer 
which  sets  up  the  new  matter  be  sworn  to. 

Pankey  vs.  Eaum,  51  111.  88;  Cooper  vs.  Tyler,  46  111.  462. 

No  Replication: 

Where  a  case  is  heard  on  the  bill  and  answer,  or  upon  bill,  and 
answer  and  exhibits,  without  challenge  by  replication,  the  answer 
is  taken  as  true.  The  complainants  thereby  admit  that  all  that  is 
stated  in  the  answer  is  true,  and  whether  it  be  responsive  to  the 
bill  or  not,  they  have  no  ground  of  relief  except  the  facts  which 
are  substantially  admitted  in  the  answer  to  be  true. 

Kingman"  vs.  Mowrev,  182  111.  256;  Oook  County  vs.  G.  W.  R.  R. 
Co.,  119  III.  218;  Pordyce  vs.  Striver,  115  111.  530;  Mason  vs.  Mc- 
Girr,  28  111.  322;  Goddard  vs.  C.  &  W.  Ry.  Co.,  104  App.  526; 
Medical  College  vs.  Zeigler,  86  App.  360;  Taylor  vs.  Taylor,  52 
App.  527;  Cf.  Chambers  vs.  Rovve,  36  111.  171;  Kaegbin  vs.  Higgle, 
51  App.  538;   XII  111.  Notes  418,  §  323. 

ISSUES  AND  PROOF: 
Of  the  Bill: 

—  Material   Allegations:    All   material   allegations   of   the   bill 

not  admitted  nor  denied  must  be  supported  by  proof.    Traversable 

allegations  are  not  deemed  impliedly  admitted. 

Howards  vs.  Boyle,  248  111.  251;  Shuld  vs.  Wilson,  225  111.  336; 
Glos  vs.  Crattv,  196  111.  193;  Wilson  vs.  Augier,  176  111.  561; 
Llewellin  vs.  Dingee,  165  111.  26;   XII  111.  Notes  415,   §277. 

But  if  the  answer  of  the  guardian  ad  litem  should  admit  the 
charges  in  the  bill  to  be  true,  this  will  not  affect  the  infant's  rights 
and  the  bill  must  be  proven  with  the  same  strictness  as  if  the  an- 
swer denied  the  allegations. 

ChafRn  vs.  Kimball,  23  111.  36;  Mason  vs.  Truitt,  257  111.  18. 

—  Allegations  and  Proof  Must  Correspond:  The  allegations  of 
a  bill  in  equity,  the  proof  and  the  decree  must  correspond,  and  a 
complainant  is  not  entitled  to  relief,  although  the  evidence  may 
establish  a  clear  case,  unless  there  are  averments  in  the  bill  to  sup- 
port the  case  made  out  by  the  evidence. 

Stearm  vs.  Glos,  235  111.  290;  Angelo  vs.  Angelo,  146  111.  629;  Heath 
vs.  Hall,  60  111.  344. 


262  CHANCERY 

No  facts  are  properly  in  issue  unless  alleged  in  the  bill,  and  re- 
lief can  not  be  granted  by  the  decree  as  to  matters  not  alleged. 

Eiee  Co.  vs.  McJohn,  244  111.  2(34;  Langlois  vs.  People,  212  111.  75; 
Helm  vs.  Cantrell,  59  111.  524;  Kowan  vs.  Bowles,  21  111.   17. 

Unverified  Answer: 

The  only  etfect  of  an  unverified  answer  is  to  reach  an  issue,  like 
any  other  pleading,  whether  it  is  verified  or  not. 

West  Chi.  St.  Ey.  Co.  vs.  Stoltzenfeldt,  100  App.   142. 

Defendant  cannot  denv  facts  admitted  by  his  answer. 
Milliard  vs.  Milliard,  221  111.  86. 

Sworn  Answer: 

The  statement  of  facts  in  a  sworn  answer  to  a  bill  which  has  not 
waived  answer  under  oath  is,  so  far  as  responsive  to  the  bill,  evi- 
dence in  favor  of  the  defendant  and  must  be  taken  as  true  unless 
disproved  by  evidence  equal  in  the  probative  to  the  testimony  of 

two  witnesses. 

JPish  vs.  Fish,  235  111.  396 ;  Mey  vs.  Gulliman,  105  111.  272 ;  Cisna  vs. 
Walters,   100   111.   623;    Bragg  vs.   Geddes,   93   111.  39;    Hannaman 
vs.  W^allace,  97  App.  46. 
But  it  may  be  impeached  by  its  own  improbability  or  the  incon- 
sistent conduct  or  declarations  of  the  partv  swearing  to  it. 
Fish  vs.  Fish,  235  111.  396 ;  Diemal  vs.  Brown,  136  111.  586. 
The  rule  does  not  apply  with  respect  to  conclusions  and  indirect 
answers  contained  in  such  a  pleading.     The  answer,  to  have  the 
weight  of  two  witnesses,  must  be  scpiarely  responsive  to  the  allega- 
tions of  the  bill. 

Miller  vs.  Armstrong,  169  App.  185. 

Where  a  sworn  answer  to  a  bill  in  chancery  does  not  deny  any 
material  allegations  in  the  bill,  the  doctrine  that  it  must  be  over- 
come by  evidence  equal  in  probative  force  of  two  witnesses  has  no 
application.  'ir  .■■,/ -r-^ 

Forbes  vs.  Ilall,  34  111.  159. 

—  Information  and  Belief:  Nor  has  the  rule  any  application  to 
averments  denied  merely  on  information  and  belief,  it  is  only  when 
defendant  states  facts  within  his  own  personal  knowledge. 

Diemal  vs.  Brown,  136  111.  586. 

A  sworn  answer  to  a  bill  in  chancery  must  be  taken  as  true  un- 
less overcome  by  the  testimony.  Where  such  answer  sets  up  a 
material  fact  responsive  to  the  bill,  which  is  denied  by  two  wit- 
nesses, and  is  sustained  by  defendant  answering  and  another  de- 
fendant, they  all  being  equally  credible,  it  cannot  be  said  that  the 
answer  is  overcome. 

Hurd  vs.  Ascherman,   117  111.   501. 

—  Burnt  Records  Proceeding :     A  sworn  answer  in  burnt  records 

proceeding  is  not  evidence  as  in  ordinary  chancery  proceedings, 

and  has  no  greater  weight  as  evidence  than  the  petition. 
Miller  vs.   Stalker,   158  111.  514. 

Admissibility  of  Answer  of  One  Defendant: 

As  a  general  rule,  the  answer  of  one  co-defendant  in  chancery 

cannot  be  introduced  in  evidence  against  another. 

Bust  vs.  Mansfield,  25  111.  336;  Eector  vs.  Eeetor,  8  111.  105. 

It  is  a  general  rule  that  the  answer  of  one  defendant  is  not 

evidence  against  his  co-defendants ;  but  it  does  not  apply  to  cases 

where  the  other  defendant  claims  under  him.     This  doctrine,  how- 


CHARACTER  263 

ever,  is  too  general  in  its  terms,  as  an  exception  to  tlie  general 
rule,  for  where  one  is  nominally,  not  substantially,  a  defendant,  and 
his  interest  is  identified  with  complainants,  his  answer  cannot  be 
used  against  a  co-defendant. 

Martin  vs.  Dryden,  0  111.  187. 

But  when  such  defendants  are  partners,  or  when  one  has  acted 
as  the  agent  of  the  other  in  any  transaction  to  which  the  answer 
may  relate,  same  is  admissible,  the  partnership  or  agency  existing 
at  the  time  of  liling  the  answer. 

Pensoneau  vs.  Pulliam,  47  111.  58;  Eust  vs.  Mansfield,  25  111.  336. 
So  the  answer  of  one  co-defendant  may  be  read  in  an  inter- 
pleader suit. 

Morrill  vs.  Manhattan  Ins.  Co.,  183  111.  260. 
Answer  of  one  co-defendant  cannot  be  admitted  on  behalf  of 
complainant  against  defendant  in  default,   merely  by  reason  of 
such  default. 

Clark  vs.  Wilson,  127  111.  449. 
The  reason  why  an  answer  of  one  defendant  in  chancery  cannot 
be  used  against  his  co-defendants  is  because,  as  there  is'^no  issue 
between  them,  there  can  be  no  opportunity  for  cross  examination. 
Pensoneau  vs.  Pulliam,  47  111.  58. 


CHARACTER 

See  Breach  of  Promise,  Criminal  Conversation,  Malicious 
Prosecution,  False  Imprisonment,  Seduction,  Libel  and  Slan- 
der, Assault  and  Battery,  Fraud,  Impeachment,  Contradiction, 
and  Sustaining  Witnesses,  Chastity,  Credibility,  Former  Con- 
viction, Accomplices,  Separate  and  Similar  Offenses,  Pardon. 
Civil  Actions: 

—  In  General:  As  a  general  rule,  evidence  of  good  character  is 
confined  to  criminal  prosecutions  involving  question  of  moral  tur- 
pitude. There  are  some  exceptions,  consisting  of  that  class  of  ac- 
tions where  general  character  is  drawn  in  question  by  the  pleadings 
or  points  involved  in  the  cause.  In  slander,  plaintiff's  general 
moral  character  is  an  object  of  inquiry  with  a  view  to  the  amount 
of  damages  he  is  entitled  to  claim.  In  actions  for  seduction,  crim- 
inal conversation  and  breach  of  promise  of  marriage  contract, 
character  of  parties  may  be  involved.  But  where  a  civil  action  is 
brought  for  an  injury  to  the  rights  of  property,  though  the  injury 
is  legally  criminal  and  involves  moral  turpitude,  so  that  on  an 
indictment  evidence  of  character  would  be  obviously  receivable,  it 
is  inadmissible. 

Civil  actions  in  which  gross  fraud  and  even  forgery  is  charged, 
are  frequently  presented  with  results  deeply  affecting  reputation 
of  defendant,  yet  in  such  cases,  it  is  not  competent  to  permit  de- 
fendant to  repel  the  proof  of  such  charges  by  showing  good  repu- 
tation. 

McBean  vs.  Fox,  1  App.  177;  Ellwood  vs.  Walter,  103  App.  219. 

There  are  two  classes  of  cases  in  which  moral  character  and  con- 
duct of  persons  in  society  may  be  used  in  proof  before  a  jury  in 


264  CHAEACTER 

civil  actions,  each  resting  upon  peculiar  and  distinct  grounds.  Such 

evidence  is  admissible,  first,   to  aft'ect  the   damages  in  particular 

cases  where  their  amount  depends  upon  the  character  and  conduct 

of  any  individual ;  and  second,  to  impeach  or  confirm  the  veracity 

of  a  witness. 

Berdell  vs.  Berdell,  80  111.  604;   Sprague  vs.  Craig,  51  111.  288. 

Criminal  Actions: 

—  In  General:  In  all  criminal  cases,  whether  the  case  is  doubt- 
ful or  not,  evidence  of  good  character  is  admissible  on  part  of  the 

defendant. 

Addison  vs.  People,  193  111.  405;  Hirseliman  vs.  People,  101  111.  568; 
Anneals  vs.  People,  134  111.  401;  Jupitz  vs.  People,  34  111.  516. 
But  prosecution  cannot  put  such  character  in  issue. 
Kribs  vs.  People,  82  111.  425. 

—  General  Rejmiation:  The  inquiry  must  be  made  with  refer- 
ence to  the  general  reputation  of  the  prisoner,  for  it  is  general  char- 
acter alone  which  can  afford  any  test  of  the  general  conduct  or 
raise  a  presumption  that  the  person  who  had  maintained  a  fair 
reputation  down  to  a  certain  period  would  not  then  begin  to  act 
an  unworthy  part,  therefore,  proof  of  particular  transactions  in 
which  the  person  may  have  been  concerned  are  not  admissible. 
The  proper  question  is  not  "personal  knowledge  by  the  witness," 
but  the  defendant's  "general  reputation." 

Hirschman  vs.  People,  101  111.  568;  XII  111.  Notes  1242,  §  123. 

—  Relevant  Traits:     Defendant  cannot  prove  reputation  for  an 

irrelevant  trait  of  character;  so  on  prosecution  for  rape,  defendant 

may  prove  his  general  reputation  for  chastity,  but  not  his  general 

reputation  as  a  peaceable  and  quiet  citizen. 
Wistrand  vs.   People,  218   111.   323. 

—  Particular  Acts:  Particular  acts  of  misconduct  are  never 
admissible  in  rebuttal  of  proof  of  defendant's  good  character. 

Addison   vs.   People,    193   111.   405;    Aiken   vs.   People,    183   111.   215; 

Gifford  vs.  People,  87  111.  210;   McCarthy  vs.  People,  51  III.  231; 

Cf.  Jennings  vs.  People,  189  111.  320. 

Nor  can  such  evidence  be  said  to  be  admissible  for  purpose  of 

impeaching  defendant's  reputation  as  a  witness,   only,   althoiigh 

not  for  the  purpose  of  proving  the  offense  charged.     Reputation 

of  a  witness  cannot  be  impeached  by  proof  of  particular  acts,  but 

it  must  be  proved  by  showing  his  general  reputation  for  truth  and 

veracity  is  bad. 

Gifford  vs.  People,  87  111.  210. 
So  a  witness  who  has  testified  in  a  criminal  case  that  the  general 
reputation  of  accused  as  a  peaceable  and  law-abiding  citizen  is 
good,  cannot  be  asked,  on  cross  examination,  whether  he  has  heard 
rumors  of  accused  being  connected  with  former  criminal  acts. 

Aiken  vs.  People,  183  111.  215. 
Evidence  tending  to  show  accused  an  immoral  man  is  incompetent 
where  such  evidence  does  not  tend  to  throw  any  light  on  the  case. 

People  vs.  Cleminson,  250   111.   135. 

—  Time:  Defendant  examined  several  witnesses  as  to  his  gen- 
eral reputation  for  peaceableness  prior  to  the  homicide,  and  court 
permitted  State's  attorney  to  cross  examine  the  witnesses  as  to 
such  general  reputation  covering  a  period  subsequent  to  the  of- 
fense.    The  homicide  occurred  four  years  prior  to  the  trial,  and 


CHARTER  265 

the  questions  objected  to  were  whether  the  witnesses  knew  anything 
about  his  reputation  for  tive  or  six  years  before  the  trial.  The 
answers  elicited  were  that  they  did  not;  that  they  had  lost  trace 
of  him  for  five  or  six  years  before  and  that  they  did  not  know  what 
his  general  reputcition  had  been  during  that  period.  This  cross 
examination  showed  that  for  a  year  or  two  before  the  homicide 
they  knew  nothing  about  him  or  his  reputation,  either  after  the 
homicide  or  arising  out  of  it,  but  merely  developed  the  fact  that 
the  witnesses  who  said  his  reputation  was  good,  knew  nothing  a])out 
it  at  the  time  of  the  killing  or  some-time  before,  and  was  entirely 
proper, 

Halloway  vs.  People,  181  111.  544. 

—  Proof  by  Stipulation:  Proof  of  good  character  may  be  made 
by  stipulation. 

People  vs.  Anderson,  239  111.  1G9. 

—  Number  of  Wit)icsscs:  Court  may  limit  the  number  of  wit- 
nesses as  to  character. 

People  vs.  Arnold,  248  111.   169. 

—  WeigJit:  On  a  charge  of  crime,  the  previous  good  character  of 
accused  is  but  a  circumstance  to  be  considered  by  jury  in  connec- 
tion with  all  the  other  evidence  in  determining  the  question  of 
guilt  or  innocence.  If  the  evidence  is  complete  and  convincing, 
when  considered  with  the  previous  good  character,  the  evidence 
of  good  character  will  not  avail. 

People   vs.  Anderson,   239  111.   168;    Hirsebman  vs.   People,   101   111. 
568. 

It  has  been  held  that  the  character  evidence  of  a  defendant  may 

be  of  such  weight  as  to  justify  setting  aside  a  verdict  of  guilty. 
Walsh  vs.  People,  65  111."  58. 

And  on  prosecution  for  larceny,  the  previous  good  character  of 

accused  may  repel  all  presumption  of  guilt  arising  from  recent 

possession  of  stolen  property. 

Watts  vs.  People,  204  til.  233;  Conkwright  vs.  People,  35  111.  204. 

Character  in  Prosecution  for  Homicide:  ^ 

See  Homicide, 
Character  of  Witness : 

A  party  cannot  call  and  examine  witnesses  to  support  the  gen- 
eral character  of  another  witness,  or  himself,  as  a  witness,  for  truth 
and  veracity,  until  the  character  of  the  witness  thus  sought  to  be 
supported  has  been  directly  assailed.  Mere  contradictions  or  dif- 
ferent versions  by  witnesses  do  not  justify  the  application  of  the 
rule  that  evidence  may  be  given  favorably  to  a  ^^^tness'  character 
for  truth.  It  is  only  when  ^vitnesses  are  called  who  testify  that 
his  general  character  for  truth  is  bad,  that  witnesses  maj^  be  intro- 
duced in  support  of  his  general  character. 

Tedeus  vs.  Schumers,  112  111.  263;  Magee  vs.  People,  139  111.  138. 


CHARTER 

See  Corporations,  Judicial  Notice. 


266  CHARTS 

CHARTS 

See  Diagrams,  Plats,  Surveys,  Field  Notes  and  Monuments. 

CHASTITY 

ABDUCTION: 

Presumption  and  Burden  of  Proof: 

That  female's  previous  life  and  conversation  were  chaste,  and 

the  onus  is  upon  defendant  to  show  otherwise. 

Bradshaw  vs.  People,  153  111.  156;   Sloeuni  vs.  People,  90  111.  274. 

And  this  presumption  is  of  probative  force. 
Bradshaw  vs.  People,  153  111.  156. 

Declarations  of  Abducted  Female: 

As  to  why  she  left  home  are  hearsay  and  incompetent. 

Bradshaw  vs.  People,  153  111.  156. 

Previous  Associations: 

Father  may  testify  that  his  abducted  daughter  was  a  church 
member,  attended  Sunday-school,  and  was  received  in  society  be- 
fore her  abduction,  as  tendino:  to  show  her  chastity. 
Bradshaw  vs.  People,  153  111.  156. 

ALIENATION  OF  AFFECTIONS : 

The  general  reputation  of  defendant  for  chastity  is  not  compe- 
tent in  an  action  for  alienation  of  affections. 
Golden  vs.   Gartelman,   159  App.   338. 

ASSAULT  AND  BATTERY: 

It  is  not  competent  in  a  civil  action  for  damages  to  prove  that 
the  plaintiff,  who  is  a  woman,  had  been  guilty  of  adultery,  either 
for  the  purpose  of  mitigating  the  act  or  for  the  purpose  of  impeach- 
ing plaintiff's  credibility. 

Dimick  vs.  Downs,  82  111.  570. 

BASTARDY: 

Admissibility  of  Evidence: 

—  General  Reputation:  The  fact  that  the  prosecutrix  is  an  un- 
chaste woman  is  immaterial. 

Hobson  vs.  People,  72  App.  436;  Seharf  vs.  People,  34  App.  400; 
Zimmermann  vs.  People,  117  App.  54;  Halcom  vs.  People,  79  111. 
409. 

G-eneral  reputation  of  defendant  is  not  competent. 
LaPlante  vs.  People,  60  App.  340. 

—  Other  Acts  of  Sexual  Intercourse:  Evidence  that  other  per- 
sons had  sexual  intercourse  with  the  prosecutrix  at  or  near  the  time 
the  child  was  begotten,  is  competent  as  tending  to  raise  a  doubt 
as  to  the  paternity  of  the  child. 

Holcomb  vs.  People,  79  111.  409;   Zinimerniann  vs.  People,  117  App. 
54;  Pike  vs.  People,  34  App.  112;  People  vs.  Gasner,  152  App.  54. 
But  after  conception,  particular  acts  or  general  reputation  is 
immaterial. 

Hobson  vs.  People,  72  App.  436. 

BREACH  OF  PROMISE: 

Knowledge  of  Defendant: 

The  defendant  nuiy  show,  in  bar  of  action,  the  bad  chai-aeter  of 


CHASTITY  267 

plaintiff,  if  it  appear  that  lior  character  was  unknown  to  him  at  the 
time  of  tlie  promise. 

Butler  vs.  Eschelman,  18  111.  44;  LaPorte  vs.  Wallace,  89  App.  517. 
When  a  party  enters  into  an  engagement  to  marry,  with  a  knowl- 
edge that  the  other  party  was  uncliaste,  he  will  he  (leemed  to  have 
waived  the  ohjeetion,  and  cannot  afterwards  set  it  up  as  a  reason 
for  his  refusal  to  comply  with  his  pi'omise.  But  if  either  party 
shall  he  guilty  of  acts  of  miehastity  subsequent  to  the  engagement, 
the  other  party  is  absolved  from  the  contract,  whether  such  subse- 
quent acts  be  known  to  the  latter  or  not. 

Sprague  vs.  Craig,  51  111.  288. 

Where  there  is  evidence  that  the  plaintiff  had  been  unchaste 
years  prior  to  the  engagement,  and  that  the  defendant  did  not 
know  it  when  the  promise  was  made,  it  is  error  to  instruct  the  jury 
to  find  for  the  plaintiff  if  the  defendant  had  failed  to  prove  "that 
the  defendant  is  not  a  chaste  and  virtuous  woman,"  for  defendant 
had  a  right  to  withdraw  from  the  engagement  if  she  had  previously 
been  unchaste,  and  he  did  not  know  it  when  he  made  the  promise, 
even  though  she  afterwards  reformed,  and  had  become  a  chaste  and 
virtuous  woman. 

LaPorte  vs.  Wallace,  89  App.  517. 

Mitigation  of  Damages: 

And  so,  if  the  want  of  virtue  on  the  part  of  plaintiff  was  known 
to  defendant  at  the  time,  it  forms  no  ground  of  defense  to  the 
action,  but  it  may  be  shown  in  mitigation  of  damages,  for  the  rea- 
son that  the  breach  does  not  result  in  the  same  injury  as  if  her 
character  had  been  good. 

Burnett  vs.  Simpkins,  24  111.  265;   Kantzler  vs.  Grant,  2  App.  236; 
Doubct  vs.   Kirkhaiu,   15  App.   622;   XI  HI.   Notes  665,   §27. 

CRIMINAL  CONVERSATION: 

Admissibility  of  Evidence: 

—  Adultery  by  Wife:  In  action  for  seduction  of  plaintiff's  wife, 
the  character  of  the  wife  for  chastity  is  involved. 

Crose  vs.  Eutledge,  81  111.  266; 'Sea  vs.  Tucker,  51   111.  110. 

And  in  mitigation  of  damages  defendant  may  show  that  wife 
of  plaintiff  had  been  guilty  of  adultery  with  other  persons  before 
her  connection  with  defendant. 
Eea  vs.  Tucker,  51  111.  110. 

So  specific  acts  of  unchastity  prior  to  marriage  to  plaintiff  may 
be  shown.  Such  evidence,  while  no  defense,  is  admissible  in  miti- 
gation of  damages. 

Hardy  vs.  Bach,  173  App.  123. 

—  Adultery  hy  Husband:  Evidence  is  admissible  to  prove  the 
adulterous  conduct  of  the  husband,  in  mitigation  of  damages,  but 
such  evidence  is  not  admissible  in  bar  of  the  action. 

Eea  vs.  Tucker,  51  111.  110;  Bassett  vs.  Bassett,  20  App.  543. 

—  Repidation  of  Defendant:  Chastity  is  not  involved,  and  evi- 
dence is  not  admissible  in  chief  on  part  of  plaintiff  to  show  his 
reputation  for  chastity. 

Crose  vs.  Eutledge,  81  111.  266. 

Homicide : 

Reputation  of  deceased  for  chastity  is  not  competent  where  de- 
fendant is  charged  with  murder  by  inducing  her  to  commit  sui- 


268  CHASTITY 

cide,  where  such  reputation  is  not  an  issue  and  has  not  been  at- 
tacked. 

Burnett  vs.  People,  204  111.  208. 

But  on  charge  against  a  wife  for  the  murder  of  her  husband,  it  is 
competent  for  the  i)rosecution  to  prove  her  unchastity  in  order  to 
establish  a  motive  for  taking  the  life  of  deceased. 
Weyrieh  vs.  People,  89  111.  90. 

Rape: 

Character  of  Prosecutrix: 

—  Right  to  hnpcach:  The  character  of  the  prosecutrix  for  chas- 
tity may  be  impeached. 

Stevens  vs.  People,  1.58  111.  Ill;  Shirwin  vs.  People,  69  111.  56. 
An  unchaste  woman  would  be  more  likely  to  consent  to  the  act 
than  a  virtuous  one,  and  therefore  her  previous  connection  with 
the  accused,  or  her  general  reputation  for  want  of  chastity  are 
proper  ingredients  in  determining  the  question  whether  the  par- 
ticular act  in  controversy   was  accomplished  solely  by   force,   or 

with  her  virtual  consent. 

Shirwin  vs.  People,  69  111.  56. 
Under  age  of  consent,  evidence  to  show  that  reputation  of  com- 
plaining witness  for  chastity  is  bad  is  not  admissible. 

People  vs.  Gray,  251  111.  431. 

—  Mode  of  Impeachment:  As  a  general  nile  must  be  done  by 
the  general  reputation,  and  not  by  particular  instances  of  unchas- 
tity. 

Shirwin  vs.  People,  69  111.  56. 

But  where  the  woman  testifies  that  she  was  unconscious  when 
the  act  was  committed,  and,  to  prove  its  commission,  proves  the 
subsequent  want  of  the  physical  evidences  of  virginity,  then  par- 
ticular acts  are  competent. 

Shirwin  vs.   People,  69  111.  56, 

Character  of  Defendant: 

Not  admissible  in  chief. 

Dalton  vs.  People,  224  111.  333;  Janzen  vs.  People,  159  111.  440. 
But  defendant  may  prove  his  reputation  in  that  regard. 

Wistrand  vs.  People,  218  111.  323. 

SEDUCTION: 

Competent : 

General  character  for  chastity  is  involved  in  the  issue  and  the 
testimony  of  others  than  seduced  may  be  introduced  to  show  their 
own  criminal  intimacv  with  her,  and  the  time  and  place. 
White  vs.  Murtland,  71  111.  250. 

Time : 

If  the  seduced  is  examined  as  a  witness,  it  is  not  proper  to  ask 
of  her  whether,  about  the  time  the  child  was  begotten,  she  had  not 
had  intercourse  with  other  men. 
Doyle  vs.  Jessup,  29  111.  460. 

Particular  acts  of  immorality  as  well  as  general  bad  character  of 

party  seduced  must  be  confined  to  what  occurred  previous  to  the 

defendant's  misconduct. 

White  vs.   Murtland,   71  111.  250. 

EMBEZZLEMENT: 
Chasity  of  Prosecutrix: 

In  prosecution  for  larceny  and  embezzlement  by  an  agent,  al- 


CIRCUMSTANTIAL  EVIDENCE  269 

leged  improper  relations  between  the  prosecuting  witness  and  ac- 
cused can  not  be  shown,  as  such  proof  would  furnish  no  justifica- 
tion for  the  larceny,  nor  tend  to  show  any  motive  on  the  part  of 
prosecuting  witness  to  testify  falsely. 
People  vs.  Goodrich,  251  111.  558. 

CREDIBILITY  OF  WITNESrS: 

Want  of  chastity-  cannot  be  shown  to  impeach  the  credibility  of  a 

witness. 

Dimmick  vs.  Downs,  82  111.  570. 


CHEAT 

See  Conspiracy,  False  Pretenses,  Fraud. 

CHILD 

See  Guardian  and  Ward,  Infants,  Parent  and  Child,  Pre- 
sumptions, Witnesses. 


CIGARETTES 

See  Judicial  Notice. 

CIRCUMSTANTIAL  EVIDENCE 

In  Particular  Actions. 

See  Specific  Titles. 
Defined : 

Circumstantial  evidence  is  evidence  of  facts  from  which  the 
existence  of  other  facts  may  be  inferred.  And  is  of  two  kinds, 
viz.,  certain,  or  that  from  which  the  conclusion  in  question  neces- 
sarily follows;  and  uncertain,  or  that  from  which  the  conclusion 
does  not  necessarily  follow,  but  is  probable  only,  and  is  obtained 

by  a  process  of  reasoning. 

Gannon   vs.  People,   127  111.  507;   P.  &  P.  U.  By.  Co.  vs.  Clayberg, 
107  111.  644. 

Legal  Evidence: 

Circumstantial  evidence  is  legal  evidence. 

Parsons  vs.  People,  218  111.  386. 
It  is  not  to  be  expected  that  crime  will  be  proven  by  direct  tes- 
timony. 

Schoolcraft  vs.  People,  117  111.  271. 
The  law  makes  no  distinction  between  direct  evidence  of  a  fact 
and  evidence  of  circumstances  from  which  the  existence  of  a  fact 

may  be  inferred. 

Slack  vs.  Harris,  101  App.  527. 
Any  fact  may  be  proved  by  circumstantial  evidence  alone. 
Gallagher  vs.  Singer  Sewing  Mach.  Co.,  177  App.  198. 


270  CIRCUMSTANTIAL  EVIDENCE 

Kinds : 

Certain,  or  that  from  which  the  conclusion  in  question  neces- 
sarily follows;  and  uncertain,  or  that  from  which  the  conclusion 
does  not  necessarily  follow,  but  is  probable  only,  and  is  obtained  by 

a  process  of  reasoning. 

Carlton  vs.  People,  150  111.  181;  Gannon  vs.  People,  127  111.  507. 
So  no  proof  is  required  of  facts  which  everybody  is  presumed  to 

know. 

C.  &  E.  I,  E.  E.  Co.  vs.  Sehmitz,  211  111.  446. 

It  is  also  a  part  of  the  common  experience  of  all  that  many  facts 

are  so  intimately  connected  with  and  dependent  upon  each  other 

that  the  proof  of  one  necessarily  establishes  the  other,  or  at  least 

affords  so  strong  a  presumption  of  the  latter 's  existence  that  no 

additional  proof  of  it  will  be  required  until  such  presumption  is 

overcome  by  countervailing  testimony.     To  satisfactorily  prove  a 

given  act  also  establishes,  prima  facie,  the  ordinary  and  probable 

consequences  of  such  act. 

C.  B.  &  Q.  Uy.  Co.  vs.  Warner,  108  111.  538. 

Inferences  and  Presumptions: 

—  In  General:  Where  facts  and  circumstances  are  proven 
which  lead  the  mind  with  certainty  to  conclusions  that  other  facts 
and  circumstances  are  true,  such  latter  facts  and  circumstances 
may  be  accepted  and  acted  upon. 

P.  &  P.  U.  Ey.  Co.  vs.  Clayberg,  107  111.  644. 

No  inference  of  fact  or  of  law  is  reliable  drawn  from  premises 

which  are  uncertain.     Whenever  circumstantial  evidence  is  relied 

upon  to    prove  a  fact,  the  circumstances  must  be  proven,  and  not 

themselves  presumed. 

Globe  lus.  Co.  vs.  Gerich,  163  111.  625. 

—  Distinguished  from  Presampiions:  Presumptions  are  infer- 
ences which  common  sense  draws  from  the  known  course  of  events, 
or  from  circumstances  usually  occurring  in  such  cases. 

Sears  vs.  Vaughn,  230  111.  572. 

And  is  properly  an  inference  from  a  knowledge  of  the  existence 
of  some  other  fact  drawn  solely  by  virtue  of  previous  experience 
of  the  ordinary  connection  between  the  known  and  infen-ed  facts, 
and  independently  of  any  process  of  reason  in  the  particular  in- 
stance. 

McCagg  vs.  Heaeoekj  34  111.  476. 

—  No  Presumption  on  Presumption :     One  presumption  cannot 

be  the  basis  for  a  second  presumption;  that  is,  a  presumption  of 

fact  is  not  alone  a  legitimate  foundation  for  a  second  presumption 

or  inference. 

Kevern  vs.  People,  224  111.  170 ;  Condon  vs.  Schoenfeld,  214  111.  226 ; 
111.  Steel  Co.  vs.  Bycyznski,  106  App.  331;  Morris  vs.  St.  L.  Ey. 
Co.,  10  App.  389. 

The  facts  from  which  a  presumption  is  to  arise,  must  be  estab- 
lished by  evidence  as  if  they  were  the  facts  in  the  case. 
City  of  Chicago  vs.  Carlin,  141  App.  118. 

Presumptions  are  derived  wholly  and  directly  from  the  circum- 
stances of  the  particular  case  by  means  of  common  experience  of 
mankind  by  the  ordinary  reasoning  powers  and  without  the  aid  of 

artificial  rules  of  law. 

Sontag  vs.  O'Hara,  73  App.  432. 


CIRCUMSTANTIAL  EVIDENCE  271 

Inferences  should  be  made  upon  eoniiiion  principles  of  logic  and 

be  drawn  from  the  evidence  by  probal)le  deduction. 
Gannon  vs.  People,  127  111.  507. 

Value : 

—  In  General:  Circumstantial  evidence  is  frequently  as  satis- 
factory and  not  infrequently  more  satisfactory  than  direct  evi- 
dence to  establish  the  existence  or  occurrence  of  any  fact,  and  in 
accordance  with  this  hypothesis,  all  the  affairs  of  men  are  con- 
ducted. 

Kennedy  vs.   Aetnae  Ins.   Co.,   148  App.  273;   Wilkinson  vs.   Aetnae 
Ins.   Co.,   144  App.  38. 

Circumstantial  evidence  is  insufficient  when,  assuminsr  all  to  be 
proved  which  the  evidence  tends  to  prove,  some  oilier  hypothesis 
may  still  be  true,  for  it  is  the  actual  exclusion  of  every  other  hy- 
pothesis which  invests  mere  circumstances  with  the  force  of  proof. 
Tiithill  vs.  Ey.  Co.,  145  App.  50. 

—  What  Considered:  In  determining  the  proper  inferences  from 
facts  proven,  regard  must  be  had  to  the  particular  case,  and  the  fa- 
cility afforded  for  explanation  or  contradiction. 

International  Bank  vs.  Jones,  20  App.  125. 

—  Closely  Scrutinized:  Circumstantial  evidence,  where  there  is 
no  direct  proof,  should  be  critically  scrutinized ;  such  evidence  may 
be  very  satisfactory  and  may  be  very  deceptive. 

Hunter  vs.  People,  52  App.  367. 

—  Legal   Test   in   Criminal   Aetion:     AVhat  circumstances  wnll 

amount  to  proof  is  not  a  matter  of  general  definition ;  the  legal  test 

is  the  sufficiency  of  the  evidence  to  satisfy  the  minds  and  conscience 

of  the  jury. 

Carlton  vs.  People,  150  111.  181;  Otmer  vs.  People,  76  111.  149. 

Absolute  certainty  is  not  essential  to  proof  by  circumstances.  It 
is  enough  that  the  circumstances  are  such  as  to  produce  moral  cer- 
tainty to  the  exclusion  of  every  reasonable  doubt. 

Carlton  vs.  People,   150  111.  181 ;   Otmer  vs.  People,  76  HI.  149.     See 
also  Cotton  vs.  People,  250  111.  338;   XI  111.  Notes  1246,   §173. 

In  order  to  warrant  a  conviction  of  crime  on  circumstantial  evi- 
dence, the  circumstances  taken  together  should  be  of  a  conclusive 
nature  and  tendency,  leading,  on  the  whole  to  a  satisfactory  con- 
clusion and  producing,  in  effect,  a  reasonable  and  moral  certainty. 
York  vs.  People",  262  111.  620;   People  vs.  Eiseho,  262  111.  596;  Par- 
sons  vs.    People,    218    111.    386;    Dunn    vs.    People,    158    111.    586; 
Marzon  vs.  People,  173  111.  43. 
But  testimony  of  facts  and  circumstances  merely  pointing  to  de- 
fendant's guilt  are  not  sufficient. 

Cotton  vs.  People,  250  111.  338;  Otmer  vs.  Peojile,  76  111.  149.     (See 
Corpus  Delicti.) 

—  Chain  Simile :  Each  material  fact  essential  to  constitute  the 
defendant's  guilt  must  be  proven  beyond  a  reasonable  doubt.  But 
these  facts  may  be  proven  by  evidence  of  circumstances,  some  of 
much  and  others  of  little  weight,  resting  on  the  testimony  of  va- 
rious witnesses  of  different  degrees  of  credibility  and  intelligence; 
and  so,  in  the  chain  relied  upon,  there  may  be  links,  when,  sepa- 
rately considered,  about  which  there  are  reasonable  doubts,  but 
v.'hen  the  entire  evidence  is  considered,  each  link  strengthens  every 


272  CITIES 

other  link,  and  thus  there  may  be  a  complete  chain  of  evidence, 

satisfying,  beyond  a  reasonable  doubt,  of  the  guilt  of  defendant. 

Bressler  vs.  People,   117   111.  423;    Carlton  vs.   People,   150   111.   181; 

Keating  vs.  People,  160  111.   480. 

It  is  not  the  rule  that  unless  every  fact  in  the  chain  of  proof  is 

established  beyond  a  reasonable  doubt  the  entire  chain  must  fall, 

and  the  verdict  be  not  guilty. 

People  vs.  See,  258  Ill.'l52. 

But  the  guilt  of  the  accused  must  be  so  thoroughly  established  as 
to  exclude  every  other  reasonable  hypothesis,  and  producing  a  rea- 
sonable and  moral  certainty  that  the  accused  and  no  one  else  com- 
mitted the  crime. 

People  vs.  Eischo,  262  111.  596;  People  vs.  York,  262  111.  620. 

CITIES 

See  Corporations,  Sidewalks,  Ordinances,  Records. 

CITIZENS 

See  Citizenship,  Contested  Elections,  Domicile,  Residence. 

CITIZENSHIP 

See  Domicile,  Residence,  Contested  Elections. 
Presumption : 

In  contest  of  election,  person  voting  is  presumed  to  be  a  citizen. 
Kexroth   vs.   Schein,   206   111.   80 ;    Belirensmeyer  vs.   Kreitz,   135   111. 
591;  Dorsey  vs.  Brigham,  177  111.  250. 

Burden  of  Proof: 

Where  one  assumes  to  prove  that  another  person  is  not  a  citizen 
of  this  state,  the  burden  of  proving  a  negative  is  necessarily  im- 
posed upon'  him  who  raises  the  question  of  citizenship.  The  one 
so  questioning  such  right  is  not  required  to  produce  full  and  con- 
clusive proof,  but  is  only  bound  to  introduce  such  proof  as  ren- 
ders the  existence  of  the  negative  probable,  and  when  that  is  done, 
it  is  deemed  sufficient  to  shift  the  burden  of  proof  to  opposite 
party. 

So  where  the  proof  shows  that  a  person  was  born  in  a  foreign 

country,  and  emigrated  to  this  country  after  reaching  manhood, 

this  will  be  sufficient,  prima  facie,  to  show  alienage,  and  to  shift 

the  burden  of  showing  citizenship  upon  party  asserting  it.     If  such 

person   were   of  American   born   parentage,   though   born   abroad, 

that  fact  should  be  shown  by  him. 

Eexroth  vs.  Schein,  206  111.  80;  Behrensmeyer  vs.  Kreitz,  135  111.  591. 

Certificate  of  Naturalization: 

—  Impeachment :  Where  a  certificate  of  naturalization  is  granted 
by  a  court  of  competent  jurisdiction,  evidence  is  not  admissible, 
in  a  collateral  proceeding,  to  show  that  it  was  improperly  granted, 
or  was  obtained  by  false  and  perjured  testimony  or  pro]3er  prelimi- 
naries not  had. 

Ackerman  vs.   Haenck,   147   111.   514;    Behrensmeyer  vs.   Kreitz,    125 
111.  591;   People  vs.  McGowan,  77  111.  644. 

—  Identity  of  II older:  Parol  evidence  is  competent  to  iden- 
tify the  holder  of  a  certificate,  Avhere  there  is  a  misnomer. 

Behrensmeyer  vs.  Kreitz,   135  111.  591. 


CLOUD  ON  TITLE     '  273 

—  Non-Existrnce  of  Record:  Tho  cortifioates  of  the  clerks  of  the 
county  and  circuit  courts  to  the  effect  that  there  is  no  evidenc^e  on 
the  records  of  their  courts  that  certain  persons  had  been  naturalized 
therein,  are  not  competent  evidence  to  disprove  the  fact  of  natural- 
ization. Any  person  who  has  examined  an  official  record  may  swear 
and  prove  that  a  matter  is  not  of  record. 

Beardstown  vs.  Virginia,  81  111.  541. 

—  Certificate  of  Mumcipal  Clerk:  The  certificate  of  a  municipal 
clerk,  containing  mere  conclusions  as  to  the  citizenship  of  a  per- 
son, and  not  purporting-  to  be  issued  by  the  authority  admitting 
such  person  to  citizenship,  or  to  be  an  exemplification  of  any  rec- 
ord, is  not  aflmissible. 

Schaefer  vs.  Wnnderle,  154  111.  577. 

Records  of  Naturalization: 

The  record  of  the  naturalization  of  an  alien,  like  any  other  record 
of  a  court,  imports  verity. 

People  vs.  McGowan,  77  111.  644. 

Records   of   naturalization   are   in  nowise   different   from   other 
records.     AVhen   destroyed,   secondary   evidence   of  their   contents 
may  be  given,  the  same  as  the  contents  of  other  records. 
Kreitz  vs.  Behreiismeyer,  125  111.  141. 


CITY  DIRECTORY 

Admissibility : 

Party  not  bound  by,   and  directory  is  inadmissible  unless  au- 
thority for  statements  contained  therein  is  shown. 
Tichenor  vs.  Newman,  186  111.  264. 


CLOTHINa 

See  Demonstrative  Evidence. 

CLOUD  ON  TITLE 

See  Title,  Possession,  Abstracts  of  Title. 
Defined : 

A  cloud  on  a  title  is  a  semblance  of  a  title  either  legal  or  equita- 
ble, which  if  valid,  would  affect  or  impair  the  title  but  which  can 
be  shown  by  extrinsic  evidence  to  be  invalid. 

Glos  vs.  People,  259  111.  332;  Allott  vs.  Amer.  Stl.  Co.,  237  111.  55. 
A  cloud  is  defined  as  a  semblance  of  a  title,  either  legal  or  equi- 
table, or  a  claim  to  an  interest  in  land  appearing  in  some  legal 
form,  but  which,  in  fact,  is  unfounded,  or  which  it  would  be  in- 
equitable to  enforce. 

Harts  vs.  Kimball,  149  App.  526. 
A  cloud  on  title  is  a  semblance  of  a  title,  either  legal  or  equi- 
table, or  a  claim  of  an  interest  in  lands  appearing  in  some  legal 
form,  but  which  is,  in  fact,  unfounded. 

Dodsworth  vs.  Dodsworth,   254  111.  49. 
Ev. — IS 


274  CLOUD  ON  TITLE 

If  the  instrument  or  proceeding  is  on  its  face  plainly  illegal  or 
void,  tliere  is  no  cloud,  and  there  is  no  occasion  for  the  interference 
of  a  court  to  nullify  or  set  it  aside. 

Glos  vs.  People,  259  111.  382;  Koby  vs.  S.  P.  Comrs.,  215  111.  200. 

When  a  deed  provides  that  the  land  shall  revert  to  the  grantor, 

her  heirs  and  assigns,  if  grantee  shall  fail  to  pay  the  taxes,  a  claim 

of  title  by  the  heir  of  the  grantor,  based  upon  the  forfeiture  clause 

of  the  deed,  and  the  redemption  by  him  of  the  property  from  a  tax 

sale,  as  shown  by  the  tax  judgment,  sale  and  redemption  record,  is 

such  a  claim  as  constitutes  a  cloud  upon  the  title  of  the  grantee. 
Doilswoith   vs.   Dodswoith,   254  111.  49. 

Necessity  of  Proving-  Title: 

Title  in  complainant  must  be  proven,  to  authorize  decree  set- 
ting aside  deed  as  cloud. 

Judson  vs.  Glos,  249  111.  82;  Glos  vs.  Adams,  204  111.  546. 

While  it  is  not  necessary  to  prove  title  with  same  strictness  as  in 

ejectment,  yet  the  proof  must  at  least  establish  priina  facie  title. 
MoGowan  vs.  Glos,  258  111.  217. 

Color  of  Title: 

—  Good  Faith:    Deed,  to  constitute  color  of  title,  must  have  been 

acquired  in  good  faith. 

Winstanley  vs.   Meacham,  58  111.  97;   Diekiuson  vs.  Breedeu,  30  111. 
279. 
Good  faith,  within  meaning  of  statute,  does  not  require  ignorance 
of  an  advei'se  claim  or  defect  of  title,  notice,  actual  or  constructive 

is  immaterial. 

Davis  vs.  Hall,  92  111.  86;  Co.  of  Piatt  vs.  Godell.  97  111.  84;   Cole- 
man vs.  Billings,  89  111.  183. 

Good  faith  is  a  question  of  fact. 

Sexson  vs.  Barker,   172  111.   361;   Dawson  vs.   Edwards,   189   111.   60; 
Baldwin    vs.   Eadeliff,    125   111.   376;    Coward   vs.   Coward,   148   111. 

268. 

Title  is  presumed  to  have  been  acquired  in  good  faith. 

Taylor  vs. -Hamilton,  173  Ilk  392;  Davis  vs.  Hall,  92  J 11.  85;  Stnmpf 
vs.  Osterhage,  111  111.  82;  Sexson  vs.  Barker,  172  111.  361. 

But  presumption  may  be  overcome  by  showing  a  design  to  de- 
fraud partv  of  better  title. 

Sexson  vs.  Barker,  172  111.  361. 

Fraud,  to  overcome  presumption  of  good  faith,  is  not  presumed 

but  must  be  proven. 

McConnell  vs.  Street,   17  111.  253. 

Fact  that  small  consideration  was  given  for  deed  does  not  over- 
come presumption  of  good  faith. 

Barton  vs.   Mayers,   183   111.   360. 

—  Requisites  a)id  Sufficiency  of  Deed:  Deed,  to  constitute  color 
of  title  nnder  statute,  need  only  pui-port  to  convey  title. 

Winstanley  vs.  Meacham,  58  111.  97;  Dickinson  vs.  Breeden,  30  111.  279. 

Tax  deed,  to  constitute  color  of  title,  must  be  signed  by  officer 
and  properly  acknowledged. 

Winstanley  vs.  Meacham,  58  111.  97;  Dickinson  vs.  Breeden,  30  111.  279. 

Upon  bill  to  set  aside  a  tax  deed  as  cloud  on  title,  proof  of 
possession  by  complainant's  husband  under  a  deed  purporting  to 
convey  title,  coupled  with  a  devise  of  the  pi'operty  to  complain- 
ant by  her  husband's  will,  is  sufficient  proof  of  title,  there  being 

no  countervailing  evidence. 

Glos  vs.  Ptacek,  226  HI.  188. 


CLOUD  ON  TITLE  275 

Ownership  and  Possession: 

—  Ncocssilij  of  IShowing  Ownership:    Ownership  must  be  proven. 

llewes  vs.  Glos,  17u"lll.  4:56. 

Evidence  must  be  sufficient  to  make  prima  facie  case  of  owner- 
ship. 

Pease  vs.  Sanderson,  188  111.  597. 

—  Parol  to  Show  Ownership:  On  hearing  of  bill  to  remove  cloud 
upon  title,  parol  testimony  by  an  attorney,  that  his  client  was  the 
owner  of  the  land  involved,  is  wholly  incompetent  when  objected 
to;  but  if  admitted  without  objection  from  the  adverse  party,  it  will 
be  sufficient,  in  connection  with  a  deed  of  trust,  and  the  trustee's 
deed  to  the  client,  in  due  form,  to  make  a  prima  facie  case  of  owner- 
ship. 

Glos  vs.  Randoliih,  138  111.   268. 

—  Nrcff^sity  of  Sltoiviug  Possession:  ]\Iust  be  shown;  deed  alone 
is  insufficient. 

Bieber  vs.  Porter,  242  111.  616;  Bauer  vs.  Glos,  236  111.  450-  Ry. 
Co.  vs.  Eseliner,  232  111.  210;  Glos  vs.  Miller,  213  111.  22;  Glos  vs. 
Huey,  181  111.  149;  Johnson  vs.  Ruling,  127  111.  14;  XIV  111. 
Notes  164,  §24. 

A  deed  from  a  third  person  to  the  complainant  without  proof  of 
possession  by  complainant  or  his  .grantor  or  further  proof  of  title 
in  such  grantor  is  not  sufficient  to  establish  a  prima  facie  title. 
McGowan  vs.  Glos,  258  111.  217. 

—  Acts  Constituting  Possession:  To  constitute  possession,  there 
must  be  such  appropriation  of  the  land  as  will  apprise  the  com- 
munity that  the  land  is  occupied  and  who  the  occupant  is. 

Towle  vs.  Quaute,  246  111.  568. 

Any  acts  of  dominion  exercised  over  the  property  by  party  who 
claims  title,  which  clearly  indicate  to  others  an  appropriation  of 
the  lands  for  purposes  for  which  it  may  ordinarily  be  used,  are 
generally  I'egarded  as  sufficient  to  show  possession. 

Towle  vs.  Quante,  246  111.  568;  LeSourd  vs.  Edwards,  236  111.  169; 
White  vs.  Harris,  206  111.  584;  Gage  vs.  Hampton,  127  111.  87; 
McLean  vs.  Farden,  61  111.  106;  Morrison  vs.  Kelly,  22  111.  609. 

Proof  that  complainant  on  the  morning  of  the  day  the  bill  to 
remove  cloud  from  title  was  filed,  caused  to  be  erected  a  post- 
and-wire  fence  around  the  lot,  and  placed  a  "for  sale"  sign  thereon, 
giving  the  address  of  her  attorney  as  agent,  is  sufficient  to  show 
possession. 

Glos  vs.  Davis,  216  111.  532. 

An  allegation  that  complainant  is  in  possession  of  premises  is 
not  sustained  by  proof  that  the  land  was  being  plowed  by  a 
sciuatter,  who  was  not  a  tenant  of  complainant,  nor  in  privity 
with  her  title. 

Glos  vs.  Goodrich,  175  111.  20. 

The  fact  that  in  the  wire  fence,  erected  by  the  holder  of  the 
legal  title,  around  the  land,  gaps  are  left  for  a  roadway,  and 
between  the  edges  of  certain  ponds,  does  not  prevent  his  acts  in 
cutting  the  paths  for  surveyors  running  the  lines  and  putting  up 
the  wires,  from  constituting  the  taking  of  possession. 
Towle  vs.  Quaute,  246  "^111.  568. 

That  agent  of  complainant  leased  the  property  prior  to  filing 
of  bill,  and  after  bill  was  filed  complainant  cut  brush  and  let 


276  CLOUD  ON  TITLE 

chickens  run  on  land,  is  insufficient  to  show  possession  at  time  of 
liliug  bill. 

Glos  vs.  Archer,  214  111.  74. 
That  complainant  built  fence  and  went  upon  premises  with  an- 
other and  executed  to  him  a  paper  by  which  he  was  to  hold  pos- 
session, sufficient. 

Glos  vs.  Dyche,  214  111.  417. 

Possession  is  not  shown  by  proof  of  recording  of  deed,  and  mak- 
ing entries  in  books  with  reference  to  the  property ;  nor  is  the 
seven  years  possession  shown  by  proof  that  a  house  was  built 
on  the  land  by  the  holder  of  the  color  of  title,  which  the  witness 
had  occupied  for  five  years,  where  there  is  no  other  proof  as  to 
when  the  house  was  built,  or  whether  any  other  person  had  ever 
occupied  it. 

Glos  vs.  Wheeler,  229  111.  272. 

That  complainant's  husband  visited  the  land  at  one  time  after 
she  had  paid  seven  years'  taxes,  and  that  son  held  disputed  pos- 
session for  four  months,  insufficient. 
Adams  vs.  Black,  183  111.  377. 

—  Time  of  Possession:  Question  of  complainant's  possession 
is  determined  as  of  the  time  the  bill  was  filed,  and  his  acts  sub- 
sequent to  that  time  have  no  bearing  on  the  matter. 

Towle  vs.  Quante,  246  111.  568. 
Possession  at  time  of  filing  bill,  claiming  in  good  faith  to  be 
the  owner  under  deed  of  conveyance,  is  sufficient. 

Glos  vs.  Gleason,  209  111.  517;  Glos  vs.  Eaudolph,  138  111.  268;  Glos 

vs.  McKerlie,  212  111.  632;  Glos  vs.  Archer,  214  111.  74. 

Proof  that  complainant,  at  time  bill  was  filed,  was  in  possession 

of  the  property,  claiming  in  good  faith  to  be  the  owner  thereof 

under  a  deed  purporting  to  convey  the  same  to  him,  is  sufficient 

j)roof  of  title. 

Glos  vs.  McKerlie,  212  111.  632. 

In  suit  to  set  aside  tax  deed  as  cloud  on  title,  proof  that  com- 
plainant, at  time  bill  was  filed,  was  in  possession  of  the  property, 
claiming  in  good  faith  to  be  the  owner  thereof,  under  deed  convey- 
ing same  to  him,  is  sufficient  proof  of  title  in  complainant. 
Glos  vs.  Gleason,  209  111.  517;  Glos  vs.  Randolph,  138  111.  ::68. 

To  sustain  allegation  of  title,  complainant  need  only  prove  that 

at  time  of  filing  bill  he  was  in  possession  of  the  property,  claiming 

in  good  faith  to  be  the  owner  thereof  under  a  deed  purporting  to 

convey  same  to  him,  which  makes  a  prima  facie  case  of  title. 
Waishowsky  vs.  Glos,  251  111.  377. 

Proof  of  possession  up  until  two  years  prior  to  filing  of  bill,  in- 
sufficient. 

Glos  vs.  Kemp,  192  111.  72. 

—  Parol  to  Show  Possession:  A  v.'itness  may  testify  to  fact 
that  a  party  was  or  is  in  possession  of  a  tract  of  land,  without 
stating  the  facts  which  go  to  show  possession ;  and  the  other  party, 
on  cross  examination,  may  call  for  the  facts  upon  which  witness 
bases  his  testimonv,  or  as  to  facts  constituting  possession. 

Knight  vs.  Knight,  178  111.  553;   Fisher  vs.  Benneholf,  121  111.  426. 

Where  land  is  held  adversely  by  different  occupants,  the  identity 


CLOUD  ON  TITLE  277 

and  continuity  of  their  possession,  in  order  to  sliow  a  limitation, 
may  be  shown  by  parol  evidence. 

Weber  vs.  Anderson,  73  111.  439. 

Transfer  of  possession  of  land  may  be  proven  by  parol. 

Kich  vs.  Naffziger,  255  III.  98. 
—  Actual  Possession:     Where  one  is  in  actual  possession  of  a 
part  of  a  tract  of  land,  claiming  to  be  the  owner  of  all  of  it,  the 
paper  title  under  which  he  claims  is  evidence  of"  the  extent  of  his 
possession. 

Poole  vs.  City  of  Lake  Forest,  238  111.  305. 

If  it  appear  that  complainant  is  in  actual  possession  of  the 
land,  that  will  be  sufficient  proof  of  title  to  authorize  the  relief 

sought,  in  absence  of  proof  of  title  in  someone  else. 

Gage  vs.  Schmidt,  104  111.  106. 

Vacancy  of  Property: 

It  is  essential  that  the  o^vner  show  either  that  he  is  in  possession 
or  that  the  property  is  vacant  and  unoccupied. 

Bieber  vs.  Porter,  242  111.  616;  Glos  vs.  ITiiey,  181  111.  149;  Glos  vs. 
Randolph,  133  111.  197;  Johnson  vs.  Haling,  127  111.  14. 

Must  be  vacant  at  time  bill  is  filed. 

Glos  vs.  Miller,  213  111.  22;  Johnson  vs.  Ruling  127  111.  14. 

Proof  of  vacancy  some  years  before  bill  was  filed,  insufficient  to 
show  vacancy  at  time  bill  was  filed. 
Glos  vs.  Miller,  213  111.  22. 

It  not  being  presumed  that  property  remained  vacant  up  to  time 
bill  was  filed. 

Glos  vs.  Perkins,  188  111.  467. 

Admissions : 

A  person  holding  conveyance  of  land  accepted  a  quitclaim  deed 
containing,  after  the  description  of  the  property,  the  clause, 
"Being  the  same  property  described  in  deed  heretofore  made  by 

us  to  C.  W.  C.  dated, This  deed  is  made  to  clear 

away  certain  objection  made  to  said  last  named  deed,  or  to  abstract 
thereof,  and  is  made  to  confirm  little  of  said  grantee,  claimed 
under  such  deed:"  Held,  that  grantee  in  later  deed  admitted  by 
his  acceptance  of  it  that  he  claimed  title  under  C.  W.  C,  and  under 
a  deed  made  by  the  grantors  to  C.  W.  C,  and  that  such  quitclaim 
deed  was  procured  by  the  grantee  merely  in  confirmation  of  such 

title. 

Sawyer  vs.  Campbell,  130  111.  186. 

Failure  of  complainant  to  introduce  deed  alleged  to  be  cloud, 
in  evidence  is  not  fatal  to  the  decree,  where  the  bill  specifically 
described  the  deed,  the  date  when  recorded,  its  document  number 
and  charges  such  deed  to  be  null  and  void,  and  the  answer  of  the 
defendant  is  such  as  amounts  to  an  admission  of  the  existence  of 
the  deed  as  described  in  the  bill. 
Glos  vs.  MeKerlie,  212  111.  632. 

Presumptions  as  to  Title: 

Every  presumption  will  be  indulged  in  favor  of  holder  of  legal 
title,  and  as  against  him  no  presumption  in  favor  of  holder  of  color 

of  title  will  be  drawn. 

Towle  vs.  Quante,  246  111.  568;  LeSourd  vs.  Edwards,  236  111.  169; 
White  vs.  Harris,  206  111.  584. 


278-  CLOUD  ON  TITLE 

Proof  of  possession  with  claim  of  ownership,  raises  presumption 

of  title.  '  ■■'!  •' 

Glos  vs.  Ptaeek,  226  111.  188;  Glos  vs.  Huey,  181  111.  149. 

Deed,  coupled  with  possession,  raises  presumption  of  title. 
McCrauej  vs.  Glos,  222  111.  628. 

A  tax  deed  is  prima  facie  evidence  of  the  sufficiency  and  validity 

of  the  process  upon  which  a  sale  was  made,  and  that  the  sale  was 

conducted  in  manner  required  by  law. 
Tifft  vs.  Greene,  211  111.  389. 

Burden  of  Proof: 

The  burden  of  proving  an  allegation,  in  bill  to  remove  cloud  from 
title,  that  complainant  was  in  possession  of  premises  at  time  bill 
was  filed,  is  on  complainant,  and  such  proof  is  essential  to  grant- 
ing of  relief  prayed, 

Glos  vs.  Archer,  214  111.  74;  Glos  vs.  Kemp,  192  111.  72;  Glos  vs. 
Beekiiiaii,  1S.3  111.  158;  Glos  vs.  O 'Toole,  173  111.  366;  Glos  vs. 
Eandolph,  133  111.  197;  Stannard  vs.  A.  E.  Ey.  Co..  220  111.  469; 
Johnson  vs.  Huling,  127  111.  14;   XIV  111.  Notes  169,   §70. 

In  suit  to  remove  trust  deed,  presumption  of  non-payment  is 
raised  by  production  of  deed  and  note,  and  burden  of  proving 
payment  is  on  complainant. 

Douglas  vs.  Pfeiffer,  46  111.   102. 

Admissibility  of  Quit  Claim  Deed: 

On  bill  to  cancel  tax  deed,  quitclaim  deed  from  holders  of  tax 
deed,  not  parties  to  suit,  described  as  "unknown  owners,"  and  in 
default,  not  admissible. 

Brinsen  vs.  Arnold,  236  111.  495. 

Admissibility  of  Foreign  Deeds: 

A  deed  executed  in  sister  state  and  acknowledged  before  a  notary 

public  in  that  state,  the  certificate  of  acknowledgment  being  in  due 

form  under  our  statute,  and  authenticated  by  the  seal  of  the  notary, 

is  properly  admitted  in  evidence  in  action  to  remove  cloud  from 

title,  without  certificate  that  acknowledgment  was  in  conformity 

with  the  laws  of  such  sister  state. 
Glos  vs.  Gerrity,  190  111.  545. 

Weight  and  SuiRciency: 

Under  bill  praying  for  cancellation  of  contract  for  sale  of  land, 
as  cloud  on  vendor's  title,  which  contract  provided  that  a  mer- 
chantable abstract  should  be  furnished,  proof  by  such  vendor  that 
he  furnished  an  abstract  made  by  the  recorder  of  deeds,  together 
with  testimony  of  a  number  of  real  estate  men  that  abstracts  fur- 
nished by  such  recorder  were  merchantable,  is  sufficient  to  warrant 

a  decree,  in  absence  of  counter  testimony. 
Harper  vs.  Tidholm,  155  111.  370. 

Proof  of  deed,  as  described  in  bill,  together  with  proof  of  pos- 
session in  complainant  since  date  of  deed,  sufficient. 
Brinson  vs.  Arnold,  236  HI.  495. 

If  complainant  proves  a  decree  in  a  burnt  records  proceedings, 
establishing  title  in  fee  in  certain  persons,  and  shows  that  he  has 
succeeded  to  their  title  by  a  regular  chain  of  conveyances,  such 


COLOR  OF  TITLE  279 

proof  is  siififieient  to  justif}^  a  decree  removini?  a   tax  deed   as  a 

cloud,  even  tliough  there  is  no  prooi'  of  title  prior  to  that  time. 
Ellison  vs.  Glos,  248  111.  275. 


C.  0.  D. 

Judicial  Notice: 

Courts  will  not  take  judicial  notice  of  meaning  of  term. 
A.  M.  U.  Ex.  Co.  vs.  Wolfe,  79  111.  430. 

Admissibility  of  Evidence: 

—  Parol:     Competent  to  show  meaning  of  term. 

Tailoring   Co.    vs.    Adams  Exp.   Co.,   158   App.   374 ;    Ainer.   Express 
Co.  vs.  Lesem,  39  111.  313. 

But  custom  as  to  waiving  payment  before  delivery  l)etween  car- 
rier and  shipper  is  not  admissible. 

Amer.  Express  Co.  vs.  Lesem,  39  111.  313. 


CODEFENDANT 

See  Accessories,  Accomplices,  Admissions  and  Declarations, 
Confessions,  Corroboration,  Credibility,  Witnesses. 


CODICIL 

See  Wills. 

CO-HABITATION 

See    Adultery,    Bigamy,    Criminal    Conversation,  Marriage, 
Divorce. 

COLLUSION 

See  Conspiracy,  Fraud. 


COLOR  OF  TITLE 

See  Title,  Good  Faith,  Presumptions,  Cloud  on  Title,  E.jegt- 

MENT. 

Defined: 

Any  instrument  indicating  an  intention  to  pass  title  to  lands,  of 
whicli  a  description  is  given,  from  one  party  to  another,  gives  color 
of  title  to  the  lands  described.  For  some  reason,  such  an  instru- 
ment often  fails  to  effect  that  intention,  and  passes  only  the  color 
of  title  or  semblance  of  title.  It  makes  no  difference  whether  tlie 
instrument  fails  to  pass  a  title  because  the  grantor  had  none  to 


280  COMMUNICATIONS 

convey,  or  had  no  authority  in  hiw  or  in  fact  to  convey  one.  Inas- 
much as  the  instrument  fails  to  pass  an  absohite  title,  for  the 
reason  that  the  grantor  was  not  possessed  of  one  or  more  necessary 
requisites,  it  gives  the  semblance  or  color  only  of  what  its  effect 

would  be  if  they  were  not  wanting. 

McCagg  vs.  Heacoek,  34  111.  476;  Wells  vs.  Wells,  246  111.  469;  Lewis 
vs.  Pleasants,  143  111.  271;  Brooks  vs.  Bniyn,  35  111.  392;  Dick- 
enson vs.  Breeden,  30  111.  279;  XI  111.  Notes  75.  §  117  et  seq. 

A  general  devise  will  not  constitute  color  of  title  under  limita- 
tion law.     Will  must  furnish  a  description  to  identify  the  land. 
Peabody  vs.  Burri,  255  111.  592. 

Tax  Deeds: 

—  Admissibility  to  Shoiv:  A  tax  deed  is  prima  facie  evidence 
that  the  sale  was  conducted  in  the  manner  required  by  law,  and 
affords  presumptive  proof  in  the  first  instance  of  the  sufficiency 
and  validity  of  the  process  upon  which  the  sale  was  made,  which 
in  the  basis  of  the  tax  deed,  and  the  prima  facie  case  made  by  the 
production  of  the  tax  deed  must  be  overcome  bv  proof. 

Tifft  vs.  Greene,  211  111.  389;  Glos  vs.  IMnlcahy,  210  111.  639; 
Gage  vs.  Gentzel,  144  111.  450.     (See  Tax  Deeds.) 


COMMUNICATIONS 

See  Privileged  Communications. 

COMPARISON  OF  HANDWRITINa 

See  Handwriting. 

COMPETENCY  OF  EVIDENCE 

For  One  Purpose: 

Evidence,  if  competent  for  any  purpose,  must  be  admitted. 

Mighell  vs.   Stone,   175  111.  261. 
Competent  evidence  should  be  admitted,  although  it  is  insuffi- 
cient to  prove  a  complete  defense. 

B.  &  0.  S.  W.  Ky.  Co.  vs.  People,  156  111.  189. 

As  to  One  Party: 

So,  evidence  competent  as  to  one  party,  although  incompetent 
as  to  a  co-party,  is  admissible. 

Con.  Ice  Mach.  Co.  vs.  Keifer,  134  111.  481. 
The  objecting  party  may  have  such  evidence  excluded  from  the 
jury  by  asking  instructions  to  that  effect. 

People  vs.  Hageuow,  236  111.  514;  People  vs.  Casey,  231  111.  261; 
Central  Ey.  Co.  vs.  AUmon,  147  111.  471;  Purdy'vs.  People,  140 
111.  46. 

COMPETENCY  OF  WITNESSES 

See   WiTNSEssES,    Contradiction   and   Sustaining   Witnesses, 
Credibility,  Husband  and  Wife,  Infants, 


COMPROMISE  AND  SETTLEMENT  281 

COMPOSITION  WITH  CREDITORS 

See  Compromise  and  Settlement, 

COMPROMISE  AND  SETTLEMENT 

See  Accord  and  Satisfaction,  Parol,  Release,  Arbitration 
AND  Award,  Receipts. 

PRESUMPTIONS: 

Receipts  • 

A  written  receipt  in  full  is  prima  facie  evidence  that  on  date 

of  same,  parties  made  a  full  settlement  and  adjustment  of  all  their 

accounts. 

Burus  vs.  Middleton,  104  111.  411;  Ligare  vs.  Peacock,  109  111.  94. 

A  receipt  in  full  of  all  demands  is  prima  facie  evidence  of  the 

payment  of  all  notes  and  claims  existing  at  the  time  receipt  is 

given. 

Marstou  vs.  Wilcox,  2  111.   270. 
And  including  that  due  on  notes. 

Connelly  vs.  Sullivan,  119  App.  469. 
—  Guardiaih  and  ^Yard:  But  a  receipt  given  by  a  ward  to  his 
guardian,  in  full  of  moneys  coming  to  the  ward,  when  shown  to 
have  been  given  without  an  accounting,  in  fact,  at  the  time,  and 
the  ward  denying  any  settlement,  is  entitled  to  but  little  weight 
as  evidence  of  a  settlement. 

Bennett  vs.  Hanifin,  87  111.  31. 

Checks : 

When  parties  have  a  settlement  of  their  accounts,  and  a  check 
for  the  amount  found  due  from  one  to  the  other,  which  recites  that 
it  is  in  full,  is  accepted  and  afterward  paid,  the  presumption  of 
fact  is  strong  that  all  items  properly  chargeable  at  the  time  are 

embraced  in  the  settlement. 

Eobinson  vs.  Webb,  73  App.  569. 

A  creditor  to  whom  a  check  is  sent,  reciting  that  it  is  in  full 

payment  of  a  claim  the  amount  of  which  is  in  dispute,  cannot 

receive  it  without  the  assent  of  the  debtor  in  part  payment  only, 

but  his  receipt  thereof  and  use  of  the  check  will  constitute  a  full 

satisfaction  of  the  claim. 

Ostrander  vs.  Scott,  161  111.  339. 
A  receipt  contained  in  a  check  which,  upon  its  face,  is  a  payment 
in  full  of  all  demands  to  date,  enclosed  in  a  letter  stating  that  it  is  in 
full  of  account  and  followed  by  a  subsequent  letter  to  return  it 
if  the  creditor  does  not  wish  to  accept  it  in  full  settlement,  cannot 
be  contradicted  by  showing  that  the  amount  was  received  only  in 
part  payment  wdiere  account  is  unliquidated  and  subject  of  bona 

fide  dispute. 

Ostrander  vs.  Scott,  161  111.  339 ;  Critchell  vs.  Loftus,  100  App.  196 ; 
Enmsev  vs.  Barber,  78  App.  88;  Mexican  Soap  Co.  vs.  Clark,  72 
App.  655;  Off.  vs.  Inderrieden  Co.,  74  App.  105;  Worth  Coal 
Co.  vs.  Parker  Co.,  157  App.  199;  Kepublic  Steel  Co.  vs.  Sturges, 
181  App.  304. 
But  a  check  given  by  a  vendee  and  accepted  by  the  vendor,  con- 


282  COMPROMISE  AND  SP:TTLEMENT 

taining  these  words,  ''To  balance  account  coal  received  from  you 
to  date,"  does  not  show  an  accord  and  satisfaction,  inasmuch  as 
the  check  only  purported  to  pay  in  full  for  ' '  coal  received. ' ' 
Olesoii  vs.  Waljash  Coal  Co.,  126  App.  253. 

Complete  Settlement: 

—  Fact  of  Settlement  Proven:  A  strongs  presumption  arises 
that  a  settlement  of  accounts  between  parties  embraces  all  the 
items  each  has  against  the  other  that  are  due,  and  this  presump- 
tion is  so  strong  that  it  devolves  upon  party  asserting  contrary 
to  prove  that  an  item  omitted  was  not  due,  or  that  it  was  omitted 
by  consent  of  the  parties,  or  by  accident  and  unintentionally  by 

the  party  claiming  it. 

Wtraubher  vs.  Mohler,  80  111.  21. 

This   presumption   applies   only   where   a   general   settlement   is 

proven  and  which  purported  to  include  all  the  demands  and  counter 

demands  between  the  parties. 

Smith  vs.  Smith,  45  App.  215. 

An  adjustment  and  settlement  of  accounts  between  parties  afford 
evidence  that  all  items  properly  chargeable  at  the  time  were  in- 
cluded. This  is  not  conclusive  but  it  would  require  clear  and 
convincing  proof  that  such  items  were  unintentionally  omitted  by 
the  party  subsequently  claiming  to  recover  them. 

Bull  vs.  Harris,  31  111.  487;  Hodge  vs.  Boynton,  16  App.  525, 

A  creditor  asserting  that  a  particular  item  of  indebtedness  was 
not  included  in  a  general  settlement  between  the  parties -may  over- 
come the  presumption  that  it  was  included  by  proving  that  it  was 

not  due  at  the  time  of  the  settlement. 
Beebe  vs.   Smith,   194  111.  634. 
It  is  proper  for  the  defendant  who  has  promised  to  pay  plaintiff's 
bill,  to  testify  that  at  the  time  he  made  the  promise,  he  had  not 
discovered  errors  in  the  bill,  which  he  afterwards  discovered. 

Schnell    vs.    Schlurnitzer,    82    111.    439;    Follansbee    vs.    Parker,    70 
111.   11. 

—  Partncrsliip:  Where  it  appeared  that  A  and  B  had  been 
carrying  on  a  partnership  business  and  that  A,  after  having  dis- 
posed of  his  interest,  purchased  the  interest  of  B,  for  which  he 
agreed  to  pay  a  certain  sum,  lield,  that  in  the  absence  of  proof 
to  contrary,  it  would  be  presumed  that  all  their  former  accounts 
were  settled,  or  at  least  merged  in  the  new  agreement. 

Norniau  vs.  Huddlestou,  64  111.  1. 

—  Composition  Agreement:  In  a  composition  agreement  with 
creditors  if  the  deed  is  under  seal  and  contains  an  absolute  release 
of  all  debts  and  liabilities  for  a  consideration  tit  en  paid  by  the 
debtor,  the  creditor  cannot  be  allowed  to  show  by  parol  evidence, 
in  opposition  to  the  terms  of  the  deed,  that  a  particular  debt  was 
not  intended  to  be  and  was  not  included  in  its  provisions. 

Meyer  &  Co.  vs.  McKee  &  Co.,  19  App.  109, 
Executory  agreement,  parol  is  competent  to  show  a  non-compli- 
ance witli  the  conditions  in  composition  deed  hy  the  debtor. 
iMeyer  &  Co.  vs.  McKee  &  Co.,  19  App.  109. 

BURDEN  OF  PROOF : 
In  General: 

Where   fact  of  settlement   is   established,   the   burden   of  proof 

is  on  partv  assailing. 

Beebe  vs.  Smith,  194  111.  634;   Straubher  vs.  Mohler,  80  111.  21, 


COMPROMISE  AND  SETTLLEMENT  283 

And  must  establish  his  position  l)y  a  clear  preponderance  oi'  the 

evidence. 

MeElhaney  vs.  People,  1  App.  550. 

By  Surety: 

A  eoiuproiuise  may  be  proven  by  a  surety,  who  is  a  stranger  to 
the  acts  done  by  his  principal,  in  effecting  the  couipromise  of  an 
obligation,  by  less  testimony  than  would  be  necessary  on  the  part 
of  the  principal  to  prove  the  same  fact. 
Leis'li  vs.  Hodges,  4  111.  15. 

Subject  Matter: 

General  words  of  release  are  restrained,  in  effect,  by  the  recitals 
contained  in  the  instrument  as  applied  to  the  subject  matter. 

An  agreement  cancelling  a  prior  contract  and  adjusting  mat- 
ters growing  out  of  same,  and  providing  that  "from  and  after  tliis 
date  no  indebtedness  exists  in  favor  of  either  of  the  parties," 
against  the  other,  wall  not  be  held  to  release  a  promissory  note  for 
money  loaned,  where  the  loan  did  not  grow  out  of  the  cancelled 
contract  and  was  not  mentioned  in  the  release,  the  recitals  of 
which  were  limited  by  their  terms,  to  matters  involving  the  con- 
tract. 

Bassett  vs.  Lawrence,  193  111.  494. 

PROMISSORY  NOTES. 

The  giving  of  a  note,  although  it  is  evidence  for  the  consideration 
of  the  jury,  is  to  be  weighed  in  the  light  of  all  the  surrounding 
circumstances, — is  not,  of  itself,  unexplained,  evidence  of  a  settle- 
ment of  all  demands  between  the  parties  to  such  an  instrament, 
anterior  to  the  date  of  the  note. 

Eozeiicrantz   vs.   Mason,    85   111.   262;    Crabtree   vs.   Eowand,   33   111. 
423;  Ankeny  vs.  Pierce,  1  111.  262;  Cf.  Phy  vs.  Clark,  35  111.  377. 
But  the  question  of  the  intent  of  the  parties,  in  such  case,  is  one 
of  fact,  to  be  determined  by  the  jury  from  all  the  evidence  relat- 
ing to  the  transaction. 

Whelloeh  vs.  Berkley,  138  111.  153. 
Where  a  settlement  is  relied  upon  as  a  foundation  for  an  action, 
evidence   of  the  transaction   compromised  is  proper  to   show  the 
foundation  of  and  circumstances  surrounding  the   agreement  to 

settle. 

Frank  vs.  Heaton,  5G  App.  227. 

AGREEMENT. 

An  agreement  covering  same  point  as  in  issue  is  admissible  as 

showing  settlement. 

Murjihv  vs.  Lever,  147  App.  460. 

PRIOR  ACTION. 

In  absence  of  countervailing  evidence,  a  plea  of  payment  is 
established  by  evidence  that  plaintift"s  demand  was  interposed  liy 
him  as  a  set-off  in  a  former  action  brought  by  the  defendant's  prin- 
cipal, which  w-as  settled  in  full  and  discontinued  by  stipulation  of 

the  parties,  without  costs. 

Case  vs.  Phillips,  182  111.  187. 
But  the  discontinuance  of  a  former  suit,  by  agreement,  upon  the 
making  of  a  contract   for  settlement,  does  not  bar  a  subsequent 
suit  on  same  demand,  where  it  appears  the  contract  was  never 


284  COMPROMISE  AND  SETTLEMENT 

carried  out  and  plaintiff  has  received  nothing  in  satisfaction  of  his 

claim. 

Jacobs  vs.  Marks,  183  111.  533. 

OFFERS  OF  COMPROMISE. 

Competency: 

—  In  General:  A  proposition  made  by  one  party  to  the  other 
simply  for  the  purpose  of  effecting  a  compromise  is  not  binding 
unless  accepted,  and  cannot  be  shown  on  trial  as  evidence  of  an 

admission  of  facts. 

Pauling  vs.  Hovvser,  63  IJl.  312;  Eockafellow  vs.  Newcomb,  57  111. 
186;  Barker  vs.  Bushnell,  75  111.  220;  Matliewson  vs.  Ferris,  72 
App.  684;  G.  P.  Assn.  vs.  Eio'rdan,  61  App.  457;  Harrison  vs. 
Trickett,  57  Ajip.  515;  Rollins  vs.  Duffy,  18  App.  398;  McKinzie 
vs.  Stretch,  53  App.  184;  C.  C.  C.  &  St.  L.  E.  E.  Co.  vs.  McGuire, 
137  App.  31;  XI  111.  Notes  496,  §  160. 

But  may  be  admissible  as  waiver  of  conditions. 

Downs  vs.  Mich.  Com.  Ins.  Co.,  157  App.  32. 
Any  evidence  the  purpose  and  effect  of  which  is  to  show  the 
admission  of  liability  by  offers  of  compromise  is  incompetent. 

Milhim  vs.  Hawkeye  Ins.  Co.,  171  App.  262. 
•     — Bastardy  Suits:     Such  rule  is  as  applicable  to  bastardy  suits 

as  any  other. 

Gelm  vs.  People,  87  App.  158;  Miene  vs.  People,  37  App.  589. 

—  Criminal  Offense:  The  written  admission  of  a  party  accused 
of  crime,  made  with  view  to  compromise  matter  with  injured  party, 
on  basis  that  he  should  not  be  prosecuted,  is  not  admissible  as  evi- 
dence on  indictment  for  such  off'ense. 

Austin  TS.  People,  51  111.  236. 

—  Letters:  Letter  containing  offer  of  compromise  are  inad- 
missible. 

Harrison  vs.  Trickett,  57  App.  515. 

And  letters  written  by  attorneys  of  party,  with  view  to  com- 
promise, are  incompetent. 

O'Mara  vs.  Coal  Co.,  154  App.  321. 

—  Voluntary  Admissions:  The  voluntary  admissions  or  state- 
ments of  fact  of  a  party  to  a  suit  are  competent  as  evidence  against 
him  even  if  made  during  an  effort  to  compromise. 

Ashlock   vs.    Linder,   50    111.    169;    Eobbins   vs.   Butler,   24   111.    387; 
Thorn   vs.   Hess,   51   App.   274;    Getsleman   vs.   Schuman,   22   App. 
167. 
Admissions  of  independent  facts,  though  made  in  negotiating 

compromise,  are  competent. 

Kuhn  vs.  Williams,  124  App.  390 ;  Hook  vs.  Bunch,  180  App.  39. 
Independent  admissions,  made  during  negotiations  to  compro- 
mise, are  competent  unless  expressly  stated  made  in  confidence  or 

without  prejudice. 

Domma  vs.   Hollenbach,   142   App.   439. 

AS  CONSIDERATION  OF  DOUBTFUL  CLAIM. 

To  sustain  a  compromise  of  a  doubtful  claim,  where  it  later  turns 
out  that  the  promisee  is  not  liable  for  or  does  not  owe  the  claim, 
it  is  indispensable  that  the  controversy  should  be  honestly  inaugu- 


CONCLUSIONS  OF  WITNESSES  285 

rated  and  that  perfect  fairness  and  good  faith  should  characterize 
the  conduct  of  the  party  seeking  to  uphold  the  compromise  agree- 
ment. 

Kronmeyer  vs.  Buck,  258  111.  586. 

And  when  settled  and  compromised  in  good  faith  and  without 
fraud  or  oppression  such  settlement  constitutes  a  good  considera- 
tion for  the  promise  to  pay  money  or  other  valuable  thing. 
Pyle  vs.  Murphy,  180  App.  18, 


CONCLUSIONS 

See  Conclusions  of  Witnesses,  Legal  Conclusions,  Expert 
AND  Opinion. 


CONCLUSIVE  EVIDENCE 

See    Former    Adjudication,    Former    Judgment,    Legislative 
Acts  and  Journals,  Service,  Records. 


CONCLUSIONS  OF  WITNESSES 

See  Affidavits  for  Continuance,  Legai^  Conclusions,  Title. 

In  General: 

Conclusions  of  witnesses  are  incompetent. 

Telford  vs.  Howell,  220  111.  52;  Hohen  vs.  C.  P.  &  St.  L.  Ey.  Co., 
152  111.  223;  Pickhani  vs.  I.  I.  &  N.  Co.,  153  App.  281;  Aetitus 
vs.  Coal  Co.,  150  App.  498;  Seed  Co.  vs.  Moore,  142  App.  615; 
XII  111.  Notes  521,  §  366. 

Especially  where  based  on  hearsay. 

Eafter  vs.  Chi.  City  Ey.  Co.,   139  App.  81 ;   Sheppleman  vs.  People, 
134  App.  556;  Haldeman  vs.  Scbuh,  109  App.  259. 
Conclusions  of  witness  as  to  matters  of  fact  which  it  is  the  prov- 
ince of  the  iury  to  try,  are  inadraissilile. 

Adams  vs.  First  M.  E.  Church,  251  111.  268. 
But  conclusions  are  properly  admitted  where  facts  are  inca- 
pable of  direct  presentation.  Witnesses  not  experts  are  allo^yed  to 
express  opinions  when  the  subject  matter  to  which  the  testimony 
relates  is  such,  in  its  nature,  that  it  cannot  be  reproduced  and 
described  to  the  jury  precisely  as  it  appeared  at  the  time. 

W.  Chi.  St'.  Ey.  Co.  vs.  Fishman,  169  111.  196;  Carter  vs.  Carter,  152 
111.  434;  Salem  vs.  Webster,  95  App.  120. 
It  is  the  general  rule  that  a  witness  must  testify  to  facts,  and 
not  his  opinions.  But  when  the  witness  testifies  to  facts  showing 
his  opinion  was  the  only  conclusion  that  can  be  drawn  from  the 
facts,  the  error  in  allowing  him  to  state  that  opinion  will  be  harm- 
less, and  atford  no  ground  for  reversal. 

Where  the  inference  to  be  drawn  from  a  given  state  of  facts 
is  not  clear  or  certain,  a  jury,  in  whose  liearing  the  facts  are  re- 
cited, may  be  influenced  by  the  opinion  of  a  witness  who  tells  them 
his  conclusions  therefrom.     It  is  otherwise  where  only  one  conclu- 


286  CONCLUSIONS  OF  WITNESSES 

sion,  and  that  an  obvious  and  necessary  one,  suggests  itself  as  soon 

as  the  facts  are  presented. 

Central  liy.  Co.  vs.  Allnion,  147  111.  471. 

The   statement   of   a   fact   by   a   uilnrss,    Vv-hich   he   ascertained 

through  the  sense  of  hearing,  is  not  tlie  statement  of  a  mere  matter 

of  opinion,  Init  is  a  statement  of  a  conclusion  readied  directly  from 

an  operation  of  the  sense  of  hearing  and  is  admissible  in  evidence. 

Ogdou  vs.  People,  134  111.  599. 

If  motorman   has  stated   what   he   did   to   avoid   collision,   it   is 

proper  to  refuse  to  permit  him  to  answer  the  question,  "Do  you 

know  of  anything  you  could  have  done,  that  you  did  not  do,  to 

avoid  the  collision  there?" 

Springfield  Ey.  Co.  vs.  Puntenny,  200  111.  9. 

Nor  is  question  proper  as  to  "AVhether  he  used  all  the  means  in 

his  pow'er  to  stop  the  car.'' 

Springfield  Ey.  Co.  vs.  Welsch,  155  111.  511. 
Questions  calling  for  a  conclusion  not  error  where  counsel  and 
witnesses  have  assumed  such  conclusion. 

A.  E.  &  C.  Ey.  Co.  vs.  Gary,  123  App.  163. 
Conclusion  of  witness  as  to  what  was  consideration  for  delivery 

of  bond  is  incompetent. 

Lucas  vs.  Beebe,  88  111.  427. 
Question  as  to  w^hether  accused  had  violated  ordinance  calls  for 

a  conclusion. 

People  vs.  Ne\Ybold,  260  111.  190. 
Questions  calling  for  conclusions  of  law  are  improper. 

McGuire  vs.  Winston,  157  App.  222. 
Question  as  to  wdiy  money  Avas  paid  to  party  calls  for  conclusion. 

Crone  vs.  Crone,  70  App.  294. 
Question  as  to  wdiy  party's  name  was  over  door  of  saloon  calls 
for  conclusion. 

Crone  vs.  Crone,  70  App.  294. 
Question  as  to  wdiat  contract  means  calls  for  conclusion. 

McGuire  vs.  Winston,  157  App.  222. 
That  defendant  did  not  object  to  bill  when  presented  is  inad- 
missible, as  stating  a  conclusion.    Witness  may  properly  state  what 
defendant  said  and  did  when  bill  was  presented. 
Harrison  vs.  Trickett,  57  App.  515. 
Question  as  to  what  services  witness  was  to  perform  for  salary 
paid  is  objectionable  as  calling  for  a  conclusion. 

Williard  vs.  P.  C.  C.  &  St.  L.  Ey.  Co.,  155  App.  410. 
Statements  that  copy  of  report  was  sent  is  a  conclusion. 

E.  A.  &  S.  Tr.  Co.  vs.  Hencli,  132  App.  535. 
Statements  of  witness  that  report  made  to  mercantile  company 
was  false  is  a  conclusion. 

Frezinski  vs.  Newborg,  43  App.  506. 
Testimony  as  to  whether  examination  was  sufficient  to  determine 
safety  is  a  conclusion. 

Aetitus  vs.  Coal  Co.,  150  App.  497. 
Opinion  as  to  what  constitutes  necessaries  is  inadmissible. 

Compton  vs.  Bates,  10  App.  78. 
Testimony  that  anything  that  would  touch  object  would  throw 

it  down  is  not  a  conclusion. 

C.  &  A.  E.  Co.  vs.  O'Brien,  34  App.  155. 


CONCLUSIONS  OP  WITNESSES  287 

Statement  that  fences  were  not  sufficient  to  liold  stock,  inad- 
missible. 

C.  &  A.  E.  Co.  vs.  O'Brien,  34  App.  155. 
Testimony  it  was  not  a  party's  duty  to  do  a  certain  thing  is  a 
mere  conclusion. 

Brooks  vs.  C.  W,  &  V.  Coal  Co.,  234  111.  372. 

Due  Cai-e: 

Opinion  as  to  whether  either  party  exercised  due  care  is  inad- 
missible. 

8pringfiekl  vs.  Cole,  16G  111.  22;   Pfau  vs.  Eeynolds,  53  111.  212. 

Testimony  that  party  was  proceeding  carefully,  inadmissible. 
Litchfield  vs.  Anglin,  83  App.  55. 

Or  that  switchman  would  perform  duty  safel}'. 

Biitchelor  vs.  Union  Stock  Yards,  88  App.  395. 
Or  that   party  was  not  guilty  of  negligence  in  attempting  to 
board  train. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Curtis,  134  App.  565. 
Or  in  leaving  awning  down. 

McMalian  vs.  Swain,  10(3  App.  392. 

Or  safe  distance  to  stand  from  railroad  track  when  train  was 
passing. 

C.  &  N.  W.  Ey.  Co.  vs.  Moranda,  108  111.  576.     ' 

Defect: 

Question  as  to  "how  could  it  be  possible  to  discover  defect"  in- 
admissible as  calling  for  conclusion. 
Alton  vs.  Gre'en,  112  App.  439, 

Question  as  to  how  person  would  have  stepped  over  object  with- 
out knowing  it  was  near,  inadmissible  and  calling  for  conclusion. 

Amer.    Express   Co.   vs.    Eisley,    77    App.    476;    Burke    vs.    Wrigley, 
43  App.  367. 

Agency : 

Testimony  as  to  whether  person  was  another's  agent  is  a  mere 
conclusion. 

Gilmore  vs.  Farmer,  156  App.  70;  El.  Dev.  Co.  vs.  Iron  Works,  153 
App.  313. 

Or  as  to  whether  or  not  agent  had  authority  to  do  certain  act. 

MoNellis  vs.  Aetna  Ins.  Co.,  176  App.  575. 

Temperature : 

Testimony  that  temperature  of  house  was  cold,  is  admissible 
though  not  based  upon  thermometer. 

Dalims  vs.  Moore,   110  App.  223. 

As  to  Admissions  or  Conversations  of  Another: 

AVitnesses  should  state  facts  and  not  mere  inference  and  con- 
clusions ;  and  where  witness,  in  testifying  in  respect  to  alleged 
admissions  of  another,  if  he  be  unable  to  give  the  words,  language 
or  the  substance  of  it,  he  should  not  testify  at  all ;  the  witness  can- 
not l)e  permitted  to  give  a  mere  conclusion  of  his  own  when  the 
conversation  or  declarations  from  which  the  conclusion  is  drawn 
have  passed  from  his  mind. 

Helm  vs.  Cantrell,  59  111.  524. 

Witness  should  not  be  permitted  to  state  "his  inference  from 
what  was  said,  or  his  understanding." 

Natl.  Svrup  Co.  vs.  Carlson,  155  111.  210;   Hewitt  vs.  Clark,  91  HI. 
605. 


288  CONCLUSIONS  OF  WITNESSES 

Evidence  that  witness  "took"  certain  things  from  what  person 

said,  inadmissible. 

Bragg  vs.  Geddes,  93  111.  39. 

Understanding  between  witness  and  agent  is  mere  conclusion. 
Conversation  must  be  stated  in  words  or  substance. 
Gnibcy  vs.  Natl.  Bank,  35  App.  354. 

On  foreclosure  by  personal  representative  of  mortgagee,  where 
witness  has  testified  that  defendant  made  statement  he  was  trying 
to  borrow  a  certain  amount  to  pay  the  mortgage  indebtedness, 
defendant,  under  pretense  of  giving  liis  own  version  of  conversa- 
tion, cannot  be  permitted  to  state  his  conclusion  as  to  what  he 
considered  he  was  owing  on  the  mortgage  at  the  time,  and  thus 
indirectly  testify  as  to  alleged  payments  claimed  by  him  to  have 
been  made  to  mortgagee  before  his  death,  but  not  credited  on  the 

note. 

Telford  vs.  Howell,  220  111.  52, 

Existence  of  Road: 

When  existence  or  non-existence  of  a  public  road  is  in  issue, 
witnesses  should  not  be  permitted  to  answer  the  direct  question 
whether  there  is  or  was  a  public  highway  in  that  location. 
Drainage  Dist.  vs.  Commissioners,  199  111.  132. 

Existence  of  Street: 

In  action  against  city  for  injuries,  testimony  by  witnesses  that 
street  "was  a  public  street"  are  mere  conclusions. 

Champion  vs.  City  of  Deeatnr,  151  App.  161. 

Undue  Influence  and  Testamentary  Capacity: 

See  Wills. 
Age: 

In  contest  of  election,  witness  cannot  testify  as  to  what  the 

family  records  show  his  age  to  be. 

Kreitz  vs.  Behrensmeyer,  125  111.  141.     (See  Age.) 

Cruelty : 

In  action  for  false  imprisonment,  witness  should  not  be  per- 
mitted to  state  that  treatment  of  plaintiff  was  indecent  and  brutal. 
Kendall  vs.  Lindberg,  69  111.  355. 

Insolvency : 

A  general  offer  to  prove  insolvency  is  offer  to  prove  conclusion. 
Martin  vs.  Hertz,  224  111.  84. 

Relating  to  Personal  Injuries  Generally: 

Statement  that  there  was  plenty  of  time  to  do  a  thing  is  not  a 

mere  conclusion. 

Casey  vs.  Kelly  Co.,  240  111.  416. 

A  railroad  company  may  prove  facts  which  it  regards  as  render- 
ing the  condition  at  a  particular  crossing  reasonably  necessary 
for  the  improvement  of  its  road,  but  it  cannot  prove,  by  its  road- 
master,  the  conclusion  that  such  was  the  case,  and  that  the  use- 
fulness of  the  highway  was  not  necessarily  impaired. 
Illinois  Sonthern  Ey.  Co.  vs.  Hayer,  225  111.  613. 

Where  the  semaphore  at  a  railroad  crossing  is  torn  down  by  the 
collision  which  caused  the  death  of  plaintiff's  intestate,  witnesses 
who  passed  over  the  crossing  frequently  that  night,  may  testify 
that  the  semaphore  was  in  good  order  and  working  all  right  prior 


CONCLUSIONS  OF  WITNESSES  289 

to  the  collision,  such  testimony  being  properly  regarded  as  state- 
ment of  facts  rather  than  conclusions. 

C,  &  A.  E.  E.  Co.  vs.  Vipond,  212  111.  199. 

Where  a  witness  has  testilied  fully  as  to  what  various  servants 
of  defendant  were  doing  at  time  of  plaintiff's  injury,  the  question, 
"What  was  the  common  object  of  all  these  people,  then, — what 
were  they  aiming  to  do?"  calls  for  a  conclusion,  and  an  objection 
thereto  is  properly  sustained. 

American  Car  Co.  vs.  Hill,  226  111.  227. 

A  question  as  follows,  ''Was  it  in  plain  sight?"  does  not  call 
for  a  conclusion. 

Mygreen  vs.  Smith,  162  App.  276. 

Permitting  a  witness  to  state  that  he  believed  himself  to  be  in  a 
perilous  situation  at  time  he  discovered  defendant's  train  approach- 
ing is  not  harmful  error,  where  he  had  previously  stated  to  the 
jury  all  the  facts  within  his  knowledge,  surrounding  the  trans- 
action. 

I.  S.  Ey.  Co.  vs.  Hamill,  226  111.  88. 
Where  the  question  is  whether  a  conductor,  by  threats  or  force, 
compelled  a  passenger  to  alight  from  a  moving  train,  whereby  he 
was  injured,  it  is  not  proper  for  such  passenger  to  testify,  in  his 
own  behalf,  that  he  got  off  because  "he  was  in  danger,"  that 
being  merely  the  conclusion  of  the  witness. 

Hoelm  vs.  C.  P.  &  St.  L.  Ey.  Co.,  152  111.  223.     (See    Experiments.) 

Existence  of  Oral  Contract: 

The  proper  proof  of  an  oral  contract  should  consist  of  the 
testimony  of  witnesses  who  are  able  to  state,  either  literally  or  in 
substance,  the  language  used  by  the  parties  in  forming  their  con- 
tract, and  it  then  becomes  a  question  of  law  whether  any  con- 
tract was  formed,  and  what  are  its  terms.  The  testimony  of  a  wit- 
ness, giving  his  understanding  or  version  of  a  contract,  without 
attempting  to  state  the  language  used  by  the  parties,  in  forming  it, 
is  merely  the  testimony  as  to  legal  conclusions,  and  is  therefore 
improper,  and  can  have  no  legitimate  tendency  to  prove  what  the 
real  contract  was. 

Fisher  vs.  Green,  142  111.  80. 

Authority : 

A  question  as  to  who  had  authority  to  make  promises  or  assur- 
ances, calls  for  conclusion  and  is  improper. 

Hoffman  vs.  Tosetti  Brew.  Co.,  167  App.  291. 

As  to  Misrepresentations: 

Conclusion  of  witness  that  misrepresentations  were  made  is 
incompetent. 

Ins.  Go.  vs.  Gruner,  112  111.  68. 

As  to  Employment: 

In  action  by  attorney  for  fees,  his  conclusions  as  to  his  being 
employed  are  inadmissible ;  only  facts  relating  to  his  retainer  may 
be  stated  by  him. 

Town  of  Evans  vs.  Dickey,  117  111.  291. 
The  question  as  follows  is  incompetent  as  calling  for  a  conclu- 
sion, "AVhat  services  were  you  to  perform  for  salary  paid  you?" 
Williard  vs.  Ey.  Co.,  155  App.  410, 
Ev.— 19 


290  CONCLUSIONS  OF  WITNESSES 

Indebtedness : 

Evidence  that  party  is  indebted  is  mere  conclusion. 

Campbell  vs.  Eoss,  86  App.  356;  Hollst  vs.  Bruse,  69  App.  48. 
Testimony  of  book-keeper,  as  to  state  of  account  between  parties, 
based  on  books  of  one  only,  is  incompetent. 

Purcell  vs.  Henry,  67  App.  256. 

A  witness  is  incompetent  to  state  who  was  liable  for  a  doctor's 

bill,  as  it  is  a  question  of  law  and  not  of  fact. 
Quiiicy  G.  &  E.  Co.  vs.  Bauman,  104  App.  600. 

Fright  of  Animals: 

AVhether  or  not  a  horse  has  become  frightened  or  shows  fright 

is  a  fact  and  not  the  statement  of  a  conclusion. 
Ward  vs.  Meiidith,  220  111.  66. 

Results  of  Calculations: 

Testimony  of  book-keeper  or  accountant  is  admissible  to  show 
footing  of  column  of  figures  or  the  results  of  any  calculation  from 
a  complicated  set  of  figures  which  cannot  be  readily  carried  in  mind 
of  jury,  where  calculation  is  purely  mathematical. 

Estate  of  Smythe  vs.  Evans,  209  111.  376;  Smith  vs.  Peoria  County, 
59  111.  412;  Guarantee  Co.  vs.  M.  B.  &  L.  Co.,  57  App.  254;  Doyle 
vs.  I.  C.  E.  E  Co.,  113  App.  532. 

Value  of  Time: 

In  action  for  personal  injuries  received  by  being  struck  by  ear, 
testimony  of  plaintiff  as  to  what  his  time  was  worth,  during  period 
he  was  unable  to  work,  is  not  a  conclusion,  and  is  competent. 
Schlumbreeht  vs.  Chi.  City  Ey.  Co.,  153  App.  254. 

Profits : 

Statement  that  the  profits  of  a  sale  of  realty  are  a  certain  sum  is 
not  the  statement  of  a  mere  conclusion  but  is  proof  of  the  fact. 
Grossky  vs.  De  Voney,  179  App.  53. 

Possession : 

Question  to  a  witness  who  had  previously  rented  premises,  and 
whose  term  had  expired,  whether  he  was  in  possession  at  time  of 
expulsion  of  plaintiff,  is  properly  excluded  as  calling  for  legal  con- 
clusion, especially  if  he  had  already  detailed  the  facts  in  relation 

to  occupancy. 

Huftalin  vs.  Misner,  70  111.  55;  Cf.  Knight  vs.  Knight,  178  111.  553. 

Sewerage  Conditions: 

It  is  error  to  allow  a  witness  in  condemnation  case  to  state  that 
sewer  system  of  certain  town  was  low  and  large  enough  to  take 
care  of  sewage  from  subdivision  in  which  condemned  land  was 
located,  where  it  is  not  shown  he  made  any  investigation  or 
possessed  knowledge  qvialifying  him  to  speak. 
C.  &  M.  E.  Ey.  Co.  vs.  Mawman,  206  111.  182. 

Consent  to  Terms  of  Contract: 

AVitness  should  not  be  asked  if  the  company  employing  him  had 
ever  consented  to  be  bound  bv  the  conditions  in  a  bill  of  lading, 
111.  Match  Co.  vs.  C.  E.  L  &  P.  Ey.  Co.,  250  111.  396. 

Use  of  Partnership  Funds: 

Testimony  that  money  obtained  by  a  partner  "was  used  in  the 
firm  business"  is  not  objectionable  as  a  conclusion. 
Funk  vs.  Babbitt,   156  111.   408. 

Ability  to  Act: 

Question  put  to  motorman  who  ran  the  car,  as  to  whether  he  had 
"used  all  the  means  and  all  the  power"  he  had  to  stop  the  car,  and 


CONDONATION  291 

prevent  the  injury,  is  improper,  as  being  suggestive  and  calling  for 
conclusion  of  witness. 

Springfield  Ey.  Co.  vs.  Welsch,  155  111.  511. 
Evidence  that  person  had  opportunity  to  fasten  appliance  after 

witness  called  attention  to  approaching  storm,  is  not  a  conclusion. 
Casey  vs.  Kelly  Co.,  240  111.  416.  I 

Testimony  admissible  as  to  whether  witness  had  sufficient  time 

to  walk  certain  distance. 

0.  &  M.  By.  Co.  vs.  Brown,  49  App.  40. 

Whether  driver  could  have  stopped  team  in  time  to  avoid  col- 
lision, inadmissible. 

Brinks  Express  Co.  vs.  Kinnare,  168  111.  643. 

Question  as  to  whether  passenger  had  opportunity  to  leave  train, 
improper. 

1.  C.  R.  E.  Co.  vs.  Blye,  43  App.  612. 

Testimony  as  to  whether  deceased  could  have  gotten  off  bridge 
at  any  other  place  than  the  end  is  evidence  of  a  fact. 
Montage  vs.  C.  C.  T.  Co.,  150  App.  288, 

Condition  of  Goods: 

Testimony  that  shipment  of  potatoes  was  in  bad  condition  upon 

receipt  of  same  is  not  a  conclusion.- 

I.  C.  E.  E.  Co.  vs.  Foulks,  191  111.  57, 

Pain  and  Suffering-: 

Appearance  of  another  as  to  pain  and  suffering  may  be  stated  by 

non-expert. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Priest,  190  111.  592;  Gardner  vs.  Paulson, 

117  App.  17;  Girard  Coal  Co.  vs.  Wiggins,  52  App.  69. 

Vision : 

Testimony  as  to  how  far  object  could  be  seen  proper,  without 

witness  having  actually  measured  or  made  an  estimate. 

I,  C.  R.  E.  Co.  vs.  Swisher,  53  App.  411;  Chi.  City  Ey.  Co.  vs.  Rohl, 

118  App.  322;  XII  111.  Notes  523,  §376. 

Where  witness  was  present  at  time  of  accident,  may  state  how 

far  he  could  see,  although  no  actual  tests  were  made. 
Chi.  City  Ey.  Co.  vs.  Hagenback,  228  111.  290. 

But   question   as  to  possibility   of  motorman  seeing  passenger 
alighting  from  rear  of  car  at  night  is  improper, 
Chi.  City  Ey.  Co.  vs.  Lowitz,  119  App.  360. 

Or  whether  deceased  could  have  seen  train  had  he  looked. 
C.  N.  &  St,  P.  Ey.  Co.  vs.  O  'Sullivan,  143  111.  48. 

Hearing-: 

Testimony  that  if  signals  had  been  given,  witness  would  have 

heard  them  is  admissible. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Beard,  106  App.  486 ;  I.  C.  E.  E.  Co.  vs. 
Slater,  39  App.  69. 

But  not  whether  deceased  could  have  heard  engine  blowing  off 

steam,  where  jury  have  full  facts. 

C.  N.  &  St.  P.  Ey.  Co.  vs.  O 'Sullivan,  143  111.  48. 

Testimony  that  witnesses  did  not  hear  shouting  is  negative  iii. 

character.     Admissibility  of  such  testimony  depends  upon  circum- 

StclIlCGS 

'  Lyons  vs.  Chi,  City  Ey.  Co.,  258  111,  75. 

CONDONATION 

See  Divorce, 


292  CONDUCT 

CONDUCT 

See  Confessions. 

CONFESSIONS 

See  Accomplice. 
DEFINITIONS. 
In  General: 

A  confession  is  a  voluntary  declaration  by  a  person  charged  with 
crime,  of  his  agency  or  participation  in  the  crime,  and  not  merely 
a  declaration  or  admission  of  facts  criminating  in  their  nature 
tending  to  show  guilt. 

IMichaels  vs.  People,  208  111.  603;  Johnson  vs.  People,  197  111.  48. 
A  confession,  in  its  legal  sense,  means  an  acknowledgment  of 
guilt. 

McCann  vs.  People,  226  111.  .562. 
It  is  not  equivalent  to  statements,  declarations  or  admissions  of 
facts  criminating  in  their  nature,  or  tending  to  prove  guilt. 

McCann  vs.  People,  226  111.  562;   Michaels  vs.  People,  208  111.  603; 
Johnson  vs.  Peojile,   197  Jll.  48. 

It  is  limited  in  its  meaning  to  the  criminal  act. 
Michaels  vs.  People,  208  111.  607. 

Implied : 

An  indirect  or  implied  confession  is  one  that  may  be  inferred 

from  conduct  and  the  language  used. 
Oilman  vs.  People,  178  111.  19. 

An  admission  or  confession  may  be  implied  from  the  conduct 
of  the  party  in  remaining  silent  when  charged  with  crime,  or  witli 
complicity  therein,  or  when  the  statements  are  made  by  a  third 
person,  in  his  presence,  affecting  him,  when  the  circumstances 
afford  an  opportunity  to  act  or  speak  in  reply,  and  men  similarly 
situated  would  naturally  deny  the  imputed  guilt,  or  make  explan- 
ation of  the  statements. 

People   vs.   Tielke,   259   111.    88;    Ackcrson   vs.   People,    124   111.   563; 
Watt  vs.  People,  126  111.  9;  Gannon  vs.  People,  127  111.  507. 

Statements  incriminating  the  accused  made  in  his  presence  but 

denied  by  him,  are  not  admissible  against  him  even  though  what 

he  said  is  admitted. 

People  vs.  Pfanschmidt,  262  111.  411 ;  People  vs.  Harrison,  261  III.  517. 

So  where  defendant  hael  made  promises  to  be  on  good  behavior 
if  accompanied  by  party  to  effect  settlement,  accusations  made 
against  him  by  other  parties  and  not  denied  by  him,  are  not  com- 
petent as  admissions  of  facts,  by  reason  of  his  promise,  and  not 

being  in  a  position  to  denv. 

Slntterlv  vs.  People,  '76  111.  217. 

ADMISSIBILITY. 

General  Rule : 

The  rule  is.  a  confession  can  never  be  received  in  evidence  when 
the  person  has  been  influenced  by  any  threat  or  promise  for  the 
reason  that  the  law  cannot  measure  the  force  of  the  influence  used, 
to  decide  upon  its  effect  on  the  mind  of  the  prisoner,  and  there- 
fore excludes  it,  if  any  degree  of  influence  has  been  exerted. 
Austine  vs.  People,  51  111.  236. 


CONFESSIONS  293 

Province  of  Court: 

Admissibility  is  a  question  for  the  court,  and  in  determining  the 
question,  it  is  proper  to  hear  evidence  on  both  sides  as  to  the  cir- 
cumstances under  which  it  was  made. 
ZiK-kermau  vs.  People,  213  111.  114. 
"The  material  inquiry,  under  this  rule,  when  testimony  of  a  con- 
fession is  offered,  is  whether  it  was  obtained  by  influence  of  hope 
or  fear, — that  is  to  say,  even  though  threats  or  promises  have  been 
made,  still  if  it  satisfactorily  appear  that  the  confession  was  not 
induced  thereby,  but  voluntarily  made,  it  is  competent.     'The  evi- 
dence to  this  point  being,  in  its  nature  preliminary,  is  addressed  to 
the  judge,  who  admits  the  proof  of  the  confession  to  the  jury,  or 
rejects  it  as  he  may  or  may  not  find  it  to  have  been  drawn  from  the 
prisoner  by  the  application  of  those  motives.     This  matter  resting 
wholly  in  the  discretion  of  the  judge,  upon  all  the  circumstances 
of  the  case,  it  is  difficult  to  lay  down  particular  rules,  a  prion,  for 
the  government  of  that  discretion. '     By  the  rule  first  above  quoted, 
the  confession  becomes  incompetent  whenever  any  tiegree  of  in- 
fluence has  been  exerted,  because  the  law  presumes  it  was  prompted 
by  that  influence,  and  we  think  any  sufficient  testimony  to  rebut 
that  presumption  will  justify  the  court  in  admitting  the  testimony. 
If  there  is  sulficient  in  the  facts  and  circumstances  proven  to  show 
that  the  confession  was  freely  and  voluntarily  made,  there  can  be 
no  abuse  of  the  legal  discretion  of  the  court  in  allowing  the  con- 
fession to  be  proven  before  the  jury,  although  there  may  be  evi- 
dence of  threats  or  promises  at  the  time  it  was  made.     The  record 
in  this  case  shows  that,  before  admitting  the  evidence  to  the  jury, 
the  court  heard  (out  of  its  presence),  the  statement  of  witness  as 
to  what  took  place  between  himself  and  defendant,  just  before  the 
confession  was  made,  and  thereupon  decided  the  evicleuce  was  com- 
petent.    In  doing  so,  we  cannot  say  that  he  abused  his  discretion 
in  that  ruling.     A  significant  fact  tending  to  show  the  confession 
was  voluntarily  made  is  that  up  to  the  time,  defendant  had  not  been 
arrested,  or  even  publicly  accused  of  the  crime,  and  that  he,  of  his 
own  accord,  sought  opportunity  to  talk  with  the  witness  about  the 
loss  of  his  money,  and  manifested  no  disposition  then  or  after- 
wards, to  deny  his  guilt,  neither  is  it  now  claimed  that  what  he  said 
then  was  untrue." 

Bartley  vs.  People,  156  111.  234. 

Copies : 

AVhen  resort  is  had  to  the  examination  of  a  prisoner,  care  should 
be  taken  that  such  examination  is  taken  down  in  the  precise  words 
used  by  him,  as  the  change  of  a  word  might  change  the  character 
of  the  confession  really  made.  A  copy  made  from  memory,  after 
a  lapse  of  years,  is  inadmissible. 

Austine  vs.  People,  51  111.  236. 

In  Foreign  Language: 

Confessions  made  in  foreign  language,  written  in  English  by  a 
person  who  understood  such  language,  signed  by  the  declarants, 
after  being  translated  to  them,  are  admissible  where  declarants  do 
not  deny  confession  was  voluntarily  made,  although  they  claim 
they  were  not  correctly  transcribed  or  translated  to  them. 
People  vs.  Gukowski,  250  111.  231. 


294  CONFESSIONS 

Made  to  Detectives: 

A  confession  made  to  a  detective  is  competent. 
Needham  vs.  People,  98  111.  275. 

Voluntary  Confession: 

—  In  General:     An  extorted  confession  is  never  received. 

Brown  vs.  People,  91  111.  506;   Miller  vs.  People,  39  111.  457;   Lang- 
don  vs.  People,  133  111.  382. 

Or  one  influenced  by  any  threat  or  promise. 

Aiistine  vs.  People,  51  111.  236;  Eobinson  vs.  People,  159  111.  115. 

—  Not  FuWicIy  Accused:     Aids  confession. 

Bartley  vs.  People,  156  111.  234. 

—  When  Under  Arrest:  A  confession  made  orally  to  a  sheriff, 
after  a  written  statement  had  been  made  under  a  promise  of  im- 
munity from  prosecution,  which  had  not  been  withdrawn,  and 
which  the  accused  relied  upon,  cannot  be  admitted  against  him. 

Any  degree  of  influence  exerted  in  obtaining  a  confession,  by 
any  person  having  authority  over  the  charge  against  a  prisoner  or 
over  his  person,  will  prevent  its  use  against  him. 
Eobinson  vs.  People,  159  111.  115. 

—  Compromise:  The  w^ritten  admission  of  a  party  accused  of 
crime,  made  with  a  view  to  compromise  the  matter  with  the  injured 
party,  on  the  basis  that  he  should  not  be  prosecuted,  is  not  admis- 
sible as  evidence  on  the  indictment  for  such  offense. 

Aiistine  vs.  People,  51  111.  236. 

Whole  Must  Be  Given: 

See  Whole  of  Utterance. 
Confession  of  Facts: 

—  Similar  Ojfcnses:  Evidence  of  admissions  or  statements  of 
defendant  about  another  matter  not  in  evidence  is  not  admissible 
to  prove  charge  upon  which  he  is  being  tried. 

Anson  vs.  People,  148  111.  494;  Fox  vs.  People,  95  111.  71. 

—  Other  Offenses:  Confessions  by  the  accused  of  a  crime  other 
than  that  charged  in  the  indictment,  while  not  admissible  as  a  sub- 
stantive fact,  when  not  separal)le  from  a  competent  confession, 
may  go  to  the  jury  under  cautionary  directions  from  the  court. 

Wistrand  vs.  People,  218  111.  323;  Gore  vs.  People,  162  111.  259. 
On  trial  for  embezzlement,  a  written  confession  of  a  previous 
embezzlement  under  the  same  contract,  may  be  admitted  in  evi- 
dence if  the  only  proof  then  before  the  court  is  that  the  confession 
was  voluntary ;  and  if  the  defendant  subsequently  testifies  that  the 
confession  was  not  voluntary,  but  makes  no  motion  to  exclude  it, 
the  jury  may  consider  it  under  an  instruction  requiring  them  to 
consider  all  the  evidence  in  respect  to  it. 

Zuckerman  vs.  People,  213  111.  114. 

Deceit : 

Confessions  induced  by  the  appliance  of  hope  or  fear  are  not 
admissible  in  evidence ;  but  if  facts  are  elicited  by  such  confession, 
they  may  be  given  in  evidence.  So  where  a  witness  offered  to  render 
such  assistance  to  the  prisoner,  as  he  might  desire,  and  the  prisoner 
requested  him  to  tell  his  brother  to  write  that  letter,  and  that  he, 
the  witness,  would  then  place  the  letter  in  the  postoffice  at  a  partic- 
ular place,  and  the  witness  carried  the  message,  obtained  the  letter, 


CONFESSIONS  295 

and  instead  of  placing  it  in  the  postoffiee,  delivered  it  to  the  prose- 
cutor, and  it  was  read  in  evidence  on  the  trial,  it  was  held  that  it 
was  rightly  received  in  evidence,  and  the  fact  that  the  prisoner  was 
deceived  by  the  witness  did  not  render  it  inadmissible. 
Gates  vs.  People,  14  111.  433. 

Personal  Violence: 

Where  a  person  is  taken  from  his  house  about  midnight  by  a 
body  of  disguised  and  armed  men,  to  a  neighboring  wood,  and  there 
hung  upon  a  tree  by  the  neck,  and  when  taken  down  almost  sense- 
less, confessed  that  he  and  certain  others  committed  a  robbery,  it 
was  error  to  allow  such  confession  to  go  to  the  jury,  on  the  trial 
of  an  indictment  against  him  and  the  others  implicated  for  such 
robbery. 

Miller  vs.  People,  39  111.  457. 

Coroner's  Inquest: 

If  a  party  testifying  before  a  coroner  or  committing  magistrate 
is  actually  under  arrest,  though  it  may  be  without  warrant,  his 
testimony  is  inadmissible.  But  this  rule  applies  where  the  accused 
party  is  put  on  his  oath  and  sworn  and  examined,  not  on  his  own 
motion,  but  on  the  motion  of  the  prosecution.  Statements  made 
under  such  circumstances  may  not  only  be  unreliable,  but  inquis- 
itorial in  their  character.  AYhere  a  man  arrested  by  an  officer  with- 
out a  warrant,  upon  suspicion  of  having  committed  murder,  is 
compelled  to  answer  under  oath  as  a  witness  at  a  coroner's  inquest, 
statements  which  he  thus  makes  are  not  admissible  against  him  on 
his  trial  for  the  murder.  The  thing  prohibited  by  the  rule  is  "the 
special  interrogation  of  accused, — the  converting  him,  whether  will- 
ing or  not,  into  a  witness  against  himself;  assuming  his  guilt  before 
proof,  and  subjecting  him  to  an  interrogation  conducted  on  that 
hypothesis."  But  it  is  otherAvise  where  the  statements  made  are 
voluntary,  and  where  the  oath  taken  is  voluntary.  Where  a  pris- 
oner may  testify  on  his  own  behalf  in  all  criminal  proceedings  if 
he  desires,  his  testimony  taken  under  oath  at  the  preliminary  exam- 
ination, if  it  appears  to  have  been  freely  given,  without  compulsion 
or  promise,  is  admissible  as  a  confession. 

Lyons  vs.  People,  137  111.  602;  People  vs.  Anderson,  239  111.  168. 

Before  Grand  Jury: 

The  grand  jury  constitutes  a  part  of  the  court,  and  their  official 
acts  in  finding  true,  bills  or  ignoring  bills  are  borne  into  the  records 
of  the  court,  and  witnesses  sworn  before  that  body  are  sworn  in 
open  court,  though  not  necessarily  in  the  presence  of  the  judge. 

Boone  vs.   People,   148  HI.  440;    Samuels  vs.  People,   164  111,  379; 
Argo  vs.  People,  237  111.  173. 

Where  a  person  in  custody  is  taken  from  the  jail  before  the 
grand  jury  and  sworn  and  examined  as  to  the  very  matters  on 
which  he  is  afterwards  indicted,  the  indictment  should  be  quashed 
on  motion  of  defendant  without  any  inquiry  whether  his  testimony 
so  obtained  influenced  the  obtaining  of  the  indictment  or  not,  when 
it  does  not  appear  that  the  grand  jury  examined  any  other  wit- 
nesses as  to  his  complicity  in  the  crime  for  which  he  is  indicted. 

But  this  does  not  apply  to  one  not  then  accused  of  crime. 
Boone  vs.  People,  148  111.  440. 


296  CONFESSIONS 

Admissions  Not  Amounting-  to  Confession: 

—  In,  General:  One  charged  with  crime  may  directly  or  indi- 
rectly make  admissions  of  material  facts  tending  to  establish  liis 
guilt  or  disprove  his  defense,  but  not  amounting  to  a  confession, 

and  these  are  admissible  against  him. 
Bow  vs.  People,  160  111.  438. 

Testimony  that  one  accused  of  robbery  iiad  a  pistol  in  his  pos- 
session and  chased  the  witness  soon  after  the  robbery  and  just 
after  witness  had  been  to  the  station  for  a  warrant,  is  admissible, 

where  it  is  material  to  prove  possession  of  the  pistol  at  that  time. 
Bow  vs.  People,  160  111.  438. 

— -Conversations:     Conversations  in  w'hich  the  accused  partici- 
pated when  charged  with  the  crime  are  admissible  at  the  trial. 
Waller  vs.  People,  175  111.  221. 

Evidence  of  a  conversation  with  the  prisoner,  had  some  time 
after  he  shot  an  officer  attempting  to  arrest  him,  which  is  in  no 
correct  sense  a  part  of  the  transation  or  a  contemporaneous  ex- 
planation of  it,  is  not  admissible  on  part  of  the  defendant,  on  trial 
for  murder,  as  part  of  the  res  gestae,  to  show  the  condition  of  his 
mind. 

North  vs.  People,  139  111.  81. 

—  Flight:  Flight,  an  attempt  to  escape  after  indictment  found, 
or  before,  on  a  criminal  charge  being  preferred  against  one,  is  a 
circumstance  against  the  prisoner,  if  unexplained.  Evidence  is 
admissible  to  show  that  the  accused  gave  "straw  bail"  and  for- 
feited his  recognizance  by  voluntary  absence,  and  passed  under 
various  aliases. 

Barron  vs.  People,  73  111.  256. 

But  it  is  error  to  instruct  tlie  jury  on  trial  of  one  for  an  alleged 
crime,  that  his  flight  is  evidence  of  guilt.  It  is  only  evidence  tend- 
ing to  prove  guilt.  Nor  should  the  court  tell  the  jury  that  if  flight 
be  proved,  it  must  be  satisfactorily  explained  consistently  with  the 
innocence  of  accused.  This  might  be  understood  as  requiring  him 
to  prove  an  innocent  purpose  beyond  doubt. 
Fox  vs.  People,  95  111.  71. 

—  Resisting  Arrest:  That  accused  resisted  arrest  may  be  shown 
in  the  first  instance,  the  burden  being  upon  accused  to  show  that 
such  resistance  was  not  for  purpose  of  avoiding  arrest  and  prosecu- 
tion for  the  charge  upon  which  lie  was  being  tried. 

McKeavitt  vs.   People,  208  111.  460. 

AS  TO  JOINT  DEFENDANTS. 

A  confession  is  admissible  only  against  the  person  making  it. 
People  vs.  Anderson,  239  111.  168;  Ackerson  vs.  People,  124  111.  563. 

One  of  several  co-defendants  charged  with  a  crime  cannot  make  a 
statement  exonerating  himself  and  fastening  the  crime  upon  an- 
other co-defendant,  and  thereby  make  the  statements  admissible  on 

the  theory  that  it  was  a  confession  of  the  defendant  making  it. 
People  vs.  Anderson,   239  111.   168. 

A  confession  of  one  co-defendant  is  admissible  against  him,  but 
should  be  guarded  by  cautionary  instructions  as  to  other  co-defend- 
ants. 

People  vs.  Anderson,  239  111.  168 ;  Ackerson  vs.  People,  124  111.  563. 

A  statement  made  out  of  court  by  one  of  two  men  on  trial  for 


CONFESSIONS  297 

murder,  to  the  effect  that  he  was  present  and  saw  his  co-defendant 
do  the  shooting,  is  admissible  against  the  declarant  as  identifying 
him  as  one  of  the  persons  present  at  the  shooting ;  and  its  admission 
in  evidence  over  the  objection  of  the  co-defendant  is  not  error, 
where  the  objection  went  to  the  entire  statement  and  not  to  that 
part  only  which  tended  to  incriminate  the  co-defendant,  and  where 
the  statement  was  admitted  against  the  declarant  alone,  and  the 
jury  were  instructed  not  to  consider  it  against  his  co-defendant. 

McCann  vs.  People,  226  111.  562;  Ackersou  vs.  People,  124  111.  563. 
Several  persons,  including  one  who  was  put  on  trial  for  murder, 
while  travelling  along  the  road,  entered  an  orchard  by  the  road- 
side, when,  without  justification,  in  a  difficulty  with  the  owner  who 
had  ordered  them  to  go  out  of  his  orchard,  some  one  of  the  party, 
by  a  blow  with  a  clod,  killed  the  owner,  and  they  all  got  into  the 
wagon  and  started  towards  their  homes.  A  party  in  pursuit  of 
them,  seeking  to  have  them  arrested,  passed  the  wagon,  when  some 
one  of  them  called  out,  ' '  Hello,  good-looking  fellow, ' '  or  something 
like  that,  but  such  witness  so  addressed  could  not  say  the  defend- 
ant was  in  the  wagon  at  that  time.  It  appeared,  however,  from 
defendant's  own  testimony,  that  he  did  not  get  out  of  the  wagon 
until  after  they  reached  the  next  point  where  they  stopped.  It 
was  held  that  the  court  properly  refused  to  strike  out  the  words 
spoken  to  the  witness. 

Ritzman  vs.  People,  110  111.  362. 

WEIGHT  AND  SUFFICIENCY. 
In  General: 

The  value  of  confessions  as  evidence  depends  upon  circumstances 

under  which  they  are  made,  and  it  is  for  the  jury  to  say,  in  view 

of  such  circumstances,  what  weight  they  are  entitled  to. 
People  vs.  Gukowski,  250  111.  231. 

Partially  Discredited  Confession: 

Where  part  is  discredited,  the  wdiole  confession  loses  much  of  its 

probative  force. 

People  vs.  Hunt,  162  App.  471. 

Uncorroborated  Confession : 

Confession  of  a  party  to  an  individual  merely,  uncorroborated 

by  circumstances,  and  without  proof  aliunde  that  a  crime  has  been 

committed,  will  not  justify  a  conviction^ 
May  vs.  People,  92  111.  343. 

To  Sustain  Conviction: 

Where  the  crime  is  clearly  shown,  independent  of  admissions  or 
confessions,  to  have  been  committecl  by  some  person,  then  admis- 
sions or  confessions  freely  and  voluntarily  made  may  be  sufficient 
to  convict. 

Gore  vs.  People,  162  111.  259;  Andrews  vs.  People,  117  111.  195; 
South  vs.  People,  98  111.  261;  Yoe  vs.  People,  49  III  410;  Bergen 
vs.  People,  17  111.  427;  XI  111.  Notes  1246,   §171. 

Where  evidence  is  entirely  circumstantial  and  the  verdict  of  con- 
viction must  rest  almost  entirely  on  an  alleged  voluntary  confes- 
sion or  admission  made  by  accused  to  the  witness  under  circum- 
stances rendering  the  making  of  it  highly  improbable,  the  fact  that 
the  admission  was  made  must  be  clearly  proven  before  it  can  be 
accepted  as  the  basis  of  a  conviction. 
People  vs.  McMahon,  254  111.  62. 


298  CONFESSIONS 

A  conviction  may  be  had  upon  proof  that  a  crime  has  been  com- 
mitted as  alleged  in   the   indictment,   and   the   confession  of   the 
accused  that  he  was  the  person  who  committed  it,  although  there 
is  no  other  evidence  of  his  identity. 
Bartley  vs.  People,  156  111.  234. 

Verbal  Admissions: 

Statements  of  witnesses  as  to  verbal  admissions  of  the  accused 
should  be  received  by  the  jury  with  gi^eat  caution,  as  such  evidence 
is  subject  to  imperfection  and  mistake,  and  it  is  only  when  such 
admissions  are  deliberately  made  and  precisely  identified  that  the 

evidence  afforded  thereby  is  satisfactory. 

People  vs.  Eischo,  262  111.  596;  Marzen  vs.  People,  173  111.  43;  Bur- 
nett vs.  People,  204  111.  208. 
But  it  is  not  error  to  refuse  an  instruction  that  such  admissions 
should  be  received  with  great  caution,  which  fails  to  include  limi- 
tation unless  they  are  deliberately  made  and  fully  proven,  in  which 
event  such  evidence  is  of  the  most  satisfactory  character. 
Lipsey  vs.  People,  227  111.  364. 

Extra- Judicial : 

Extra-judicial  confessions,  when  freely  and  voluntarily  made, 

are  of  the  highest  order  of  evidence. 

Lyons   vs.   People,   137   111.   602;   Langdon  vs.   People,   133  111.   382; 
Marzen  vs.  People,  173  111.  43. 

Implied  Confessions: 

The  weight  to  be  given  to  implied  confessions  is  for  the  jury. 
People  vs.  Tielhe,  259  111.  88. 

To  Establish  Corpus  Delicti: 

Corpus  delicti  cannot  be  proven  by  extra-judicial  confessions 

alone. 

People  vs.   See,  258  111.   152;   Johnson  vs.  People,   197  111.  48;   Wil- 
liams vs.   People,   101   111.   383;    Campbell  vs.   People,   159   111.   9; 
People  vs.  Kennedy,  150  App.  571. 
Such  confessions  unsupported  by  evidence  or  circumstances  tend- 
ing to  corroborate  the  facts  contained  in  such  confession  do  not  con- 
stitute prima  facie  proof  of  the  corpus  delicti. 
People  vs.  Kennedy,  150  App.  571. 

CONFESSIONS  OF  THIRD  PERSONS. 

It  is  competent  for  the  defendant  to  show  by  any  legal  evidence 
that  another  committed  the  crime  with  which  he  is  charged. 
Carleton  vs.  People,  150  111.  181. 

One  accused  of  crime  may  prove  any  fact  or  circumstance  tend- 
ing to  show  that  the  crime  was  committed  by  another  person  than 

himself. 

People  vs.  Pezutto,  255  111.  583. 

But  this  cannot  be  shown  by  the  admissions  or  confessions  of  a 

third  person,  not  under  oath,  which  are  only  hearsay.     The  proof 

must  connect  such  third  person  with  the  fact,  that  is,  with  the 

perpetration  of  some  deed  entering  into  the  crime  itself.     There 

must  be  proof  of  such  a  train  of  facts  and  circumstances  as  tend 

clearly  to  point  to  him,  rather  than  to  the  prisoner,  as  the  guilty 

party.     Extra-judicial  statements  of  third  persons  cannot  be  proven 

by  hearsay,  unless  such  statements  were  part  of  the  res  gestae. 
Carleton  vs.  People,  150  111.  181. 

So  threats  made  by  an  unknown  person,  not  a  party  or  a  wit- 
ness to  inform  as  to  defendant  unless  paid  is  not  competent. 
People  vs.  Darr,  179  App.  130. 


CONFIDENCE  GAME  299 

CONFIDENCE  GAME 

Pleading: 

—  Indictment:     Sufficient  if  in  substantial  compliance  with  the 

statute. 

People  vs.  Clark,  256  111.  14;  People  vs.  Weil,  244  111.  176;  Graham 
vs.  People,  181  111.  477;  Maxwell  vs.  People,  158  111.  248. 

But  this  rule  is  subject  to  the  qualification  that  the  indictment 
must  either,  by  the  statutory  description  or  by  other  apt  averment, 
so  identify  the  offense  as  to  meet  the  requirements  of  the  consti- 
tution. AVhile  a  statute  cannot  dispense  with  the  statement  in  the 
indictment  of  the  essential  elements  of  the  crime  charged  against 
an  accused  person,  still  the  legislature  may  provide  that  the  prop- 
erty which  is  the  subject  of  the  crime  may  be  described  by  words 
of  general  description. 

People  vs.  Clark,  256  111.  14. 

Attempt  to  obtain  money  by,  and  obtaining  money  by,  are  sep- 
arate offenses. 

Graham  vs.  People,  181  111.  477. 

—  Bills  of  Particulars:  It  is  not  necessary  to  set  out  either 
in  the  indictment  or  bill  of  particulars  the  various  devices  and 
means  resorted  to,  to  obtain  the  confidence  of  the  prosecuting  wit- 
ness to  obtain  his  money. 

People  vs.  Weil,  244  111.  176;  DuBois  vs.  People,  200  111.  157. 

—  Variance:  If  money  is  obtained  by  means  of  the  confidence 
game,  the  offense  is  complete  without  reference  to  the  amount,  kind 
or  value.  The  word  money,  in  its  ordinary  and  established  sense 
signifies  cash  or  its  equivalent,  used  as  a  circulating  medium.  It 
is  a  generic  term  and  includes  coin,  but  is  not  confined  to  it.  It 
includes  whatever  is  lawfully  current  in  buying  and  selling. 

People  vs.  Clark,  256  111.  14. 
But  an  indictment  for  the  confidence  game  which  charges  that 
defendant  feloniously  obtained  from  a  certain  person  "$400  of 
good  and  lawful  money  of  the  United  States,"  is  not  sustained  by 
proof  of  obtaining  a  check  for  $300,  since  proof  of  obtaining  a 
check  is  fatally  variant  from  a  charge  of  obtaining  money. 

Lory  vs.  People,     229  111.  268. 

Admissibility  of  Evidence: 

—  Similar  Offenses:    Admissible  for  purpose  of  showing  guilty 

knowledge. 

People  vs.  Weil,  244  111.  176;  People  vs.  Weil,  243  111.  208;  Juretich 
vs.  People,  223  111.  484;  DuBois  vs.  People,  200  111.  157;  Morton 
vs.  People,  47  111.  468;  XII  111.  Notes  668,  §34. 

—  Uncompleted  Attempt:  Proof  that  the  defendant  had  at- 
tempted to  work  substantially  the  same  scheme  upon  another  per- 
son about  the  time  of  the  transaction  charged  in  the  indictment 
is  admissible  as  tending  to  show  criminal  intent,  notwithstanding 
the  defendants  did  not  succeed  in  such  attempt. 

People  vs.  Weil,  244  111.   176. 

—  Former  Complaints:  Evidence  by  a  postoffice  inspector  that 
about  five  years  before  the  trial,  when  defendant  was  in  the  novelty 
business  under  the  name  of  a  certain  company,  the  witness  had 
twice  investigated  a  complaint  of  the  postoffice  department  against 
such  company,  is  incompetent. 

People  vs.  Depew,  237  111.  574. 


300  CONFIDENCE  GAME 

—  ReJiunce  Upon  Statements:  Prosecuting  witness  may  testify- 
to  the  fact  that  he  believed  in  and  relied  upon  the  false  statements 
made  by  the  defendant  at  time  of  transaction. 

People  vs.  Weil,  244  lU.  176. 

—  Fictitious  Letters  and  Telegrams:  Used  in  confidence  game, 
if  complaining  witness  testify  that  same  were  shown  to  him  and 
used  by  defendants  in  furtherance  of  their  scheme,  such  letters  and 
telegrams  are  admissible  in  evidence. 

People  vs.  Faulkner,  248  111.  158. 

—  Opinion:     A  witness  called  to  prove  that  certain  bonds  traded 

by  defendant  in  a  confidence  game  prosecution  were  worthless  is 

not  competent  to  give  an  opinion  to  that  effect,  where  he  is  not 

shown  to  have  any  knowledge  whatever  of  the  particular  bonds, 

never  having  bouglit  or  sold  any  of  them,  nor  ever  seen  any ;  except 

those  in  evidence. 

People  vs.  Tiirpin,  233  111.  4o2. 

—  Contract  Legally  Binding:     Is  immaterial. 

People  vs.   Depew,   237   111.   574;    Chilson  vs.   People,   224   111.   535; 
Hughes  vs.  People,  223  111.  417. 

Weight  and  Sufficiency: 

To  justify  a  conviction,  it  is  not  sufficient  to  prove  the  defendant 
guilty  of  such  acts  and  fraudulent  practices  only  as  would  subject 
him  to  liability  in  a  civil  action  or  to  prosecution  under  some  other 
provision  of  the  criminal  code. 

Dorr  vs.  People,  228  lU.  216. 

Confidence  game  is  any  swindling  operation  in  which  advantage 
is  taken  of  the  confidence  reposed  by  the  victim  in  the  swindler, 
and  the  form  of  the  transaction  is  immaterial  if  it  is,  in  fact,  a 
swindling  operation. 

People  vs.  Depew,  237  111.  574. 

Fact  that  a  contract  entered  into  by  one  party  with  no  intention 
of  carrying  it  out,  but  for  the  purpose  of  inclucing  the  other  to 
part  with  his  money  without  adequate  consideration  is  apparently 
an  ordinary  partnership  agreement  to  carry  on  a  legitimate  busi- 
ness venture  does  not  prevent  prosecution  of  the  wrongdoer  for 
"confidence  game"  upon  the  ground  that  he  has  simply  been  guilty 
of  a  breach  of  contract. 

Chilson  vs.  People,  224  111.  535. 

Parties  who  falsely  represent  to  a  merchant  that  they  are  to  place 
a  large  order  with  him,  and  who  secure  his  confidence  in  them- 
selves and  their  intentions  by  falsely  representing  their  business 
and  financial  connections,  and  after  securing  his  confidence,  induce 
him  to  part  with  his  money  on  a  pretended  bet  on  a  horse  race,  are 
guilty  of  obtaining  money  by  means  of  confidence  game. 
People  vs.  Weil,  244  111.  176. 

Inducing  a  person  to  buy  worthless  stock  from  a  third  party,  in 
reality  a  confederate,  upon  the  false  representations  that  certain 
parties  in  a  distant  city  are  trying  to  locate  such  party  with  a  view 
to  buying  the  stock  at"  a  good  price,  which  representation  is  corro- 
borated by  bogus  telegrams  sent  by  another  confederate,  consti- 
tutes a  confidence  game. 

DuBois  vs.  People,  200  111.  157. 


CONFIDENCE  GAME  301 

Verdict  of  guilty  on  the  second  connt  of  an  indictment  contain- 
ing- two  connts  is  ecjuivalent  to  an  acquittal  on  first  count. 
People  vs.  Weil,  243  111.  208. 

Confidence  game  includes  an  advertising  scheme  whereby  the 
victim  is  led  to  part  with  his  money  in  belief  that  he  is  being  em- 
ployed in  a  legitimate  business  by  the  advertisers,  who  falsely  rep- 
resent themselves  to  be  a  legitimate  business  concern,  and  make  such 
false  displays  and  representations  as  lead  the  victim  to  repose  con- 
fidence in  their  statements,  and  in  their  alleged  business  enterprise. 
Hughes  vs.  People,  223  111.  417. 

Inducing  a  man  to  bet  on  the  top  and  bottom  of  dice,  and  taking 
his  pocket-book  and  money  from  his  pocket  for  purpose  of  betting, 
is  a  confidence  game  rather  than  a  robbery,  even  though  fear  is 
aroused  in  him  for  the  loss  of  his  money. 
VanEyck  vs.  People,  178  111.  199. 

A  conviction  cannot  be  based  upon  a  general  trade,  at  arm's 
length,  between  the  defendant  and  complaining  witness,  in  which 
they  exchanged,  at  fictitious  and  exaggerated  value,  stocks  and 
bonds  and  deeds  purporting  to  convey  lands  which  neither  had  ever 
seen,  where  both  parties  were  "traders,"  who  had  acquired  their 
property  for  trading  purposes  without  any  particular  investiga- 
tions as  to   its  value,   and  where  evidence  does  not   show   which 

party,  if  either,  was  swindled. 

People  vs.  Turpin,  233  111.  452. 

One  who  liad  no  connection  Avith  a  swindling  scheme  until  after 
other  persons  had  obtained  possession  of  victim's  bank  draft,  and 
who  was  entirely  unknown  to  the  victim  before  that  time,  cannot  be 
convicted  of  obtaining  the  draft  from  the  victim  by  means  of  con- 
fidence game,  since  in  such  case  the  element  of  confidence  being 

reposed  in  him  bv  the  victim  is  lacking. 
People  vs.  Talmage,  233  111.  560. 

The  exhiliition  of  letter  heads  of  a  firm  with  which  defendant 
is  connected,  business  cards,  a  draft,  or  a  copy  of  one,  and  the 
making  of  a  note,  payable  at  a  particular  bank,  and  the  drawing 
of  an  order  for  money,  are  means  to  inspire  the  confidence  in  the 
party's  ability  to  pay,  precisely  as  declarations  of  his  credit  and 
standing,  and  are,  at  most,  but  false  representations  of  his  solvency, 
but  do  not  make  out  a  ease  of  the  confidence  game. 

A  note  or  order  given  by  defendant,  which  is  signed  bj^  himself, 
does  not  come  within  the  meaning  of  the  words  "false  or  bogus 
checks,"  defining  the  confidence  game,  as  it  is  genuine.  Any  one 
taking  either,  does  so  upon  the  faith  of  defendant's  signature 
alone.  If  they  contain  forged  or  fictitious  writings,  signatures  or 
indorsement,  a  different  question  would  be  presented. 

Pierce  vs.  People,  81  111.  98;  See  Berkenfeld  vs.  People,  191  111.  272. 

—  Sale  of  Sfocl-:  A  sale  of  stock  in  an  undeveloped  mine  is 
not  converted  into  confidence  game  by  the  failure  of  mine  to  prove 
successful,  where  all  the  representations  of  the  vendor  as  to  the 
material  facts,  including  the  location  and  ownership  of  the  land, 
and  the  presence  of  gold  therein,  are  true,  although  his  opinion  as 
to  the  possibilities  of  the  mine  and  the  future  value  of  the  stock 
proved  to  be  greatlv  exaggerated. 
Lory  vs.  People,  229  111.  268. 


302  CONFIDENTIAL  COMMUNICATIONS 

Conviction  is  not  sustained  by  proof  that  accused  was  manager 
of  a  corporation  conducting  a  "legitimate  business,  and  that  com- 
plaining witness,  after  investigating  the  business,  bought  stock  in 
the  corporation,  and  became  district  manager  under  written  con- 
tract providing  if  he  resigned  he  should  co-operate  with  the  corpo- 
ration to  sell  his  stock  to  someone  else,  even  though  it  is  proven  he 
was  unable  to  make  the  business  pay,  and  that  accused  refused  to 
keep  his  verbal  promise  to  take  back  the  stock  and  return  the 
money  if  the  venture  was  not  successful. 
'      Dorr  vs.  People,  228  111.  21G. 


CONFIDENTIAL  COMMUNICATIONS 

See  Attorneys,  Privileged  Communications. 

CONFUSION  OF  GOODS 

Burden  of  Proof: 

The  burden  is  upon  party  confusing  his  goods  with  those  of  an- 
other, to  identify  his  own  property. 

First  Natl.  Bauk  vs.  Schween,  127  111.  573. 

And  this  principle  applies  in  matters  of  account. 
Diversy  vs.  Johnson,  93  111.  547. 

Presumption : 

Mingling  hij  Consent:     That  the  parties  intended  to  hold  the 

mass  as  tenants  in  common. 

Dole  vs.  Ohmstead,  3G  111.  150. 

CONSENT 

See  Assent. 

CONSIDERATION 

See    Assumpsit,    Parol,    Trusts,    Deeds,    Release,    Waiver, 
Parent  and  Child. 
PRESUMPTIONS  AND  BURDEN  OF  PROOF, 

Sealed  Instruments: 

Seal  imports  consideration. 

Jackson  vs.  Security  Co.,  233  111.   161;   Chi.  Sash  Mfg.   Co.  vs.  Ha- 
ven,   195    111.   474;    Evans   vs.    Edwards,   26   111.    279;    Eiippert   vs. 
Frauenkneeht,   146  App.  397;   Con.  Rapid  Trans.  Co.  vs.  O'Neill, 
25  App.  313. 
Consideration  cannot  be  impeached  in  action  at  law. 

Hartley  vs.  C.  &  A.  R.  R.  Co.,  214  111.  78;  Papke  vs.  Hammond,  192 
111.   631. 
But  release  not  under  seal  may  be  impeached  in  such  action  and 

burden  is  upon  party  alleging  failure.  . 

Jackson  vs.  Security  Co.,  233  111.  161 ;   F.  &  M.  Ins.  Co.  vs.  Cames, 
224  111.  599;  Titsworth  vs.  Hyde,  54  111.  386. 


CONSIDERATION  303 

Contract  of  Sale:  j   ; , 

The  law  presumes  the  consideration  fixed  by  the  parties  was  an 

adequate  and  reasonable  consideration. 
Ullsperger  vs.   Myers,   217  ill.  262. 

PAROL  EVIDENCE. 
Want  of  Consideration: 

—  In  General:  Where  instrument  is  non-negotiable  and  under 
seal,  and  liability  conditional,  evidence  is  not  admissible  to  show 
want  of  consideration. 

But  where  the  obligation  is  direct  and  for  a  fixed  sum,  or  for 
the  delivery  of  specific  articles  of  personal  property,  such  evidence 
is  admissible.  Negotiable  Instrument  act  does  not  apply  to  non- 
negotiable  bonds  or  one  in  which  obligation  to  pay  is  conditioned 

on  performance  of  something  by  obligee. 

Chi.  S.  &  D.  Co.  vs.  Haven,  195  111.  474;   Mann  vs.  Smyser,  76  111. 
336;  Gage  vs.  Lewis,  68  111.  604;  Turner  vs.  P.  &  S.  E.  E.  Co.,  95 
111.  134;  Friedman  vs.  Schwabacker,  69  App.  117. 
For  the  purpose  of  showing  the  failure  of  consideration,  it  may 
be  shown  by  pai-ol  evidence  that  the  consideration  expressed  in  the 
instrument  sued  on  is  not  the  real  consideration  which  induced  its 
execution,  but  that  it  was  entirely  different.     The  pases  holding 
that  parol  evidence  is  not  admissible  to  vary  a  written  contract 
have  no  application  where  a  Avant  of  consideration  or  a  partial  or 
total  failure  of  consideration  is  pleaded  in  an  action  on  the  same. 
Gage  vs.  Lewis,  68  111.  604;  G.  W.  Ins.  Co.  vs.  Eees,  29  111.  272. 
Parol  evidence  is  admissible  to  show  that  a  part  of  the  consider- 
ation of  a  lease  was  for  rent  past  due,  as  it  cannot  effect  or  impair 
the  lease  in  anv  wav,  or  varv  its  legal  effect. 
Morris  vs.  Til'lson,  81  111.  607. 
The  claim  that  when  a  contract  of  guaranty  is  under  seal,  and 
states  that  it  is  for  value  received,  it  cannot  be  successfully  con- 
tended that  there  was  no  consideration,  is  not  tenable. 
Bullen  vs.  Morrison,  98  App.  669. 

—  Specific  Performance  in  Equity:  "Equity  will  never  enforce 
an  executory  agreement  unless  there  was  an  actual  valuable  con- 
sideration, and,  unlike  the  common  law,  it  does  not  permit  a  seal  to 
supply  the  place  of  the  real  consideration.  Disregarding  mere 
form  and  looking  at  reality,  it  requires  an  actual  valuable  consider- 
ation as  essential  in  any  such  agreement  and  allows  the  want  of  it 
to  be  shown,  notwithstanding  the  seal,  in  the  enforcement  of  cove- 
nants, settlements  and  executorv  contracts  of  every  description." 

Corbett  vs.  Cronkhite,  239  111.  9;  Crandall  vs.  Willig,  166  111.  233; 
Cf.  Hedrick  vs.  Donovan,  248  111.  479. 
If  the  promisor's  agreement  to  keep  the  land  offer  open  for  a 
specified  time  is  without  consideration,  such  consideration  is  not 
supplied  by  the  fact  that  the  promisee,  before  such  offer  was  with- 
drawn, incurred  some  expenses  in  investigating  the  promisor's  land, 
since  the  fact  of  his  incurring  expense  does  not  bind  the  promisee 
to  accept  the  offer,  and  hence  does  not  preclude  the  promisor  from 

withdrawing  the  offer  before  acceptance. 
Corbett  vs.  Cronkhite,  239  111.  9. 

—  Action  at  Law:  In  an  action  at  law,  fraud  in  the  execution 
of  a  deed  may  be  given  in  evidence,  as  that  through  misreading,  or 
the  substitution  of  one  paper  for  another,  or  by  other  device  and 


304  CONSIDERATION 

trickery  the  grantor  was  induced  to  seal  it,  believing  at  the  time 
he  was  sealing  something  else,  or  the  deed  may  be  shown  to  be  a 

forgery. 

But  where  a  person  voluntarily  and  knownigly  signs  a  deed, 
although  he  do  so  in  violation  of  his  duty  and  of  the  law,  or  be  in- 
duced by  the  fraudulent  contrivances  of  others,  yet  if  it  be  such 
upon  its  face  as  will  convey  title,  it  can  only  be  impeached  and 
set  aside,  and  parol  evidence  may  be  received  for  that  purpose  in 

a  court  of  equity. 

Windett  vs.  Hurlbut,  115  111.  403. 
Fraudulent  representations  made  to  induce  the  execution  of  a 
deed  cannot  be  admitted  to  defeat  a  recovery  in  ejectment,  where 
the  representations  relate  merely  to  the  nature  or  value  of  the  land. 
Escherick  vs.  Traver,  65  111.  379. 
Fraud  is  a  good  defense  at  law  to  an  action  upon  a  sealed  in- 
strument, if  the  fraud  is  such  as  shows  that  the  party  has  been 
tricked  into  signing  an  instrument  that  he  did  not  intend  to  execute, 
but  such  defendant  cannot  show  in  an  action  at  law,  that  he  was 
induced  to  sign  by  fraudulent  representations  as  to  collateral  mat- 
ters, or  as  to  the  nature  and  value  of  the  consideration. 

Fowler  Cycle  Works  vs.  Frazer,  110  App.  126;  Kesser  vs.  Corwin,  72 

App.   625;    Friedman   vs.   Sohwabacker,   69  App.   117;   Johnson  vs. 

Wilson,  33  App.  639. 

—  Particular  Instruments:     In  an  action  between  the  parties 

upon  the  covenants  of  a  deed,  the  actual  consideration  may  be 

shown. 

Lloyd  vs.  Sandusky,  203  111.  621. 
And  tliat  the  consideration  expressed  in  the  deed  was  more  than 
the  consideration  actually  paid. 

Howell  vs.  Mores,  127  111.  67;  Ludeke  vs.  Sutherland,  87  111.  481. 

Or  applied  to  only  a  part  of  the  land  described. 

Sidlers  vs.  Eiley,  22  111.  110;  Kinzie  vs.  Penrose,  3  111.  515. 
So  in  an  action  for  breach  of  covenant  of  seizin  upon  tlie  ground 
that  the  title  to  the  soil  and  to  the  minerals  had  been  severed,  and 
the  latter  sold  to  another,  it  is  competent  to  show  in  defense  that 
the  grantee  purchased  with  knowledge  of  such  severance,  and  that 
the  consideration  paid  was  merely  for  the  surface. 
Lloyd  vs.  Sandusky,  203  111.  621. 
A  deed  absolute  on  its  face  may  be  shown  by  parol  to  be  a  mort- 
gage.    The  burden  of  proof  is  upon  the  person  asserting  such  fact, 
and  before  a  deed  absolute  in  form  can  be  declared  a  mortgage,  the 
proof  showing  that  fact  must  be  clear,  satisfactory  and  convincing. 
Rankin  vs.   Eankln,   216  111.   132;   Heaton  vs.   Gaines,   198   111.   479; 
Burgett  vs.  Oslwrn,  172  111.  227;  Bentley  vs.  O'Brien,  111  111.  53; 
XIII  111.  Notes  601,  §  31. 
Parol  evidence  is  admissible  to  show  the  true  consideration  of  a 
deed,  although  it  may  be  different  from  that  named  in  the  instru- 
ment. 

Worrell  vs.  Forsythe,  141  111.  22. 

The  formal  clause  in  a  deed  reciting  the  consideration  is  always 

open  to  explanation,  and  such  recital  does  not  waive  or  destroy  the 

vendor's  lien,  but  it  is  only  prima  facie  evidence  of  payment.     The 

fact  of  non-payment  of  all  the  purchase  money  may  be  shown,  and 


CONSIDERATION  305 

when  such  fact  appears,  a  lien  may  be  declared  notwithstanding 
the  formal  receipt  for  the  consideration. 

The  recital  of  a  consideration  in  a  deed  is  not  conclusive  upon 
either  party,  and  it  may  be  shown  by  parol  what  the  true  amount 
of  the  consideration  is  and  how  it  is  to  be  paid. 
Koch  vs.  Eoth,  150  111.  212. 

A  deed,  by  expressing-  the  consideration,  does  not  necessarily  im- 
port that  such  sum  is  to  be  paid  by  the  grantee  to  the  grantor  in 
any  event,  so  as  to  fix  an  indebtedness  independent  of  a  contempo- 
raneous agreement  of  the  parties  fixing  the  mode  of  payment  and 
determining  the  amount  which  shall  ultimately  be  paid.  It  is  com- 
petent for  the  parties  to  agree  upon  a  different  consideration,  or 
to  agree  that  the  consideration  recited  in  the  deed  shall  be  pay- 
able only  conditionally,  and  if  they  do  so,  and  reduce  their  contract 
to  Avriting.  the  same  conclusive  presumptions  will  arise  as  in  other 
cases, — that  all  the  terms  of  their  contract  are  embodied  in  the 
writing. 

Fort  vs.  Eichie.  128  111.  502. 

The  recitals  in  a  deed  for  land,  as  to  the  consideration  and  its 
payment,  are  not  conclusive  upon  either  party,  but  are  open  to 
explanation,  and  it  is  competent  to  show  by  parol  evidence  that  the 
sum  named  in  the  deed  was  not  a  true  amount  of  the  consideration, 
and  that  only  a  part  of  it  was  in  fact  paid,  notwithstanding  the 
recital  of  full  payment. 

Primm  vs.  Legg,  67  111.  500;  Booth  vs.  Haynes,  54  111.  363;  Sidders 
vs.  Eiley,  22  111.  110;  Elder  vs.  Hood,  38  111.  533;  Van  Sickle  vs. 
Harnieyer,  172  App.  218. 

Evidence  in  regard  to  what  constituted  the  consideration  and 
that  the  amount  of  incumbrances  were  included  in  and  formed  a 
part  of  the  consideration  is  competent,  under  the  rule  which  per- 
mits parol  evidence  upon  such  subject  of  the  consideration  of  a 
deed,  on  bill  to  set  aside  deed. 

Drury  vs.  Holden,  121  111.  130;  Stone  vs.  Diivall,  77  111.  475. 

—  Rendering  Deed  KuU:  Acknowledgment  of  payment  of  con- 
sideration in  deed  cannot  be  contradicted  by  parol  for  the  purpose 
of  wholly  invalidating  the  deed  or  impairing  its  legal  effect  as  a 

conveyance.  , 

Abermathe  vs.  Eich,  256  111.  166;  Gillespie  vs.  Fulton  Oil  Co.,  236 
111.  188;  Poe  vs.  Uhlrev,  233  111.  56;  Standard  vs.  A.  E.  &  C.  Co., 
220  111.  469;  Sterricker  vs.  MeBride,  157  III.  70;  Morris  vs.  Til- 
son,  81  111.  607:  AVindett  vs.  Hurlhnt,  115  111.  403;  Esclieriek  vs. 
Traver,  65  111.  379. 

But  partv  may  show^  bv  parol  that  consideration  had  failed. 
Eussell  vs.  Eobbins,'247  111.  510. 

But  a  failure  of  consideration  for  an  executed  conveyance  of  real 

estate  gives  the  grantor  no  right  at  law  to  avoid  his  conveyance. 
Kronnieyer  vs.  Buck,  258  111.  586. 

Where  no  consideration  is  shown  in  a  deed  of  bargain  and  sale, 
extrinsic  evidence  is  admissible  to  show  consideration. 
Eedmond  vs.  Cass,  226  111.  120. 

MARRIAGE. 

Is  a  sufficient  consideration  to  support  a  conveyance  of  land  or 

marriage  settlement. 

Jackson  vs.  Jackson,  222  111.  46;   Hursen  vs.  Hursen,  212  111.   377; 
Otis  vs.  Spencer,  102  111.  622. 
Ev.— 20 


306  CONSPIRACY 

DEED  AS  EVIDENCE. 

Recital  of  consideration  in  a  deed  may,  as  between  the  parties 
to  it,  be  admissible  in  evidence  as  tending  to  show  amount  paid,  but 
is  not  conclusive  between  them.  As  to  strangers,  however,  such 
recital  is  merely  an  ex  parte  statement  of  parties  to  deed,  at  most 
an  admission  between  the  parties,  and  therefore  is  hearsay  as  against 
a  stranger. 

Spohr  vs.  City  of  Chicago,  206  111.  441;  City  of  Chicago  vs.  Lonergan, 
196  111.  518;  O'Hare  vs.  C.  M.  &  N.  Ry.  Co.,  139  111.  151. 

Admissible  as  an  admission  of  grantor,  in  action  for  injury  to 
real  estate,  where  sale  was  made  since  injury. 
Sanitary  Dist.  vs.  Pearce,  110  App.  592. 
But  held  inadmissi])le  in  action  by  broker  for  commission. 

HoUinger  vs.  Phillips,  140  App.  317. 

ACTION  ON  CONTRACT. 

In  action  at  law  on  contract,  not  a  negotiable  instrument,  it  is 

essential  that  a  consideration  be  shown.     Unless  such  consideration 

be  shown,  such  instrument  is  not  admissible  in  evidence. 
Workman  vs.  Workman,  168  App.  627. 


CONSPIRACY 

NATURE  AND  ELEMENTS  OF  CRIME. 
In  General: 

A  conspiracy  to  do  an  unlawful  act  by  any  means,  or  to  do  any 
act  bv  unlawful  means,  is  an  indictable  offense  in  this  state. 
Smith  vs.  People,  25  111.  17. 

A  conspiracy  may  be  regarded  as  a  combination  of  two  or  more 
persons,  by  concerted  action,  to  accomplish  a  criminal  or  unlawful 
purpose,  or  a  purpose,  not  in  itself  criminal,  by  unlawful  or  crim- 
inal means. 

Heaps  vs.  Dunham,  95  111.  583. 

There  may  be  a  conspiracy  to  obtain  the  money  of  another  by 
false  pretenses,  although  the  accomplishment  of  the  object  of  the 

conspiracy  may  be  impossible. 

Ochs  vs.  People,   124  111.  399. 
If  several  persons  conspire  to  do  an  unlawful  act,  then  in  con- 
templation of  law,  whatever  act  any  one  of  them  does  in  furtherance 
of  the  original  design,  is  the  act  of  all  and  all  are  equally  guilty  of 

whatever  crime  is  committed. 

McMahon  vs.  People,  189  111.  222;  Spies  vs.  People,  122  111.  1; 
Hanna  vs.  People,  86  111.  243;  Brennan  vs.  People,  15  111.  511; 
XI  111.  Notes  900,  §  26. 

The  Agreement: 

Conspiracy  as  a  criminal  offense  is  complete  when  the  agree- 
ment to  do  the  unlawful  act  in  question  is  entered  into. 
C.  &  W.  Coal  Co.  vs.  People,  114  App.  75. 

An  agreement  or  combination  need  not  be  evidenced  by  a  writ- 
ing.    It  may  be  a  verbal  agreement  or  undertaking  or  a  scheme 

evidenced  by  actions  of  the  parties. 

Franklin  Union  vs.  People,  220  111.  355. 

Gist  of  the  Offense: 

The  gist  of  the  crime  of  conspiracy  to  confederate  or  agree  to 
accomplish  an  unlawful  purpose  is  the  agreement  to  do  the  illegal 


CONSPIRACY  307 

act  and  not  the  means  agreed  to  be  used  to  carry  out  the  unlawful 
agreement.  The  latter,  of  itself,  is  a  separate  and  distinct  oti'ense 
from  the  former. 

O'Donnell  vs.  People,  110  App.  250;  Johnson  vs.  People,  124  App. 
213. 

Where  an  indictment  sufficiently  charges  the  offense,  and  it  suffi- 
ciently appears  from  the  evidence  that  the  defendants  were  acting 
in  concert,  the  fact  that  they  did  not  succeed  in  accomplishing  their 
purpose  does  not  affect  the  question.  Conspiracy  to  do  a  thing, 
and  an  effort  made  to  carry  out  a  common  purpose  may  be  suffi- 
cient to  constitute  a  charge  of  conspiracy,  it  not  being  necessary  for 

the  conspirators  to  succeed  in  their  design. 
Medley  vs.  People,  49  App.  218. 

ADMISSIBILITY  OF  EVIDENCE. 
In  General: 

In  prosecution  for  conspiracy  to  induce  witnesses  in  a  criminal 
case  to  leave  the  jurisdiction  of  court,  the  guilt  or  innocence  of  the 
person,  at  whose  trial  the  witnesses  would  have  testified,  is  im- 
material. 

Tedford  vs.  People,  219  111.  23. 

Evidence  tending  to  show  the  relation  of  the  parties,  the  purpose 
of  the  combination,  the  preliminary  steps  taken  to  effect  that  pur- 
pose, even  before  the  object  be  effected,  is  certainly  ascertained,  is 
admissible  to  establish  a  conspiracy. 
People  vs.  Smith,  147  App.  146. 

Overt  Acts: 

While  it  is  more  desirable  to  show  an  intimacy  between  the 
defendants  charged  with  conspiring,  and  private  meetings  and  con- 
sultations, it  is  not  necessary  to  do  so  in  order  to  admit  proof  of 
the  overt  acts  of  each  of  the  defendants,  as  the  jury  may  imply  the 
conspiracy  from  such  overt  acts. 
Ochs  vs.  People,  124  111.  399. 

Documentary : 

Books  kept  by  an  incorporated  bank  are  not  the  individual 
property  of  the  officers  thereof,  who  are  charged  as  individuals 
with  conspiracy,  and  such  books  are  therefore  competent  to  be  used 
upon  the  prosecution. 

People  vs.  Smith,  144  App.  129;  Affd.,  239  111.  91. 

In  action  for  conspiracy  to  defame  by  publication  of  alleged 
libelous  circulars,  police  court  records  of  an  indictment  of  defend- 
ant for  disorderly  conduct  and  circuit  court  indictment  for  libel 
inadmissible. 

People  vs.  Landis,  151  App.  181. 

Upon  trial  for  conspiracy  to  defraud  the  county  of  money  by 
means  of  padded  pay-rolls,  books  of  a  bank  are  admissible  to  show 
that  the  proceeds  of  warrants  issued  to  fictitious  persons  reached 
the  private  account  of  the  accused,  where  the  deposit  slips  and  books 
were  identified  by  the  cashier  of  the  bank,  who  testified  that  the 
entries  were  made  in  the  usual  course  of  business,  although  they 
were  not  made  by  him  personally,  but  by  other  clerks,  who,  since 
the  bank  ceased  to  exist,  had  moved  to  different  places,  some  of  them 

to  other  states. 

Cook  vs.  People,  231  111.  9. 


308  CONSPIRACY 

To  Show  Motive: 

Evidence  tending  to  sliow  a  motive  is  competent  on  an  indict- 
ment for  conspiracy. 

Sullivan  vs.  People,  108  App.  328. 

Other  Offenses: 

In  prosecution  for  conspiracy,  evidence  of  other  offenses  against 
other  persons  is  inadmissible  unless  they  form  a  part  of  the  res 
gestae  or  both  are  part  of  one  system,  or  the  one  tends  to  show  a 
scienter  in  the  other. 

MeDouald  vs.  People,  126  111.  150;  Johnson  vs.  People,  124  App. 
213;  Town  vs.  People,  89  App.  258;  Cf.  People  vs.  Warfield,  172 
App.  1.  _ 

Whenever  in  a  conspiracy  or  other  similar  case  it  is  necessary  to 
prove  a  particular  intent,  and  the  evidence  in  regard  to  the  crime 
charged  tends  to  show  two  intents  as  to  one  or  more  of  the  defend- 
ants, one  intent  being  an  innocent  or  other  intent  than  the  one 
charged,  and  the  other  intent  being  the  corrupt  intent  charged, 
evidence  of  other  similar  offenses  is  admissible  as  to  such  defend- 
ants for  the  sole  purpose  of  proving  such  corrupt  intent,  if  such 
evidence  tend  to  prove  such  intent. 
People  vs.  Pouchot,  174  App.  1. 

Acts  and  Declarations: 

—  In  Gineral:  Where  several  persons  have  conspired  together 
to  commit  an  unlawful  act  or  to  commit  an  act,  although  not  un- 
lawful in  itself,  by  means  which  are  unlawful,  the  acts  and  declar- 
ations of  the  members  of  the  conspiracy  done  or  made  during  the 
existence  of  the  conspiracy,  and  in  furtherance  of  its  objects,  are 
original  evidence  against  all  the  others. 

People  vs.  Nail,  242  111.  284;  Grafe  vs.  People,  208  111.  312;  Van- 
Eych  vs.  People,  178  111.  199;  Cook  vs.  People,  231  111.  9;  Spies  vs. 
People,  122  111.  1;  Oehs  vs.  People,  124  111.  399;  Wilson  vs.  Peo- 
ple, 94  111.  299 ;  XI  111.  Notes  903,  §  49. 

The  statement  of  a  party,  made  at  the  time  of  doing  an  act,  may 
be  shown  in  connection  with,  and  as  part  of  the  act.  So  wliere  a 
party  claiming  to  have  deposited  a  sum  of  money  in  a  bank  to  the 
credit  of  a  third  party,  a  clerk  of  the  bank  who  had  testified  that  no 
money  had  been  deposited  to  the  credit  of  such  part.y,  was  asked, 
on  cross  examination,  whether,  at  or  about  the  time  in  question  a 
deposit  had  been  made,  and  having  answered  in  the  affirmative,  he 
was  then  asked,  "What  was  said  at  the  time  by  the  party  making 
the  deposit,"  which  was  held  admissible,  and  an  objection  to  same 
properly  overruled. 

Medley  vs.  People,  49  App.  218, 

A  written  statement  relating  to  the  value  of  goods  destroyed  by 
fire,  made  by  one  of  the  co-defendants  in  a  conspiracy  case  at  the 
instigation   of   another   in   furtherance   of  a   common   purpose   to 
defraud  an  insurance  company,  is  admissible  in  evidence. 
Grafe  vs.  People,  208  111.  312. 

A  declaration  of  a  co-defendant  not  prosecuted,  is  admissible 

with  those  of  one  prosecuted. 

People  vs.  Smith,  144  App.  130 ;  Affd.,  239  111.  91. 

If  the  fact  of  a  conspiracy  between  several  persons  is  proven, 

everything  said  or  done  by  either  of  the  conspirators  in  furtherance 


CONSPIRACY  309 

of  the  conspiracy  is  admissible  against  the  others  whether  present 

at  the  time  or  not. 

Kaymund  vs.   People,   226   111.   433;    Samuels  vs.   Baule,   234   111.   9; 
Lasher   vs.   Littell,   202   111.   551;    Frauklin  Union   vs.   People,   220 
111.  355;  C.  E.  I.  P.  By.  Co.  vs.  Collins,  56  111.  212. 
So  where  conspiracy  established  declarations  and  admissions  of 
co-tenant,  joint  defendant  are  admissible. 
Cohen  vs.  Friednian,  259  111.  416. 
Before  a  conspiracy  is  established,  admissions  and  declarations 
must  be  confined  to  the  person  who  made  them,  upon  objection  by 

the  defendant. 

Beeler  vs.  Webb,  113  111.  436. 

A  conspiracy  can  not  be  proved  by  showing  acts  of  the  alleged 
conspirators   done   separately,   but  the   conspiracy   itself  must   be 
shown  as  an  independent  fact,  before  the  acts  of  one  conspirator 
are  admissible  against  the  other  for  any  purpose. 
Shields  vs.  McKee,  11  App.  188. 

"Whether  the  acts  and  declarations  of  one  of  several  alleged  con- 
spirators shall  be  allowed  to  be  proven  before  proof  is  made  of  the 
conspiracy  or  of  the  connection  of  those  sought  to  be  charged  is 
largely  discretionary  with  the  trial  judge. 

The  proof  of  conspiracy  whicli  will  authorize  the  introduction  of 
evidence  as  to  acts  and  declarations  of  the  co-conspirators  may  be 
proof  only  as  is  sufficient  to  establish  prima  facie  fact  of  conspiracy. 
Spies  vs.  People,  122  111.  1. 

—  Time  and  Extent  of — Generally:  The  declarations  or  state- 
ments of  one  party  shown  to  have  been  connected  with  another  to 
do  an  unlawful  act,  to  be  admissible  in  evidence  against  such  other 
party  must  not  only  have  been  made  during  the  pendency  of  the 
criminal  enterprise,  but  also  in  furtherance  of  its  objects.  A  mere 
narrative  to  a  stranger,  even  when  related  during  the  pendency  of 
the  criminal  enterprise,  but  of  a  past  event  or  occurrence  is  as 
objectionable  as  if  related  after  such  enterprise  had  terminated. 
It  is  no  part  of  the  res  gestae,  and  is  inadmissible  as  against  his 

associate,  who  is  alone  upon  trial. 

Samples  vs.  People,  121  111.  547;  McCann  vs.  People,  247  111.  130. 

The  fact  that  the  acts  and  declarations  covered  a  period  of  years 

is  immaterial. 

Spies  vs.  People,  122  111.  1. 

—  Before  Conspiraey  Formed:  Declarations  in  respect  to  the 
proposed  unlawful  act,  made  by  one  of  the  parties  before  the  con- 
spiracy was  entered  into,  will  not  be  competent  evidence  against 
the  other  persons  who  subsequently  joined  in  the  conspiraey  to  do 
the  threatened  act.  Though,  in  this  case,  the  admission  of  such 
declarations  against  a  subsequent  co-conspirator  was  held  not 
ground  for  reversal,  as  the  evidence  could  have  done  no  harm, 
under  the  circumstances  of  the  case,  to  the  party  against  whom 

they  were  admitted. 

Wilson  vs.  People,  94  111.  299. 

—  After  Conspiraey  Formed:  Acts  and  declarations  of  mem- 
bers of  a  supposed  conspiracy  are  not  admissible  if  made  after  the 

conspiracv  is  at  an  end. 

Spies  vs.  People,  122  111.  1. 
Except  as  to  party  making  the  declarations. 
People  vs.  Darr,  179  App.  130. 


310  CONSPIRACY 

Where  several  persons  have  conspired  together  to  do  an  unlawful 
act,  the  declarations  of  one  of  them  in  respect  to  tlie  subject  matter 
of  the  conspiracy,  made  after  the  conspiracy  has  been  formed,  are 
admissible  in  evidence  against  his  co-conspirators. 

Wilson  vs.  People,  94  ill.  299;  People  vs.  Coiniois,  253  111.  206. 

—  In  Presence  of  Accused:  A  conversation,  to  be  admissible, 
need  not  have  taken  place  in  presence  of  some  one  of  the  parties 
jointly  indicated,  as  long  as  the  conversation  was  in  furtherance 
of  the  common  design,  by  one  engaged  in  the  conspiracy,  whether 
named  in  the  indictment  or  not. 

Graff  vs.  People,  208  111.  312, 
The  exclamations  of  one  of  several  persons  who  are  doing  an  un- 
lawful act  are  competent. 

Eitzman  vs.  People,  110  111.  362. 

—  As  Binding  On  All:  If  a  conspiracy  or  understanding  is 
established,  the  incriminating  statements  of  one  are  admissible 
against  all,  but  if  no  conspiracy  or  understanding  is  shown,  such 
statements  are  admissible  only  against  the  person  making  them. 

People  vs.  Barkas,  255  Hi.  516. 
To  bind  all  by  the  incriminating  statements  of  one,  upon  the 
theory  that   it  was  made  in   the  presence  of  all,   proof  must  be 
made   of  who   of   the   defendants   were   present  when   the   state- 
ment was  made. 

People  vs.  Barkas,  235  111.  516. 
Once  there  has  been  shown  facts  evidencing  the  existence  of  a 
conspiracy,    all   the    acts    and    conversations   of   any    one    co-con- 
spirator are  admissible  against  all. 

People  vs.  Smith,  147  App.  146. 

WEIGHT  AND  SUFFICIENCY  OF  EVIDENCE. 

Conspiracy  is  not  necessarily  required  to  be  established  by 
direct  testimony.  Schemes  devised  secretly,  usually  rest  in  the 
knowledge  of  the  conspirators  alone,  and  conspiracy  may  be  suf- 
ficiently established  by  acts  of  the  parties  and  surrounding  cir- 
cumstances. 

Buinham  vs.  Eoth,  244  111.  344;  Christensen  vs.  People,  114  App.  40. 

Conspiracy  is  necessarily  proven  by  circumstances,  and  when 
the  circumstances  are  such  that  no  other  conclusion  could  rea- 
sonably be  drawn  from  them  but  that  such  conspiracy  existed, 

it  is  sufficient. 

People  vs.  Straueh,  144  App.  283. 
When  in  furtherance   of  a   conspiracy   a  bomb   is  thrown,   the 
identity  of  the.  thrower  is  sufficiently  shown  if  it  appear  he  be- 
longs to  the  conspiracy,   though  name   and  personal   description 

is  not  known. 

Spies  vs.  People,  122  111.  1. 

—  Circumstantial:  A  conspiracy  may  be  proven  by  direct  evi- 
dence or  established  by  proof  of  circumstances  from  which  its  ex- 
istence may  be  inferred. 

Tedford  vs.  People,  219  111.  23;   Ochs  vs.  People,  124  111.  399;   Peo- 
ple vs.  Poiieliat,  174  App.  1 ;  People  vs.  Darr,  179  App.  130. 

—  Cmnmon  Design:  Though  the  common  design  is  of  the  es- 
sence of  the  charge  of  conspiracy,  it  is  not  necessary  to  prove  that 
the  defendants  came  together  and  actually  agreed,  in  terms,  to 
have  that  design,  and  pursue  it  by  a  common  means.    If  it  be  proven 


CONSPIRACY  311 

that  the  defendants  pursued,  by  their  acts,  the  same  object,  often 
by  the  same  means,  one  performing  one  part  and  another  execut- 
ing another  part  of  the  same,  so  as  to  complete  it,  with  a  view  to 
the  attainment  of  the  same  object,  the  jury  may  be  justified  in  tlie 
conchision  that  they  were  engaged  in  a  conspiracy  to  effect  that 

object. 

Oclis  vs.  People,  124  ill.  399. 

—  3Iore  Than  One  Person:  There  must  be  more  than  one  per- 
son shown  to  be  guilty. 

Evans  vs.  People,  90  111.  384;  Johnson  vs.  People,  124  App.  213. 

—  Intent:  It  needs  something  more  than  a  proof  of  a  mere 
passive  cognizance  of  fraudulent  acts  or  illegal  action  of  others 
to  sustain  a  conspiracy.     There  must  be  something  showing  active 

participation  of  some  kind  by  the  parties  charged. 

Evans  vs.  People,  90  111. '384;   0 'Donnell  vs.  People,  110  App,  250; 
Johnson  vs.   People,   124  App.   213. 

DEGREE  AND  BURDEN  OF  PROOF. 

Conspiracy  alleged  must  be  shown  by  clear  and  satisfactory  evi- 

dence. 

Evans  vs.  People,  90  111.  384. 
Burden  of  proof  is  upon  prosecution  to  prove  conspiracy  al- 
leged beyond  a  reasonable  doubt. 

Johnson  vs.  People,  124  App.  213. 

PLEADING  AND  PROOF. 
Indictment : 

An  indictment  charging  a  conspiracy  to  do  an  unlawful  act, 

such  as  to  obtain  money  from  a  bank  by  false  pretenses,  need 

not  set  out  the  means  by  which  the  conspiracy  was  to  be  carried 

into  effect. 

People  vs.  Nail,  242  111.  284. 

It  is  sufficient  to  frame  an  indictment  in  the  words  of  the 
statute  in  all  cases  where  the  statute  so  far  individuates  the  of- 
fense that  the  offender  has  proper  notice,  from  the  mere  adoption 
of  the  statutory  terms,  what  the  offense  he  is  to  be  tried  for  really 
is. 

It  is  no  more  allowable,  under  a  statutory  charge,  to  put  a  de- 
fendant on  trial  without  a  specification  of  the   offense,   than  it 
would  be  under  a  common  law  charge. 
Towne  vs.  People,  89  App.  258. 

Where  the  conspiracy  is  to  do  an  unlawful  act,  it  is  not  neces- 
saiy  to  set  out  the  means  used,  in  the  indictment,  but  when  it  is 
to  do  a  lawful  act  by  unlawful  means,  those  means  must  be  shown. 
Smith  vs.  People,  25  III.  17. 

—  Variance:  It  is  not  a  material  variance  that  the  proof  of  the 
common  design  shows  it  to  have  taken  place  at  a  place  other  than 
the  original  chosen.  So,  if  there  is  a  conspiracy  to  kill  a  police- 
man at  a  station  house,  but  the  agents  of  the  conspiracy  kill  the 
policeman  at  a  short  distance  away  from  it,  there  is  no  such 
departure  from  the  original  design  as  to  relieve  the  conspirators 
from  the  responsibility.  A  plan  for  the  perpetration  of  a  crime, 
or  for  the  accomplishment  of  any  action,  whether  worthy  or  un- 
worthy, cannot  always  be  executed  in  exact  accordance  with  the 


312  CONTEMPTS 

original  conception.     It  must  suffer  some  change  or  modification 

in  order  to  meet  emergencies  or  unforeseen  contingencies. 
Spies  vs.  People,  122  111.   1. 

False  bookkeeping  and  false  reports  to  conceal  an  embezzle- 
ment will  not  support  a  charge  of  conspiracy  to  ol)tain  inouey  by 

false  pretenses. 

Watsou  vs.  People,  27  App.  493. 

A  conviction  under  an  indictment  for  conspiracy  to  defraud  a 
named  person  of  his  money  by  writing  worthless  insurance  poli- 
cies, is  not  sustained  by  proof  that  the  defendants  conspired  to 
defraud  the  public  generally,  by  such  means ;  that  they  never 
knew  the  person  named  in  the  indictment  until  he  took  out  his 
policy,  and  that  such  person  had  sustained  no  loss,  although  some 
others  who  had  taken  out  policies  with  the  defendants  sustained 
losses  which  were  not  paid. 

Lowell  vs.  People,  229  111.  227. 

In  order  to  sustain  a  conviction  for  conspiracy,  the  object  of 
the  conspiracy  must  be  proved  as  laid  in  the  indictment. 

Evans" vs.  People,  90  111.  384;  Johnson  vs.  People,  124  App.  213. 

An  allegation  in  an  indictment  for  a  conspiracy  describing  a 
report  as  sworn  to  by  the  secretary  of  a  building  and  loan  asso- 
ciation on  a  certain  day,  is  not  sustained  by  the  introduction  of  a 
report  sworn  to  on  a  later  date. 

Towne  vs.  People,  89  App.  258. 

A  conspiracy  to  do  bodily  injury  to  certain  persons  and  a 
conspiracy  to  prevent  certain  persons  by  unlawful  means  from 
being  employed  by  certain  corporations,  are  separate  and  dis- 
tinct offenses,  where  defined  by  separate  sections  of  the  criminal 
code  and  subject  to  different  punishments. 
Jolmsnn  vs.  People,  124  App.  213. 

Bill  of  Particulars: 

A  person  indicted  for  conspiracy  is  entitled,  upon  proper  appli- 
cation, to  a  bill  of  particulars. 

Towne  vs.  People,  89  App.  258. 
Where  indictment  is  general,  court  may  require  bill  of  particu- 
lars to  be  furnished,  and  when  furnished,  evidence  is  limited  to 
matters  stated  in  bill. 

McDonald  vs.  People,  126  111.  150. 


CONTEMPTS 

DEFINED. 
In  General: 

Contempts  are  either  direct,  such  as  are  offered  to  the  court  while 
sitting  as  such,  and  in  its  presence ;  or  constructive,  but  tending 
to  obstruct,  embarrass  or  prevent  the  due  administration  of  jus- 
tice. 

O'Neill  vs.  People,  113  App.  195. 

Civil: 

When  a  person  fail  or  refuses  to  do  something  which  he  has 
been  ordered  to  do  for  the  benefit  of  the  opposite  party,  and  he 


CONTEMPTS  313 

is   punished   therefor,    either   by    imprisonment   or   fine,    the    con- 
tempt is  civil. 

Powers  vs.  People,  114  App.  323;   Christenson  vs.  People,  114  App. 
40. 

Criminal : 

A  criminal  contempt  embraces  all  things  committed  against  the 

majesty  of  the  law,  and  the  primary  purpose  of  their  punishment 

is  the  vindication  of  public  authority. 

Powers  vs.  People,  114  App.  323;   People  vs.  Diedricli,  141  111.  665. 

JURISDICTION. 

A  party  is  not  guilty  of  contempt  in  disobeying  an  order  of  a 
court  which  is  without  its  jurisdictou. 

People  vs.  Weigley,   155   111.   491;    Lepold  vs.   People,   140  111.   552; 
Snyder  vs.  Powell,  133  App.  393;  Early  vs.  People,  117  App.  G08; 
XI  111.  Notes  935,   §5. 
Party  may  be  punished  though  order  is  erroneous. 

Swed.  Amer.  Tel.  Co.  vs.  Casualty  Co.,  208  111.  562;  Butler  vs.  Champ- 
lin,   124  App.  29;   Tolman  vs.  Jones,  114  111.  147. 

INDICTABLE  OFFENSE. 

The  fact  that  an  act  may  be  indictable  or  punishable  in  some 

other  manner  does  not  deprive  the  court  of  power  to  punish  it  as 

a  contempt. 

«heiman  vs.  People,  210  111.  552. 

JURY  TRIAL. 

Where  it  is  sought  to  coerce  defendant  into  the  performance  of 
the  duty  which  the  court  had  ordered  him  to  perform,  by  pro- 
ceedings for  contempt  of  court,  defendant  is  not  entitled  to  trial 

by  jury. 

O'Brien  vs.  People,  216  111.  354;  Barclay  vs.  Barclay,  184  111.  471; 
People  vs.  Kipley,  171  111.  44. 

IMMUNITY. 

The  constitutional  right  of  an  accused  not  to  furnish  evidence 
which  might  tend  to  criminate  him  extends  to  all  proceedings 
sanctioned  by  law.  Neither  civil  nor  criminal  courts,  quasi-ju- 
dicial tribunals,  grand  juries,  commissioners,  court  martial  or 
any  incjuisitors  of  any  kind  can  compel  a  person  to  give  evidence 
which  may  tend  to  convict  him  of  a  criminal  offense. 

The  right  of  a  witness  to  refuse  to  answer  incriminating  ques- 
tions or  to  produce  incriminating  documents  is  personal ;  it  can- 
not be  claimed  for  him  by  a  mere  party  to  the  proceeding,  and  he 
cannot  avail  himself  of  such  right  by  mere  silence  or  refusal  to 
obey  a  subpoena  duces  tecum.  His  refusal  must  be  by  him  placed 
upon  the  ground  that  to  do  so  would  be  to  furnish  evidence  tend- 
ing to  incriminate  himself. 

Kanter  vs.  Clerk  Circuit  Court,  108  App.  287. 

"The  extent  of  the  privilege  guaranteed  to  a  citizen  under 
these  constitutional  provisions  has  received  the  consideration  of 
this  court  and  the  rule  is  firmly  established  that  if  the  proposed 
evidence  has  a  tendency  to  incriminate  the  witness  or  to  establish 
a  link  in  a  chain  of  evidence  which  may  lead  to  his  conviction,  or 
if  the  proposed  evidence  will  disclose  the  names  of  the  persons 
upon  whose  testimony  the  witness  might  he  convicted  of  a  crim- 


314  CONTEMPTS 

inal  offense,  or  expose  him  to  penalties  or  forfeitures,  he  cannot 

be  compelled  to  answer." 

People   vs.   Argo,    237    111.    173;    Minteis   vs.   People,   139    111.    363; 
Lamsen  vs.  Boyden,  16U  111.  613;  Samuel  vs.  People,  164  111.  379. 

The  right  of  a  witness  to  refuse  to  furnish  evidence  which  will 
incriminate  himself  is  a  constitutional  right  too  hrmly  established 
to  be  questioned.  To  entitle  him  to  his  privilege  of  silence  the 
court  must  see,  from  the  circumstances  of  the  case,  and  the  na- 
ture of  required  evidence,  that  there  is  a  reasonable  ground  to 
apprehend  danger  to  witness  from  his  being  compelled  to  answer. 

A  party  called  to  give  evidence  or  to  produce  in  court,  to  be 
used  as  evidence,  books  of  a  corporation  of  which  he  is  in  possess- 
ion as  its  officer,  is  in  entirely  a  different  situation  from  that  of 
an  officer  of  an  insolvent  corporation,  who  is  directed  to  turn  over 
the  books  of  such  corporation  in  his  possession,  to  a  receiver  of  the 
corporation.  Possession  of  the  receiver  is  possession  of  the  court. 
If   the   books   contain   incriminating   evidence,    court   can   protect 

rights. 

Manning  vs.  Securities  Co.,  242  111.  584. 

If  a  person  who  has  been  ruled  to  show  cause  why  he  is  not 
in  contempt  for  refusing  to  turn  over  books  and  papers,  has  the 
right  to  invoke  his  constitutional  privilege  against  furnishing  evi- 
dence which  may  incriminate  him,  his  answer  should  follow  the 
practice  with  reference  to  the  discovery  and  inspection  of  privi- 
leged documents,  and  should  point  out  the  books  and  documents 
he  claims  are  incriminating  and  should  offer  to  turn  over  those 

that  are  not. 

Manning  vs.  Securities  Co.,  242  111.  584. 

INTENTION. 

Before  inliieting  any  punishment  upon  one  charged  with  a  crim- 
inal contempt,  alleged  to  have  been  committed  out  of  the  pres- 
ence of  the  court,  it  should  clearly  appear  that  such  person  was 
actuated  by  some  malevolent  intention  to  lower  or  assail  the  dig- 
nity of  the  court,  or  wilfully  or  knowingly  interfere  with  the  ad- 
ministration of  justice. 

Powers  vs.  People,  114  App.  323;  Dines  vs.  People,  39  App.  565. 

FACT  OF  CONTEMPT— PLEADINGS. 

Bill  of  Particulars: 

It  is  discretionary  with  the  court,  in  proceedings  for  contempt, 
to  order  or  to  refuse  to  order  the  filing  of  a  bill  of  particulars,  and, 
as  a  matter  of  fact,  it  is  not  the  practice  to  furnish  bills  of  par- 
ticulars in  contempt  proceedings. 

Cliristeusen  vs.  People,  114  App.  40. 

Special  Interrogatories : 

i\lay   be  required  if  the  answer  is  not  regarded  as  sufficiently 

definite  as  to  factum  of  contempt. 
Oster  vs.  People,   192  111.  473. 

CRIMINAL. 

Constructive : 

—  Answer  Sufficient:     In  criminal  contempts,  alleged  to  have 

been  committed  out  of  presence  of  court,  if  defendant's  sworr. 

answer  is  sufficient  to  acquit  him,  he  is  entitled  to  be  discharged. 

Oster   vs.   People,   192   111.   473;    People   vs.   Diedrieh,    141   111.   665; 

Buck  vs.  Buck,  60  111.  105;  Perry  vs.  Kausz,  167  App.  250;  Early 

vs.  People,  117  App.  608. 


CONTEMPTS  315 

—  3Iust  he  Allowed  to  Ansiver:  For  contempt  committed  out 
of  view  and  hearing  of  court,  the  offending  party  must  be  allowed 
to  answer  and  offer  evidence  in  defense  of  charge,  and  if  he  is 
denied  right  to  answer,  and  is  adjudged  guilty  without  a  hear- 
ing, the  order  committing  him  for  contempt  is  void. 

Hohcnadel  vs.  Steele,  237  111.  229. 

In  such  proceedings,  except  where  contempt  is  committed  in 
presence  of  court,  and  in  cases  where  answer  contradict  the  rec- 
ord, if  the  conteimior's  answer  is  sufficient  to  acquit  him,  he  must 
stand  acquitted,  and  it  is  error  for  court  to  proceed  to  hear  oral 
evidence.  If  contemner  can  clear  himself  upon  his  oath,  he  must 
be  discharged.  If  he  commits  perjury  by  his  answer,  the  rem- 
edy is  to  prosecute  him  for  perjury. 

People  vs.  Cochran,  149  App.  369;  Baird  vs.  People,  134  App.  433; 

Ferrinian  vs.   People,  128  App.  230 ;   Longenbrook  vs.  People,  130 

App.  320;  XI  111.  Notes  941,  §61. 

—  Judicial  Notice:  Courts  take  judicial  notice  of  facts  consti- 
tuting contempt,  where  the  contempt  was  committed  in  its  pres- 
ence. 

Ferriman  vs.  People,  128  App.  230. 

In  direct  contempt  in  presence  of  court,  there   is  no  need  of 

evidence  to  prove  to  court  what  is  already  manifest. 
Hohenadel  vs.  Steele,  237  111.  229. 

CIVIL. 

Sw^orn  Answer: 

Where  the  respondents  in  a  civil  proceeding  for  contempt  file 

sworn  answers  denying  charges  made  against  them,  they  are  not 

entitled  to  a  discharge. 

Flaimery  vs.  People,  22.5  111.  62;  Christensen  vs.  People,  114  App. 
40;  Affd.,  216  111.  354;  Sloan  vs.  People,  115  App.  84;  O'Brien  vs. 
People,  216  111.  354;  Oehler  vs.  Levy,  168  App.  41. 

Burden  of  Proof: 

Party  bringing  the   accusation  is,  in  absence  of  admission  of 
defendants,  bound  to  prove  existence  of  order  and  its  violation. 
People  vs.  Weigley,  155  111.  491. 

But  failure  of  a  husband  to  comply  Vvuth  a  divorce  decree,  direct- 
ing payment  of  alimony,  is  prima  facie  evidence  of  contempt,  and 

burden  is  upon  him  to  prove  his  inability  to  pay. 

Shaffner  vs.  Shaflfner,  212  111.  492;  Been  vs.  Bloomer,  191  111.  416; 
Boyden  vs.  Boyden,  162  App.  77. 

ADMISSIBILITY  OF  EVIDENCE. 

In  a  remedial  proceeding  for  contempt  in  violating  an  injunc- 
tion, the  court  may  hear  affidavits,  or  any  other  proper  evidence, 
to  determine  the  truth  of  the  matters,  and  is  not  confined  to  an- 
swers of  defendant,  as  a  court  of  law  is  confined  to  the  answers 
to  the  interrogatories  in  a  criminal  proceeding. 

Hake  vs.  People,  230  111.  174;  Rothschilds  &  Co.  vs.  Steger  Piano  Co., 
256  111.  198. 

Where  contempt  proceedings,  in  which  conspiracy  is  charged, 
have  been  heard,  the  evidence  upon  such  initial  hearing  may  prop- 
erly be  again  considered  upon  subsequent  like  contempt  proceed- 
ings in  same  case,  where  it  appears  there  was  but  one  entire  con- 
spiracy, which  existed  and  was  being  carried  on  during  the  entire 
period  covered  by  all  of  such  contempt  proceedings. 


316  CONTESTED  ELECTIONS 

A  conspiracy  may  be  estahlishecl  by  circumstantial  evidence. 

(Jhrisleuseu  vs.  People,  114  App.  4U. 
Party  ciiarged  with  contempt  is  not  limited  to  defenses  set  up  in 

answer  to  rule  to  show  cause. 

People  vs.  Weigley,  155  111.  491. 

DEGREE  OF  PROOF. 

Civil: 

A  contempt  proceeding  for  violation  of  injunction  is  of  a  civil 
nature,  and,  notwithstanding  acts  charged  may  be  of  such  nature 
as  to  be  punisiiable  as  crimes  in  proper  proceeding,  the  rule  of 
evidence  in  civil  cases,  is  the  test  of  degree  of  proof  necessary  to 
establish  fact  of  violation  of  injunction,  and  proof  "beyond  rea- 
sonable doubt"  is  unnecessarv,  a  preponderance  being  sufficient. 
Plannery  vs.  People,  225  111.  63 ;  Hake  vs.  People,  230  111.  174. 

Criminal : 

The  imposition  of  a  fine  or  sentencing  to  prison  for  contempt  is 

rendering  of  judgment  in  criminal  case ;  therefore  guilt  must  be 

established  beyond  a  reasonable  doubt. 
HoUister  vs.  People,  116  App.  338. 

CONTESTED  ELECTIONS 

See  Citizenship,  Residence,  Domicile. 
Fresumptions : 

—  Notice  of  Election:  The  presumptions  in  reference  to  the 
giving  of  notice  which  attend  an  election  under  the  general  law,  do 
not  obtain  in  the  case  of  a  special  election. 

Southworth  vs.  Board  of  Education,  238  111.  190. 

—  Eight  of  Person   to   Vote:     Presumed  that  voter  had  legal 

right  to  vote. 

Collier  vs.  Anlicher,  189  111.  34. 

Where  an  election  board  permits  a  person  to  vote,  that  creates 
a  prima  facie  presumption  of  his  right  to  vote,  which  must  be 
overcome  by  proof  of  the  contest  on  the  election. 
Webster  vs.  Gilmore,  91  111.  324. 

A  person  whose  vote  is  received  by  the  officers  in  charge  of  an 

election,  in  absence  of  contrary  evidence,  will  be  presumed  to  have 

been  a  legal  voter. 

Blankeuship  vs.  Israel,  132  111.  514. 

—  For  Whom  Vote  was  Cast:  Proof  of  party  affiliation  of  a 
voter  raises  presumption  that  he  cast  his  ballot  for  the  nominee  of 
his  political  party,  and  in  the  absence  of  countervailing  evidence 
or  circumstances,  is  accepted  as  determining  for  whom  such  bal- 
lot was  cast. 

Eexroat  vs.  Schein,  206  HI.  80. 

—  Proclamation,  of  Results:  In  absence  of  evidence  that  the 
judges  of  election  made  no  proclamation  of  the  result  of  the  elec- 
tion, as  required  by  law,  it  will  be  presumed,  on  contest,  that  they 
performed  their  duty  in   that  regard. 

Dooley  vs.  Vau  Hobensteiu,  170  HI.  630. 

Burden  of  Proof: 

—  Illegality  of  Votes:    The  burden  of  proving  vote  illegal  is  on 

party  objecting  to  same.  ^..^  t>i    or  a 

Welsh  vs.  Sluimway,  232  111.  54;   Dorscy  vs.  Brigham,  1(7  111.  250; 
Blankenship  vs.  Israel,  132  111.  514. 


CONTESTED  ELECTIONS  317 

—  Idcntitif  and  CondUion  of  Ballots:  Burden  is  upon  contest- 
ant to  show  that  the  ballots  are  those  cast  at  the  election,  and  that 
they  are  in  the  same  condition  as  when  cast,  and  it  is  not  incum- 
bent upon  defendant  to  show  that  the  ballots  offered  to  impeach  his 

title  have  been  changed. 

West  vs.  Sloan,  238  111.  330. 

—  Preservation  of  Ballots:  Burden  is  upon  contestant  to  prove 
the  ballots  have  been  preserved  as  required  by  law. 

Graham  vs.  Peters,  248  111.  50. 

—  Effect  of  Irregular  Acts  on  Eesidt  of  Election:  The  burden 
of  showing  that  illegal,  irregular  or  wrongful  acts  atfected  the 
result  of  the  election,  rests  upon  party  alleging  same. 

Kreitz   vs.   Bebrcnsnieyer,  125  111.   1-±1. 

Questions  of  Law  and  Fact: 

AVhether  ballots  have  been  properly  preserved,  is  a  question  oi 
fact,  to  be  determined  from  all  the  circumstances  proved. 
Perkins  vs.  P.ertrand,  192  111.  58,      . 

Admissibility  of  Evidence: 

—  In  General:  The  court,  in  election  contest  suit,  is  not  limited 
to  the  particular  form  of  evidence  to  which  the  canvassing  board 
is  restricted  by  the  statute.  And  so  the  evidence  in  a  contested 
election  case,  to  prove  or  disprove  the  right  to  an  office,  is  not 
limited  to  the  result  as  declared  by  the  election  officers,  but  the 
whole  proceeding  may  be  investigated  and  the  true  result  ascer- 
tained. 

Co.  of  Lawrence  vs.  Scliiiiaulhausen,  123  111.  321 ;  Talkington  vs. 
Turner,  71  111.  234;  Dale  vs.  Irwin,  78  111.  170;  Kingery  vs.  Berry, 
94  111.  515;  People  vs.  Killduff,  15  111.  493. 

Thus  it  may  be  shown  by  a  legal  voter  that  he  voted  a  ballot 
of  a  certain  number  in  favor  of  the  contestee,  and  by  other  evi- 
dence that,  at  the  time  of  the  re-count,  no  such  ballot  was  found 

and  counted, 

Kreitz  vs.  Behrensmcyer,  125  111.  141. 

If  the  evidence  discredits  both  the  ballots  and  the  returns,  the 
true  result  of  the  election  must  be  determined  by  a  consideration 
of  both,  and  of  all  the  other  circumstances  which  will  aid  in  de- 
termining the  truth  of  the  matter  at  issue. 

Brentz  vs.  Smith,  250  111.  521;  Graham  vs.  Peters,  248  111.  50;  Roland 
vs.  Walker,  244  111.  129;  Smith  vs.  Eeid,  223  111.  493;  Dooley  vs. 
Van  Hohenstein,  170  111.  630. 

—  To  Show  Establishment  of  Election  Districts:  Where  it  is 
claimed  that  city  council  has  never  established  any  election  dis- 
tricts, a  witness  who  has  examined  the  records  should  be  allowed 
to  state  that  they  show  nothing  with  reference  to  a  certain  mat- 
ter, if  that  is  the  fact,  but  the  records  should  be  in  court. 

Welsh  vs.  Shumway,  232  111.  54. 

—  Circumstantial  Evidence:     Circumstantial  evidence,  such  as 

party  affiliation,   relations  with  candidates,   etc.,   is  admissible   to 

show  how  a  person  voted,  and  is  generally  sufficient  to  prove  the 

character  of  the  vote. 

Sorenson  vs.  Sorenson,  189  111.  179. 


318  CONTESTED  ELECTIONS 

Court  is  not  concluded  by  the  testimony  of  an  illegal  voter  as  to 

whom  he  voted  for. 

Woodmayer  vs.  Davis,  231  111.  42. 

Fraud  in  the  conduct  of  an  election  may  be  shown  by  circum- 
stantial evidence. 

Brents  vs.  Smith,  250  111.  521. 

—  As  to  How  Ballot  icas  Marked:  Election  officers  cannot 
give  evidence  as  to  how  ballot  was  marked,  although  voter  did  not 
swear  to  disability. 

Gill  vs.  Sbmtleff,  183  111.  440. 

—  Voter's  Affidavit:    An  affidavit  by  a  voter,  made  three  days 

after  the  election,  to  the  effect  that  he  had  inadvertently  voted 

twice,  voting  the  same  ticket  each  time  and  marking  both  alike, 

is  admissible  on  contest,  where  the  voter  has  refused  to  testify  but 

has  not  claimed  his  privileges. 

Eggers  vs.  Fox,  177  111.  185. 

—  Declarations  of  Voter:  Declarations  of  voters  for  the  pur- 
pose of  showing  that  they  were  not  cjualified  to  vote,  if  made  sub- 
sequent to  the  election,  are  not  admissible. 

Behrensnieyer  vs.  Kreitz,  135  111.  591;  Beardstown  vs.  Virginia,  81 
111.  541 ;  Kreitz  vs.  Behrensmeyer,  125  111.  141 ;  Collier  vs.  Ahulicher, 
189  111.  34. 

The  voter  being  considered  a  party  as  against  the  contestant,  his 
declarations  showing  his  want  of  qualification  to  vote,  may  be 
shown  against  him,  after  first  proving  he  voted  adversely  to  con- 
testant, on  the  ground  that  such  declarations  are  against  his  inter- 
est. But  where  it  is  not  shown  by  other  competent  evidence  how 
he  voted,  such  declarations  are  not  admissible. 
Beardstown  vs.  Virginia,  76  111.  34. 

—  To  Impeach  Ballot:  As  to  how  far  extrinsic  evidence  is  ad- 
missible to  explain  a  ballot,  and  the  intention  of  the  voter  who 
cast  it,  there  is  less  difficulty  in  stating  the  rule  in  general  terms 
than  in  applying  it  to  particular  instances.  Manifestly,  it  would 
not  be  competent  to  hear  the  voter  say  that  he  intended  a  ballot, 
which  is  plainly  for  a  particular  name,  for  one  having  no  simi- 
larity of  sound,  that  one  might  reasonably  be  intended  for  the 
other;  and  it  is  quite  as  obvious  that  it  is  competent  to  prove  by 
the  elector  what  he  understood  the  names  of  the  candidates  to 
be  and  how  he  reads  his  ballot.  If  he  has  used  the  letters  of  a 
foreign  language  to  express  the  name,  it  is  competent  to  prove,  by 
the  voter,  or  by  some  one  versed  in  the  language,  what  word  or 
words  they  make.  If  the  characters  are  so  complex  in  their 
formation  or  so  imperfectly  formed,  or  so  obscurely  impressed,  as 
to  make  it  difficult  to  read  them,  it  is  competent  to  prove,  by  some 
one  understanding  them,  what  they  are.  What  is  not  admissible 
is  to  show  that  something  was  intended  which  is  plainly  contra- 
dictory of  what  was  done. 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 

Voter  may  testify  as  to  whom  he  voted  for  when  ballot  pur- 
porting to  be  his  is  a  forgery. 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 


CONTESTED  ELECTIONS  319 

Extrinsic  evidence  admissible  where  ballot  is  imperfect. 
MeKiiinon  vs.  People,  110  111.  305. 

The  ballot  of  a  voter  showed  he  voted  in  a  certain  way,  but  the 
voter  testified  that  he  voted  the  other  way:  Held,  that  in  ab- 
sence of  any  proof  of  fraud,  that  the  testimony  could  not  be  re- 
ceived to  show  the  intention  of  the  voter  in  opposition  to  his  bal- 
lot. 

Beardstown  vs.  Virginia,   76  111.   34;    Behrensmeyer  vs.   Kreitz,   135 
111.  591. 

—  Ballots:  Ballots  admissible  though  not  preserved  according 
to  law. 

Collier  vs.  Anlicher,  189  111.  34;  Bonney  vs.  Finch,  ISO  111.  133. 
Ballots  used  in  previous  contest  are  admissible  where  not  shown 
to  have  been  tampered  with. 

People  vs.  Barrett,  203  111.  99. 

Ballots  not  endorsed  with  initials  of  judges  of  election  cannot 
be  counted. 

Grubb  vs.  Turner,  259  111.  436. 

Ballots  are  properly  admitted  in  evidence  where  they  were  prop- 
erly returned  to  the  village  clerk,  who  put  the  envelope  contain- 
ing them  in  a  w^ooden  ballot-box,  which  he  locked  up,  retaining  the 
custody  of  the  key,  and  w^iich  box  he  placed  in  the  back  room  of 
his  printing  office,  which  he  considered  a  safe  place ;  and  if  there 
is  an  entire  absence  of  testimony  that  the  ballots,  box  or  lock  was 
tampered  with,  the  fact  that  the  lock  is  a  common  one  and  that 
other  persons  had  access  to  the  room  does  no  render  the  ballots 

inadmissible. 

Kreider  vs.  McFerson,  189  111.  605. 

The  returns  are  not  conclusive  evidence  of  the  result,  even  though 
the  ballots  have  not  been  preserved  according  to  law, — and  espe- 
cially where  the  returns  themselves  have  not  been  properly  pre- 
served, 

Catron  vs.  Craw,  164  111.  20. 

Ballots  are  admissible  in  election  contest,  their  probative  force 

depending  upon  the  care  with  which  they  have  been  preserved, 

and  unless  their  preservation  has  been  such  that  there  has  been 

no  reasonable  opportunity  for  tampering  with  them,  they  cannot 

overcome  the  returns. 

West  vs.  Sloan,  238  111.  330;  Bonney  vs.  Finch,  180  111.  133. 

—  To  SJiow  Voters  Not  Legal  Voters:  Less  particularity  is  re- 
quired in  the  answer  of  defendant  than  in  the  petition.  When  the 
petitioner  alleges  he  was  elected,  and  this  is  denied,  it  is  com- 
petent for  defendant  to  show  that  the  persons  voting  for  con- 
testant, whose  names  are  given  in  the  answer,  are  not  legal  voters. 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 

—  Missing  Ballots:  Proof  by  a  legal  voter  that  he  voted  a  bal- 
lot of  a  certain  number  in  favor  of  contestee,  and,  b}^  other  evi- 
dence, that  at  the  time  of  the  recount,  no  such  ballot  was  found 
and  counted,  is  admissible,  though  pleadings  failed  to  charge  the 
abstraction  of  any  ballots,  or  of  any  misconduct  on  the  part  of 
the  judges  of  the  election :  for  the  reason  it  could  not  have  known 

the  ballot  was  missing  before  the  recount. 
Kreitz  vs.  Behrensmeyer,  125  111.  141. 

—  To  Show  Voter's  Age:    Proof  of  age  may  be  made  by  entries 


320  CONTESTED  ELECTIONS 

in  family  bible.     Should  he  shown  when  and  by  whom  record  was 

made.     Parol  evidence  is  incompetent  to  prove  what  family  record 

contains. 

Kreitz  vs.  Bebrensmeyer,  125  111.  141. 

—  Certificate  of  Election:  The  certificate  of  election  is  com- 
petent evidence,  even  if  it  omits  to  give  the  number  of  votes  cast, 
and  the  returns  mav  be  resorted  to  in  order  to  ascertain  same. 

People  vs.  Wyant,  48  111.  263. 

Weight  and  Sufficiency  of  Evidence: 

• — Judge's  Rdurns:  Judge's  returns  cannot  be  taken  as  con- 
clusive, even  though  ballots  may  be  discredited,  where  the  tally 
sheet  shows  erasures  of  several  tallies  for  the  defeated  candi- 
dates, and  the  ballots  about  which  there  is  no  controversy  entitled 
him  to  several  more  votes  than  w^ere  given  him  by  the  returns. 
Brents  vs.  Smith,.  250  111.  521. 
The  returns  are  prima  facie  evidence  of  the  result  of  the  pro- 
ceeding, but  not  alwavs  conclusive. 

Kreitz  vs.  Behrerismeyer,  135  111.  591 ;  Catron  vs.  Craw,  169  111.  20. 

—  Buying  Votes:  The  mere  fact  that  a  number  of  ballots  in  the 
same  precinct  were  marked  in  substantially  the  same  manner,  and 
that  in  all  of  them  the  imprint  of  the  pencil  could  be  seen  on  the 
back  of  the  ballots  is  not,  of  itself,  evidence  that  the  votes  were 
being  bought,  and  that  some  one  in  the  polling  place  was  watch- 
ing the  appearance  of  the  ballots  to  convey  information  thereof 

to  the  purchaser, 

AViini  vs.  Blaekman,  229  111.  198. 

Best  and  Secondary  Evidence: 

Where  the  ballots  have  been  properly  preserved,  they  are  the 
best  evidence  of  the  result  of  the  election. 

Arnold  vs.  Keil,  252  111.  340;  Brents  vs.  Smith,  250  111.  521;  Ifoland 

vs.  Walker,  244  111.  129;  Perkins  vs.  Bertraud,  192  111.  58;  Caldwell 

vs.  McElvain,  184  111.  552;  Bonney  vs.  Finch,  ISO  111.  133. 

In  order  that  ballots  should  be  controlling  as  evidence,  it  nuist 

affirmatively  appear  that  they  have  been  preserved  in  the  manner 

and  by  the  officers  required  bv  the  statute. 

Eoland   vs.   Walker,   244   111.    129;    Jeter   vs.   Headlev,    186    111.    34; 
Beall  vs.  Albert,  159  111.  127;  Brents  vs.  Smith,  250  111.  521. 
The  ballots  cast  are  better  evidence  than  the  count  of  the  judges 
and  clerks  of  election,  where  they  have  been  preserved  in  the  man- 
ner and  bv  the  officers  prescribed  in  the  statute. 
Catron  vs.  Craw,  164  111.  20. 
Ballots  not  properly  preserved  and  which  have  been  tampered 
with  or  exposed  to  interference  of  unauthorized  persons  cannot 

prevail  over  undiscredited  returns. 

Brents  vs.  Smith,  250  111.  521;  Chaisser  vs.  York,  211  111.  56;   Cald- 
well vs.  McElvain,  184  111.  552;  XII  111.  Notes  301,  §  221. 

Residence  of  Voter: 

—  In  General:    The  controlling  inquiry  is  where,  if  at  all,  does 

a  man  make  his  home,   and  claim,  for  the  time,  the  exercise  of 

rights  of  property  and  citizenship  incident  to  or  resulting  from 

the  permanent  residence. 

Kreitz  vs.  Behrensmeyer,  125  111.  141. 

—  Defined:  A  resident  of  a  place  is  one  whose  abode  is  there, 
and  who  has  no  present  intention  of  removing  therefrom. 

Dorsey  vs.  Brigham,  177  111.  250. 


CONTESTED  ELECTIONS  '  321 

—  Permanent  Abode:  A  permanent  abode,  in  the  sense  used  in 
our  statute,  in  regard  to  elections,  means  nothing  more  than  a 
domicile,  a  house  in  which  the  parly  is  at  liberty  to  leave  tempo- 
rarily as  interest  or  whim  may  dictate. 

Moffit  vs.  Hill,  131  111.  239. 

A  permanent  abode  described  as  a  criterion  of  residence  re- 
quired to  constitute  a  legal  voter  does  not  mean  an  abode  which 
the  party  does  not  intend  to  abandon  at  any  future  time.  In  the 
sense  of  the  statute,  a  permanent  abode  means  nothing  more  than 
a  domicile,  a  home  which  the  party  is  at  liberty  to  leave  as  inter- 
est or  whim  may  dictate,  but  without  any  present  intention  to 
change  it. 

Dale  vs.  Irwin,  78  111.  170. 

—  Intention:  Intention  to  reside  here  and  coming  to  this  state 
by  a  man  makes  this  his  place  of  residence,  although  his  family 
was  visiting  in  another  state. 

Behrensmeyer  vs.  Kreitz,  135  111.  591. 

With  a  fondness  for  moving  across  the  state  line,  but  with- 
out the  intention  of  abandoning  his  residence,  and  with  the  in- 
tention of  just  moving  back  and  forth  a  while,  and  then  to  set- 
tle down,  by  one  claiming  a  residence  in  Illinois  all  the  time,  does 
not  cause  a  loss  of  resiclence. 

Carter  vs.  Putnam,  141  111.  133. 

Voter's  testimony  of  intention  with  respect  to  residence  is  ad- 
missible but  not  conclusive. 

Welsh  vs.  Shiimway,  232  111.  54. 

Where  the  ground  of  contest  was  that  the  party  elected  had 
lost  his  residence  by  leaving  the  state,  the  contestant  called  claim- 
ant as  a  witness,  and  while  he  was  on  the  witness  stand,  one  of 
the  jurors  asked  him  what  his  intention  w^as  when  he  went  away, 
was  it  to  make  a  visit  or  for  some  other  reason?  Contestant  ob- 
jected to  the  question  and  the  court  sustained  the  objection :  Held, 
that  the  testimony  called  for  was  proper  and  it  was  error  to  ex- 
clude it. 

Wilkins  vs.  Marshall,  80  111.  74. 

—  Time :  Residence  in  the  town  excludes  the  first  day  and 
includes  the  last  day.  Twenty-nine  days  residence  is  not  sufficient 
to  make  a  legal  voter. 

Behrensmeyer  vs.  Kreitz,  135  111.  591;   People  vs.  Markieweiez,  225 
111.  5G3. 

One  who  rents  a  Jiouse  less  than  thirty  days  before  an  election 
and  leaves  part  of  his  goods  there,  but  keeps  part  of  them  at  his 
former  residence,  in  another  election  district,  and  intends  to  re- 
main there,  retains  his  old  residence. 
Welsh  vs.  Shuniway,  232  111.  54. 

—  Sleeping  and  Eating:  A  person  rooming  in  one  district 
and  taking  meals  in  another,  is  not  a  legal  voter  in  the  latter  dis- 
trict. 

Widmayer  vs.  Davis,  231  111.  42. 

One  does  not  retain  a  residence  in  one  district  by  keeping  the 

keys  of  a  house  after  he  has  moved. 
Welsh  vs.  Shumway,  232  111.  54. 

Sleeping  and  eating  by  a  young  man,  across  the  town  line,  at 

his  father's  house,  would  not  be  sufficient  to  change  his  residence 

Ev.— 21 


322  •  CONTESTED  ELECTIONS 

from  the  place  where  he  has  his  business,  claiming  that  as  his  resi- 
dence. 

An  unmarried  young  man  in  business,  claiming  his  place  oi 
business  as  his  permanent  abode,  has  a  right  to  cast  his  vote  in 
that  town,  although  he  may  have  boarded  across  the  town  line  with 
his  father,  and  slept  at  his  father's  house,  but  without  the  in- 
tention of  changing  his  residence. 
Carter  vs.  Putnam,  141  111.  133. 

—  College  Students:  A  college  student,  as  respects  matters 
of  residence,  may  vote  at  the  place  where  the  college  is  located, 
if  he  is  free  from  parental  control,  and  regards  the  place  where 
the  college  is  located  as  his  bona  fide  residence. 

Welsh  vs.  Shumway,  232  111.  54;  Dale  vs.  Irwin,  7S  111.  170. 
A  student  is  not  presumed  to  have  the  right  to  vote,  and  if  he 
attempts  to  do  so,  the  burden  is  upon  him  to  prove  his  residence. 
Welsh  vs.  Shumway,  232  111.  54. 

—  Previous  Voting  in  Same  District:  Where  the  plat  of  a 
school  district  does  not  include  the  land  of  a  certain  voter,  mere 
proof  that  he  has  always  voted  in  the  district,  and  sent  his  chil- 
dren to  school  there,  and  that  a  petition  had  been  presented  to 
attach  his  land  to  the  district,  does  not  show  his  residence  in^  the 
district,  there  being  no  record  of  the  petition  proven  or  any  official 

action  thereon  shown. 

Buckingham  vs.  Angell,  238  111.  564. 

—  Voting  in  Another  State  or  Precinct:  The  fact  that  a  citi- 
zen and  legal  voter  of  this  state,  while  engaged  in  business  in 
another  state,  voted  at  some  eh^ction  there,  without  riglit,  will  not 
deprive  him  of  his  residence  right  and  voting  in  this  state. 

O  'Hara  vs.  Wilson,  124  111.  351. 
Attempting  \o  vote  in  a  certain  precinct  is  not  conclusive  of  a 

voter's  legal  residence. 

Welsh  vs.  Shumway,  232  111.  54. 

—  Continuance:     Domicile  in  another  state,  once  acquired,  is 

presumed  to  continue. 

Moliitt  vs.  Hill,  131  111.  239. 

—  School  District  Plat:  A  plat  of  a  school  district  which  fails 
to  show  that  the  land  of  a  certain  voter  is  within  the  district  is 
not  conclusive  of  his  right  to  vote  at  the  school  election,  and  it 
may  be  shown  that  his  lands  have  been  regularly  annexed  to  the 
district  by  the  board  of  trustees,  even  though  the  plat  is  of  a 
later  date  than  the  annexation, 

Buckingham  vs.  Angell,  238  111.  564. 

—  Abandonment:  A  residence  is  not  lost  until  a  new  one  is  ac- 
quired. 

Wilkius  vs.  Marshall,  80  111.  74. 

—  Temporary  liesiclcnee:  Temporary  settlement  for  purpose 
of  voting  does  not  supply  qualification  of  residence. 

Sorcnson  vs.  Sorenson,  189  111.  179;  Dorsey  vs.  Brigham,  177  111.  250. 
If  a  man  is  working  in  a  city  for  an  indefinite  time,  and  has  no 
other  home  or  residence  to  wliich  he  intends  to  return,  such  city 
may  be  regarded  as  his  residence,   even  though  he  may  not  in- 
tend to  to  remain  there  permanently. 
Welsh  vs.  Shumway,  232  111.  54. 
^-Temporary  Absence:    Residence,  as  a  qualification  to  voting, 


CONTESTED  ELECTIONS  323 

is  not  forfeited  by  a  temporary  absencd'or  engagement  in  business 
in  another  state. 

Collier  vs.  Almlicher,  189  111.  34. 

To  effect  a  cliange  of  domicile  tiiere  must  be  an  actual  aban- 
donment of  tlie  first  domicile,  coupled  with  an  intention  not  to 
return,  and  there  must  be  a  new  domicile  acquired  by  actual 
residence  within  another  jurisdiction,  coupled  with  the  intent  to 
make  the  last  acquired  residence  a  permanent  home. 
People  vs.  MeCoiinell,  28  App.  l:8.5. 

Whether  a  party  has  permanently  left  his  residence  or  has  ac- 
quired a  new  one  depends  upon  the  intention  with  which  he  acts 
in  the  premises.  Ivemoval  for  several  months,  when  no  new  resi- 
dence is  acquired,  does  not  forfeit  residence  for  the  purpose  of 
voting. 

Collier  vs.  Ahnlicher,  189  111.  34;  Smith  vs.  People,  44  111.  16. 

One  returning  to  a  city  just  previous  to  an  election,  from  an- 
other city  where  he  had  gone  with  his  family,  is  not  shown  to  be 
an  illegal  voter,  though  he  was  registered  in  the  latter  city,  where 
the  evidence  shows  there  was  no  affidavit  of  registration  there, 

and  that  he  intended  to  return  to  the  former  city. 
Widmayer  vs.  Davis,  231  111.  42. 

Pauper:  A  party  does  not  forfeit  his  residence  in  a  precinct  in 
which  he  was  a  voter  merely  by  becoming  a  county  charge. 

Welsh  vs.  Shumvvay,  232  111.  54;  Dale  vs.  Irwin,  78  111.  170. 
A  pauper  at  the  county  poor  house  does  not  acquire  a  residence 
in  that  township  w^lien  sent  there  from  another  township. 
Clark  vs.  Kobinson,  88  111.  498. 

Witnesses : 

—  Determination  of  Competency:  Determined  by  same  rules 
which  prevail  in  suits  between  private  parties. 

Eggers  vs.  Fox,  177  111.  185. 

—  Privilege  of  Voter:  A  voter  may  claim  his  personal  privilege 
and  refuse  to  testify  on  the  ground  that  his  testimony  might 
tend  to  criminate  him.  but  if  it  is  proven  that  he  had  no  right  to 
vote,  and  he  admits,  without  claiming  his  privilege,  that  he  voted, 
he  may  be  required  to  state  for  whom  he  voted,  as  the  rule  pro- 
tecting the  voter  against  disclosing  for  whom  he  voted  is  not 
designed  to  shield  illegal  voters. 

Buckingham  vs.  Angell,  238  111.  564;  Sorenson  vs.  Sorenson,  189  111. 
179. 

A  witness  cannot  be  compelled,  on  contest,  to  tell  for  whom  he 
voted;  but  the  privilege  is  a  personal  one,  and  if  not  claimed  by 
him,  it  is  error  to  sustain  counsel's  objection  based  thereon. 

Where  a  witness  refuses  to  testify  as  to  whether  he  voted,  but 
states  that  he  has  no  particular  reason  for  refusing,  the  court 
should  compel  him  to  testify,  and  neither  the  court  nor  counsel 
can  claim  his  privilege  for  him. 

Eggers  vs.  Fox,  177  111.  185;  Sorenson  vs.  Sorenson,  189  111.  179. 
A  legal  voter  cannot  be  compelled  to  testify  for  whom  he  voted. 

Sorenson  vs.  Sorenson,  189  111.  179. 
It  is  not  the  duty  nor  the  right  of  the  court  to  say  or  do  any- 
thing which  might  prevent  the  witness  from  testifying  if  he  saw 
proper. 

Eggers  vs.  Fox,  177  111.  185. 


324  CONTRACTS 

CONTRACTS 

See  Abandonment,  Alterations  and  Erasures,  Ante  Nuptial 
Contract,  Ambiguity,  Assumpsit,  Building  Contracts,  Cancel- 
lation OF  Instruments,  Consideration,  Custom  and  Usages, 
Deed  as  Mortgage,  Description,  Delivery,  Fiduciary  Relations, 
Fraud,  Gambling  Contracts,  Husband  and  Wife,  Identity,  Pa- 
rol, Parent  and  Child,  Ratification,  Rescission,  Reformation 
OF  Instruments,  Release,  Seals,  Waiver,  Warranty,  Work  and 
Services. 


CONTRADICTION  AND  SUSTAINING  WITNESS 

See  Impeachment,  Credibility,  Cross  Examination. 
Direct  Impeachment: 

—  In  General:  A  party  having  called  a  witness  and  had  him 
testify,  cannot  thereafter  introduce  what  is  known  as  directly 
impeaching  testimony. 

U.  S.  Brew.  Co.  vs.  Ruddy,  104  App.  215;  AflEd.,  203  111.  306;  Amer. 
H.  &  D.  Co.  vs.  Hall,  208  111.  597. 

And  this  though  he  may,  after  testifying,  have  been  called  by 
the  opposite  party. 

E.  St.  L.  Ey.  Co.  vs.  O'Hara,  150  111.  580. 

—  Witness  lieqiiind  to  be  Called:  One  required  by  law  to  pro- 
duce certain  witnesses  does  not  vouch  for  their  truthfulness  and 
integrity,  and  he  may  introduce  proof  of  previous  statements  at 
variance  with  their  testimony  on  material  points,  for  the  purpose 
of  contradicting  it. 

Thompson  vs.  Owen,  174  111.  229. 

Proponents  of  a  will  are  required  by  law  to  produce  the  subscrib- 
ing witnesses  in  the  circuit  court,  if  alive  and  sane  and  within 
the  jurisdiction  of  the  court,  and  hence  may  prove  the  affidavits 
of  such  witnesses  made  in  the  county  court  for  purpose  of  con- 
tradicting their  testimony  as  given  in  the   circuit  court,   where 

there  is  conflict. 

In  re  Will  of  Barry,  219  111.  391;  Thompson  vs.  Owen,  174  111.  229. 

—  Witness  in  Deposition :  AVhen  the  deposition  of  a  witness, 
taken  by  one  party,  is  read  in  evidence  by  adverse  party,  the  person 
whose  deposition  has  been  so  taken  and  read  will  not  be  the  witness 
of  the  party  taking  it,  who  will  have  the  same  right  to  contradict 

such  witness  as  any  other  witness  introduced  by  adverse  party. 

City  of  Bloomington  vs.  Osterle,  139  111.  120;  McCormick  vs.  Laster, 
81  App.  316. 

—  Pet'son  Not  Testifyiyig:  Where  defendant  in  action  on  bene- 
fit certificate  draws  out,  on  cross  examination  of  plaintiff,  an  ad- 
mission that  she  had  been  told  that  a  certain  woman  had  reported 
having  seen  the  missing  husband  of  plaintiff  within  seven  years 
after  his  disappearance,  plaintiff  is  entitled  to  call  witnesses  to 
prove  the  reputation  of  such  woman  for  truth  and  veracity  was 
bad  and  that  she  had  made  conflicting  statements  of  the  matter. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

Incidental  Impeachment: 

—  In  General:     While  a  party  may  not  introduce  witnesses  to 


CONTRADICTION,  ETC.  325 

impeach  the  general  reputation  of  his  own  witness,  yet  if  the  lat- 
ter has  testified  against  the  interest  and  expectation  of  the 
party  calling  him,  his  testimon.y  may  be  contradicted  by  other  wit- 
nesses called  by  the  same  party  for  that  purpose,  though  inciden- 
tally the  etfect  of  the  testimony  last  called  may  be  to  show  that  the 
previous  witness  was  unworthy  of  credit. 

Chi.  City  Ey.  Co.  vs.  Gregory,  221  111.  591;   Higler  vs.  Amer.  Natl. 

Bank,  185  111.  565;  Eockwood    vs.  Poinidstone,  38  111.  199;  Waller 

vs.  Carter,  8  App.  511;  MeFarland  vs.  Ford,  32  App.  173;  Tobin  vs. 

Chi.  City  Ey.  Co.,  17  App.  82;  Kaiifmaim  vs.  Johns,  156  App.  426; 

Pegram  vs.  Mutual  Co.,  159  App.  214;  XIV  111.  Notes  1151,  §  287. 

—  Adverse  Party:  A  party  who  calls  the  adverse  party  as  his 
witness  is  not  bound  by  the  mere  conclusions  of  such  witness,  and 
only  by  his  statement  of  fact  in  so  far  as  he  is  entitled  to  credit, 
taking  into  consideration  the  reasonableness  of  the  testimony,  and 
all  other  proper  tests  of  the  credibility  of  witnesses  and  the  weight 
of  the  evidence.  A  party  is  not  concluded  by  the  evidence  of  a 
witness  introduced  by  him,  whether  a  party  or  not. 

If  a  witness  states  facts  against  the  interest  of  the  party  call- 
ing him,  another  Avitness  may  be  called  by  same  party  to  dis- 
prove those  facts,  as  such  facts  are  evidence  in  the  case ;  and  the 
other  witnesses  are  not  called  to  directly  discredit  the  first,  but 
the  impeachment  of  his  credit  is  incidental  only,  and  consequential. 
Lasher  vs.  Colton,  225  111.  234;   U.  S.  Brew.  Co.  vs.  Euddy,  203  111. 
306;    Highley  vs.   Amer.  Natl.   Bank,   185  111.  565;   Eindskoph  vs. 
Kuder,  145  111.  607;  Mitchell  vs.  Sawyer,  115  111.  650. 

When  adverse  party  is  called,  he  may  be  examined  in  such  way 
as  to  elicit  the  facts,  even  though  the  examination  partake  of  the 
character  of  a  cross  examination. 

N.  A.  Eestaurant  vs.  McElligott,  227  111.  317. 

—  Refreshing  Memory  of  Witness:  If  a  witness  give  testimony 
different  from  previous  statements,  so  that  his  testimony  is  a  mat- 
ter of  surprise  to  party  calling  him,  the  party  may  refresh  his 
memory  by  calling  his  attention  to  the  former  statements,  either 
to  refresh  his  memory  or  awaken  his  conscience. 

People  vs.  Cotton,  250  111.  338;  People  vs.  Lukozus,  242  111.  102; 
Tijan  vs.  111.  Steel  Co.,  158  App.  30. 

But  he  cannot  prove  the  statements  either  as  independent  evi- 
dence or  for  purpose  of  impeaching  witness,  who  denies  having 
made  them,  and  who  has  not  misrepresented  the  nature  of  his  in- 
tended testimony. 

Chi.  City'Ey.  Co.  vs.  Gregory,  221  111.  591;  Griffin  vs.  City  of  Chi- 
cago, 57  111.  317.  (See  Cross  Examination — Eight  to  by  Both 
Parties.  ) 

When  a  witness  has  not  given  adverse  testimony  the  party  call- 
ing him  is  not  permitted  to  prove  that  he  had  made  statements 
which,  if  sworn  to  at  the  trial  would  tend  to  make  out  the  case  of 
the  party  calling  him. 

Marugg  vs.  Kels,  146  App.  394. 

—  Admission  of  ^Making  Statement:  Where  witness  admits  hav- 
ing made  statement,  further  proof  thereof  is  unnecessary  and  im- 
proper. 

A.  F.  &  S.  F.  Ey.  Co.  vs.  Feehan,  149  111.  202;  Fessenden  vs.  Doane, 
89  App.  229. 


326  CONTRADICTION,  ETC. 

Inconsistent  statements  read  to  witness  and  admitted  by  him  can- 
not be  introduced  in  evidence. 

Swift  &  Co.  vs.  Madden,  165  111.  41. 

—  Where  Witness  Does  Not  Remember:  Statement  admissible 
where  witness  does  not  remember  making  it. 

Bressler  vs.  People,   117  111.  422;  Eay  vs.  Bell,  24  111.  444;   Woods 
vs.  Shaw,  48  III.  273 ;  Con.  Ice  Mfg.  Co.  vs.  Keifer,  134  111.  481. 

—  Evasion:  AVhere  a  witness  neither  directly  admits  nor  de- 
nies making  a  statement  inconsistent  with  his  testimony,  l)ut  gives 
an  indirect  answer  not  amounting  to  an  admission,  the  opposite 

party  may  prove  the  statement  was  made. 

CM.  City  Ey.  Co.  vs.  Matthieson,  212  111.  292;  McLeroth  vs.  Mager- 
stadt,  136  App.  361. 
Statement  properly  admitted  where  denial  not  made  in  manner 

indicated  bv  question. 

N.  Chi.  St.  Ey.  Co.  vs.  Southwick,  165  111.  494. 

Sustaining  Witness: 

— 1)1  General:  Proof  of  declarations  of  a  witness  out  of  court 
in  corroboration  of  his  testimony  at  the  trial  is  not,  as  a  general 

rule,  admissible  after  he  has  been  impeached  or  discredited. 

Chi.  City  Ey.  Co.  vs.  Mathieson,  212  111.  292;  Eeavely  vs.  Harris,  239 
111.  526;  Waller  vs.  People,  209  111.  284. 

It  usually  amounts  onlv  to  hearsay  evidence. 
Eeavely  vs.  Harris,  239  111.  526. 

—  Lack  of  Motive:  Where  a  witness  is  charged  with  testifying 
under  the  influence  of  some  motive  prompting  him  to  make  false 
statements,  it  may  be  shown  in  rebuttal  that  he  had  made  similar 
statements  at  a  time  when  the  imputed  motive  did  not  exist,  or 
when  motives  of  interest  would  have  induced  him  to  make  a  dif- 
ferent statement  of  facts. 

Stolp  vs.  Blair,  68  111.  541 ;  Waller  vs.  People,  209  111.  284 ;  Gates  vs. 
People,  14  111.  433. 
Exception   does  not   include   statements  sought   to   be   proven, 

given  in  evidence  under  oath  at  coroner's  inquest. 
City  of  Chicago  vs.  Matthieson,  212  111.  246. 

—  Independent  Evidence  Shoivinej  Fahrication:  "Where  there 
is  independent  evidence  showing  that  witness'  account  of  the  trans- 
action was  a  fabrication  of  recent  date,  proof  of  similar  statements 
before  motive  existed  is  admissible.  In  such  case,  it  may  be  shown 
he  gave  a  similar  account  before  its  effect  and  operation  could 
be  seen. 

Browning  vs.  Jones,  52  App.  597. 
It  is  not  necessary  that  the  record  should  show  a  charge  or 
allegation  of  an  improper  motive  influencing  witness  to  give  tes- 
timony different  from  the  contradictory  statement,  or  a  charge  in 
terms,  of  a  recent  fabrication.  If  the  inference,  from  the  testi- 
mony, of  a  contradictory  statement  would  be  to  stamp  the  testi- 
mony on  the  trial  as  arising  from  some  motive  or  as  a  recent  fabri- 
cation, evidence  of  similar  statements  before  the  motive  had  any 
existence  or  showing  that  the  testimony  is  not  a  recent  invention 
is  admissible,  but  not  otherwise. 

Chi.  City  Ey.  Co.  vs.  Mathieson,  212  111.  292. 

—  Where  Contradiction  hi  Cross  Examination:  Such  evidence 
is  not  admissible  for  the  reason  alone  that  it  was  sought  to  im- 


CONTRADICTION,  ETC.  327 

peach  witness  on  cross  examination,  and  that  there  was  contra- 
dictory testimony  in  the  case. 
Stolp  vs.  Blair,  68  111.  541. 

—  Impeachment  and  Discrediting  Witness:  Nor  where  evi- 
dence of  witness  was  only  directly  impeached  and  not  by  inde- 
pendent proof  that,  of  itself,  would  indicate  that  his  story  was  a 
recent  fabrication. 

Browning  vs.  Jones,  52  App.  597. 

Nor  for  the  reason  only  that  witness  has  been  impeached  or  dis- 
credited. 

Stolp  vs.  Blair,  68  111.  541. 

—  Where  Proof  of  Contradictory  Statements  OnJij:  If  two  state- 
ments are  contradictory,  they  cannot  both  be  true,  and  the  fact 
that  they  were  made  tends  to  show  the  witness  is  unreliable  on 
account  of  uncertain  memory  or  want  of  truthfulness.  It  is  clear 
that  such  evidence  could  not  be  overcome  or  explained  by  proof 
that  the  witness,  at  some  other  time,  made  a  statement  consistent 
with  his  testimony.  The  witness  is  discredited  by  the  fact  that  he 
has  contradicted  himself  and  related  the  transaction  different 
ways,  and  to  admit  evidence  that  at  some  time  he  had  made  a  state- 
ment consistent  with  his  testimony  would  only  show  that  at  differ- 
ent times  he  had  made  diiferent  statements  about  the  same  matter. 

The  only  way  to  meet  evidence  of  a  contradictory  statement  is 
to  prove  that  the  witness  did  not  make  it.  Evidence  of  a  previous 
statement  consistent  with  the  testimony  of  a  witness  is  no  more 
competent  as  evidence  of  the  fact  than  the  contradictory  state- 
ment. For  these  reasons,  proof  of  the  declarations  of  a  witness 
out  of  court,  in  corroboration  of  testimony  given  by  him  on  the 
trial  of  a  cause  is,  as  a  general  rule,  inadmissible,  even  after  he  has 
been  impeached  or  discredited. 

Chi.  City  Ey.  Co.  vs.  Matthieson,  212  111.  292 ;  Stolp  vs.  Blair,  68  111. 
541. 

—  Support  of  General  Character:  A  party  cannot  call  and  ex- 
amine witnesses  to  support  the  general  character  of  another  wit- 
ness, or  himself,  as  a  witness,  for  truth  and  veracity,  until  the 
character  of  the  witness  thus  sought  to  be  supported  has  been 
directly  assailed.  Mere  contradictions  or  different  versions  by  wit- 
nesses do  not  justify  the  application  of  the  rule  that  evidence  may 
be  given  favorably  to  a  witness'  character  for  truth.  It  is  only 
when  witnesses  are  called  who  testify  that  his  general  character 
for  truth  is  bad,  that  witnesses  may  be  introduced  in  support  of  his 
general  character. 

Tedens  vs.  Schumers,  112  111.  263;  Magee  vs.  People,  139  111.  138. 
But  where  character  is  assailed,  evidence  of  good  character  for 
truth  and  veracity  is  admissible  to  confirm  veracity  of  witness. 
Berdell  vs. 'Berdell,  80  111.  604. 

General  honesty  and  morality  inadmissible  to  support  character 
for  veracity. 

Tedeus  vs.  Schumers,  112  111.  263. 
Witnesses  need  not  have  heard  good  reputation  generally  dis- 
cussed, since  it  might  have  been  known  without  it  being  discussed. 
City  of  Chicago  vs.  Gurrell,  137  App.  377;  Hays  vs.  Johnson,  92  App. 
80;  Overstreet  vs.  Dunlap,  56  App.  486. 


328  CONVERSION 

Witnesses  testifying  to  good  reputation  of  party  cannot  be  cross 
examined  as  to  having  heard  of  his  having  committed  certain  of- 
fenses. 

Jennings  vs.  People,  189  111.  320;  Aiken  vs.  People,  183  111.  215. 


CONVERSION 

See  Trover  and  Conversion. 


CONVEYANCE 

See  Acknowledgments,  Deeds,  Delivery,  Date,  Consideration, 
Wills,  Title. 


COPIES 

See  Plats,  Abstracts  of  Title,  Best  and  Secondary,  Objec- 
tions, Memorandum,  Anti-Saloon  Territory,  Records,  Corpora- 
tions. 
Private  Writings: 

—  Admissibility:  Where  a  writing  offered  in  evidence  refers 
to  another  writing,  the  latter  should  also  be  put  in  at  the  same 
time,  providing  the  reference  is  such  as  to  make  it  probable  that 
the  latter  is  requisite  to  a  full  understanding  of  the  effect  of  the 
former.  Same  principle  would  apply  to  another  writing  not  ex- 
pressly referred  to  but  necessary  by  the  nature  of  the  documents 
to  a  proper  understanding  of  the  one  offered.  IMuch,  therefore, 
will  depend  upon  the  circumstances  of  each  case  and  the  character 
of  each  document,  and  no  fixed  rule  can  fairly  be  laid  down. 
Trial  court's  discretion  should  control.  So  where  a  copy  of  a 
writing,  the  original  of  which  has  not  been  produced,  but  which  is 
claimed  to  have  been  part  of  a  conversation  or  interview  between 
parties,  and  read  by  parties  is  offered  the  court's  discretion  must 

control. 

Merchants  L.  &  T.  Co.  vs.  Egan,  222  111.  494. 

—  Contracts:  Section  18  of  Evidence  act  which  authorizes  the 
introduction  of  a  copy,  relates  only  to  papers,  entries  and  records 
mentioned  in  previous  sections,  and  does  not  authorize  the  intro- 
duction of  copies  of  contracts  between  parties. 

C.  W.  &  V.  Coal  Co.  vs.  Moran,  210  111.  9. 
When  written  contract  appears  to  have  been  changed,  a  copy  of 
same  is  admissible  to  show  change  Vv^as  made  before  execution. 
Lombard  vs.  Johnson,  76  111.  599. 
Where  the  copy  of  a  written  contract  is  offered  in  evidence,  the 
law  does  not  require  that  the  person  who  made  the  copy  should 
be  produced  and  sworn  before  it  can  be  read.     It  is  sufficient  if 
any  witness  testifies  it  is  a  copy,  to  admit  it  in  evidence. 
Lombard  vs.  Johnson,  76  111.  599. 
Copies  of  an  agreement  and  plat  relating  to  land  are  not  admis- 
sible in  evidence  when  not  certified  or  authenticated  in  any  way, 


COPIES  32.0 

and  there  is  no  evidence  that  they  were  copies  of  any  papers, 

and  the  originals  are  not  accounted  for  in  any  way. 
Blair  vs.  Carr,  UV2  111.  3G2. 

The  copy  of  an  alleged  agreement,  made  from  a  copy  contained 
in  another  case,  is  not  admissible  as  secondary  evidence,  in  ab- 
sence of  proof  that  the  original  document  was  ever  in  existence,  or 

if  in  existence,  that  any  reasonable  effort  was  made  to  produce  it. 
Crane  Co.  vs.  Tierney,  175  111.  79. 

—  Letters:  Upon  proof  that  they  are  copies,  and  of  notice  to 
opposite  party,  to  whom  they  were  sent,  to  produce  the  originals, 
copies  of  letters  are  admissible. 

Eichards  vs.  Gleniion,  71  111.  11.     (See  Best  and  Secondary.) 

—  Telegrams:  Copies  of  telegrams  are  inadmissible  to  prove 
contents  of  same,  untjl  proper  foundation  is  laid  by  proving  loss 
or  destruction  of  originals. 

Matticsou  vs.  Noyes,  25  111.  591.     (See  Telegrams.) 

—  Letter  Press  Copies:  By  statute,  sworn  and  letter  press  copies 
of  abstracts  are  admissible  when  opposite  party  is  given  reasonable 
opportunity  to  verify. 

Glos  vs.  Gary,  194  111.  214;  Converse  vs.  Wead,  142  111.  132. 
Leaving  a  sworn  copy  with  counsel  at  noon  the  day  before  trial 
and  permitting  same  to  remain  until  four  o'clock  the  same  day  is 
giving  reasonable  opportunity. 

Sternheim  vs.  Burckey,  149  111.  241. 

(See  Letter  Press  Copies.) 

—  Corporate  Records:  Certified  copy  of  papers,  entries  and  ree^ 
ords  of  a  corporation  is  original  and  not  secondary  evidence. 

C.  B.  &  Q.  Ey.  Co.  vs.  Weber,  219 'ill.  372. 

Copy   of   corporate   record   incompetent   where   certificate   does 
not  state  that  the  document  is  copy  of  record,  and  that  party  mak- 
ing the  certificate  is  keeper  of  the  records. 
Grand  Lodge  vs.  Young,  123  App.  G28. 

There  are  three  modes  by  which  such  records  may  be  proven  in 
this  state.  First,  a  certified  copy  thereof;  second,  by  a  copy 
thereof  proven  to  be  such  by  a  credible  witness ;  third,  by  the  pro- 
duction of  the  original  records. 

Cantwell  vs.  Stockmen 's  Build.  Union,  8S  App.  247. 

—  Power  of  Attorney:  Erasures  and  interlineations  in  a  cer- 
tified copy  do  not  render  same  inadmissible. 

Holbrook  vs.  Nichols,  36  111.  161. 
AVhen  official  seal  on  original  instrument  is  indicated  on  cer- 
tified copy  of  record  by  letters  L.  S.  does  not  render  copy  inad- 
missible. 

Holbrook  vs.  Nichols,  36  111.  161. 

—  Lease  and  Mortgage :  A  copy  of  a  lease  of  its  lines  by  a  rail- 
road company,  certified  by  the  proper  officer  and  bearing  the  seal 
of  the  corporation,  is  admissible  as  a  "paper  of  the  corporation." 

C.  B.  &  Q.  Ey.  Co.  vs.  Weber,  219  111.  372. 
A  certified  copy  of  a  mortgage,  the  original  being  lost,  can  not 
be  impeached  on  ground  of  alteration  of  the  original,  before  re- 
cording, by  inserting  a  release  of  the  homestead  right,  except  upon 
clear  and  convincing  evidence.     In  absence  of  such  proof,  it  will 


330  COPIES 

be  presumed  that  the  copy  is  a  precise  transcript  of  the  original  as 
it  was  executed  and  recorded. 

Blasey  vs.  Deliiis,  8(3  111.  558. 

Public  Writings: 

—  Land  Office  Entries:  Under  the  Evidence  act,  the  official 
certificate  of  a  register  or  receiver  of  a  land  office  of  the  United 
States  to  any  fact  or  matter  on  record  in  his  office,  is  evidence  and 
competent  to  prove  the  fact  so  certified. 

Wyman  vs.  City  of  Chicago,  254  111.  202;   Black  vs.  C.  B.  &  Q.  By. 
Co.,  237  111.  500. 
The  exemplification  of  the  books  and  records  of  the  general  land 
office,  certified  by  the  recorder,  is  competent  evidence  of  the  truth 

of  its  recitals. 

Black  vs.  C.  B.  &  Q.  E.  R.  Co.,  237  111.  500;  Wilcox  vs.  Jackson,  109 
111.  2(31;  Seeley  vs.  Wells,  53  111.  120. 
An  exemplification  of  an  entry  in  the  land  office  of  the  United 
States  as  admissible  to  show  the  location  of  a  land  warrant  upon 
a  tract  of  the  public  land  by  the  holder  of  the  same. 
Gormley  vs.  Uthe,  116  111.  643. 
An  exemplification  of  any  record  or  paper  in  the  land  office  of 
the  United  States  is  of  equal  dignity  with  the  original,  and  equally 
admissible  where  the  original  would  be  admitted. 
Lee  vs.  Getty,  26  111.  76. 
Certified  copy  of  record  of  land  office  is  admissible  if  certified 
by  recorder  of  general  land  office,  instead  of  by  "any  register  or 
receiver  of  any  land  office." 

Wyman  vs.  City  of  Chicago,  254  111.  202. 

—  Land  Patents:  Under  section  96  of  the  school  law  of  1857, 
authorizing  Auditor  of  public  accounts,  upon  certain  proof  fur- 
nished, to  issue  in  lieu  of  a  patent  for  land,  which  has  been  lost  or 
destroyed,  "a  duplicate  copy"  thereof,  it  is  not  necessary  that 
such  copy  should  have  affixed  to  it  the  seal  of  state,  to  render  it 
admissible  in  evidence  for  the  same  purposes  for  which  the  original 

might  have  been  offered. 

Jackson  vs.  Berner,  48  111.  203. 
A  certified  copy  of  a  patent  for  land,  issued  by  the  United  States, 

may  be  ofi^ered  in  evidence. 

Lane  vs.  Bommelman,  17  111.  95. 

—  Ordinances:  Copies  of  ordinances  and  council  proceedings, 
certified  by  the  clerk  are  competent. 

Boyd  vs.  C.  B.  &  Q.  R.  R.  Co.,  103  App.  199. 
Recorded  copy  of  ordinance  is  inadmissible  to  show  that  ordi- 
nance had  not  been  signed  by  president. 
Ry.  Co.  vs.  Collison,  134  App.  443. 
Certified  copies  of  ordinances,  attested  by  clerk  under  seal  of 
the  corporation,  is  competent  evidence  of  the  passage  of  such  ordi- 
nances. 

T.  H.  &  I.  R.  Co.  vs.  Voelker,  129  111.  540;  Pendergast  vs.  Peru,  20 
111.  52;  Prairie  Du  Eocher  vs.  Milling  Co.,  248  111.  57. 
Ordinances  are  properly  proven  by  copies  sworn  to  upon  the 
trial,  by  witness  as  having  been  compared  by  him  with  the  origi- 
nals found  to  be  true  and  correct.       And  this  dispenses  with  the 


COPIES  331 

necessity  of  producing  tlie  originals  and  makes  copies  of  original 
ordinances  evidence  witiiout  any  certificate  whatever. 

C.  C.  C.  &  St.  L.  E.  K.  Co.  vs.  Bender,  69  App.  2G2 ;  City  of  Chicago 
vs.  English,  80  App.  163. 
Ordinances  of  city  of  foreign  state  may  be  proven  by  sworn 

copies. 

Ey.  Co.  vs.  Shires,  108  111.  617. 

Production  of  duly  certified  copy  of  an  ordinance  affords  pnma 
facie  evidence  that  every  step  has  been  taken  with  reference  to  it, 

to  make  it  a  valid  ordinance. 

Lindsay  vs.  City  of  Chicago,  115  111.  120 ;  I.  C.  E,  E.  Co.  vs.  Collison, 

134  App.  443. 

Duly  certified  copy  of  a  special  assessment  ordinance,  made  to 

correspond  with  original  ortiinance  by  striking  out  printed  parts 

and  substituting  proper  provisions  by  pen  and  ink,  is  admissible 

without  extrinsic  evidence  of  change. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Gage  vs.  City  of  Chicago,  223 
111.  602. 

—  Bond  Registers:  Copy  proven  by  clerk  sworn  as  witness, 
testifying  that  he  examined  and  compared  wdth  original  register, 
and  found  it  correct,  admissible.  Is  original  evidence  and  does  not 
depend  upon  the  fact  that  record  itself  is  lost  or  destroyed. 

E.  St.  Louis  vs.  Freels,  17  App.  339. 

Copies  of  all  bonds  legally  deposited  in  the  Secretary's  office, 

when  certified  by  him  and  authenticated  by  the  seal  of  his  office, 

are  admissi])le  in  evidence  the  same  as  originals,  even  though  the 

latter  are  not  lost.  ''  -'^j^ 

Eamsey  vs.  People,  197  111.  572, 

—  Registers  of  Births,  Deaths  and  Marriages:  See  Registers 
OF  Births,  Deaths  and  ]\Iarriages. 

—  Records   of  County   Clerk  and  Recorder:     Sworn  copies  of 

records  of  county  clerks  are  admissible. 
Glos  vs.  Boetticher,  193  111.  534. 

In  proceeding  to  set  aside  tax  deed  as  cloud  upon  title,  sworn 
copies  of  original  records  and  papers  in  county  clerk's  office,  upon 
which  deed  was  based,  are  admissible. 
Glos  vs.  Holmes,  228  111.  436. 

Sworn  copies  of  the  papers  and  records  which  have  been  admitted 
in  evidence,  cannot  be  impeached  by  the  oral  testimony  of  witnesses 
who  have  examined  the  original  papers  and  records,  where  original 

papers  and  records  are  available. 

Glos  vs.  Holmes,  228  111.  436. 

Where  an  affidavit  for  the  introduction  of  a  copy  of  a  deed  is 

positive  in  its  terms  and  meets  all  the  requirements  of  the  statute, 

the  opposite  party  is  not  entitled  to  cross  examine  the  affiant  as 

to  the  truth  of  the  affidavit. 

Glos  vs.  Garrett,  219  111.  208. 

In  proceeding  to  set  aside  a  tax  deed,  a  copy  of  the  affidavit  for 

notice  by  publication  is  properly  admitted,  whether  sufficiently 

certified  by  county  clerk  or  not,   where  deputy  clerk  producing 


332  COPIES 

same  testifies  that  he  has  examined  the  records  and  the  copy  offered 
iu  evidence,  and  compared  same,  and  that  such  copy  is  a  true  one. 
Glos  vs.  Boettcher,  193  111.  534. 
Sworn  copy  is  good  secondary  evidence  of  lost  unrecorded  deed. 

Gold  vs.  Bressler,  105  111.  419. 
A  certified  copy  of  a  deed  is  admissible  to  show  ownership  and 
control  of  the  property. 

Eichardson  vs.  Nelson,  221  111.  255. 
Certified  copy  of  a  deed  properly  acknowledged  under  laws  of 
a  foreign  state,  is  admissible  in  evidence  though  certificate  is  not 
sufficient  under  laws  of  Illinois. 

McCraney  vs.  Glos,  222  111.  631. 
Parol  evidence  of  a  certified  copy  of  a  deed  is  never  admissible. 

Hardin  vs.  Forsythe,  99  111.  312. 
A  certified  copy  of  the  record  of  a  deed  is  admissible  upon  affi- 
davit of  proper  person  that  the  deed  is  lost,  that  he  has  made 
diligent  search  therefor  but  has  been  unable  to  find  it. 
Pardie  vs.  Lindley,  31  111.  174. 
It  is  sufficient  if  affidavit  states  that  affiant  did  not  have  deed, 

had  never  had  it,  and  did  not  know  where  it  was. 

Nixon  vs.  Cobleigh,  52  111.  387;  Fisk  vs.  Kissane,  42  111.  87. 

A  certified  copy  of  a  chattel  mortgage  is  competent  for  the  pur- 
pose of  proving  additions  made  to  the  original  instrument,  already 

in  evidence,  since  its  execution. 

Kimball  Co.  vs.  Piper,  111  App.  82. 

A  copy  of  a  foreign  will,  though  recorded  in  Illinois,  is  not  con- 
structive notice  of  the  will,  unless  authenticated  and  certified  in 
the  manner  required  by  section  9  of  the  act  on  wills. 
Harrison  vs.  Weatherby,  180  111.  418.     (See  Title.) 

In  proceeding  for  partition  and  to  set  aside  a  deed  for  alleged 
undue  influence,  certified  copies  of  foreign  wills  made  by  grantor, 
one  of  which  was  made  long  before  the  execution  of  the  deed,  and 
the  other  just  before  her  death,  are  admissible  for  purpose  of  show- 
ing grantor  had  entertained  a  purpose  of  disposing  of  her  property 
similar  to  that  expressed  in  the  deed,  and  as  explaining  the  trans- 
fer. 

Bishop  vs.  Hilliard,  227  HI.  382. 

An  objection  that  a  certified  copy  of  a  will  is  not  admissible  in 
evidence  because  no  court  was  shown  to  have  been  in  existence  to 
make  the  order  of  probate  attached  to  the  copy  is  without  force, 
where  the  order  shows  in  what  probate  court  it  was  rendered  and 
by  what  judge,  the  date,  and  jurisdiction  of  the  parties. 
Turner  vs.  Hause,  199  111.  465. 

—  Internal  Revenue  Collector:  In  action  for  unlawful  sale  of 
intoxicating  liquors,  an  examined  copy  of  the  collector  of  Internal 
Revenue's  record,  showing  payment  by  defendant  of  retail  malt 
taxes,  is  admissible  on  issue  of  the  issuance  of  license. 

People  vs.  Peterson,  153  App.  480. 

Examined  copy  of  internal  revenue  record  is  sufficient  to  prove 

who  are  tax  payers. 

People  vs.  Joyce,  154  App.  13. 

—  Civil  Service  Commission:  The  only  competent  evidence  of 
the  rules  of  the  civil  service  commission  are  the  original  rules 
adopted,  or  a  copy  proven  to  be  such  by  a  witness  who  has  com- 


COPIES  33;j 

pared  such  copy  with  original  rules  and  knows  that  such  copy  is 

correct. 

City  of  Chicago  vs.  Fitz  Morris,  138  App.  239. 

—  Court  Records:  Copy  of  final  order  of  Supreme  Court,  show- 
ing that  a  judgment  had  been  affirmed  on  the  day  alleged  in  the 
declaration,  between  the  same  parties,  and  from  the  same  county, 

is  prima  facie  evidence  that  judgment  appealed  from  was  affirmed. 
Pearl  vs.  Wellman,  11  111.  352. 

AVhere  depositions  taken  in  one  cause  Avere  destroyed  by  fire, 

and  in  second  suit,  where  parties  and  subject  matter  were  identical 

with  the  first,  and  agreement  was  made  to  admit  transcript  of  record 

in  suit  filed  in  supreme  court,  but  which  was  not  allowed  to  be 

withdrawn,  certified  copy  of  same,  made  by  clerk  of  supreme  court 

was  competent. 

Dowden  vs.  Wilson,  108  111.  257. 

Admitting  a  certified  copy  of  a  record  of  evidence  upon  bill  to 

remove  a  tax  deed  as  cloud  is  not  error,  upon  ground  that  the 

clerk  certified  to  his  conclusion  that  the  paper  was  a  true  copy,  as 

appeared  from  the  records  and  files  of  his  office,  so  far  as  it  related 

to  the  premises  described  in  the  copy,  where  the  only  material  fact 

relied  upon  to  invalidate  the  tax  deed  is  established  by  the  portion 

of  the  record  certified  to. 

Glos  vs.  Dyche,  214  111.  417. 

If  the  certificate  of  the  clerk,  which  constitutes  the  process  for 
a  tax  sale,  is  dated,  the  date  is  evidence  of  the  time  the  certificate 
was  made,  without  regard  to  the  question  whether  it  is  or  is  not 
necessary  to  date  such  a  certificate. 
Glos  vs.  Dyche,  214  111.  417. 

In  absence  of  statutory  authority,  a  clerk  having  custody  of  rec- 
ords may  certify  that  his  copy  of  the  records  is  a  true  copy,  but 
he  can  not  properly  certify  to  his  conclusions  as  to  facts  shown  or 
not  shown  by  the  records. 

GlosVs.  Dyche,  214  111.  417. 

A  certified  copy  of  the  records  of  the  Supreme  Court  of  the 
United  States,  in  another  case  still  pending  in  that  court,  is  prop- 
erly excluded. 

Sanitary  District  vs.  Pearce,   110  App.   592. 

—  Public  Officials:  Examined  copy  admissible  to  establish  rec- 
ord of  public  official. 

People  vs.  Stone,  154  App.  7;  Norton  vs.  E.  St.  Louis,  36  App.  171. 

—  Judgments:  A  judgment  may  be  proven  by  a  sworn  copy  of 
the  judgment  docket.  The  absence  of  placita  and  recitals  as  to 
the  court  in  which  the  purported  judgment  was  rendered  does  not 
afl^ect  the  sufficiency  of  the  proof  made  by  such  document  where 
no  such  special  objection  was  interposed. 

Sycamore  vs.  Berg,  127  App.  369. 

And  this  applies  to  foreign  judgments. 
Thompson  vs.   Mason,   4  App.  452. 

Authenticated  copy  of  judgment  may  be  introduced  to  prove 
existence  of  same. 

People  vs.  Paul,  143  App.  566. 

In  action  on  appeal  bond,  it  is  proper  to  admit  in  evidence  a 
certified  copy  of  the  judgment  for  purpose  of  establishing,  prima 


334  CORONER'S  INQUEST 

facie,  the  identity  of  the  judgment  affirmed  with  that  recited  in  the 
bond,  without  requiring  a  certilied  copy  of  ail  proceedings. 
Eehin  vs.  Halverson,  197  111.  378, 

—  yaiuralization  Proceedings:  Copy  of  record  of  naturaliza- 
tion proceedings  of  sister  state,  certified  by  clerk,  with  seal  of 
court  attached,  but  bearing  no  certificate  of  the  presiding  judge, 

is  inadmissible. 

Brookett  vs.  People,  64  111.  170. 

—  Depositions:  AVhen  deposition  has  been  lost,  court  may,  upon 
satisfactory  showing,  give  leave  to  file  copy  and  same  is  admissible. 

Gage  vs.  Eddy,  167  111.  102;  Dowden  vs.  Wilson,  108  111.  257. 

—  Ship  Enrollments:  A  copy  of  the  last  enrollment  of  a  ves- 
sel, duly  certified  by  collector  of  customs,  is  competent  on  question 

of  ownership  of  vessel. 

Vincent  vs.  Soper  Lbr.  Co.,  113  App.  463;  Mer.  Nav.  Co.  vs.  Amsden, 
25  App.  307. 

—  Appointment  of  Administrator:  The  appointment  of  one  as 
administrator  of  an  estate,  and  where  that  fact  is  put  in  issue,  may 
be  shown  by  an  examined  copy  of  the  record  of  the  appointment, 
satisfactorily  proven  bv  oral  testimony  to  be  a  true  copy  thereof. 

Transit  Co.  vs.  Shaeklett,  119  111.  232. 

—  Unacknowledged  Instruments:    A  contract  to  make  title  to 

land  may  be  recorcied  without  any  acknowledgment  or  proof  of  its 

execution,  but  a  certified  copy  of  the  record  is  not  evidence  until 

instrument  is  acknowledged  and  proved  as  the  law  requires. 
McCorniiek  vs.  Evans,  33  111.  328;  Eeed  vs.  Kemp,  16  111.  445. 

The  record  of  an  unacknowledged  and  unproved  instrument  is 

available  onlv  for  purpose  of  showing  notice. 
Winter  vs.  Dibble,  251  111.  200. 
A  certified  copy  of  the  record  of  an  unacknowledged  instrument 
does  not  prove  contents  of  instrument,  where  there  is  no  proof  of 
execution  of  such  instrument  and  connecting  instrument  executed 

with  one  recorded. 

Winter  vs.  Dibble,  251  111.  200. 

—  No  Seal:  That  a  certified  copy  of  the  record  of  a  release 
showed  no  seal  is  not  sufficient  to  overcome  the  force  of  evidence 
that  the  release  was  under  seal,  based  upon  original  instrument 
showing  a  seal  in  form  of  a  scroll,  and  testimony  of  one  witness 
that  same  was  put  upon  the  instrument  at  the  time  of  its  execution. 

Pease  vs.  Sanderson,  188  111.  597. 

—  Stirveys:     The  testimony   of   a   witness   that   an   uncertified 

paper  purporting  to  be  a  copy  of  a  public  record  corresponds  with 

a  copy  formerly  riiade  by  him,  and  that  it  was  furnished  him  as  a 

certified  copy  by  the  custodian  of  the  record,  is  not  sufficient  to 

prove   the   copy,    and   will   not   cure   its   erroneous   admission   in 

evidence. 

Wiggins  Ferry  Co.  vs.  I.  &  St.  L.  K.  Co..  163  111.  238. 

CORONER'S  INQUEST 

Admissibility  of  Verdict  in  Subsequent  Proceedings: 

—  In    General:     Post    niortem    inquisitions    made    under    the 

authority  of  the  coroner  are  admissible  in  evidence. 
Grand  Lodge  vs.  Wieting,  168  111.  408. 


CORONER'S  INQUEST  835 

The  coroner's  inquest  over  a  dead  person  is  required  by  statute 
to  be  sealed  up  and  returned  to  the  ehn-k  of  the  cii-euit  court.  It 
thus  becomes  a  public  record  of  the  county  and  as  such  it  is  com- 
petent evidence  in  another  proceeding,  tending  to  prove  any  mat- 
ter properly  before  the  coroner,  which  appears  on  the  face  of  the 

inquest. 

Foster  vs.  Shepherd,  258  111.  164;  Stollery  vs.  Cieero  St.  Ey.  Co.,  243 
111.  290;   U.  S.  Lite  Ins.  Co.  vs.  Voehe,  129  111.  557;   Nat.  Wood 
Co.  vs.  Smith,  108  App.  477. 
A  coroner's  verdict  is  competent  evidence  of  any  fact  properly 
included  therein,  and  within  the  scope  of  the  inquiry. 
Variety  Mfg.  Co.  vs.  Laudaker,  129  App.  630. 

—  Actions  for  Negligence:  A  coroner's  verdict  as  to  the  man- 
ner and  cause  of  death  is  competent  in  actions  for  negligence. 

Stollery  vs.  Cicero  St.  Ry.  Co.,  243  111.  290 ;  P.  C.  C.  &  St.  L.  Ry.  Co. 
vs.  McGrath,  115  111.  "172;   Cox  vs.  C.  &  N.  Ey.  Co.,  92  App.   15; 
O  'Donnell  vs.  C.  &  A.  Ey.  Co.,  127  App.  432. 
A  coroner  is  given  no  power  by  the  statute  to  make  a  finding  on 
the  question  of  the  negligence  of  the  injured  or  killed  employe  or 
of  his  employer,  with  a  view  to  fixing  or  defeating  personal  lia- 
bility against  the  employer.     A  verdict  imputing  negligence  to  the 
employer  is  not  admissible  in  evidence  against  such  employer  in 
action  for  damages.      (In  this  case  verdict  in  question  contained 
objectionable  finding  as  follows:     "Said  Crankshaft  and  pit  was 

unprotected.") 

Eolloff  vs.  Luer  Bros.,  158  App,  614. 

But  held  error  to  refuse  to  admit  verdict  reciting  that  deceased 
came  to  his  death  from  being  burned  or  scalded  at  the  defendant's 
works  the  day  before  his  death,  and  that  the  injuries  were  inflicted 
through  his  own  carelessness. 

Natl.  Woodenware  Co.  vs.  Smith,  108  App.  477. 

Verdict  that  deceased  came  to  his  death  by  being  run  over  by 
engine  of  defendant  while  it  was  "in  the  act  of  making  a  running 
switch  on  the  back  track,  etc."  admissible. 

Newell  vs.  C.  C.  C.  &  St.  L.  By.  Co.,  179  App.  497. 

So  it  was  held  that  verdict  containing  following:     "We  further 
find  that  the  aforesaid  company  is  responsible  for  said  death  on 
account  of  fast  running  and  the  view  to  the  said  track  being  ob- 
structed by  cars  and  depot"  was  admissible. 
Cox  vs.  C.  &  N.  W.  Ey.  Co.,  92  App.  15. 

And  verdict  reciting  ' '  her  death  was  the  result  of  an  unavoid- 
able accident"  held  admissible. 

Calloway  vs.  Spurgeon,  63  App.  571. 

So  where  court  refused  to  admit  all  of  verdict  which  recited 
"and  acting  under  the  orders  of  the  foreman  of  the  section  to 
which  he  belonged,"  held  reversible  error. 

O 'Donnell  vs.  C.  &  A.  Ey.  Co.,  127  App.  432. 

Held  reversible  error  to  admit  verdict  containing  the  following : 
"And  we  the  jury  find  that  the  railroad  company  is  responsible, 
and  that  the  train  was  running  at  a  fast  rate  of  speed  and  that 
the  engineer  did  not  blow  his  whistle  until  after  the  deceased  was 

C.  M.  &  St.  p.  Ey.  Co.  vs.  Staff,  46  App.  499;  see  also  L.  S.  &  M.  S. 
Ey.  Co.  vs.  Taylor,  46  App.  596. 


336  CORONER'S  INQUEST 

—  Actions  an  Insurance  Policy:  In  action  on  mutual  benefit 
policy  and  defense  is  death  of  insured  in  manner  in  which  policy 
prohibits  recovery  for,  coroner's  verdict  is  admissible. 

Grand  Lodge  vs.  Wieting,  168  111.  408;  Knight  Templars  vs.  Crayton, 
209  111.  550;  Laudholm  vs.  Mystic  Workers,  164  App.  472. 
A  coroner's  verdict  as  to  the  manner  in  which  death  resulted  is 
competent  in  action  upon  accident  insurance  policy. 

Genua  vs.  Cont.  Cas.  Co.,  167  App.  413 ;  Lundholm  vs.  Mystic  Work- 
ers, 164  App.  472. 

—  Bill  to  Contest  Will:  The  verdict  of  a  coroner's  jury  at  an 
inquest  held  on  the  body  of  a  testator  may  be  introduced  in  evi- 
dence in  proceeding  to  set  aside  his  will  for  the  purpose  of  showmg 
that  such  testator  committed  suicide. 

Pyle  vs.  Pyle,  158  111.  289. 

—  Admissible  in  Entirety:  A  coroner's  verdict  should  be  re- 
ceived in  the  entirety  or  rejected  in  the  entirety,  although  the  court 
may,  in  a  proper  case,  instruct  the  jury  to  disregard  certain  por- 
tions thereof,  viz.,  the  responsibility.  r.  o  .r  ^  r. 

O'Donnell  vs.  C.  &  A.  Ey.  Co.,  127  App.  432;  Cox  vs.  C.  &  N.  W.  By. 
Co.,  92  App.   15. 

A  coroner  s  verdict  is  competent  as  a  whole  if  it  contains  state- 
ments beyond  the  province  of  such  a  jury.  The  party  objecting 
thereto  should  ask  instructions  of  the  court  safe-guardmg  his 
rights  to  the  extent  of  any  portions  which  were  outside  the  province 

of  such  verdict. 

City  of  Chicago  vs.  Cohen,  139  App.  244. 

—  Name  and  Seal  of  Coroner:  The  fact  that  verdict  is  not 
shown  to  have  been  filed  with  the  circuit  clerk  and  also  because  it 
has  coroner's  name  and  seal  attached  does  not  render  the  verdict 

inadmissible. 

Stollerry  vs.  Cicero  St.  Ky.  Co.,  243  111.  290. 

'/.! — Proceeding  in  Sister  State:    AVhere  writing  lacks  essentials 
of  an  inquistition  under  our  statute  or  at  common  law,  and  the 
statutes  of  sister  state  are  not  in  proof,  such  writing  is  inadmissible. 
Natl.  Gross  Loge  vs.  Jung,  65  App.  313. 

Weight  and  Effect  of  Verdict: 

The  legitimate  object  of  the  inquest  is  fulfilled  in  finding  simply 

the  cause  of  death. 

P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  McGath,  115  111.  172. 

"Within  the  scope  of  the  jury's  authority,  their  verdict  becomes  a 

public  document  and  competent  evidence ;  beyond  that,  their  mere 

expression  of  opinion  as  to  the  guilt  or  responsibility  causing  the 

death  and   cannot  be   of  any   binding   force   against   such  party 

in  subsequent  proceedings. 

Cox  vs.  C.  &  N.  W.  Ey.  Co.,  92  App.  15 ;  Calloway  vs.  Spurgeon,  63 
App.  571;  C.  M.  &  St.  P.  Ey.  Co.  vs.  Staff,  46  App.  506. 

A  verdict  of  a  coroner's  jury  is  not  conclusive. 

U.  S.  Life  Ins.  Co.  vs.  Voche,  129  111.  557;  Novitsky  vs.  Knickerbocker 
Ice  Co.,  180  App.  188. 
But  was  held  admissible  "for  the  purpose  of  showing  prima  facie 

that  deceased  committed  suicide." 
Pyle  vs.  Pyle,  158  111.  289. 
A  verdict  by  a  jury  impaneled  by  a  coroner  is  not  conclusive  of 
the  facts  found,  nor  does  such  a  verdict  establish  prima  facie  the 


CORONER'S  INQUEST  337 

fact  found,  but  the  same  is  merely  evideuee  Avhich  tends  to  show 
the  existence  of  the  fact  in  question. 

Peekhain  vs.  Modern  Woodmen,  151  Ajip.  95. 
Compliance  of  coroner  with  statute  requiring  testimony  of  wit- 
ness to  be  written  and  signed,  presumed. 

Overtoon  vs.  C.  &  E.  I.  Co.,  181  111.  323. 

Admissibility  of  Depositions: 

—  In  General:  The  verdict  has  somewhat  the  dignity  of  the 
court  proceeding  but  the  depositions  taken  at  a  coroner's  inquest 
are  mere  ex  parte  statements  and  incompetent  for  any  purpose 
other  than  contradiction. 

Knight  Templars  vs.  Crayton,  209  111.  550;  P.  C.  C.  &  St.  L,  Ey. 
Co.  vs.  McGrath,  115  III  172;  Gooding  vs.  U.  S.  Life  Ins.  Co.,  46 
App.  307;  Grant  vs.  C.  &  N".  W.  Ey.  Co.,  176  App.  292;  Novitsky 
vs.  Knickerbocker  Ice  Co.,  180  App.  188. 

—  The  Affidavit:     The  evidence  of  a  witness  taken  at  a  coroner's 

inquest  is  competent  by  way  of  impeachment  Mdien  he  signed  same 

and  admits  such  signing. 

Chi.  City  Ey.  Co.  vs.  Jorden,  116  App.  650;  Con.  Ice  Mach.  Co.  vs. 
Keifer,  134  111.  481. 

An  affidavit  used  at  coroner's  inquest  may  upon  proper  foun- 
dation laid,  be  admitted  for  the  purpose  of  contradicting  the  wit- 
ness who  made  it,  but  it  is  error  to  permit  it  to  be  taken  to  the 
jury  room. 

Fein  vs.  Covenant  Mntnal  Ins.  Co.,  60  App.  274. 

The  deposition  of  a  witness  at  a  coroner's  inquest  is  not  admis- 
sible in  subsequent  proceeding  though  such  witness  is  then  de- 
ceased 

P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  McGrath,  115  111.  172. 

—  Stenographic  Notes:     See  Stenographer's  Notes. 

—  Parol  Evidence:  Parol  evidence  is  admissible  to  prove  what 
one  accused  of  crime  voluntarily  disclosed  before  coroner's  jury 
if  it  is  shown  that  his  examination  was  not  reduced  to  writing. 

Lyons  vs.  People,  137  111.  602;  People  vs.  Anderson,  239  111.  168. 

—  Admissions  of  Accused:  If  a  party  testifying  before  a  cor- 
oner or  committing  magistrate  is  actually  under  arrest,  though  it 
may  be  without  warrant,  his  testimony  is  inadmissible.  But  this 
rule  applies  where  the  accused  party  is  put  on  his  oath  and  sworn 
and  examined,  not  on  his  own  motion,  but  on  the  motion  of  the 
prosecution.  Statements  made  under  such  circumstances  may  not 
only  be  unreliable,  but  inquisitorial  in  their  character.  Where  a 
man  arrested  by  an  officer  without  a  warrant  upon  suspicion  of 
h-aving  committed  murder  is  compelled  to  answer  under  oath  as  a 
witness  at  a  coroner's  inquest,  statements  which  he  thus  makes  are 
not  admissible  against  him  on  his  trial  for  the  murder.  The  thing 
prohibited  by  the  rule  is  ' '  the  special  interrogation  of  the  accused — 
the  converting  him,  whether  willing  or  not,  into  a  witness  against 
himself;  assuming  his  guilt  before  proof,  and  subjecting  him  to 
an  interrogation  conducted  on  that  hypothesis."  Bat  it  is  other- 
wise where  the  statements  made  are  voluntary  and  where  the  oath 
taken  is  voluntary.  Where  a  prisoner  may  testify  on  his  own 
behalf  in  all  criminal  proceedings  if  he  desires,  his  testimony  taken 
under  oath  at  the  preliminary  examination,  if  it  appears  to  have 

Ev. — 2  2 


338  CORPORATIONS 

been  freely  given,   without  compulsion  or  promise,   is   admissible 

as  a  confession. 

Lyous  vs.  People,  137  III.  C02;  People  vs.  Anderson,  2.39  111.  168. 

On  the  trial  of  one  for  murck^',  several  of  the  People's  witnesses 
stated,  some  on  their  direct  examination  and  some  on  their  re- 
examination, over  defendant's  objection,  what  they  testified  to  at 
the  coroner's  inquest,  and  like  statements  were  made  by  several 
of  the  witnesses  on  their  cross  examination.  The  defendant  asked 
this  instruction  ' '  The  court  instructs  the  jury  what  any  witness  or 
witnesses  may  have  testified  before  the  coroner's  incjuest  is  no 
evidence  of  the  guilt  of  the  defendant  in  this  case."     Refusal  held 

error. 

Purdy  vs.  People,  140  111.  46;  Eitter  vs.  People,  130  111.  255. 


CORPORATIONS 

See  Parol,   Seals,   Subscription,  Residence,   Admissions  and 
Declarations,  Records,  Eminent  Domain,  Insurance,  Best  and 
Secondary, 
Admissibility  of  Evidence: 

—  Articles  of  Incorporation:  Certificate  of  complete  organi- 
zation, executed  and  recorded  as  provided  by  law,  is  prima  facie 

evidence  of  existence. 

Gunderson  vs.  111.  T.  &  S.  Bank,  199  111.  422. 
Where  a  plea  denying  corporate  existence  of  plaintiff  suing  as 
a  corporation  is  pleaded,  the  original  articles  of  association,  prop- 
erly recorded,  may  be  read  in  evidence,  without  certificate  of  clerk 

that  it  is  a  true  copv. 

Fortiu  vs.  U.  S.  W.  E.  Co.,  48  111.  451. 

In  suit  by  corporation,  a  certified  copy  of  articles  of  incorpora- 
tion is  admissible  on  part  of  defendant,  where  its  declaration  al- 
leges such  incorporation. 

G.  W.  Tel.  Co.  vs.  Hears,  154  111.  437. 

—  Articles  of  Consolidation:  In  suit  against  consolidated  rail- 
way company,  copies  of  articles  of  consolidation  on  file  in  office 
of  Secretary  of  State,  duly  certified  by  such  Secretary  of  State, 
and  authenticated  by  his  seal  of  office,  are  competent  evidence 
to  prove  the  consolidation,  the  same  as  the  original  articles  would 

be. 

C.  C.  &  I.  C.  B.  Co.  vs.  Skidamore,  69  111.  566. 

—  Bill  of  Sale:  An  instrument  purporting  to  be  a  bill  of  sale 
from  a  corporation,  executed  by  its  vice-president,  with  the  cor- 
porate seal  attached,  is  admissible  to  show  transfer  of  property 
therein  mentioned,  although  there  is  no  proof  that  the  vice-presi- 
dent was  authorized  to  execute  it. 

Springer  vs.  Bigford,  160  111.  495. 

•  '  —  Certificate  of  Comptroller  of  Currency:    Is  properly  received 

in  evidence,  and  proof  sufficient  to  establish,  at  least  prima  facie, 

the  existence  of  National  Bank. 

Mix  vs.  Natl.  Bank,  91  111.  20. 

—  Contracts;  Contract  not  under  seal  is  admissible  if  subject 
is  within  powers  of  corporation.     A  corporation  may  bind  itself, 


CORPORATIONS  339 

in  a  matter  within  its  charter  powers,  by  a  writing  not  under  seal, 
to  same  extent  as  an  individual  may. 

Sieberliug  vs.  Miller,  207  111.  443;  Greeu  vs.  Blodgett,  159  111  169- 
XI  111.  Notes  1105,  §  430. 

A  contract  purporting  to  be  entered  into  by  incorporated  com- 
panies is  admissible,  though  no  proof  is  made  of  legality  of  or- 
ganization. 

Smith  vs.  Mayfield,  163  111.  447;  W.  S.  Auction  Co.  vs.  Com.  Ins. 
Co.,  186  111.  156;  Brown  vs.  Mortgage  Co.,  110  111.  235;  Hudson  vs. 
Green  Hill  Cemetery,  113  111.  618. 

A  recovery  may  be  had  under  the  common  counts  though  contract 
is  ^(Itra  vires  where  it  has  been  executedior  benefits  accepted  there- 
under. 

U.  S.  Brg.  Co.  vs.  Dolese,  259  111.  274. 
A  contract  by  a  corporation  is  admissible  although  the  word 
"manufacturing,"  used  in  name  of  corporation,  is  written  "Mfg." 
in  the  contract,  and  although  contract  is  not  under  seal  of  cor- 
poration. 

Sieberling  vs.  Miller,  207  111.  443. 

A  contract  made  by  an  individual  under  a  corporate  name  is  not 
void  though  there  has  been  no  incorporation  and  such  contract  is 
admissible  under  proper  averment. 
Turnes  vs.  Johnson,  179  App.  32. 

—  Deeds:  In  ejectment  by  a  corporation,  entitled  to  hold  real 
estate  for  any  purpose,  the  cleeds  under  which  it  claims  title  can- 
not be  denied  admission  in  evidence  upon  alleged  ground  that  the 
corporation  exceeded  its  powers  in  taking  conveyances,  since  that 
question  can  be  raised  onlv  by  the  state. 

C.  &  A.  E.  E.  Co.  vs.  keegan,  185  111.  70. 

—  Execution  of  Bonds:  As  tending  to  show  that  a  bond  exe- 
cuted for  a  luml)er  company  l)y  its  salesman  was  executed  to  se- 
cure a  sale  of  lumber  to  a  contractor,  evidence  that  similar  bonds 
had  been  executed  by  the  company,  and  the  company,  in  a  subse- 
quent letter,  agreed  to  carry  out  the  bond,  is  admissible. 

A  letter  from  a  corporation  purporting  to  ratify  a  bond  exe- 
cuted by  its  agents  is  admissible  over  objection  that  it  is  "incom- 
petent, irrelevant,  and  immaterial,"  not  to  aid  the  validity  of  the 
bond,  but  as  tending  to  prove  the  corporation  executed  the  bond. 
Central  Lbr.  Co.  vs.  Kelter,  201  111.  503. 

—  Jueliciul  Deerees  Against  Corporation:  In  suit  against  a 
stockholder  of  an  insurance  company,  based  upon  a  decree  against 
the  company  on  a  policy  of  insurance  and  loss  by  fire,  for  ascer- 
tain sum,  no  recovery  can  be  had  without  proof  of  execution  of 
such  policy  as  is  described  in  the  declaration,  and  of  a  loss  by  fire. 
The  recitals  in  the  decree,  of  these  facts,  are  no  evidence  against 
the  stockholder,  who  was  no  party  to  the  suit  in  which  it  was  ren- 
dered. A  decree  against  a  corporation,  finding  its  liability  and 
the  amount  of  its  indebtedness,  is  not  admissible  against  a  stock- 
holder of  such  corporation  who  was  no  party  to  the  decree,  either 
actually  or  constructively. 

'  Chestnut  vs.  Pennell,  92  111.  55. 

—  Leases:  A  copy  of  lease  of  lines  of  railroad  company,  certi- 
fied by  the  proper  officers,  and  bearing  seal  of  corporation,  is  ad- 


340  CORPORATIONS 

missible  as  a  "paper"  of  the  corporation,  within  meaning  of  that 
term  as  used  in  Section  15  of  Evidence  act. 

C.  B.  &  Q.  Ey.  €o.  vs.  Weber,  219  111.  372 ;  Cf .  C.  W.  &  V.  Coal  Co. 
vs.  Moran,  210  111.  9. 

—  Letters:     Letters  by  ollicers  are  admissible  against  corpora- 
tion, where  it  appears  same  were  approved  by  and  written  under 

direction  of  such  corporation. 

U.  S.  Co.  vs.  Teniiy,  200  111.  349. 

—  Opinion  Evidence:    Proof  of  papers,  entries  and  records  of  a 

private  corporation,  in  its  possession,  cannot  be  shown  by  opinion 

or  conclusion  of  a  witness.     The  evidence  must  be  primary,  original 

evidence. 

Mandel  vs.  Land  Co.,  154  111.  177. 

—  Parol  Evidence:  Where  there  is  misnomer  of  corporation  or 
a  variance  in  the  writing  from  exact  corporate  name,  parol  proof 

is  admissible  under  proper  averment  to  establish  identity. 

Mall.  I.  E.  Co.  vs.  Pusey,  244  111.  184;  Board  of  Education  vs.  Green- 
baum,  39  III.  610;   Chadsey  vs.   McCreery,   27  111.   252;   Peatie  vs. 
Wabash  E.  Co.,  18  111.  88. 
Where  it  is  doubtful  whether  the  contract  is  to  bind  the  princi- 
pal or  agent,  extrinsic  evidence  may  be  received  to  ascertain  who 

was  to  be  bound  as  principal. 

Keeley  Brg.  Co.  vs.  Decorating  Co.,  194  111.  580;  Bran  vs.  Hess  Co., 
187  111.  283. 

But  not  if  contract  clearly  binds  the  agent. 

Vail  vs.  N.  W.  Ins.  Co.,  192  111.  567;  O.  &  M,  Ey.  Co.  vs.  Middleton, 
20  111.  629. 
Parol  evidence  is  admissible  to  show  that  an  instrument  executed 
by  an  ofBcer  of  a  corporation  is  the  obligation  of  the  corporation 

and  not  of  the  officer  executing  snme. 

Scanlon  vs.   Keith,  102   111.  634;   Decowski  vs.  Grabarski,   181   App. 
279. 
The  rule  that  parol  evidence  is  inadmissible  to  vary  terms  of 
written  contract  applies  to  stock  subscription  contracts. 

Jewell  vs.  E.  E.  Paper  Co.,  101  111.  57;   Conwith  vs.  Culver,  69  111. 
502.     (See  Subscription.) 
Parol  evidence  is  admissible  to  show  that  there  was  no  delivery 
of  a  subscription  to  stock  of  a  corporation,  left  in  hands  of  solicit- 
ing agent,  to  be  withheld  until  investigation  could  be  made  and 

directions  given  for  the  delivery. 

G.  W.  Tel.  Co.  vs.  Lowenthal,  154  111.  261. 
In  action  against  a  corporation  to  recover  under  a  special  con- 
tract, which  was  evidenced  by  a  resolution  of  the  board  of  trus- 
tees of  the  corporation,  parol  evidence  is  not  admissible  in  behalf 
of  the  plaintiff  to  prove  the  contents  of  such  resolution,  without 
notice  to  defendant  to  produce  it,  or  the  usual  preliminary  proof 

of  loss. 

Trustees  vs.  Shaffer,  63  111.  243. 

While  a  transfer  of  stock,  absolute  in  form,  may  be  shown  by 
parol  evidence  to  really  be  a  pledge  to  secure  a  debt,  yet  when  that 
kind  of  evidence  is  relied  upon,  it  ought  to  be  clear  and  convinc- 
ing. 

Travers  vs.  Leopold,  124  111.  431. 

■ — Corporate  Records  and  Books:  The  books  of  a  private  cor- 
poration, as  between  members  of  the  corporation,  are  admissible 


CORPORATIONS  341 

as  public  books,  as  evidence  of  the  election  of  officers  of  the  cor- 
poration, and  of  other  acts  and  proceedings. 

Trainor  vs.  B.   &  L.  Assn.,   204  111.   616;    Plagge  vs.   111.   Con.,   177 
111.  431. 

The  books  of  a  corporation  are  competent  evidence  for  the  pur- 
pose of  showing  its  acts  and  proceedings.    Such  books  are  sufficient 
to  show,  prima  facie,  the  prerequisites  of  a  statute  have  been  com- 
plied with,  so  as  to  give  the  corporation  an  existence. 
Eider  vs.  A.  &  S.  Ey.  Co.,  13  111.  517. 

Corporation  books  are  not  per  se  admissible  in  evidence  against  a 
stranger.  The  general  rule  is  that  corporate  books  are  evidence 
between  members  but  not  against  strangers,  and  this  on  the  prin- 
ciple that  a  party  cannot  make  evidence  for  himself  and  against 

a  third  party. 

Chase  vs.  S.  &  C.  E.  E.  Co.,  38  111.  215 ;  Prot.  Ins.  Co.  vs.  Dill,  91  111. 
174. 

Resolution  of  common  council  of  city  instructing  street  commis- 
sioner to  notify  parties  to  repair  sidewalk,  is  admissible  on  ques- 
tion whether  city  had  notice  of  defect  in  walk. 
City  of  Aurora  vs.  Pennington,  92  111.  564. 

The  subscription  book  with  the  orders  of  the  company  requiring 

payment  are  competent  evidence  under  the  general  count.    Neither 

notice  of  calls  nor  demand  of  pavment  need  be  proven. 
Peak  vs.  Wabash  Ey.  Co.,  18  111.  88. 

In  action  by  corporation  for  subscription  to  stock  payable  upon 
condition  that  corporation  raise  a  certain  sum,  the  books  of  the 
corporation  are  not  admissible  against  defendant  to  show  that  such 
condition  precedent  had  been  performed,  unless  defendant  is  shown 
to  he  a  meml)er  of  the  corporation. 
Chase  vs.  Ey.  Co.,  38  111.  215. 

The  record  or  journal  of  the  acts  and  proceedings  of  a  corpora- 
tion are  admissible  in  evidence  against  a  stockholder  in  suit  to 
enforce  his  personal  liability  of  the  corporation.  It  is  competent 
evidence  to  show  an  acceptance  of  an  amendment  of  the  charter, 
without  first  showing  that  the  persons  accepting  the  same  were 
directors,  when  they  are  named  as  such  in  the  journal. 
Dows  vs.  Naper,  91  111.  44. 

Records  of  the  transactions  of  board  of  directors  may  be  proven, 

first  by  duly  certified  copies  thereof;  second,  by  a  copy  thereof, 

proved  to  be  such  by  a  credible  witness ;  third,  by  the  production  of 

the  original  records. 

Cantwell  vs.  B.  &  L.  Sav.  Union,  88  App.  247, 

The  records  are  competent  evidence  that  the  full  capital  stock 
has  been  subscribed,  and  together  with  the  final  certificate  of  com- 
plete incorporation,  issued  by  Secretary  of  State,  are  prima  facie 

proof  of  such  fact. 

McCoy  vs.  Columbian  Exposition,  186  111.  356. 

A  minute  book  kept  by  a  subordinate  lodge  containing  entries 

required  to  be  made  by  it  in  the  performance  of  its  agency  for  the 

society,  is  competent  where  it  contains  relevant  admissions  against 

such  society. 

Plattdeutsehe  Grot  Glide  vs.  Eoss,  117  App.  247. 
In  action  against  corporation   for  rent,  a  resolution  providing 


342  CORPORATIONS 

for  relinquishment  of  lease  is  admissible  when  corporation  pleads 
eviction  in  defense,  on  question  of  good  faith  of  such  defense. 
McCormick  vs.  Wall  .Paper  Co.,  147  App.  487. 

Minutes  of   a  stockholders'   meeting,   written  upon  a  sheet  of 

paper,   signed   by   the   secretary   and  bearing  the   initials   of   the 

president   of   the   corporation,   are   competent,   where   it   does   not 

appear  that  they  were  ever  transcribed  in  a  record  book. 
Chott  vs.  Tivoli  Amusement  Co.,  114  App.  178. 

In  foreclosure  proceeding  by  building  and  loan  association  against 
a  member,  the  books  of  the  association  are  admissil)le  to  prove  al- 
leged indebtedness,  only  after  such  preliminary  proof  as  is  re- 
quired to  entitle  private  books  of  account  to  admission. 

If  the  party  who  made  the  entries  in  a  book  has  no  personal 
knowledge  of  their  correctness,  but  made  them  from  memoranda 
furnished  by  another,  the  latter  must  testify  to  the  correctness 
of  the  items,   or  there   must  be   other  evidence  of  such  fact  to 

entitle  the  books  to  admission  in  evidence. 

—  :  ■        Trainor  vs.  B.  &  L.  Assn.,  204  111.  616. 

—  To  Show  Value  of  Stock:  Where  such  stock  has  no  ascer- 
tainable market  value,  it  is  competent  to  admit  value  of  prop- 
erty of  corporation,  assets  and  liaoility. 

McDonald  vs.  Donahay,  196  111.  133;  Stnrgis  vs.  Keith,  57  111.  451. 

Opinion  of  one  who  has  long  been  an  officer  of  a  corporation,  is 

competent  as  to  value  of  corporate  stock. 
Bordener  vs.  Depley,  142  App.  526. 

Under  an  allegation  in  the  bill  that  the  stock  of  a  corporation 

is  unpaid,  proof  of  facts  amounting  to  fraudulent  overvaluation 

of  the  property  taken  for  it  may  be  introduced,  although  fraud  is 

not,  in  terms,  charged  in  the  bill. 

Coleman  vs.  Howe,  154  111.  458. 

The  fair  market  value  of  shares  of  stock  in  a  corporation,  under 
Inheritance  Tax  law,  is  not  what  they  would  bring  on  a  forced 
sale  if  all  should  be  put  on  the  market  at  once,  but  what  they 
would  bring  at  a  sale  at  or  about  the  time  of  the  testator's  death, 
after  due  notice,  under  fair  conditions,  and  in  the  ordinary  course 
of  business,  and  in  arriving  at  such  value,  the  appraiser  and  court 
are  not  limited  to  market  quotations,  but  may  consider  quota- 
tions on  the  public  exchanges,  private  sales,  testimony  as  to  actual 
value,  and  their  own  knowledge  of  the  subject. 
Walker  vs.  People,  192  111.  106. 

Weight  and  Sufficiency  of  Evidence: 

—  0)1  Pica  of  Aid  Ticl  Corijorafion :  Under  plea  of  mil  ticl  cor- 
poration, plaintiff  need  only  show  an  organization  in  fact,  and  a 
user  of  corporate  franchises. 

Mitchell  vs.  Deeds,  49  111.  416;  Marsh  vs.  Astora  Lodge,  27  HI.  421; 
Lewiston  vs.  Proctor,  27  111.  414;   Hamilton  vs.  Carthage,  24  111. 
22;  Mendota  vs.  Thompson,  20  111.  197;  XI  111.  Notes  1053,  §  50. 
Proof  of  existence  of  corporation  de  facto  is  sufficient  on  plea 

of  nul  tiel  corporation. 

Marshall  vs.  Keach,  227  111.  35;  Cozzens  vs.  Brick  Co.,  166  111.  213. 

—  To  Estahlish  Corporate  Existence:  Wliere  legality  of  cor- 
poration is  not  put  in  issue,  it  is  sufficient  show  corporation  de 

facto  onlv. 

Scanlan  vs.  Keith,  102  111.  634. 


CORPORATIONS  343 

And  fact  that  person  did  business  with  corporation  as  such  is 
sufficient  proof  of  dc  facto  corporation. 
Scanlau  vs.  Keith,  102  111.  634. 

In  order  that  there  should  be  a  de  facto  corporation,  two  things 
are  essential.  First,  there  must  be  law  under  which  the  corporation 
might  lawfully  be  created;  second,  user.  Where  tlie  law  author- 
izes a  corporation  and  there  is  an  attempt  in  good  faith  to  organize, 
and  corporate  functions  are  thereupon  exercised,  there  is  a  cor- 
poration de  facto.    The  legal  existence  of  which  cannot  ordinarily 

be  questioned  collaterally. 

Amer.  L.  &  T.  Co.' vs.  M.  &  E.  E.  E.  Co.,  157  111.  G41 ;  Mitchell  vs. 

Deeds,  49  111.  416.  Vl  ,Ui 

A  plea  denying  the  averment  that  plaintiff  is  a  corporation,  is 

overcome  by  proof  that  defendant  sold  plaintiff  laud  and  executed 

to  it  a  deed  of  conveyance,  thus  recognizing  it  as  a  corporate 

body. 

Wood  vs.  Kingston  Coal  Co.,  48  111.  356. 

The  execution  and  delivery  of  an  instrument  by  defendant  to 
plaintiff  as  a  corporation,  is  sufficient  evidence, of  plaintiff's  cor- 
porate existence,  notwithstanding  defendant's  plea  of  a  nul  tiel 
corporation,  and  no}i  est  fad  am,  where  the  evidence  shows  the  ex- 
ecution of  the  instrument  by  defendant,  and  there  is  no  evidence 
to  overcome  plaintiff's  prima  facie  corporate  existence. 

W.  S.  Auction  Co.  vs.  Conn.  Ins.  Co.,  186  111.  156;  Smith  vs.  Mayfield, 

163  111.  447;  Ward  vs.  M.  &  N.  Ey.  Co.,  119  111.  287;  Hudson  vs. 

Green   Hill  Seminary,   113   111.  618;   Brown  vs.  Mortgage  Co.,  110 

111.  235. 
In  absence  of  countervailing  evidence,  proof  of  actual  exercise 
and  enjoyment  of  corporate  powers  and  functions,  sufficiently 
supports  "an  allegation  in  an  indictment  that  the  owner  of  the  ar- 
ticle alleged  to  have  been  stolen  was  a  corporation,  organized  under 
the  laws  of  Illinois,  as  proof  of  user  is,  by  statute,  made  prima 

facie  evidence  of  corporate  existence. 

Waller  vs.  People,  175  111.  221;  Sykes  vs.  People,  132  HI.  32. 
But  oral  proof  as  to  fact  of  being  a  corporation  is  improper. 

People  vs.  Burger,  259  111.  284. 
Where  a  party,  as  a  corporation,  appeals  from  the  judgment  of 
a  justice  of  the"  peace,  no  other  proof  of  its  corporate  existence 
than  that  afforded  by  its  appeal  bond  is  necessary. 
Gerlinger  Co.  vs.  Labada,  41  App.  283. 
In  incorporation  under  special  act,  proof  of  organization  in  fact, 
and  user  is  sufficient  proof  of  existence  of  corporation,  when  same 

is  attacked  collaterally. 

Marsh  vs.  Astoria  Lodge,  27  111.  420. 
The  organization  certificate  of  a  national  bank,  certified  and 
sealed  by  the  comptroller  of  currency,  is  sufficient  evidence  of  its 

corporate  existence. 

Mix  vs.  Nat  '1.  Bank,  91  111.  20.  ■  . 

Parol  evidence  that  a  party  was  a  corporation,  duly  organized, 
and  that  it  had  elected  officers,  and  was  doing  business  as  a  cor- 
poration, if  introduced  without  objection,  is  sufficient  to  establish 

the  existence  of  the  corporation. 

Doyle  vs.  Douglas  Mach.  Co.,  73  111.  273. 
V     To  prove  the  existence  of  a  corporation,  it  is  sufficient  to  pro- 


344  COllPORATIONS 

duce  the  charter  and  prove  acts  done  under  it  in  conformity  with 
it.  Written  proof  that  all  the  preliminary  steps,  etc.,  were  taken, 
is  not  necessary. 

President  vs.  Thompson,  20  111.  197. 
The  certificate  of  the  Secretary  of  the  State  in  which  the  cor- 
poration is  organized,  and  a  copy  of  the  orignal  record  in  his 
office,  properly  certified,  with  evidence  showing  that  it  had  assumed 
to  act  as  a  corporation  and  to  do  business  in  its  corporate  capacity, 
make  a  prima  facie  case  of  the  existence  of  a  dc  facto  corporation. 

Concord  Apart.  House  Co.  vs.  Alaska  Eef.  Co.,  78  App.  682. 
An  allegation,  in  indictment  of  an  express  company's  agent,  for 
embezzlement,  that  the  company  is  a  joint  stock  association,  and  a 
corporation  under  the  laws  of  New  York,  is  i^rima  facie  estab- 
lished by  proof  that  it  had  a  known  and  recognized  de  facto  exist- 
ence in  Illinois  as  a  corporation. 

Kossakowski  vs.  People,  177  111.  563. 
Under  indictment  charging  defendants  with  conspiracy  to  de- 
fraud certain  alleged  foreign  insurance  corporations  of  goods  and 
property,  uncontradicted  evidence  that  such  companies  made  and 
issued  policies,  and  after  loss,  adjusted  the  same  and  paid  over 
the  money,  is  sufficient  proof  of  corporate  existence. 

Graff  vs.  People,  208  111.  312. 
The  general  rule  is  that  in  all  collateral  proceedings  at  the  suit 
of  an  alleged  corporation,  the  introduction  of  the  charter  of  the 
company,  and  proof  that  the  company  is  exercising  the  franchises 
granted,  afford  sufficient  evidence  upon  the  question  of  the  corpo- 
rate existence  of  the  company.  In  such  case,  it  is  not  required  to 
show  the  company  is  a  corporation  de  jure. 

P.  &  P.  U.  Ey.  Co.  vs.  P.  &  F.  Ey.  Co.,  105  111.  110. 
Introduction  of  charter,  with  proof  of  exercise  of  franchises  and 
powers  thereby  granted,  is  sufficient  to  establish  existence  of  a 

corporation  dc  facto. 

St  L.  A.  &  T.  H.  Ey.  Co.  vs.  Bell  Ey.  Co.,  158  111.  390;  Dean  &  Son  vs. 
ij.  B.  Conkey  Co.,  180  App.  162. 
And  where  such  facts  are  shown,  affirmative  proof  that  a  corpo- 
ration was  organized  and  in  operation,  as  required  by  the  consti- 
tution of  1870,  within  ten  days  after  that  took  effect  is  not  neces- 
sary to  establish  de  facto  corporation. 

St.  L.  A.  &  T.  H.  Ey.  Co.  vs.  Bell  Ey.  Co.,  158  111.  390;  St.  L.  &  C. 
Ey.  Co.  vs.  Bell.  Ey.  Co.,  159  111.  544. 
Attempting  in  good  faith  to  comply  with  corporation  law,  ob- 
taining certiticate,  electing  officers,  acting  for  five  years,  constitute 

a  corporation  de  facto. 

Bushnell  vs.  Con.  Ice  Mach.  Co.,  138  111.  67;   Joliet  vs.  Francis,  85 
App.  243. 
After  a  corporation  is  dissolved  it  is  incapable  of  maintaining 

an  action;  pending  action  abates. 

American  Bank  vs.  Mitchell,  179  App.  612. 
—  Acceptance  of  Special  Act:     A  copy  of  an  order  of  board  of 
directors  taken  from  minutes  of  their  proceedings  and  duly  certi- 
fied by  president  and  cashier,  under  seal  of  the  bank,   showing 
acceptance  of  provisions  of  an  act,  which  act  made  its  acceptance 


CORPORATIONS  345 

a  material  point  in  proceedings  of  bank,  is  sufficient"  to  show  such 

acceptance. 

Golder  vs.  Bressler,  lOf)  111.  419. 

—  Corporate  Ohligalions:  The  manner  in  wliich  a  corporation 
keeps  its  books  is  not  conchisive  evidence  as  to  whether  a  debt  for 
which  the  individual  note  of  its  president  was  given  was  the  obli- 
gation of  the  corporation  or  of  its  president. 

Union  Natl.  Bank  vs.  Post,  192  111.  385. 
To  show  the  incurring  of  an  inde])tedness  of  a  corporation  in 
excess  of  its  capital  stock,  it  is  not  sufficient  to  show  that  the  various 
expenditures  were  ordered  or  authorized  by  the  board  of  directors, 
when,  so  far  as  it  appears,  such  expenditures  may  have  been  met 
by  cash  payments  at  the  time.  It  must  be  shown  that  such  expend- 
itures resulted  in  indebtedness,  or  formed  part  of  the  indebtedness 

in  excess  of  the  capital  stock. 

Lewis  vs.  Montgomery,  145  111.  30. 

—  Batificafion  of  Acts  of  Officers:  Ratification  by  a  religious 
corporation  of  the  act  of  its  treasurer  in  borrowing  money  is  estab- 
lished by  the  record  of  the  society's  proceedings,  which  shows  the 
treasurer  received  money  as  a  loan  to  the  society  and  issued  its 
notes  evidencing  such  loan,  that  the  trustees  used  the  money  for 
the  society  and  paid  the  interest  on  the  notes,  and  that  the  society, 
as  a  body,  was  advised  of  the  indebtedness  and  payments  of  inter- 
est and  approved  of  such  action  of  the  trustees. 

111.  Conference  vs.  Plagge,  177  111.  431. 

—  Insolvency:  To  prove  the  insolvency  of  a  banking  corpora- 
tion, no  better  evidence  need  be  introduced  than  a  return  of  a 
mill-a  bona  made  by  the  sheriff  upon  execution  issued  against  the 
\)f\  nlc 

Wheeloek  vs.  Kost,  77  111.  296, 

—  Besidence:  The  introduction  in  evidence,  in  assumpsit,  of 
a  written  contract  between  plaintiff  and  defendant,  reciting  that 
defendant  was  a  "company  registered  in  England  under  the  Com- 
panies act,"  tends  to  show  defendant's  non-residence. 

A.  W.  Oil  Fields  vs.  Miller,  216  111.  272. 

In  the  absence  of  proof  it  will  not  be  presumed  that  corporation 
w^as  a  foreign  corporation  transacting  business  in  this  state  with- 
out a  license  nor  that  its  business  was  transacted  in  this  state. 
Hubbard  Steamship  Co.  vs.  Ci-escio,  179  App.  56. 

A  foreign  corporation  engaged  in  manufacture  in  a  foreigii 
state  and  selling  and  delivering  its  product  to  merchants  in  this 
state,  through  its  salesmen,  without  having  any  office  or  place  of 
business  in  Illinois,  is  engaged  in  interstate  commerce,  and  may 
sue  in  the  courts  of  Illinois  for  the  price  of  merchandise  so  sold 
and  delivered  though  it  has  not  complied  with  the  act  regulating 

foreign  corporations. 

Lehigh  Cement  Co.  vs.  McLean,  245  111.  326. 
The  doing  of  single  act  of  business  in  this  state  is  not  violation 

of  statute.  "'  ^?' 

Journal  Co.  vs.  Motor  Co.,  ISl  App.  530. 
Admission  of  president  of  a  corporation,  made  in  the  execution 
of  the  duties  imposed  upon  him  concerning  a  matter  upon  which 


346  CORPORATIONS 

lie  is  required  to  act,  and  wliieh  is  within  the  scope  of  authority 
usually  exercised  by  him,  is  evidence  against  the  corporation. 

L.  S.  &  M.  S.  Ry.  Co.  vs.  B.  &  0.  &  C.  Ry.  Co.,  149  111.  272 ;  Mas.  Tern. 
Co.  vs.  Lang-felt,  117  App.  652. 
'■' — Admissions:     Admissions  of  president  in  capacity  of  agent 

are  not  admissible  unless  part  of  res  gestae. 
"^■■-         O'Neill  vs.  Lindsay  Light  Co.,  181  App.  700. 

Admissions  made  by  vice-president  of  corporation  held  binding 

on  corporation. 

;:•:    jr»ii^.  Dornfeldt  vs.  Volkmann,  138  App.  421. 

It  is  not  competent  to  show  by  parol  declarations  of  the  individ- 
ual directors  of  a  corporation  for  what  specific  purposes  a  fund 
reserved  in  a  contract,  made  by  the  corporation,  was  to  be  used. 
Such  fund  can  be  appropriated  bv  the  board  of  directors  only. 
G.  &  M.  R.  R.  Co.  vs.  Burns,  92  111.  302. 

In  suit  by  a  creditor  of  a  corporation,  seeking  to  enforce  the 
personal  liability  of  a  stockholder,  plaintiff  is  not  required  to 
prove  ownership  of  stock  by  record  evidence,  but  such  fact  may  be 
shown  by  defendant's  admission  and  testimony  of  the  officers  of 

the  corporation. 

Dows  vs.  Naper,  91  111.  44. 
In  action  by  depositor  in  bank  against  a  stockholder,  the  ledger 
of  the  bank,  though  not  a  book  of  original  entries,  is  competent 
against  the  stockholder  as  an  admission  of  the  company,  on  its 
own  books,  of  the  amount  due  the  depositor. 

Dows  vs.  Naper,  91  111.  44. 

Best  and  Secondary  Evidence: 

Under  section  15  of  the  Evidence  act  providing  that  papers, 
entries,  and  records  of  any  corporation  may  be  proven  by  a  copy 
thereof,  certified  under  the  hand  of  the  secretary,  clerk,  cashier  or 
other  keeper  of  the  same,  to  which  the  seal  of  the  corporation,  if 
any,  shall  be  affixed,  the  papers,  etc.,  therein  mentioned  are  orig- 
inal and  not  secondary  evidence. 

C.  B.  &  Q.  Ry.  Co.  vs.  Weber,  219  111.  372. 

The  records  of  a  municipal  corporation  are  the  best  evidence  of 

-I  -j-  Q      Q  (~*  "j"  G 

"  City  of  Paxton  vs.  Bogardns,  201  111.  628. 
But  if  record  is  not  made  of  illegal  acts,  parol  evidence  is  admis- 
sible to  show  same. 

People  vs.  Mayor  of  Alton,  179  111.  615. 
A  copy  of  a  record  required  by  law  to  be  kept  by  a  city,  duly 
certified  as  required  by  the  statute,  is  original  evidence. 
City  of  E.  St.  Louis  vs.  Freels,  17  App.  339. 
Secondary  evidence  of  the  books  and  papers  of  a  corporation 
is   inadmissible  in  its  behalf,   where  the   originals   are   under   its 

control. 

Mandel  vs.  Land  Co.,  154  111.  177, 
In  absence  of  written  evidence,  oral  evidence  is  inadmissible. 
Du  (^noin  Coal  Co.  vs.  Thorwell,  3  App.  394. 

Presumptions : 

—  Issues  of  Stock:  The  certificate  of  stock  in  a  railway  com- 
pany, issued  by  its  secretary,  is  prima  facie  evidence  that  it  was 
regularly  issued,  but  this  presumption  may  be  overcome  by  other 
evidence,  as,  by  showing  that  no  order  was  passed  for  its  issue. 


CORPORATIONS  347 

If  the  order  was  passed,  and  not  entered  of  record,  that  may  be 

shown  by  the  holder. 

Hall  vs.  E.  H.  &  E.  Eoad  Co.,  70  Til.  673. 

—  Ownership  of  Stock:  Holder  of  stock  certificate  under  assign- 
ment is  presumed  to  be  rightfully  in  possession. 

Coffey  vs.  Coffey,  179  111.  2S3. 
The  appearance  of  names  on  the  books  of  a  corporation  as  stock- 
holders is  prima  facie  evidence  that  they  are  owners  of  the  stock. 
Sherwood  vs.  111.  T.  &  S.  Bauk,  195  111.  112. 
Receipt  for  certificate,  placed  on  stub,  raises  presumption  that 
persons  signing  receipt  are  owners  of  certificate. 
Gillett  vs.  Chi.  Trust  Co.,  230  111.  373. 

—  Execution  of  Mortgages:  The  execution  of  a  mortgage  under 
seal  of  a  corporation,  regular  on  its  face,  and  by  the  properly  con- 
stituted officers,  is  prima  facie  evidence  the  mortgage  was  executed 
by  the  authority  of  the  corporation,  and  parties  objecting  take  on 
themselves  the  burden  of  proving  it  was  nut  so  executed. 

Wood  vs.  MTialen,  93  111.  153. 

—  Execution  of  Contracts:  Any  contract  executed  by  vice-pres- 
ident, within  the  general  powers  of  the  president,  relating  to  cor- 
porate affairs,  will  be  pi-esumed  to  have  been  executed  on  behalf 
of  corporation,  and  to  have  been  made  by  the  authority  of  the 
corporation,  as  the  vice-president  acts  for  the  president. 

Prairie  Du  Eocher  vs.  MiUiug  Co.,  248  111.  57. 

—  Authority  of  Officers  and  Agents:     The  presumption  relating 

to  the  authority  of  agent  of  corporation  is  not  different  from  that 

relating  to  authority  of  agents  of  individuals,  when  circumstances 

are  the  same. 

Merchants'  Bank  vs.  Nichols  Co.,  223  111.  41. 

Existence  of  seal  raises  presumption  that  person  annexing  same 

had  authority  to  do  so,   and  authority  to  execute  instrument  to 

which  same  is  annexed. 

I.  &  St.  L.  Ey.  Co.  vs.  Morganstern,  103  111.  149. 

When  seal  is  proven  to  be  the  seal  of  the  corporation,  and  to 

have  been  set  to  the  deed  by  the  agent,  it  is  prima  facie  evidence 

of  his  authority  to  do  the  act. 

Phillips  vs.  Coffee,  17  111.  154. 
The  president  of  the  corporation  is  its  chief  officer,  and  is  pre- 
sumed to  be  authorized  to  carry  out  its  lawful  contracts. 
Board  of  Trade  vs.  Nelson,"  162  111.  431. 
The  seal  of  a  corporation  appearing  upon  the  face  of  an  instru- 
ment is  prima  facie  evidence  of  the  assent  of  the  corporation  and 
the  authority  to  execute  the  instrument. 
Eeed"  vs.  Fleming,  209  111.  390. 

—  Seals:  Where  a  certified  copy  of  the  instrument  executed  in 
behalf  of  a  corporation,  and  as  its  act,  shows,  after  name  of  pres- 
ident, the  word  (seal),  this  affords  prima  facie  evidence  that  it  is 
the  seal  of  the  corporation.  It  is  not  necessary  to  make  a  fac- 
simile of  the  corporate  seal  in  the  copy. 

Anthony  vs.  International  Bank,  93  111.  225. 
Where  the  execution  of  an  instrument  is  in  the  name  of  a  com- 
pany by  its  agents,  with  a  scrawl  for  a  seal,  it  will  be  presumed 


348  CORPORATIONS 

that,  in  absence  of  proof,  the  seal  used  was  the  proper  and  only 

seal  of  the  company. 

Miller  vs.  Superior  Mach.  Co.,  79  111.  450;   Conkey  vs.  Goldman,  125 
App.  161. 

—  Suhscriptions:  All  subscriptions  are  presumed  to  be  on  the 
same  basis,  and  all  shares  entitled  to  same  benefits  and  subject 
to  the  same  burdens,  and  in  the  subscription  of  each  person  every 
other  subscriber  has  a  direct  interest,  and  the  right  to  have  the 
same  remain  and  contribute  in  future  burdens. 

Melvin  vs.  Lamar  Ins.  Co.,  80  111.  446. 

—  Receipt  of  Notice  of  Directors'  Meeting:  Due  notice  of  stock- 
holders meeting  will  be  presumed. 

Cushman  vs.   Starch  Co.,  79  111.  281;   Forest  Glen  Co.  vs.  Gade,  55 

App.  181. 

The  presumption  of  the  receipt  of  a  notice  of  a  meeting  of 

directors  of  a  coi-poration,   deposited   in   the  postoffice,   properly 

stamped  and  addressed  to  one  of  the  directors,  is  not  overcome 

Ijy  his  mere  failure  to  recollect  its  receipt  or  his  impression  that 

he  did  not  receive  it. 

Ashley  Wire  Co.  vs.  111.  Steel  Co.,  164  111.  149. 

—  Authorization  of  Acts  of  Officers:  General  mile  is  that  a 
corporation  acts  through  its  president,  and  through  him  executes 
its  contracts  and  agreements,  and  an  act  pertaining  to  the  busi- 
ness of  a  corporation  not  clearly  foreign  to  the  general  power 
of  the  president,  done  through  him,  will,  in  absence  of  proof  to 
contrary   be  presumed  to  have  been  authorized  by  the  corporation. 

'  Transfer  Co.  vs.  Fuller,  174  111.  221 ;  Bank  vs.  Griffin,  168  111.  314. 
An  act  pertaining  to  the  business  of  a  corporation  not  clearly 
foreign  to  general  power  of  the  president,  done  through  him  will, 
in  absence  of  proof  to  contrary,  be  presumed  to  have  been  author- 
ized by  corporation. 

Ins.  Co.  vs.  Johnson,  200  111.  359 ;  Glover  vs.  Lee,  140  111.  102. 
Presence  of  corporate  seal  on  note  raises  presumption  that  note 
was  executed  by  authority  of  corporation. 
Transfer  Co.  vs.  Fuller,  73  App.  48. 
The  execution  of  a  deed  of  assignment,  regular  on  its  face,  by 
a  properly  constituted  officer,  is  prima  facie  evidence  that  it  was 
authorized  by  the  corporation. 

Woolen  Co.  vs.  Lesher  Co.,  78  App.  678. 
Presence  of  seal  raises  presumption   that  annexation  of  same 
was  authorized  by  corporation. 

McDonald  vs.  Chisholm,  131  111.  273. 
Seal  is  iwima  facie  evidence  of  assent  of  the  company. 

Eeed  vs.  Bradley,  17  111.  321;  I.  &  St.  L.  E.  E.  Co.  vs.  Morgenstern, 
103  111.  149. 
—  Existence  of  Corporation:     Execution  of  instrument  by  de- 
fendant to   plaintiff,   as  corporation,   is  presumptive   evidence  of 

existence  of  corporation. 

Auction  Co.  vs.  Ins.  Co.,  186  111.  156 ;  Smith  vs.  Mayfield,  163  111.  447  ; 
Brown  vs.  Mortgage  Co.,  110  111.  235. 
That  user  shall  be  prima  facie  evidence  of  existence  in  ci*iminal 
proceedings  applies  to  foreign  corporations  doing  l)usiness  in  this 

Kinkaid  vs.  People,  139  111.  213. 


CORPORATIONS  349 

Burden  of  Proof: 

—  Absence  of  Corporate  Authorization:  Burden  of  proving  ex- 
ecution of  deeds  of  assignment,  regular  on  their  face,  by  properly 
constituted  officers,   was  not  authorized  by   the  corporation  rests 

upon  party  objecting  to  same. 

Woolen  Co.  vs.  Lesher  Co.,  78  App.  678. 

—  Absence  of  Autliority  of  Officer:     When  authority  of  officer 

to  bind  corporation  is  contested,  burden  is  upon  party  asserting 

want  of  authority  to  sustain  his  position. 
Coal  Co.  -vs.  Pullne,  137  App.  559. 

—  Corporate   Existence :     In  suit   by   corporation  upon   a  call 

upon  subscription  to  capital  stock  of  the  company,  under  issue  on 

a  plea  of  nul  tiel  corporation,  the  onus  is  upon  plaintiff  to  show 

its  corporate  existence. 

Stone  vs.  G.  W.  Oil  Co.,  41  111.  85;  Cozzens  vs.  Brick  Co.,  166  111.  213. 

—  Legal  Corporation:  In  suit  by  a  corporation  upon  an  agree- 
ment in  writing  to  pay  it  a  sum  of  money,  a  plea  of  nul  tiel  corpo- 
ration will  not  impose  upon  plaintiff  the  burden  of  proving  that 
it  is  in  all  respects  a  perfectly  legal  corporation.  The  plaintiff 
may  be  entitled  to  recover  on  the  issue  presented  by  such  plea,  by 

making  proof  that  it  has  a  de  facto  existence. 

Hudson  vs.  Green  Hill  Seminary,  113  111.  618;  Dean  &  Son  vs.  W.  B. 
Conkey  Co.,  180  App.  162. 

—  Ultra  Yires :     Burden  of  proof  is  upon  party  pleading  ultra 

vireSt 

Gibson  vs.  Coal  Co.,  151  App.  424;  Chi.  Tool  Co.  vs.  Johns  Co.,  101 
App.  349;  Chi.  Tool  Co.  vs.  Munsell,  107  App,  345. 

Estoppel: 

One  who  deals  with  a  corporation  as  existing  de  facto  is  estopped 

to  deny  as  against  it  that  it  has  been  legally  organized. 

Lincoln  Mason  vs.  Swatek,  204  111.  228 ;  Bushnell  vs.  Con.  Ice  Co.,  138 
111.  67. 
A  person  who  sues  a  corporation  to  recover  judgment  against  it 
for  claims  contracted  for  by  corporators  before  the  organization 
is  completed,  by  filing  the  certificate  of  incoiporation  in  the  re- 
corder's office,  is  estopped  denying  the  validity  of  the  existence 
of  the  corporation  at  time  claim  was  contracted,  and  cannot  charge 
individual  corporators  as  partners. 

Cresswell  vs.  Oberly,  17  App.  281. 
Recognition  of  a  corporation  by  acts,  payment  and   contract, 

estop  a  party  from  denying  corporate  existence. 

Walker  Paint  Co.  vs.  Ruggles,  48  App.  406. 

Estoppel  to  deny  corporate  existence  results  where  the  organ- 
ization has  held  itself  out  as  a  corporation. 

C.  W.  Sonp  Co.  vs.  Rosenblooai,  91  App.  551. 

Competency  of  Stockholders  and  Officers  as  Witnesses: 

Stockholders  in  a  corporation  are  "interested"  witnesses,  and 
incompetent  to  testify  against  representatives  of  deceased  person, 

in  their  own  behalf. 

Com.  Co.  vs.  Sessell,  193  111.  153;  Brick  Co.  vs.  Ashburg,  198  111.  562; 
Machine  Co.  vs.  Kiefer,  134  111.  481;  XIV  111.  Notes  1126,  §  115. 
Must  be  a  stock  holder  at  time  of  testifying ;  it  is  immaterial  that 
witness  was  a  stock  holder  at  time  of  transaction  involved. 
Bank  vs.  Sandmeyer,  164  App.  141. 


350  CORPUS  DELICTI 

Though  he  holds  Init  one  share  and  was  not  a  stockholder  at  time 
of  transaction  in  question. 

Nichols  vs.  Estate  of  Cunningham,  181  App.  190. 
The  secretary  of  the  company,  although  a  stockholder,  is  a  com- 
petent witness  to  identify  the  books  of  the  corporation  and  records 
of  the  company. 

The  books  of  the  company  showing  the  organization  are  com- 
petent for  that  purpose. 

Peak  vs.  Wabash  R.  R.  Co.,  18  111.  88 ;  Nichols  vs.  Estate  of  Cunning- 
hani,  181  App.  190. 

Judicial  Notice: 

A  court  cannot  take  judicial  notice  that  a  private  corjDoration 

has  a  seal. 

I.  C.  R.  R.  Co.  vs.  Johnson,  40  111.  36. 
Judicial  notice  will  not  be  taken  of  acts  of  board  of  directors. 

Dunlap  vs.  Wilson,  32  111.  517. 
When  charter  of  a  private  corporation  is  declared  to  be  a  public 
act,  the  court  will  take  judicial  notice  of  its  provisions. 
P.  D.  &  E,  Ry.  Co.  vs.  People,  116  111.  401. 
Court  will  take  judicial  notice  that  prior  to  1897,  many  corpo- 
rations were  organized,  outside  of  the  state,  with  intent  of  doing 

business  in  this  state. 

Lehigh  Cement  Co.  vs.  McLean,  149  App.  360. 

Corporate  Signature: 

Proof  of  signature  to  notes,  bills,  etc.,  given  by  a  corporation, 
is   not   necessary   to  authorize   a  judgment,    and   if  signature   is 

denied,  it  must  be  under  oath. 

P.  &  O.  Ry.  Co.  vs.  Niel,  16  111.  269. 
Where  signers  of  note  add  after  their  names  Pres.  and  Secty 
respectively,  extrinsic   evidence  is  admissible  to  prove   that  note 
was  obligation  of  corporation,  and  not  of  individual  makers. 

Decowski  vs.  Grabarshi,  181  App.  279. 


CORPUS  DELICTI 

DEFINED. 

Particular  Offenses: 

—  Homicide :  The  corpus  delicti  is  made  up  of  two  essential  ele- 
ments :  the  fact  of  the  crime,  and  the  criminal  agency  of  some  per- 
son as  the  cause  of  death. 

Hoch  vs.  People,  219  111.  265;  Campbell  vs.  People,  159  111.  9. 

—  Rape:  Without  Force:  To  establish  the  corpus  delicti  it  is 
necessary  that  the  proof  should  show,  first,  that  the  female  was 
under  the  age  of  fourteen ;  second,  that  the  male  was  over  the  age 
of  sixteen;  third,  that  sexual  intercourse  occurred  between  them. 

Wistrand  vs.  People,  213  111.  72. 

—  False  Pretenses:  In  false  pretenses  the  corpus  delicti  con- 
sists of  six  elements:  First,  the  statement  made  by  defendant  in 
order  to  obtain  money  or  other  property ;  second,  the  reliance  of 
the  prosecuting  witness  upon  the  statements;  third,  the  obtaining 
of  the  money  or  property  from  the  prosecuting  witness;  fourth, 


CORPUS  DELICTI  351 

the  falsity  of  the  statement ;  fifth,  the  knowledge  that  it  was  false 
when  made ;  sixth,  the  intention  to  defraud  by  means  of  the  state- 
ments made. 

Moore  vs.  People,  93  App.  137. 

—  Arson:  The  corpus  delicti  consists,  not  only  of  the  fact  that 
a  building  has  been  burned,  but  also  of  the  fact  that  it  has  been 
wilfully  fired  by  some  responsible  person. 

Carloton  vs.  People,  150  111.  181. 

DEGREE  OF  PROOF. 

Must  be  clearly  established. 

Hoch  vs.  People,  219  111.  265. 

And  beyond  a  reasonable  doubt. 

Williams  vs.  People,  101  111.  382. 

ADMISSIBILITY  OF  EVIDENCE. 

Circumstantial  Evidence : 

The  corpus  ddicti  may  be  proved  by  circumstantial  evidence. 
People  vs.  See,  258*  111.  152. 

The  corpus  delicti  may  be  proven  in  prosecution  for  murder  by 
presumptive  or  circumstantial  evidence,  where  that  is  the  best 
evidence  obtainable,  but  great  caution  should  be  observed  in  acting 

upon  it. 

People  vs.  Campae^na,  240  111.  378;  Lipsey  vs.  People,  227  111.  364; 
Campbell  vs.  People,  159  111.  9 ;  Gannon  vs.  People,  127  111.  507 ;  XII 
111.  Notes  922,  §  55. 

Confessions : 

—  Extra- Judicial  Confessions  Generally:  The  corpus  delicti 
cannot  be  established  by  extra-judicial  confession  or  an  admission 

of  the  accused  alone. 

People  vs.  See,  258  111.  152;  Gore  vs.  People,  162  111,  259;   Johnson 
vs.  People,  197  111.  48. 
Extra-judicial   confessions  of   the   commission  of  crime,   insuffi- 
cient to  authorize  a  judgment  of  conviction  without  other  proof  of 
the  corpus  delicti,  and  the  corpus  delicti  should  be  first  otherwise 

established. 

Campbell  vs.  People,  159  111.  9. 
And  such  confessions  unsupported  by  evidence  or  circumstances 
tending  to  corroborate  the  facts  contained  in  such  confession  do 
not  constitute  prima  facie  proof  of  the  corpus  delicti. 
People  vs.  Kennedy,  150  App.  571. 
(But  where  the  crime  is  clearly  shown,  independently  of  admis- 
sions or  confessions,  to  have  been  committed  by  some  person,  then 
admissions   or   confessions   freely   and  voluntarily   made,    may   bt> 

sufficient  to  convict.) 

Gore  vs.  People,  162  111.  259;  Andrews  vs.  People,  117  111.  195;  South 
vs.   People,   98   111.   261;    Yoe  vs.   People,  49   111.   410;   Bergen  vs. 
People,  17  111.  427. 
Complete  proof  of  the  corpus  delicti,  independent  of  confession 
of  accused  is  not  required. 

People  vs.  Harrison,  261  111.  517;   People  vs.  Hannibal,  259  111.  512. 

—  Larceny :  Accused  confessed  he  took  the  horse  and  traded  it 
off,  and  animal  was  found  in  alleged  purchaser's  possession.  One 
witness  testified,  owner  had  animal  in  possession  before  time  said  to 
have  been  stolen.  Witness  saw  horse  put  in  stable  evening  before  the 


352  CORROBORATION 

time  in  question,— heard  about  the  horse  being  taken  the  next  morn- 
ing. Another  Avitness  testified  that  he  saw  the  horse  in  the  owner's 
possession  not  long  before  the  time  "he  was  said  to  liave  been 
stolen."  Held,  the  proof  did  not  sufficiently  show  that  a  larceny 
had  been  committed  to  justify  a  conviction. 

May  vs.  People,  92  111.  343;  Andrews  vs.  People,  117  111.  195, 
—  Bape:  WitJiout  Force:     Age  of  accused,  being  a  part  of  the 
corpus  delicti,  cannot  be  proven  by  a  statement  in  a  voluntary 
written   confession  of  accused  that  he  was   forty-five   years   old, 
there  being  no  other  proof  on  such  point. 

Wistrand  vs.  People,  1^13  111.  T2;  Cf.  Suttou  vs.  People,  145  111.  279. 


CORROBORATION 

See   Contradiction   and   Sustaining   "Witness,   Impeachment, 
Credibility,  Cross-Examination,  Divorce. 
Accomplices : 

A  conviction  may  be  sustained,  although  the  only  evidence  of 
guilt  is  that  of  a  self-confessed  accomplice,  but  such  evidence  is 
open   to  grave  suspicion  and  should   be   acted  upon  with   great 

caution. 

People  vs.   Baskin,  254  111.  509;   People  vs.  Feinberg,  237  111.   348; 

People  vs.  Frankenberg,  236  111.  408;  Jureticli  vs.  People,  223  111. 

484;   Waters  vs.  People,   172  111.  367;   Honselman  vs.  People,   168 

111.  172;  Ryder  vs.  People,  110  111.  11;  Barron  vs.  People,  72  111.  256. 

Xi  111.  Notes  1246  §  174. 

Court  may  ad\ise  jury  not  to  believe  an  accomplice  unless  he  is 

confirmed,  or  only  in  so  far  as  he  is  confirmed.     It  is  a  matter  of 

discretion  rather  than  a  rule  of  law. 

Collins  vs.  People,  98  111.  584;  Earll  vs.  People,  73  111.  329. 
But  should  instruct  further  that  testimony  of  accomplice  need 
not  be  confirined  in  every  particular,  but  only  as  to  some  one  fact 
or  facts,  the  truth  or  falsehood  of  which  goes  to  prove  or  disprove 

the  offense  charged. 

Gray  vs.  People,  26  111.  344. 
As  there  can  be  no  participation  in  a  crime  either  as  principal 
or  accessory  without  a  criminal  intent,  without  such  intent  a  wit- 
ness is  not  an  accomplice  so  as  to  render  corroboration  necessary. 

Cross  vs.  People,  47  111.  152;  Love  vs.  People,  160  111.  501;  Kelley  vs. 
People,  192  111.  119. 

Extra- Judicial  Confessions : 

—  In  General:  Where  the  crime  is  clearly  shoM-n  independently 
of  admissions  or  confessions,  to  have  been  committed,  by  sonie  per- 
son, then  admissions  freely  and  voluntarily  made  may  be  sufficient 

to  convict. 

Gore  vs.  People,  162  111.  259;  Andrews  vs.  People,  117  111.  195;  South 
vs.  People,  98  111.  261;  Vjg  vs.  People,  49  111.  410. 
A  conviction  may  be  had  upon  proof  that  a  crime  has  been 
committed  as   alleged  in   the  indictment,   and   the   confession   of 
the  accused  that  he  was  the  person  who  committed  it,  although 
there  is  no  other  evidence  of  his  identity. 
Bartley  vs.  People,  156  111.  234. 


CORROBORATION  353 

—  Corpus  Delicti:  The  corpus  delicti  cannot  be  established  by 
extra-judicial  confession  or  an  admission  of  the  accused  alone. 

Gore  vs.  People,  1C2  111.  259;  Johnson  vs.  People,  197  111.  48;  Wil- 
liams vs.  People,  101  111.  382 ;  May  vs.  People,  92  111,  343.  XI  111. 
Notes  124(5,  §  171. 

Extra-judicial  confessions  of  the  commission  of  crime,  where  such 
confessions  are  relied  upon  to  establish  guilt,  are  not  sufficient  to 
authorize  a  judgment  of  conviction  without  other  sufficient  proof 
of  the  corpus  delicti,  and  the  corpus  delicti  should  first  be  other- 
wise established,  not,  however,  necessarily  by  direct  evidence  only. 
Campbell  vs.  People,  159  111.  9. 

And  such  confessions  unsupported  by  evidence  or  circumstances 
tending  to  corrol)orate  the  facts  contained  in  such  confession,  do 
not  constitute  prima  facie  proof  of  the  corpus  delicti. 
People  vs.  Kennedy,  150  App.  571. 

Acts  and  Declarations: 

—  For)iur  JJcclaraiions:  Proof  of  declarations  of  a  witness  out 
of  court,  in  corrolwration  of  his  testimony  at  the  trial  is  not,  as  a 
general  rule,  admissible  after  he  has  been  impeached  or  discredited. 

Chi.  City  Rv.  Co.  vs.  Matthieson,  212  111.  292;  Eeavely  vs.  Harris,  239 
111.  526. 

But  where  the  witness  is  charged  with  testifying  under  the  in- 
fluence of  some  motive  prompting  him  to  make  a  false  statement, 
it  may  be  shown  in  rebuttal  that  he  had  made  similar  statements 
at  a  time  when  the  imputed  motive  did  not  exist,  or  when  the 
motives  of  interest  w^ould  have  induced  him  to  make  a  different 
statement  of  facts. 

Stolp  vs.  Blair,  G8  111.  541;  Waller  vs.  People,  209  111.  284;  Gates  vs. 
People,  14  111.  433. 

Exception  does  not  include  statements  sought  to  be  proven,  given 
in  evidence  under  oath  at  coroner's  inquest. 

Chi.  City  Ey.  Co.  vs.  Matthieson,  113  App.  246. 

Proof  of  the  declarations  made  by  a  witness  out  of  court,  in 
corroboration  of  testimony  given  by  him  on  the  trial  of  a  cause,  is, 
as  a  general  rule,  inadmissil)le  even  after  the  witness  has  been  im- 
peached, or  discredited.  But  it  is  otherwise  where  there  is  some 
independent  evidence  tending  to  show  that  the  witness'  account  of 
the  transaction  was  a  fabrication  of  recent  date.  In  such  case,  it 
may  be  shown  that  he  gave  a  similar  account  before  its  effect  and 
operation  could  be  seen. 

Browning  vs.  Jones,  52  App.  597. 

—  Complaint  hy  Prosecutrix:  It  is  competent  for  the  prosecu- 
tion to  prove  in  corroboration  of  prosecutrix  as  to  main  fact  of 
rape,  either  by  her  or  other  witnesses,  that  after  the  perpetration 
of  the  offense,  she  made  complaint  to  those  to  whom  complaint  of 
such  an  occurrence  would  naturally  be  made,  but  on  direct  examin- 
ation such  testimony  is  confined  to  the  bare  fact  of  complaint  and 
neither  the  details  of  the  oft'ense  nor  the  name  of  the  ofi^ender  can 

be  proven. 

People  vs.  Weston,  236  111.  104;  Cunningham  vs.  People,  210  111.  410; 
Stevens  vs.  People,  158  111.  Ill;  Chambers  vs.  People,  105  111.  409. 
XIV  111.  Notes  §  14. 
Ev.— 23 


354  COUNSEL 

But  is  not  admissible  unless  part  of  res  gestae,  where  prosecutrix 

does  not  testify. 

People  vs.  Lewis,  252  111.  281. 
The  rule  permitting  proof  of  immediate  complaint  by  the  woman 
in  a  prosecution  for  rape  does  not  extend  to  any  other  offense 
even  though  it  consists  of  violence  against  the  person,  and  hence 
proof  of  complaint  by  a  child  is  not  admissible  in  prosecution  for 
taking  indecent  liberties  with  her. 

People  vs.  Scattura,  238  111.  313. 
Nor  does  the  rule  extend  to  the  declarations  made  during  preg- 
nancy of  relatrix  in  bastardy  proceeding. 

People  vs.  Welch,  143  App.  191. 

Nor  incest. 

People  vs.  Turner,  260  111.  84, 

COUNSEL 

See  Attorneys,  Libel  and  Slander,  Malicious  Prosecution, 
False  Imprisonment,  Privileged  Communications. 

COVERTURE 

See  Husband  and  Wife,  Marriage,  Admissions  and  Declar- 
ations, Wills,  Witnesses. 

CREDIBILITY 

See  Bias  and  Hostility,  Parties  and  Persons  Interested  as 
Witnesses,    Impeachment,    Detectives,    Accomplice,     Leading 
Questions,   Contradiction  and   Sustaining  Witnesses,   Former 
Conviction,  Pardon,  Exclusion  and  Separation  of  Witnesses. 
MATTERS  AFFECTING  CREDIBILITY. 
Presumptions : 

That  when  nothing  appears  to  the  contrary,  the  presumption  is 
to  be  fairly  indulged  that  an  unimpeached  witness  has  testified 
truly  may  be  laid  down  as  a  principle  derived  from  the  experience 
and  knowledge  of  mankind,  but  the  law  has  no  such  rule  which 
the  court  may  lay  down  in  the  instructions  to  the  jury. 

Hauser  vs.   People,   210   111.   253;    contra,   Johnson   vs.   People,    140 
111.  350. 

Opportunity  for  Knowing: 

JMore  weight  will  often  be  attached  to  the  question  whether  wit- 
nesses are  in  so  favorable  a  position  for  observing  the  fact,  if  it 
occurs,  that  it  could  not  o<icur  without  their  observing  it,  than  to  the 
affirmative  or  negative  form  of  their  testimony. 

C.  B.  &  Q.  E.  E.  Co.  vs.  Cauffmann,  38  111.  424;  Brady  vs.  Thompson, 

17  111.  269;  Eiggins  vs.  People,  46  App.  196. 

In  determining  the  weight  of  testimony  between  two  witnesses, 

the  preponderance  should  be  given  the  one  whose  advantages  for 

being  correctly  informed  as  to  the  matters  in  controversy  are  the 

best. 

C.  &  A.  E.  E.  Co.  vs.  Gretzner,  46  111.  74. 


CREDIBILITY  355 

Religious  Belief: 

The  better  practice,  and  that  which  now  prevails,  forbids  the  ex- 
amination of  a  witness  in  respect  to  his  religious  beliefs,  on  his  voir 
dire. 

Hronek  vs.  People,  134  111.  139;  Fuller  vs.  Heath,  89  111.  296:  Hanley 
vs.  Chi.  City  By.  Co.,  180  App.  397, 

Inquiry  into  religious  belief  improper  to  affect  credibility. 

Starks  vs.   Schlensky,    128   App.   1. 

Positive  and  Negative  Statements: 

Positive  evidence  is  entitled  to  more  weight  than  negative, 

C.  R.  I.  &  p.  Ey.  Co.  vs.  Still,  19  HI.  499 ;  Hank  vs.  Peoria  R.  R.  Co., 
154  App.  473. 

But  this  may  depend  upon  opportunity  of  witness  for  observa- 
tion or  attention. 

R.  R.  T.  Co.  vs.  HiUmer,  72  111  235;  C.  B.  &  Q.  R.  R.  Co.  vs.  Cauff- 
mann,  38  111.  424;  Parkin  vs.  C.  P.  &  St.  L.  R.  R.  Co.,  149  App.  421. 
The  fact  that  a  witness  is  not  certain  and  positive  in  his  state- 
ment does  not  require  exclusion  of  his  testimony,  the  question  of 
weight  is  for  the  jury  to  determine. 

Paige  vs.  111.  Steel  Co.,  233  111.  313,     (See  Positive  and  Negative.) 

Probability  of  Statements: 

The  probability  or  improbability  of  the  statements  of  the  wit- 
ness may  be  considered. 

Hartford  Ins.  Co.  vs.  Gray,  80  111.  28;  Ayers  vs.  Ayers,  142  111.  374; 
Mena  vs.  Chi.  City  Ry.  Co.,  147  App.  421. 

Exaggeration: 

The  entire  testimony  of  a  witness  is  not  to  be  rejected  by  a  jury, 
in  its  discretion,  because  he  has  knowingly  and  wilfully  exagger- 
ated any  fact  or  circumstance,  but  only  when  he  has  knowingly  and 
willfully  sworn  falsely  to  a  material  fact. 

C.  &  St.  L.  Ry.  Co.  vs.  Kline,  220  111.  334 ;  Chi.  City  Ry.  Co.  vs.  Allen, 
169  111.  287;  Simpson  vs.  Peoria  Ry.  Co.,  179  App,  307. 
Corrupt  motive  in  giving  testimony  is  test. 
C.  &  O.  P.  Ry.  Co.  vs.  Rauser,  245  HI.  477. 

Different  Versions: 

That  eye-witnesses  of  an  unexpected  accident,  horrifying  in  its 
nature,  vary  somewhat  in  their  respective  versions  of  the  occur- 
rence, is  not  a  discrediting  circumstance. 

Washington  Ice  Co.  vs.  Bradley,  171  111.  255. 

No  reflection  on  veracity  of  witness  that  he  is  not  able  at  all 
times  to  give  exact  repetition  of  his  recollection  of  matters. 
Young  vs.  Farwell,  46  App.  299. 

Contradictory  Statements : 

The  credibility  of  a  witness  may  be  affected  by  contradictory 
statements  without  showing  that  his  statements  are  intentionally 
false  or  material  to  the  issue.  Proof  that  a  witness  has,  on  former 
occasion,  made  statements  at  variance  with  his  testimony  on  the 
trial,  has  a  direct  tendency  to  impeach  his  veracity  or  memory. 

In  proving  the  previous  statements  of  a  party  who  testifies  in 
his  own  behalf,  and  which  tend  to  defeat  his  action,  it  is  sufficient 
to  give  the  substance  of  his  admissions  without  repeating  his  exact 
language. 

Craig  vs.  Rohrer,  63  111.  325;  Bowers  vs.  People,  74  111.  418;  Chi. 
West.  Div.  Ey.  Co.  vs.  Ingraham,  131  III.  659. 


356  CREDIBILITY 

And  it  is  not  necessary  that  such  eontradictory  statements  should 
be  material  to  the  issue  or  intentionally  false. 
Day  vs.  Sainpsell,  148  App.  88. 

Although  contradictory  statements  by  a  witness  as  to  immaterial 
matters  may  tend  to  cast  suspicion  ii})on  his  testimony,  they  will 
not  authorize  its  entire  rejection,  when  he  is  corroborated  by  an- 
other witness,  and  not  contradicted  by  other  evidence  in  the  case. 

Smith  vs.  Dennisou,  101  111.  531. 

Intentional  Falsehood:  '*' 

The  maxim  "faJsus  in  uno,  falsus  in  omnibus,"  should  only  be 
applied  in  case  where  witness  wilfully  and  knowingly  gave  false 
testimony. 

United  Brew.  Co.  vs.  O'Donnell,  221  111.  334;  Waters  vs.  People,  172 
III.  3r>7;  Hoge  vs.  People,  117  111.  3.5;  City  of  Chicago  vs.  Smith,  48 
111.  107;  Peun.  Co.  vs.  Conlan,  101  111.  93. 

It  is  error  to  instruct  the  jury  that  if  they  believe,  from  the 
evidence,  that  any  witness  or  witnesses  have  knowingly  and  inten- 
tionally sworn  falsely  in  the  case,  they  may  disregard  such  testi- 
mony. The  jury  have  no  right  to  disregard  the  testimony  of  a 
witness  because  he  may  have  testified  falsely  to  a  matter  wholly 
immaterial  to  any  issue  in  the  case.  • 
Dacey  vs.  People,  116  111.  555. 

Where  the  general  reputation  of  a  witness  for  truth  and  veracity 
is  bad  in  the  neighborhood  where  he  resides,  or  he  has  knowingly 
sworn  falsely  to  a  material  matter,  the  jury  may  disregard  his 
uncorroborated  testimon3^ 

Hill  vs.   Montgomery,   184  111.   220. 

Corroborated  Testimony : 

Corroborated  testimony  of  a  witness  may  be  regarded  even 
though  he  may  have  sworn  falsely  to  other  material  matters  in  the 

case. 

Beedle  vs.  People,  204  111.   197;   Mathews  vs.  Granger,  196  111.   164; 

Mantonya  vs.  Keilly,  184  111.  183;  Chittenden  vs.  Evans,  41  111.  251. 

XIV  111.  Notes,  1149,  §  273. 

It  is  inaccurate  to  instruct  a  jury  that  if  they  believe  that  a 

witness  has  wilfully  and  knowingly  sworn  falsely  as  to  any  material 

point   in   controversy,   they   may    disregard    his   entire    testimony, 

without  the  qualification  that  the  witness  was  uncorroborated  by 

other  evidence. 

Going  vs.  Outhouse,  95  111.  346.  '  ■'  = 

It  is  not  true  that  the  oath  of  one  witness  is  entitled  to  as  much 
weight  as  that  of  another,  simply  because  both  are  deemed  credible. 
One  may  be  corroborated  while  the  otlier  may  fail  of  such  support, 
or  the  memory  or  means  of  knowledge  of  one  may  appear  to  the 
jury  to  be  superior  to  that  of  the  other.  There  are  so  many  con- 
siderations affecting  the  weight  of  the  testimony  of  credible  wit- 
nesses that  the  court  should  not  assume  to  control  the  jury  by 
instruction  as  to  the  comparative  value  of  their  testimony. 
Eiggins  vs.  People,  46  App.  196.     (See  Corroboration.) 

Intelligence  and  Capacity  of  Witness: 

In  every  case  where  there  is  a  conflict  in  the  evidence,  the  jury 
may  consider  the  intelligence  and  capacity  of  witnesses. 
Manufacturers  Fuel  Co.  vs.  White,  228  111.  187. 


GREDIIULITY  357 

And  even  his  temperament. 

Hartfoid    Iiis.  Co.  vs.   (Jray,   Si)    111.   2S. 

Deportment  and  Demeanor  of  Witnesses: 

Deportment  and  demeanor  of  witness  while  testifying  may  be 
considered. 

City  of  La  Sallo  vs.  Kostka,  190  111.  i;!0;  Hartford  Ins.  Co.  vs.  Gray, 
80  111.  28 ;  Stanipfoski  vs.  Stevens,  79  111.  303 ;   Bowers  vs.  People, 
74    111.    418;    Animermaii    vs.    Teeters,    49    111.    40U;    Ma^^gart    vs. 
Peoria  Ey.  Co.,  179  App.  229;  State  Bank  vs.  Brown,  179  App.  392. 
But  not  his  conduct  at  the  trial  while  not  testifying. 
Purdy  vs.  People.  140  111.  46;  Terry  vs.  People,  81  App.  27. 
Sometimes  the  countenance,  tone  of  voice  and  manner  of  witness 
while  testifying  will  contradict  and  deny  the  truth  of  his  words, 
and  tlie  law  does  not  require  that  the  testimony  of  thus  self-im- 
peached witness  shall  be  believed. 

Ayers  vs.  Ayers,  142  111.  374;  Haiiser  vs.  People,  210  111.  253. 

Number  of  Witnesses: 

]\lere  numl)er  of  witnesses  alone  will  not  control  w^hen  less  num- 
ber are  more  intelligent,  more  reliable  or  in  any  material  respect 
superior  as  witnesses  to  the  other. 
English  vs.  Porter,  109  111.  28.5. 

Number  of  witnesses  is  an  element  to  be  considered  and  jury  is 
bound  to  take  it  into  consideration  in  determining  the  credibility 
of  witnesses  and  existence  of  a  fact. 

McFaddeu  vs.  Ey.  Co.,  149  App.  298;  Hanley  vs.  Chi.  City  Ey.  Co., 
180  App.  397. 

Preponderance  of  evidence  does  not  depend  upon  number  of 
witnesses. 

Colgrove  vs.  Berry,  146  App.  107;  Stenhaus  vs.  Eadke,  145  App.  232. 

Financial  Standing*: 

Financial  circumstances  of  party  cannot  be  considered  as  affect- 
ing his  credibility. 

VanDiizor  vs.  Allen.  90  111.  499. 

Importance  of  Testimony: 

Importance  of  testimony  to  party  calling  him  is  not  ground  for 
discrediting. 

C.  &  E.  I.  E.  Co.  vs.  Huston,  95  App.  350. 

Omission  in  Former  Trial: 

That  witness  did  not  testify  to  important  matter  on  former  trial- 
may  be  considered. 

Pratt  vs.  Pratt,  96  111.  184. 
But  not  where  such  matter  was  not  then  in  issue. 

Otis  vs.  Spencer,  102  111.  622. 

Insanity : 

Proper  to  show  insanity  of  witness. 
MoGriU  \s.  McGrill",   12  App.  624. 

Attorney  and  Witness: 

That  witness  talked  with  attorney  concerning  his  testimony,  and 

had  been  promised  pav  for  time  lost  may  be  considered. 
N.  Chi.  St.  Ey.  Co.  vs.  Anderson,  176  111.  635. 

But  mere  fact  that  attorney  talked  with  witness  while  prepar- 
ing cause  for  trial  is  not  alone  ground  for  discrediting  testimony, 
W.  Chi.  St.  Ey.  Co.  vs.  Byrne,  85  App.  488. 

Suborning  Evidence: 

It  may  be  shown  that  party  attempted  to  suborn  evidence. 
Smith  vs.  Newton,  84  111."  14. 


358  CREDIBILITY 

Or  that  witness  offered  to  sell  his  testimony. 

Eichardson  vs.  Mercer,  51  111.  263;  Hope  vs.  W.  Chi.  St.  Ey.  Co.,  82 
App.  311. 

Relationship : 

The  relationship  of  witness  to  party  may  be  considered  and  jury 

so  instructed. 

Meyer  vs.  Nead,  83  HI.  19 ;  Brown  vs.  Walker,  32  App.  199, 

Custody  of  Officer: 

That  witness  is  in  custody  of  officer  is  not  in  itself  ground  for 
discarding  his  testimony. 

Met.  Ey.  Co.  vs.  Fortin,  107  App.  157. 

Leaving  Court  Room: 

That  witness  leaves  court  room  immediately  after  testifying  can- 
not be  considered  to  discredit  him. 
Coughlin  vs.  People,  18  111.  266. 

Circumstances : 

Credibility  is  determined  from  all  the  circumstances,  interest, 

means  of  knowledge,  appearance  on  stand,   business,   competency 

and  habits  of  witness  as  disclosed  by  the  evidence. 

First  Natl.  Bank  vs.  Haight,  55  111.  191;  Corgan  vs.  Frew,  39  111.  31. 

Character  of  Witnesses: 

It  is  proper  to  cross  examine  a  witness  as  to  his  occupation  and 
other  matters  which  will  enable  the  jury  to  determine  what  weight 
ought  to  be  given  to  his  testimony. 

People  vs.  White,  251  111.  67;' People  vs.  Schultz,  260  111.  35. 
The  fact  that  witnesses  for  prosecution  are  not  exemplary  cit- 
izens does  not  warrant  discrediting  their  testimony,  though  con- 
tradicted by  defendant. 

People  vs.  McCann,  247  111.  130. 

The  fact  that  a  witness  has  been  dissipated  and  unchaste  is 
not  necessarily  an  impeachment  of  his  testimony.  The  credibility 
of  witnesses  is  preeminently  a  question  for  the  jury,  and  it  will 
be  presumed  that  the  jury  considered  all  matters  appearing  in  evi- 
dence having  a  legitimate  tendency  to  affect  their  credibility. 
Painter  vs.  Peoj^le,  147  111.  444.     (See  Character.) 

Accomplice : 

That  witness  is  an  accomplice  may  be  shown  and  an  instruction 

as  to  care  and  caution  with  which  his  testimony  should  be  received 

is  proper. 

People   vs.   Feinberg,   237   111.   348;    Hoyt   vs.   People,    140   111.   588; 
Campbell  vs.  People,  159  111.  9.     (See  Accomplices.) 

Interest  of  Witness  Not  a  Party: 

It  is  always  proper  to  show  that  a  witness  is  interested  in  the 

result  of  the  suit. 

Donnelly  vs.  Daugherty,  174  111.  582;  Bevan  vs.  Atlanta  Natl.  Bank, 
142  111.  302. 

Efforts  to  Compromise: 

It  may  be  shown  that  witness  was  attempting  to  compromise  suit. 

Elam  vs.  Coal  Co.,  155  App.  375. 
Or  that  witness  had  attempted  to  procure  plaintiff's  release  to 

defendant. 

Butler  Ballast  Co.  vs.  Hoshaw,  94  App.  69. 
Or  that  he  had  been  officious  in  the  trial,  and  friendship  or  en- 
mity. 

I.  C.  E.  E.  Co.  vs.  Black,  133  App.  84. 


CREDIBILITY  359 

Marriage : 

Marriage  relation  is  proper  to  be  sliown. 

N.  Chi.  St.  Ey.  Co.  vs.  Welluer,  105  App.  652. 

Parties  of  Record: 

—  Civil  Actian:  The  interest  of  a  party  to  the  action  may 
properly  be  considered  in  determining  his  credibility  as  a  witness. 

Hanehett  vs.  Haas,  219  111.  546;  N.  C.  St.  Ey.  Co.  vs.  Anderson,  176 
111.  635. 

But  where  both  parties  to  the  record  are  natural  persons  an  in- 
struction should  not  single  out  one  of  them  and  nuike  no  reference 
to  the  other.     Rule  otherwise  where  one  is  a  corporation. 

N.  Chi.  St.  Ey.  Co.  vs.  Wellner,  206  111.  272  j  Hartshorn  vs.  Hartshorn, 
179   App.  421. 

Party  cannot  be  discredited  merely  because  he  is  plaintiff. 
Lauth  vs.  Chi.  U.  Trac.  Co.,  244  111.  245. 

—  Criminal  Action:  The  interest  of  a  defendant  may  be  pro- 
perly considered  in  determining  his  credibility  as  a  witness. 

People  vs.  Scarbak,  245  111.  435;  People  vs.  Zajieek,  233  111.  198; 
Spears  vs.  Peoole,  220  111.  72;  Doyle  vs.  People,  147  111.  394;  Peo- 
ple vs.  Siebert,^  143  111.  571. 

Under  section  6  of  division  13  of  the  Crimnal  Code,  the  testi- 
mony of  the  accused  must  be  considered  fairly  and  impartially, 
and  be  subjected  to  the  same  tests  as  are  applied  to  the  testimony 
of  other  witnesses. 

Schultz  vs.  People,  210  111.   196. 

Wliere  a  defenciant  in  a  criminal  case  testifies,  and  the  jury 
knows  he  is  a  party,  no  further  showing  need  be  made  that  he  is  a 
party,  and  jury  are  authorized  to  consider  to  what  extent  that 
circumstance  should  affect  his  credibility.  They  are  neither  bound 
to  believe  nor  disbelieve  him,  but  in  weighing  his  evidence  they  are 
to  take  into  consideration  the  fact  that  it  is  evidence  given  by  de- 
fendant in  the  case,  and  an  instruction  to  that  effect  is  not  incon- 
sistent with  one  that  the  jury  have  no  right  to  disregard  the  defend- 
ant's  testimony  through  mere  caprice,  or  merely  because  he  is 
defendant,  and  that  the  law  makes  him  a  competent  witness,  and 
the  jury  are  bound  to  consider  his  evidence,  and  give  it  such  weight 
as  they  believe  it  entitled  to,  and  that  they  are  sole  judges  of  his 
credibility. 

Bressler  vs.  People,  117  111.  423, 

Such  person,  when  introduced  as  a  witness  in  his  own  behalf,  is 
to  be  examined  and  cross-examined  precisely  as  any  other  witness, 
and  he  may,  likewise,  be  impeached  in  the  same  mode.  The  accused, 
as  a  witness,  differs  from  other  witnesses  only  in  fact  that  he  is  the 
defendant  charged  and  being  tried  for  crime,  which  may  be  taken 
into  consideration  by  the  jury  in  passing  upon  his  credibility,  but 
his  testimony  must  be  treated  the  same  as  that  of  any  other  wit- 
ness ;  nor  can  it  be  treated,  as  a  matter  of  law,  as  not  having  the 
same  effect  and  weight  as  that  of  other  witnesses.  Whether  it 
should  or  should  not,  is  a  question  of  fact  for  the  jury  to  decide, — 
and  this  is  a  rule  in  regard  to  all  other  witnesses. 
Chambers  vs.  People,  105  111.  409. 

In  action   for  criminal  libel,   testimony   of  defendant  is  to  be 
treated  same  as  testimony  of  any  other  witness. 
People  vs.  Strauch,  153  App.  544. 


360  CREDIBILITY 

Employe : 

Fact  that  a  witness  is  an  employe  may  be  shown. 

Bennett  vs.  Chi.  City  Ry.  Co.,  243  111.  420;  Donnelly  vs.  Daugherty, 
174  111.  582;  I.  C.  E.  R.  Co.  vs.  Hoskins,  115  111.  3U0. 

The  mere  fact  of  present  or  former  employment  of  a  witness 
by  one  of  the  parties  is  not  an  element  in  determining  his  credibil- 
ity, or  the  weight  of  his  testimony,  unless  in  addition  it  be  shown 
that  he  has  an  interest  in  the  result  of  the  litigation. 

Dowd  vs.  Chi.  City  Ey.  Co.,  153  App.  85;  Roberts  vs.  Chicago  City 
Ry.  Co.,  262  111.  228. 

And  an  instruction  is  proper  which  informs  juiy  that  they  have 
no  riglit  to  disregard  the  testimony'  of  an  nnimpeached  witness 
simply  because  he  was  in  the  employ  of  one  of  the  parties. 

Cicero  St.  Ry.  Co.  vs.  Rollins,  195  111.  219;  Randall  vs.  S.  D.  &  E. 
Co.,  158  App.  56;  Murray  vs.  McLean,  57  111.  378. 

Compensation : 

Expert  witness  mav  be  asked  by  whom  he  was  paid. 

Chi.  City  Ry.  Co.  vs.  Carroll,  206  111.  318;  Risley  vs.  Burke,  203  111. 
250;  N.  Chi.  St.  Ry.  Co.  vs.  Anderson,  176  111.  635;  Chi.  City  Ry. 
Co.  vs.  Handy,  208  111.   81. 

And  witness  may  be  cross-examined  as  to  amount  "of  pay,  busi- 
ness relationship  and  extent  of  services. 

Kerfoot  vs.  City  of  Chicago,  195  111.  299. 
But  such  examination  is  not  proper  mereJy  for  the  purpose  of 
disclosing  fact  that  defendant  was  insured  against  loss  in  a  casualty 
company. 

Wiersema  vs.  Lockwood,  147  App.  33;  Eckhart  Co.  vs.  Schaeffer,  101 
App.  500;  Fuller  vs.  Darrow,  101  App.  664.  (See  Expert  and 
Opinion.) 

Before  Grand  Jury: 

In  criminal  case,  the  fact  a  witness  testifying  for  People  may 
have  testified  before  grand  jury  against  another  person  is  in- 
competent. 

People  vs.   Ezell,   155  App.  298. 

Demand  of  Bribe: 

It  is  not  competent  to  show  that  a  witness,  before  testifying,  had 
threatened  to  testify  against  a  party  unless  a  certain  sum  of  money 
was  given,  where  such  witness,  on  cross-examination,  was  not  inter- 
rogated with  respect  to  such  threat ;  neither  is  proof  of  such  threat 
competent  as  independent  evidence  unless  the  authority  of  such 
witness  to  represent  the  party  is  shown. 

Kokoshkey  vs.  Chi.  City  Ey.  Co.,  162  App.  613. 

Reward : 

It  may  be  shown  that  a  witness  has  a  contingent  interest  as  a 
result  of  the  litigation. 

^nUor  vs.    Ppoi)1p,   229  111.   376. 

PROVINCE  OF  COURT. 

May  Not  Determine  Credibility: 

It  is  not  the  province  of  the  court  to  determine,  as  a  matter  of 
law,  in  regard  to  the  witnesses  examined,  whom  the  jury  may  or 
may  not  believe  and  an  instruction  that  so  states,  or  even  conveys 
that  impression,  is  vicious. 

Mullins  vs.  People.  110  111.  42;  Johnson  vs.  People,  140  111.  350;  Gra- 
ham vs.  Sadler,  46  App.  440;   People  vs.  Schultz,  260  111.  35. 

"We  are  disinclined  to  recognize  the  right  of  a  court  to  desig- 
nate the  evidence  of  a  witness  who  is  not  an  acknowledged  accom- 


CREDIBILITY  361 

plice,  and  caution  the  jury  against  giving  credence  to  it.  Casting 
the  influence  of  the  court  against  the  testimony  of  a  particular 
witness,  or  the  character  of  evidence  he  gives  is  not  a  usual  way 
of  either  affecting  the  credihilityor  the  weiglit  of  testimony. 

RalTeitv  vs.  People,  72  111.  37. 

May  Call  Witness: 

The  coui't  may,  upon  proper  showing,  call  and  ([uestion  a  witness 
whom  the  State's  attorney  thinks  should  testify,  but  is  not  willing 
to  vouch  for,  and  both  parties  may  have  the  privilege  of  eross- 
exaniining  such'  witness. 

People  vs.  Eardin,  2.55  111.  9 ;  People  vs.  Baskin,  254  III.  509 ;  People 
\s.    ("loniiiison,    250   HI.    135. 

PROVINCE  OF  JURY. 

The  credil)ility  of  witnesses,  the  weight  of  testimony,  the  draw- 
ing of  inferences  from  facts  and  circumstances  proven  are  all  ques- 
tions for  the  jurv  to  pass  upon  and  not  for  the  court  to  decide. 

Paige  vs.  111.  Steel  Co.,  2.33  111.  313;  McGregor  vs.  Eeid,  Muidoek  & 
Son,  178  111.  464;   Waters  vs.  People,  172  111.  3(i7;  Stampofski  vs. 
Steft'ens,   79   111.   303;    Slack  vs.  Harris,   101   App..527;   Howe   vs. 
Medaris,  82  App.  515;   Hunt  vs.  Hartcook,   79  111.  14;   People  vs. 
Delnce,  237  111.  541;  People  vs.  Darr,  179  App.  130. 
The  jury  nuist  test  the  truth  and  weight  of  evidence  and  what 
it  proved  by  their  knowledge  and  judgment  derived  from  exper- 
ience, observation  and  reflection. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Meixner,  55  App.  288;   Kitzinger  vs.  San- 
born, 70  111.  146;  Ottawa  G.  &  L.  Co.  vs.  Graham,  28  111.  73;  Hart- 
ford Ins.  Co.  vs.  Gray,  80  111.  28.  .  _ 
In  determining  the  weiglit  and  credibility  to  be  given  to  any 
statement  of  fact  made  by  a  witness  in  the  course  of  his  testimony, 
it  is  the  duty  of  the  jury  to  take  into  consideration  all  the  evidence, 
whether    circumstantial    or    otherwise,    tending    to    disprove    such 
statement  of  fact,  and  which  would  also  include  contradictory  state- 
ments made  by  other  witnesses. 

Eider  vs.  People,  110  111.  11;   Miller  vs.  People.  229  111.  376. 
Jury  may  consider  intelligence  and  capacity  of  witnesses. 

Fuel  Co.  vs.  White,  228  111.  187. 
A  jury  cannot  decide  whether  or  not  a  witness  is  credible  by 
evidence  undisclosed  at  the  trial,  nor  take  into  consideration  his 
demeanor  when  not  testifying. 

Purdy  vs.  People,  140  111.  46. 
Nor  can  they  reject  testimony  from  caprice. 

C.  &  g".  T.  Ey.  Co.  vs.  Foster,  46  App.  621;  Edler  vs.  Uehlman,  10 
App.  488. 
A  jury  has  no  right,  arbitrarily,  to  reject  the  testimony  of  an 
unimpeached  witness  simply  because  they  desire  to  find  a  verdict 
against  it.  It  is  their  duty  to  consider  the  entire  evidence  and 
render  their  verdict  accordingly.  It  should  be  fair  and  just  con- 
clusion from  the  whole  evidence,  otherwise  a  new  trial  should  be 

awarded. 

E.  E.  I.  &  St.  L.  E,  E.  Co.  vs.  Coultas,  67  111.  398. 

But  where  evidence  is  so  inherently  improbable  as  to  make  it 

unbelievable,  it  must  be  rejected  as  not  in  accordance  with  the 

truth. 

Mena  vs.  Chi.  City  Ey.  Co.,   147  App.  421;   C.  B.  &  E.  Ey.  Co.  vs. 

Kirby,  86  App.  57, 


362  CREDITOR'S  BILL 

Number  of  Witnesses: 

While  the  preponderance  of  evidence  is  not  determined  by  the 
number  of  witnesses  alone,  yet  where  the  witnesses  are  of  equal 
credibility,  the  number  must  be  regarded  as  one  of  the  means  by 
which  the  preponderance  is  determined. 

McFaddeii  vs.  C.  K.  I.  &  P.  Ky.  Co.,  149  App.  299;  Pate  vs.  Quinn, 
115  App.  513;  R.  R.  I.  &  St.  L.  Ey.  Co.  vs.  Coultas,  67  111.  398; 
C.  E.  I.  &  P.  Co.  vs.  Givens,  18  App.  404;  Stein  vs.  Schwartz  Co., 
163  App.  121.     XII  111.  Notes  536,  §  476. 

But  the  jury  cannot,  from  mere  caprice,  disregard  larger  number 

of  witnesses  testifying  for  or  against  party. 
Nau  vs.  Staiulard  Oil  Co.,  154  App.  421. 

Where  the  opportunities  of  several  witnesses  to  observe  the  fact 
as  to  which  they  testify  are  equal,  and  such  witnesses  stand  on  an 
equal  plane  as  to  their  credibility  in  other  respects,  the  element  of 
numbers  is  one  of  controlling  influence. 

Hanley  vs.  Chi.  City  Ey.  Co.,  180  App.  397;  Cf.  Cunningham  vs.  I. 
C.  Ey.  Co.,  179  App.  505, 


CREDITOR'S  BILL 

See  Fraud,  Fraudulent  Conveyances,  Husband  and  Wife, 

CRIMINAL  CHARGE  IN  CIVIL  SUIT 

See  Weight  and  Sufficiency. 

CRIMINAL  CONVERSATION 

See  Seduction,  Marriage. 
Marriagce: 

—  Fact  of  Marrmge:    Actual  marriage  must  be  proven. 

Miller  vs.  White,  80  111.  580;  Kepler  vs.  Elser,  23  App.  643. 

—  Reputation:  Is  not  sufficient  to  prove  fact  of  marriage  as  in 
other  civil  cases. 

Kepler  vs.  Elser,  23  App.  643. 
So  certificate  of  county  clerk  of  fact  of  marriage  is  incompetent. 
Ewing  vs.  Cox,  158  App.  25. 

—  Marriage  in  Sister  State:  Marriage  license  issued  in  an- 
other state,  with  certificate  endorsed  thereon  by  a  justice  of  the 
peace,  that  he  had  solemnized  the  marriage,  was  admitted  in  evi- 
dence, the  official  character  of  the  officer  granting  the  license, 
and  also  that  of  the  justice  of  the  peace  being  certified  by  the 
clerk,  the  keeper  of  the  records,  under  his  official  seal,  and  the 
presiding  justice  having  certified  to  the  authority  and  official 
character  of  the  clerk,  the  license  and  certificate  were  held  prop- 
erly admitted. 

King  vs.  Dale,  2  111.  513. 

—  Marriage  in  Foreign  Country:     May  be  proven  by  a  copy  of 

the  record  thereof  in  a  parish  register. 
Groom  vs.  Parables.  28  Add.  152. 


CRIMINAL  CONVERSATION  363 

Competency  of  Witnesses: 

—  Plaintiff's  Wife:     incompetent. 

Groom  vs.  Parables,  28  App.  152. 

A  divorced  wife  is  incompetent  to  testify  in  behalf  of  her  for- 
mer husband,  in  suit  brought  by  him  against  her  seducer. 

Eea  vs.  Tucker,  51  111.  110;  Griffeth  vs.  Griffeth,  1G2  111.  368;  Wad- 
dams  vs.  Humphrey,  22  111.  661. 

Proof  of  Seduction: 

—  Correspondence:  Between  plaintiff's  wife  and  defendant, 
admissible  to  prove  seduction. 

Crosby  vs.  Eutledge,  81  111.  266;  Browning  vs.  Jones,  52  App.  597. 

—  Decree  of  Divorce:  Record  of  a  divorce  between  plaintiff 
and  his  wife  is  not  admissible  in  evidence,  as  it  does  not  tend  to 
prove  or  disprove  any  fact  in  issue. 

Grose  vs.  Eutledge,  81  111.  266. 

Defendant  Failing  to  Testify: 

No  intendment  against  him. 
Lowe  vs.  Massey,  62  111.  47. 

Defenses : 

—  Death  of  ^Yife:    Does  not  affect  husband's  right  of  recovery. 

Yundt  vs.  Hartrunft,  41  111.  9;  Browning  vs.  Jones,  52  App.  597. 

—  Consent  of  Wife:    Does  not  affect  right  of  action. 

Browning  vs.  Jones,  52  App.  597. 

—  Suit  Against   Another  Defendant:     The  fact  that  plaintiff 

had  instituted  an  action  against  another  person  for  seduction  of 

his  wife  and  had  settled  the  suit  and  released  the  cause  of  action, 

is  not  a  bar  to  an  action  against  another  person  who  was  also 

guilty  of  adultery  with  her. 

Shannon  vs.  Swanson,  208  111.  52. 

—  Forgiveness  of  Wife :  The  fact  a  husband  forgives  the  adul- 
terous conduct  of  his  wafe  does  not  relieve  her  seducer  from  legal 

liability  to  answer  in  damages. 

Shannon  vs.  Swanson,  208  111.  52. 

—  Recrimination:     Conjugal  right  exists,  though  husband,  by 

his  fault,  is  living  apart  from  his  wife  and  leading  a  dissolute  life. 

Recrimination  is  not  defense  to  action  for  criminal  conversation  as 

in  proceeding  for  divorce. 

Browning  vs.  Jones,  52  App.  597. 

—  Conduct  of  Parties:  Evidence  of  collusion  between  husband 
and  wife,  in  bringing  suit  is  not  admissible  in  bar  of  such  action. 
But  if  the  offense  of  defendant  had  been  the  result  of  collusion 
between  plaintiff  and  his  wife,  or  of  connivance  on  part  of  plain- 
tiff, evidence  of  such  collusion  would  bar  the  action. 

Eea  vs.  Tucker,  51  111.  110. 

—  Connivance  of  Husband:  Mere  connivance  by  husband  is 
bar  to  action  by  husband.  It  is  not  necessary  to  that  end  that  the 
wife  live  as  a  prostitute  with  knowledge  and  consent  of  the  hus- 
band. 

Lowe  vs.  Massey,  62  111.  47. 

—  Absence  of  Husband:  The  husband's  right  of  action  is  not 
affected  by  the  fact  that  he  is  away  from  his  home;  though  ab- 


364  CRIMINAL  CONVERSATION 

sent,  he  is  still  entitled  to  her  services  in  the  nurture  of  his  chil- 
dren and  to  her  virtuous  example  to  them. 

Yundt  vs.  Hartrunft,  41  111.  9. 

Damages : 

—  Loss  of  Service:  A  husband  is  entitled  to  recover  substan- 
tial damages  from  one  who  has  committed  adultery  with  his  wife, 
even  though  he  proves  no  resulting  expenses  or  loss  of  service. 

Shannon  vs.  Swanson,  208  111.  51;   Yundt  vs.  Hartrunft,  41  111.  9. 

—  Chastity  of  Plaintiff's  Wife:  In  action  for  seduction  of 
plaintiff's  wife,  the  character  of  the  wife  for  chastity  is  involved, 

Crose  vs.  Eutledge,  81  111.  266;  Eea  vs.  Tucker,  51  111.  110;  Brown- 
ing vs.  Jones,  52  App.  597. 
And  in  mitigation  of  damages  defendant  may  show  that  wife 
of  plaintiff  had  been  guilty  of  adultery  with  other  persons  before 

her  connection  with  defendant. 

Hardy  vs.  Bach,  173  App.  123;  Eea  vs.  Tucker,  51  111.  110. 
Where  the  character  of  wife   for   chastity  has  been   attacked, 
by  evidence  of  acts  of  adultery,  it  is  proper  to  admit  proof  in  re- 
buttal to  show  her  general  reputation  for  chastity. 

Bro\^^ling  vs.  Jones,  52  App.  597. 

—  Chastity  of  Defendant:  'Chastity  of  defendant  is  not  in- 
volved and  evidence  is  not  admissible  in  ehief,  on  part  of  plain- 
tiff, to  show  his  reputation  for  chastity.  Evidence  that  defend- 
ant had  seduced  the  wives  of  other  persons,  or  that  he  was  in  the 
habit  of  seducing  married  women  is  too  remote. 

Crose  vs.  Eutledge,  81  111.  266. 

—  Chastity  of  Plaintiff:     Evidence  is  admissible   to  prove  the 

adulterous  conduct  of  the  husband  in  mitigation  of  damages,  but 

such  evidence  is  not  admissil^le  in  bar  of  action. 

Eea  vs.  Tucker,  51  111.  110;  Browning  vs.  Jones,  52  App.  597;  Bassett 
vs.  Bassett,  20  App.  543. 

—  Exemplary  Damages:     May  be  recovered. 

Peters  vs.  Lake,  6'6  111.  206. 

—  Social  Reinl-:  For  purpose  of  proving  case  for  vindictive 
damages,  proof  of  condition  in  life  and  circumstances,  as  well  of 
"husband'  as  of  party  committing  the  injury,  is  proper  and 
should  be  considered  in  estimating  damages. 

Browning  vs.  Jones,  52  App.  597. 

—  Pecuniary  Circumstances:  Evidence  of  pecuniary  circum- 
stances of  parties  is  proper. 

Peters  vs.  Lake,  66  111.  206;  Eea  vs.  Tucker,  51  111.   110;   Browsing 
vs.  Jones,  52  App.  597. 
But  where  cause  is  tried  several  years  after  injury,  proof  of 
plaintiff's  bankruptcy  at  time  of  trial  is  not  admissible. 
Peters  vs.  Lake,  66  111.  206. 

—  Aggravation  of  Damages:  In  criminal  conversation  cases, 
the  degradation,  mental  anguish  and  distress,  the  loss  of  affection 
and  service,  if  any  ensues,  are  considered  in  aggravation  of  dam- 
ages. 

Browning  vs.  Jones,  52  App.  597. 

Where  wife  is  seduced  in  husband's  absence  from  home,  jury  may 
consider  in  aggravation  of  damages  that  the  husband  before  leav- 
ing,  placed   his   business   in   the   hands   of   defendant,    and  that 

defendant  took  advantage  of  the  position  thus  given. 
Yundt  vs.  Hartrunft,  41  111.  9. 


CROSS  EXAMINATION  365 

—  Mitigation:  Gross  immoralities  and  avowals  of  profligate 
principles  and  loss  of  aifection  on  the  part  of  the  wife,  are  com- 
petent in  mitigation  of  damages. 

Browning  vs.  Jones,  52  App.  597. 


CROSS  EXAMINATION 

RIGHT  TO  CROSS  EXAMINE. 
In  General: 

A  witness  may  be  cross  examined  as  to  his  direct  testimony  in 
all  its  bearings  and  as  to  whatever  goes  to  explain,  modify  or 
discredit  what  he  has  stated  in  his  iirst  examination. 
Chi.  City  Ey.  Co.  vs.  Creech,  207  111.  400. 

So  far  as  the  cross  examination  of  a  witness  relates  either  to 
facts  in  issue  or  facts  relevant  to  the  issue,  it  may  be  pursued 

as  a  matter  of  right. 

Spohr  vs.  City  of  Chicago,  206  111.  441 ;  Cleveland  Stove  Co.  vs.  Wlieel- 
er,  14  App.  112. 
And  although  statements  are  inadmissible  as  original  evidence, 
party  has  a  right  to  cross  examine  witness  who  has  testiiied  con- 
cerning statements  of  third  person. 

Hall  vs.  G.  T.  Ins.  Co.,  171  App.  223. 
A  person  on  trial  should  not  be  deprived  of  his  legal  right  to 

cross  examine  witnesses. 

Writemau  vs.  People,  83  App.  369. 
Where  one  party  to  a  cause,  when  called  as  a  witness,  is  exam- 
ined in  such  a  way  as  to  leave  the  other  party  in  doubt  as  to  his 
right  then  to  cross  examine  as  to  particular  matters,  or  to  lead 
him  to  suppose  that  such  party  would  testify  in  rebuttal  as  to 
matters  not  then  touched  on,  offering  at  that  time  the  proper 
opportunity  for  cross  examination,  and  where  such  party  is  not 
again  called  to  the  stand,  adverse  party  may  ask  the  trial  court 
to  open  the  case  and  permit  further  cross  examination. 

Colonial  Ins.  Co.  vs.  Ellinger,  112  App.  302. 
Where  refusal  to  permit  cross  examination  is  not  final,  but  relates 
to  order  of  proof,  in  absence  of  subseciuent  offer,  refusal  not  error. 

McEniry  vs.  Tri.  City  Ey.  Co.,  179  App.  152. 

On  Default: 

A  defendant  who  has  been  defaulted  but  who  appears  at  trial 
may  cross  examine  witnesses  upon  question  of  amount  of  dam- 
ages. 

Pfaff   vs.   Pacific   Express   Co.,   251    111.   243;    Wolf   vs.   Powers,   241 
111.,  9;  First  Natl.  Bank  vs.  Miller,  235  111.  135. 

By  Both  Parties: 

If  prosecution  is  unable  to  vouch  for  or  guarantee  the  testimony 
of  a  person  who  was  an  eye-witness  to  the  transaction,  the  court 
may  call  such  witness  and  examine  him,  in  order  that  the  prosecu- 
tion, as  well  as  the  defense,  may  cross  examine  him. 

People  vs.  Baskin,  254  111.  509;   People  vs.  Cleminson,  250  111.   135; 
People  vs.  Bernstein,  250  111.  63;  Carle  vs.  People,  200  111.  494. 
Where  no  attempt  is  made  by  accused  to  show  by  other  wit- 
nesses that  a  witness  called  by  him  has  made  statements  contra- 


366  CROSS  EXAMINATION 

(lictory  to  those  made  on  tlie  witness  stand,  the  mere  fact  that 
such  witness  makes  a  statement  on  cross  examination,  which  coun- 
sel for  accused  claims  is  different  from  his  statement  at  other 
times,  does  not  entitle  the  accused,  as  a  matter  of  right,  to  have 
the  court  interrogate  the  witness  as  a  witness  for  the  court,  in 
order  that  counsel  for  accused  may  cross  examine  him. 
People  vs.  Tielke,  259  111.  88. 

Right  of  Co-Defendants: 

It  would  seem  quite  clear  that  in  case  of  separate  and  distinct 
defenses  each  party  defendant  would  have  a  right  to  cross  examine 
as  to  any  matter  specially  affecting  his  peculiar  defense,  no  mat- 
ter how  numerous  the  parties  may  be ;  but  in  case  of  a  common 
defense,  the  cross  examination  should  be  limited  within  a  reason- 
able discretion  to  the  necessities  of  the  case.  No  inflexible  rule 
can  be  laid  down. 

Kerfoat  vs.  Kronin,  105  HI.  609. 

A  defendant  who  has  announced  intention  at  close  of  plaintiff's 
evidence  to  abide  by  a  motion  for  a  peremptory  instruction,  w^hich 
had  been  denied  may  be  permitted  to  cross  examine  witnesses  tes- 
tifying for  another  defendant  but  by  so  doing  authorizes  the  court 
and  jury  in  determining  whether  case  has  been  made  against  him, 
to  consider  the  evidence  introduced  by  the  other  defendant  as 
well  as  that  introduced  by  plaintiff. 

Postal  Tel.  Co.  vs.  Likes,  225  111.  249. 

Parol  Founlation  for  Secondary: 

Where  foundation  for  admission  of  secondary  evidence  is  by 
parol,  opposing  counsel  has  a  right  to  test  the  statements  of  such 
witness  by  cross  examination. 

Scott  vs.  Bassett,  174  111.  390. 

Direct  Irrelevant: 

If  the  subject  matter  of  the  examination  in  chief  is  wholly 
immaterial  to  the  issue,  cross  examination  may  be  denied. 

Evans  vs.  Murphy  Varnish  Co.,  59  App.  87;   Stein  vs.  Deutsch,  178 
App.  615. 
If  incompetent  evidence  is  admitted  over  objection  or  subject 
to  objection,  opposing  counsel  may  cross  examine  without  waiving 
the  question  of  the  competency  of  such  testimony. 
Pierce  vs.  Jacobs,  157  App.  441. 
If  counsel  chooses  to  cross  examine  a  witness  as  to  facts  which 
were   not   admissible   in   evidence,   the  other  party   has   right   to 
examine  him  as  to  the  evidence  thus  given. 
Doggett  vs.  Greene,  163  App.  369. 
Where  all  the  evidence  of  a  witness  has  been  excluded  except 
non-essential  statement,  right  to  cross  examine  properly  refused. 
Singer  vs.  Hutchinson,  183  111.  606. 

In  Ejectment: 

Where  plaintiff  files  affidavit  that  he  claims  title  through  a  com- 
mon source  with  defendant,  and  defendant  denies  under  oath  that 
he  claims  title  through  such  source,  or  states  he  claims  title  through 
another  source,  the  latter  will  not  be  subject  to  cross  examination 

as  to  source  of  his  title. 

Thatcher  vs.  Ohmsteail,  110  111.  26. 


CROSS  EXAMINATION  367 

CONDUCT  AND  MODE. 

Repetition : 

Questions  asked  on  cross  examination,  the  purpose  of  Avhieh  is 
merely  to  require  witness  to  repeat  what  he  has  already  stated, 

may  be  disallowed. 

Zetsclie  vs.  C.  P.  &  St.  L.  Ky.  Co.,  238  111.  240;   Spohr  vs.  City  of 
Chicago,  206  111.  441;   Bonnett  vs.  Gladfelt,   120  111.   166;   City  of 
Aurora  vs.  Hillman,  90  111.  61;   Emerling  vs.  S.  V.  Coal  Co.,  149 
App.  97;  XIV  111.  Notes,  140  §  213. 
Asking  particulars   as  to  conversation,  where  witness  has  pre- 
viously stated  extent  of  his  information  on  that  subject,  is  improper. 
Quiucy  G.  &  E.  Co.  vs.  Bauman,  104  App.  600. 
Questions  calling   for  testimony   already   given   should   not  be 

allowed. 

C.  B.  &  D.  Ey.  Co.  vs.  Kelley,  221  111.  498. 

Rule  is  same  as  to  expert. 

Spohr  vs.  City  of  Chicago,  206  III.  441. 

Where  witness  has  testified  positively  there  was  but  one  ear  on 
side-track,  it  is  not  error  to  sustain  objection  to  further  ques- 
tion whether  if  there  had  been  five  or  six  cars  on  the  track,  he 

would  not  have  known  it. 

Zetsehe  vs  C.  P.  &  St.  L.  Ey.  Co.,  238  111.  240. 

Right  to  Recall: 

See  Recalling  Witness. 
Assuming  Material  Facts: 

In  examination  of  witnesses,  counsel  are  prohibited,  even  upon 
cross  examination,  of  assuming  any  material  fact  in  issue,  and 
which  is  to  be  found  by  the  jury,  or  from  assuming  that  particu- 
lar answers  have  been  given  contrary  to  the  facts. 

Haish  vs.  Muncly,  12  App.  539;  Sanberg  vs.  Brinks  Express  Co.,  151 
App.  623;  City  of  Chicago  vs.  Didier,  131  App.  406;  Balswic  vs. 
Balswic,  179  App.  118. 

Assuming  Answer  Untrue: 

It  is  proper  on  cross  examination  for  counsel  to  assume  that 
some  previous  answer  of  witness  is  untrue,  either  from  wilful- 
ness or  want  of  recollection,  and  he  may  put  his  question  in  vari- 
ous forms  to  show  that  fact,  and  it  is  error  for  court  to  deny  that 
right  where  the  cross  examination  is  not  pursued  to  an  unwar- 
ranted extent. 

Briggs  vs.  People,  219  111.  330. 

Exclusion  After  Cross  Examination: 

Counsel  will  not  be  permitted  to  cross  examine  a  witness,  and 
if  the  testimony  elicited  is  not  satisfactory,  have  it  excluded.     A 
party  will  not  be  allowed  to  experiment  with  a  witness  in  that  way. 
Capen  vs.  DeSteiger  Glass  Co.,   105  111.  185. 

Memorandum : 

Where  a  witness  testified  from  memorandum,  and  had  no  inde- 
pendent recollection  of  data  he  has  testified  to,  opposing  counsel 
is  entitled  to  possession   of  memorandum  to  cross  examine  such 

witness. 

Harmon  vs.  I.  &  E.  Coal  Co.,  237  111.  36. 

But  if  the  cross  examining  counsel,  after  putting  a  paper  into 

the  hands  of  a  witness,  asks  only  as  to  its  identity,  his  adversary 

will  have  no  right  to  see  the  same;  but  if  the  same  be  used  for 


368  CROSS  EXAMINATION 

purpose  of  refreshing  memory  of  witness,  or  if  any  questions  be 
asked  regarding  its  eontents,  a  siglit  thereof  may  then  lie  demanded. 
Casteel  vs.  Millison,  41  App.  Gl. 

Opening  Defense: 

Except  l)y  consent  of  parties,  and  permission  of  court,  the 
defendant  cannot,  in  cross  examination,  open  his  defense  by  inter- 
rogating a  witness  in  cliief. 

Wheeler  vs.  Barrett,  172  111.  010;  Freehill  vs.  Hneni,  103  App.  118. 

Phiintiff  cannot  estalilish  any  branch  of  liis  case  by  cross  exam- 
ination of  defendant's  witnesses. 

North  K.  St.  Ey.  Co.  vs.  Blatehfor.l,  81  App.  fi09. 

The  court  may  permit  party  to  introduce  evidence  in  suj^port  of 
his  case  or  defense,  during  the  cross  examination  of  Inn  adversaries 
or  his  adversaries'  witnesses,  l)ut  tlie  refusal  of  such  permission 

is  not  error. 

Peyton  vs.  Village,  172  111.  102;  McEniry  vs.  Tri.  City  Ky.  Co.,  179 
App.  152. 

Leading-  Questions: 

A  cross-examinnig  party  has  a  right  to  propound  leading  ques- 
tions. 

Phares  vs.  Barber,  61  111.  271. 
But  even  with  an  impartial  witness  under  cross  examination,  the 
words  cannot  be  put  in  the  mouth  of  witness  to  echo  back  again. 
Clingan  vs.  Irvine,  40  App.  606.     (See  Leading  Questions.) 

Variant  Statements: 

—  In  Otneral:     Inquiry  may  be  made  as  to  statements  made  by 

witness  to  others,  or  in  former  testimony. 

Warth  vs.  Lowenstein,  219  111.  222;   Central  Ey.  Co.  vs.  Allmon,  147 
111.  471. 
But  admissions  made  by  agent  after  accident  are  inadmissible  to 

bind  principal. 

Teal  vs.  Meraney,  12  App.  32. 
A  witness  may  be  asked,  on  cross  examination,  if  he  has  not, 
theretofore,  given  a  different  account  of  matter  to  which  he  has 
testified,  in  onier  to  lay  foundation  for  impeaching  his  testimony 

by  contradicting  him. 

Math  vs.  City  of  Chicago,  243  111.  114;  Central  Ey.  Co.  vs.  Allmon, 
147  III.  47i  ;  Campbell  vs.  Eacharst,  122  App.  609. 

—  Former  Opinions:  If  a  witness  has  simply  testified  to  a  mat- 
ter of  fact,  his  previous  opinion  as  to  merits  of  cause  cannot  be  re- 
garded as  relevant  to  the  issues.  Hence,  the  questions  put  to  him 
on  cross  examination  with  view  to  laying  foundation  for  his  im- 
peachment, should  be  directed  to  matters  of  fact  only,  and  not 
to  mere  opinions  which  he  has  forrfterly  expressed.  The  latter  are 
inadmissible  unless  the  case  is  one  where  evidence  of  opinion  is 

material. 

Central  Ey.  Co.  vs.  Allmon,  147  111.  471. 

—  Foundation:  The  rule  is  inflexible  that  a  witness  cannot  be 
impeached  by  proof  of  his  having  made  contradictory  statements 
out  of  covirt  unless  his  attention  has  been  directed,  in  his  exami- 
nation, to  such  statements,  specifying  particularly  the  time  and 

place. 

Hirsch  vs.  Coleman,  227  111.  149;  Eiehardson  vs.  Kelly,  8.5  111.  491; 
Sigsworth  vs.  Coulter,  18  111.  204;  Eegnier  vs.  Cavot,  7  111.  35; 
XIV  111.  Notes,  1158  §  334. 


CROSS  EXAMINATION  369 

—  Contradiction:     If     sueli     former     statements     are     neither 

admitted  nor  denied,  it  is  then  eompetcuit  to  prove  tlie  affirmative. 
Chi.  City  Ky.  Co.  vs.   Mathewson,  212.  111.   292;    Bresslor  vs.  i'oople, 
117  111.  422;  Winslow  vs.  NewUui,  45  111.  145. 

Where  a  witness  is  asked  whether  lie  did  not  testify  differently 
at  coroner's  inquest  and  replies  that  he  may  have, — that  he  does 
not  remember, — it  is  not  error  to  sustain  an  objection  to  question 
whether  the  matter  was  not  fresher  in  his  mind  then  than  at  time 
of  the  trial. 

Devine  vs.  Chi.  City  Ey.  Co.,  237  111.  278. 

—  Whole  of  Conversation:     If  a  witness  is  asked  if  he  did  not 

say  a  certain  thing,  and  denies  having  said  it,  he  may  afterwards 

show  what  he  did  say ;  and  when  a  witness  testifies  to  part  of  a 

conversation,  the  other  party  is  entitled  to  show  all  that  was  said 

on  same  subject  in  that  conversation. 

Norton  vs.  Clark,  253  111.  557;  Scott  vs.  People,  141  111.  195;  Barnes 
vs.  Northern  Trust  Co.,  169  111.  112 ;  Augler  vs.  Smith,  34  111.  534. 

"Where  one  party  elicits  a  part  of  a  conversation, -it  is  the  right 

of  his  opponent  to  have  the  whole  of  it. 

Sawyer  vs.  Nelson,  59  App.  46;  Blach  vs.  W,  St.  L.  &  P.  Ev.  Co.,  Ill 
111.  351. 

Where  a  party  examines  a  witness  as  to  a  conversation,  the  oppos- 
ing party  can  only  examine  the  witness  upon  the  conversation 
about  same  subject  matter;  but  not  about  a  conversation  upon  a 

different  subject  not  related  to  former  conversation. 
C.  &  A.  E.  E.  Co.  vs.  Thompson,  19  111.  578. 

If  plaintiff,  on  cross  examination,  is  interrogated  with  reference 

to  certain  testimony  given  by  him  on  former  trial,  it  is  not  error 

to  permit  him,  on  re-direct  examination,  to  repeat  the  whole  of 

his  testimony  on  former  trial  covering  points  to  which  he  was  cross 

examined. 

111.  Steel  Co.  vs.  Wierzbicky,  206  111.  201. 

The  rule  that  where  one  party  gives  evidence  of  a  part  of  a  con- 
versation, the  other  party  is  entitled  to  call  out  the  residue,  so  far 
as  material,  has  no  application  where  conversation  was  not  alluded 
to  on  direct  examination,  but  was  first  mentioned  in  answer  to  a 
question  put  to  him  on  his  cross  examination. 
Hanson  vs.  Miller,  145  111.  538. 

So,  a  question  on  cross  examination,  as  to  whether  any  one  told 

the  witness  of  an  occurrence  will  not  justify  the  admission  of  the 

entire  conversation  in  rebuttal.     The  queiy  as  to  fact  of  being  told, 

is  not  a  quers^  as  to  wlio  told  witness. 

Sherman  vs.  Pardridge,   177  App.   304. 

—  In  Writing:  A  witness,  under  cross  examination,  may  be 
questioned  as  to  previous  statements,  made  by  him,  in  writing,  or 
reduced  to  writing,  relative  to  subject  matter,  without  such  writ- 
ing being  shown  to  him. 

Warth  vs.  Lowenstein,  219  111.  222;   Western  M.  &  M.  Ins.   Co.   vs. 
Boughton,  136  111.  317. 

But  the  contradictory  statement  in  writing  cannot  be  introduced 
without  asking  witness  if  he  wrote  or  signed  same. 

Chi.  St.  Ey.  Co.  vs.  McLaughlin,  146  111.  353;  Seckel  vs.  York  Natl. 
Bank,  57  App.  579;   Transportation  Co.  vs.  O'Neill,  41  App.  423. 

In  cross  examination  relative  to  written  reports,  proper  method 

Ev.— 24 


370  CROSS  EXAMINATION 

is  to  show  same  to  witness  and  inquire  if  same  were  in  his  hand- 
writing. 

Ludwiek  vs.  Engineering  Co.,  148  App.  632. 

Statements  signed  by  a  witness  which  contradicts  his  testimony, 
are  not  admissible  in  evidence  when,  after  being  read  in  detail,  to 
the  witness,  he  admits  that  he  made  the  contradictory  statements 

therein  set  forth. 

Swift  &  Co.  vs.  Madden,  165  111.  41;  Dickirson  vs.  Henryetta  Coal  Co., 
251  111.  292. 
Nor  where  written  statement  is  presented  to  witness  and  signa- 
ture admitted,  is  it  proper  to  permit  cross  examiation  as  to  con- 
tents. 

Momence  Stone  Co.  vs.  Groves,  197  111.  88.     (See  Former  Testimony.) 

MATTERS  TENDING  TO  DEGRADE  WITNESS. 
In  General: 

A  witness  may  be  compelled  to  answer  questions  material  to  issue 
although  his  reply  may  impute  disgrace  to  him. 

The  reasonableness  of  examination  applies  not  only  as  to  eon- 
duet  which  may  be  inquired  into,  but  also  as  to  time  thereof.  The 
cross  examination  should  not  extend  to  things  properly  buried  in 
the  oblivion  of  the  distant  past,  nor  to  matters  which  throw  no 
light  upon  the  truthfulness  of  the  witness. 

Weldon  vs.  Burcli,  12  111.  374;  Waters  vs.  West  Chi.  St.  Ey.  Co.,  101 
App.  265;  Moline  Wagon  Co.  vs.  Preston,  35  App.  358. 

A  wide  latitude  is  allowed  in  cross  examination  of  a  witness 
but  he  is  entitled  to  be  protected  by  court  from  unnecessary  insult 
and  abuse  by  counsel.  A  witness  cannot  be  impeached  on  cross 
examination  by  questions  irrelevant  to  issue,  which  only  tend  to 
bully  and  degrade  him. 

T.  W.  &  W.  Ky.  Co.  vs.  Williams,  77  111.  354. 
Asking  irrelevant  questions  for  purpose  of  embarrassing  a  wit- 
ness or  causing  jury  to  draw  an  inference  unfavorable  to  him  is 
improper. 

Atchinson  vs.  McKinney,  233  111.  106. 
A  cross  examination  intended  solely  to  defame  the  character  of 
the  witness  is  improper. 

People  vs.  Brown,  254  111.  260. 

Occupation: 

It  is  proper  to  cross  examine  a  witness  as  to  his  occupation  and 
other  matters  which  will  enable  the  jury  to  determine  weight  to  be 

given  to  his  testimony. 

People  vs.  White,  251  111.  67;  C.  &  P.  St.  Ky.  Co.  vs.  Priest,  89  App. 
304;   People  vs.  Schultz,  260  111.  35. 
A  defendant  on  trial  for  robbery,  who  testifies  to  his  occupation 
as  a  laundryman,  may  be  cross  examined  as  to  whether  he  did  not 
keep  a  place  for  opium  smoking. 
Bow  vs.  People,  160  111.  438. 
Where  a  witness  for  accused  in  murder  trial  testified  that  he 
was  a  bar-tender,  and  tended  bar  for  accust^  for  eighteen  months, 
it  is  not  error  to  allow  prosecution  to  show,  on  cross  examination, 
that  for  fifteen  years  the  witness  has  spent  more  time  working  for 
gambling  houses  than  in  tending  bar. 
People  vs.  White,  251  111.  67. 


CROSS  EXAMINATION  371 

Habits : 

It  is  within  the  discretion  of  court  whether  witness  shall  answer 
questions  on  cross  examination  which  affects  his  family  relations 
and  his  habits  in  connection  with  disreputable  women,  where  such 
witness  was  an  accomplice  of  defendant  convicted  and  was  turning 
State's  evidence. 

Shields  vs.  People,  132  App.  109. 

Drunkenness : 

Cross  examination  to  show  excessive  use  of  intoxicants  is  legit- 
imate with  a  view  to  affecting  credibility  of  witness. 

Wood    vs.   Daily,  211  111.  495;   McCauley  vs.  Chi.  City  Ey.  Co.,  163 
App.  17G. 

Cause  and  Results: 

Where  a  witness  has  expressly  or  by  inference  stated  the  cause 
of  a  result,  whether  other  causes  contributed  to  the  result  is  a 
proper  inquiry  on  cross  examination.     Whether  such  inquiry  re- 
lates to  matter  not  pleasant  to  reveal  is  not  to  be  considered. 
West  Chi.  St.  Ey.  Co.  vs.  Eeddy,  69  App.  53. 

Antecedents : 

Are  proper  subject  of  inquiry  upon  cross  examination. 
T.  St.  L.  Ey.  Co.  vs.  Bailey,  43  App.  292. 

Former  Prosecutions: 

It  is  error  to  require  a  witness,  upon  cross  examination,  to  testify 
as  to  former  prosecutions  to  wliich  he  had  been  a  party  defendant. 
People  vs.  Duggan,  150  App.  375;  Burke  vs.  Stewart,  81  App.  509; 
Lambkin  vs.  Burnett,  7  App.  143. 

Nor  may  witness  be  asked  whether  he  had  been  convicted  of  the 
crime  of  man-slaughter. 

Benson  vs.  Chi.  Ey.  Co.,  180  App.  235. 

INTEREST. 
In  General: 

It  is  always  competent  to  show  interest  of  a  witness. 

West  Skokie  Drain.  Dist.  vs.  Dawson,  243  111.  175;  McMahon  vs.  Chi. 
City  Ey.  Co.,  239  111.  334;  Chi.  City.  Ey.  Co.  vs.  Carroll,  206  111.  318. 
Relationship  may  be  shown. 

Brown  vs.  Walker,  32  App.  199. 

Relation  as  Employe: 

Is  matter  of  proper  proof. 

Cicero  St.  Ey.  Co.  vs.  Eollins,  195  111.  219;  I.  C.  E.  E.  Co.  vs.  Ras- 
kins, 115  111.  300;  Humboldt  vs.  Watkins,  123  App.  62. 

Financial  Interest: 

It  is  always  competent  to  show  on  cross  examination  that  a  wit- 
ness is  interested  in  result  of  suit. 

Bevan  vs.  Atlanta  Natl.  Bank,  142  111.  302;   Travers  vs.  Snyder,  38 
App.  379. 

And  greater  latitude  is  allowed  in  case  of  party  in  interest  or 
an  unwilling  witness. 

Hanehett  vs.  Kimbark,  118  111.  121. 
Questions  which  tend  to  elicit  interest  of  witness  and  relations 
to  parties,  is  proper  cross  examination. 
Humboldt  vs.   Watkins,  123   App.  62. 

It  is  always  proper  in  cross  examination  to  interrogate  a  witness, 
within  reasonable  limits,  as  to  any  matter  of  fact  calculated  to 
affect  his  credibility  as  a  witness  or  weight  of  his  testimony,  and 


372  CROSS  EXAMINATION 

especially  is  this  true  as  to  matters  which  pertain  to  his  relationship 
to  the  parties ;  his  interest  in  result  of  suit ;  the  effect  of  his  testi- 
mony upon  himself,  his  interests  or  his  character,  and  the  like. 
T.  C.  K.  E.  (V).  vs.  Burke,  112  App.  415. 

BIAS  AND  HOSTILITY. 

See  Bias  and  Hostility. 
MATTERS  IRRELEVANT. 

Contradiction : 

A  witness  cannot  he  cross  examined  as  to  any  fact  which  is  col- 
lateral and  irrek^vant  to  the  issue,  merely  for  the  purpose  of  con- 
tradicting him  hy  other  evidence. 

Benedict  vs.  Dakin,  243  111.  384;  Central  Ey.  Co.  vs.  Allmon,  147  111. 
471. 

If  a  party,  on  cross  examination,  draws  out  immaterial  matters, 
it  is  not  competent  for  him  to  contradict  the  statements  of  the 
witness  so  drawn  out,  hy  wav  of  impeachment. 

L.  E.  &  W.  Ey.  Co.  vs.  Morain,  140  111.  117;  City  of  East  Dubuque 
vs.  Burhyte,  173  111.  553. 

Party  is  ])Ound  hy  collateral  matters  which  he  hrought  out  on 
cross  examination. 

Aneals  vs.  People,  134  111.  401;  Pheiiix  vs.  Castner,  108  111.  207. 
Party  cannot  oljject  to  competency  of  evidence  brought  out  hy 
him  on  cross  examination. 

Kevern  vs.  People,  224  111.  170;  Emerich  vs.  Hileman,  177  111.  368; 
Board  of  Trade  vs.  Blume,  176  111.  247. 

Conversation  with  Third  Party: 

It  is  improper  to  permit  a  witness  to  testify  to  a  controversial 
conversation  had  between  plaintiff  and  third  party,  such  conver- 
sation in  no  wise  pertaining  to  the  issues  of  the  cause. 
HolxM't   vs.  YanAernian,  146  App.  1, 

Business  Experience: 

Where  a  witness  has  testified  that  he  signed  a  certain  instrument, 

without  reading  it,  it  is  proper,  on  cross  examination,  to  inquire 

into  his  previous  business,  for  purpose  of  showing  he  was  a  man 

of  experience  and  affairs. 

Popjjers  vs.  Peterson,  43  App.  571. 

Defense  Not  Relied  Upon: 

Cross  examination  which  tends  to  elicit  evidence  in  support  of 
a  defense  not  relied  upon  by  the  pleadings,  is  improper. 
Livingston  Natl.  Bank  vs.  Miller,  154  App.  104. 

Financial  Condition: 

Questions  merely  calculated  to  show  wealth  of  adverse  party  are 
clearly  improper. 

Arnold  vs.  Pfaff,  94  App.  461. 

LIMIT. 

Discretion  of  Court: 

Should  be  kept  witliin  fair  and  reasonable  limits,  and  the  court 
has  a  discretion  in  conduct  of  trial  for  that  purpose. 

People  vs.  Strauc'h,  247  111.  220;  Davison  vs.  People,  90  111.  221; 
Cooper  vs.  Eandall,  59  111.  317;  Flynn  vs.  Chi.  City  Ey.  Co..  15S 
App.  405;  Fire  Ins.  Co.  vs.  Pulver,  126  111.  329. 

The  scope  of  cross  examination  is  largely  within  discretion  of 
trial  court,  being  governed  by  direct  testimony  of  the  witness,  and 
the  circumstances  attending  the  giving  of  his  evidence. 


CROSS  EXAMINATION  373 

A  witness  may  be  cross  examined  as  to  his  direct  testimony  in 
all  its  bearings,  and  to  whatever  goes  to  explain,  modify  or  dis- 
count same. 

Breman  vs.  Carterville  Coal  Co.,  241  111.  610;  Chi.  City  Ry,  Co.  vs. 
Creech,  207  111.  400;  Hanchett  vs.  Kimbark,  118  111.  121. 

No  definite  limit  can  be  prescribed  as  a  rule  of  law. 
McMalioii  vs.  Chi.  City  Ky.  Co.,  239  111.  334. 

Direct  Examination: 

Cross  examination  should  be  confined  to  matters  brought  out  on 

examination  in  chief. 

Emerson  vs.  Fleming,  246  111.  353;  Schmidt  vs.  Chi.  City  Ry.  Co.,  239 
111.  494;  C.  B.  &  Q.  Ey.  Co.  vs.  Kelly,  221  111.  498;  Staunton  Coal 
Co.  vs.  Bubb,  218  111.  125;  Hartshorn  vs.  Byrne,  147  111.  418;  Hanks 
vs.  Rhodes,  128  111.  404;  Many,  Blanc  Co.  vs.  Jacobson,  149  App. 
240;  Casey  vs.  Chi.  City  Ry.  Co.,  159  App.  562;  Aetnae  Indemnity 
Co.  vs.  Mueller,  160  App.  149;  Davis  Bros.  vs.  Vandalia  R.  R. 
Co.,  168  App.  621 ;  XIV  111.  Notes,  1139,  §  209. 

And  this  rule  applies  to  adverse  party  as  well  as  other  witnesses. 
Hauser  vs.  Miller,  145  111.  538;  Ridgon  vs.  Conley,  141  111.  565;  Stein 
vs.  Deutsch,  178  App.  615. 

Upon  the  cross  examination  of  a  witness,  it  is  proper  to  permit 
a  full  inquiry  with  respect  to  any  matter  touched  upon  in  direct 
examination. 

Kirseh  vs.  Walter,  151  App.  378;  Brennan  vs.  Chi.  Coal  Co.,  147  App. 
263 ;  Donnelly  vs.  Chi.  City  Ry.  Co.,  131  App.  302. 

Cross  examination  seeking  to  elicit  matter  wdiich  pertains  to 
affirmative  defense  properly  restricted  where  no  reference  made 
to  matter  on  direct  examination. 

Royal  Neighbors  vs.  Sinon,  135  App.  599. 

Where  a  witness  is  called  to  prove  a  single  fact  only,  the  oppo- 
site party  wull  not  be  allowed,  under  guise  of  cross  examination, 
to  enter  upon  a  general  examination  of  the  witness,  but  the  cross 
examination  w'ill  be  confined  to  the  examination  in  chief. 

Erie  &  Pac.  Dispatch  Co.  vs.  Stanley,  123  111.  158 ;  Hurlbut  vs.  Meek- 
er, 104  111.  541;  Stafford  vs.  Fargo,  35  111.  481. 
Nor  is  it  proper  to  permit  cross  examination  to  extend  to  mat- 
ters of  defense  not  inquired  .about  on  direct  examination. 
Freehill  vs.  Hueni,   103  App.   118. 

Inconsistent  Conduct: 

Witness  may  be  interrogated  as  to  conduct  inconsistent  with  his 

testimony. 

Bow  vs.  People,  160  111.  438;  Brtiner  vs.  Nisbet,  31  App.  517. 

Improbability : 

Witness  may  be  cross  examined  to  show  that  course  of  conduct 

was  inherently  improbable. 

.     Mertens  vs.  So.  Coal  Co.,  235  111.  540, 

Time,  Place  and  Circumstances: 

Full  inquiry  as  to  time,  plaee  and  circumstances  concerning 

material  transaction  testified  to  should  be  permitted. 

Faulkni>r  vs.  Birch,  120  App.  281. 

Cause  of  Result: 

Where  any  witness  has  expressly  or  by  inference,  stated  the  cause 
of  a  result,  whether  other  causes  contributed  to  the  result  is  a 
proper  inquiry  on  cross  examination. 

West  Chi.  St.  Ry.  Co.  vs.  Reddy,  69  App.  53. 

Witness  may  be  cross  examined  as  to  all  matters  pertinent  to 


374  CROSS  EXAMINATION 

and  growing  out  of  matters  connected  with  testimony  of  direct 

examination. 

Edmunds  Mfg.  Co.  vs.  McFarland,  118  App.  256;   CM.  City  Ey.  Co. 
vs.  Canevin,  72  App.  81. 

As  to  Experts: 

—  Means  of  Knowledge:     See  Expert  and  Opinion. 

—  AutJioritics:     See  Books. 

—  Hypotheticalhj  Interrogated:     See  Hypothetical  Questions, 

—  Compensation:     See  Expert  and  Opinion. 

—  Nnmber  of  Cases  in  Which  Witness  Appeared:  No  definite 
limit  can  be  prescribed  as  a  rule  of  law.  Question  should  be 
limited  to  number  of  times  witness  testified  for  party  for  whom  he 

appears,  and  not  similar  cases. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334;  C.  &  E.  I.  E.  E.  Co.  vs. 
Schmitz,  211  111.  446. 
It  is  not  proper,  on  cross  examination,  to  ask  questions  in  regard 
to  professional  opinions  witness  has  given  in  other  personal  injury 
suits,  nor  attempt  to  show  by  direct  examination  of  other  witnesses, 
that  expert  was  interested  as  a  medical  man  in  a  large  number  of 
personal  injury  suits  against  corporations.  Cross  examination 
upon  independent  cases  of  the  same  character  and  about  the  same 
time  as  the  principal  case  is  not  allowed.  The  rule  is  more  strict 
against  the  use  of  this  kind  of  testimony  in  direct  examination. 
The  acts  and  declarations  either  of  strangers  or  of  one  of  the  parties 
to  the  action  in  his  dealings  with  strangers,  are  irrelevant.     They 

are  what  are  denominated  res  inter  alios  acta. 
C.  &  E.  I.  E.  Co.  vs.  Sehniitz,  211  111.  446. 

So  question,  "Isn't  it  the  principal  part  of  your  professional 
industry  to  be  in  consultation  with  attorneys,  to  hunt  up  these 
claims,  or,  whether  you  hunt  them  up  or  not,  secure  them,  and  in 
consultation  with  them  have  an  arrangement  with  them  for  con- 
tingent fees?"  improper. 

Chi.  City  Ey.  Co.  vs.  Smith,  226  111.  178. 

Nor  may  witness  be  asked  as  to  comparative  amount  received 
from  his  profession  and  his  income  for  testifying  in  various  cases. 
Gordon  vs.  City  of  Chicago,  201  111.  623. 

—  As  to  Value:  Upon  cross  examination,  great  latitude  is 
allowed  so  as  to  enable  jury  to  see  upon  what  basis  witness  had 
made  his  estimate  of  value,  and  what  facts  have  induced  him  to 
form  the  opinions  he  has  expressed. 

Spohr  vs.  City  of  Chicago,  206  111.  441. 

An  expert  in  condemnation  proceedings  may  be  interrogated  on 
cross  examination  as  to  his  knowledge  of  sales  of  property  in  the 
vicinity. 

Spohr  vs.  City  of  Chicago,  206  111.  441. 

Plaintilf,  as  witness  in  own  behalf,  was  asked  value  of  certain 
land.  He  had  already  shown  he  was  competent  to  give  opinion  of 
value  of  land.  Defendant  asked  leave  to  cross  examine  him  as  to 
his  means  of  knowledge  before  answering  question,  which  court 
refused.     Held,  no  error. 

Drew  vs.  Beall,  62  111.  164. 

It  is  entirely  proper,  on  cross  examination,  to  test  knowledge  and 
intelligence  of  witnesses  on  subject  on  which  they  have  been  ex- 


CROSS  EXAMINATION  375 

amined  in  chief,  as  to  how  witnesses  formed  their  conclusions,  basis 
of  estimates,  etc 

McCarthy  vs.  C.  B.  &  Q.  Ey.  Co.,  34  App.  273. 

Witness  who  has  testified  as  to  benefit  of  assessment  may  be 
cross  examined  as  to  value  of  property  in  vicinity. 

Chicago  vs.  Marsh,  238  111.  254.     (See  Expert  and  Opinion,  Hypo- 
thetical Questions.) 

Re-Direct: 

After  he  has  rested  neither  party  can,  as  a)  matter  of  right,  intro- 
duce any  further  testimony,  which  may  be  properly  considered 
testimony  in  chief. 

McEniry  vs.  Tri.  City  Ey.  Co.,  179  App.  152. 
It  is  within  the  sound  discretion  of  the  court  to  permit  or  to 
refuse  the  re-examination  of  a  witness. 
Borett  vs.  Petry,  148  App.  622. 
And  if  permitted,  its  scope  is  within  discretion  of  court. 

Concord  House  Co.  vs.  O'Brien,  228  111.  360. 
If  it  is  stated  by  counsel  that  question  has  been  omitted  by  in- 
advertence, it  may  be  permitted. 

Finley  vs.  Chi.  St.  Ey.  Co.,  90  App.  368. 
So  matters  in  explanation  may  be  allowed. 

Wilson  vs.  People,  94  111.  299. 
But  where  witness,  on  cross  examination,   admitted  making  a 
statement  which  he  denied  on  direct,  re-direct  should  not  be  allowed. 
Marquette  Cement  Co.  vs.  William,  132  App.  629. 
"Where  plaintiff  in  personal  injury  case  volunteers  the  informa- 
tion, on  cross  examination,  that  he  had  once  been  shot  during  a 
strike  but  he  is  asked  nothing  about  the  shooting,  it  is  improper 
to  allow  him,  on  re-direct  examination,  to  describe  the  circumstances 
in  order  to  show  he  was  a  union  man  and  had  been  shot  by  a  non- 
union man,  or,  as  suggested  by  his  counsel,  a  "scab." 
Kelleher  vs.  Chi.  City  Ey.  Co.,  256  111.  454. 

As  to  Direct  Examination  in  Miscellaneous  Instances: 

—  Set-off:  Where  plaintiff  called  to  prove  that  defendant  had 
admitted  correctness  of  his  demand,  defendant  cannot,  on.  cross 

examination  prove  his  set-off  in  defense. 
Eigdon  vs.  Conley,  141  111.  565. 
Cross  examination  of  plaintiff's  witness,  w.hich  tends  solely  to 
sustain  defendant's  plea  of  set-off,  is  improper. 
C.  &  M.  Co.  vs.  Lutz,  152  App.  329. 

—  Hearsay:  Where  father  of  deceased  states,  in  answer  to 
(juestion  on  cross  examination,  that  he  had  heard  there  were  other 
boys  on  the  street  at  time  of  accident,  and  that  he  had  learned  the 
name  of  one,  it  is  proper  to  sustain  objection  to  question  as  to  such 
boy's  name,  where  no  question  was  asked  in  regard  to  it  on  direct 
examination,  the  whole  matter  being  purely  hearsay. 

Chi.  City.  Ey.  Co.  vs.  Strong,  230  111.  58. 

—  Manner  of  Sideivalk  Construction:  Where  plaintiff's  ex- 
amination in  chief,  is  confined  to  time  and  manner  of  constructing 
a  certain  sidewalk,  objections  are  properly  sustained  to  a  cross 
examination  as  to  number  of  times  witness  had  inspected  walk 

after  construction. 

City  of  E.  Dubuque  vs.  Burlyte,   173  111.  553. 


376  CROSS  EXAMINATION 

—  Authority  of  Counsel:  Cannot  be  inquired  into  upon  exami- 
nation of  witness  on  trial  of  merits  of  cause. 

Einerson  vs.  Fleming,  246  111.  353. 

—  Specific  Acts  as  Agent:  Where  a  witness  is  examined  in  chief 
as  to  time  and  place  of  delivery  of  goods  to  him  as  agent  of  defend- 
ant, it  is  not  proper,  on  his  cross  examination  by  defendant,  to  ask 
him  about  his  previous  course  of  dealings  with  plaintiff's  agent, 
to  show  notice  to  him  oF  restrictions  of  defendant's  liability. 

E.  &  P.  Dispatch  Co.  vs.  Stanley,  123  111.  158. 

—  Character  of  Plaint ijf  in  Action  for  Slander:  Plaintiff  who 
has  not  given  any  evidence  of  her  cliai'actcr  upon  examination  in 
chief,  cannot  be  cross  examined  for  purpose  of  proving  her  bad 
character. 

Hill  vs.  Montgomery,  184  111.  220. 

—  Mental  CapaeHy  at  Particular  Time:  Proponents  witness 
having  testified  as  to  testator's  mental  capacity  in  business  trans- 
actions during  period  of  several  years  before  and  after  execution 
of  will,  contestants  cannot,  on  cross  examination,  extend  their  in- 
quiry to  cover  full  period  up  to  testator's  death. 

Entwistle  vs.  Meikle,  180  111.  9. 

—  Account  stated:     Where  plaintiff,  on  account  stated,  testifies 

only  to  interviews  and  correspondence  rcsuiting  in  agreement  fixing 

sum  due,   he  cannot  be  cross  examined  regarding  correctness  of 

items  of  the  account. 

Dick  vs.  Zimmermann,  207  111.  636. 

—  Habits:  The  subject  not  being  inquired  into  upon  direct 
examination,  it  is  improper  upon  cross  examination  to  permit  wit- 
ness to  testify  as  to  habits  of  plaintiff's  husband  prior  to  injury, 
in  action  under  dram  shop  act. 

Gushing  vs-ToUi,  151  App.  1. 

—  Denial  of  Signature:  Where  witness  states  signature  is 
not  his,  and  points  out  diff'erences  therein  from  his  regiilar  signa- 
ture, it  is  competent,  on  cross  examination,  to  show  him  signature 
claimed  not  to  contain  such  differences,  and  ask  him  if  it  is  not  his. 

Hobart  vs.  VanAeiinan,  146  App.  1. 

—  Freight  Kates:     Witness  who  has  testified  as  to  what  is  fair 

and  reasonable  freight  rate,  should  be  permitted  to  be  liberally 

cross  examined. 

C.  P.  &  St!  L.  Ey.  Co.  vs.  People,  136  App.  2. 

—  Drunkenness:  Where  witness  upon  direct  examination  had 
testified  he  was  drunk,  it  is  proper  upon  cross  examination,  in 
order  to  ascertain  the  truth  of  such  statement  to  inquire  as  to  what 
he  said  immediately  after  the  time  when  it  was  claimed  he  was 

drunk. 

Santer    vs.    Anderson,    112    App.    580;    Miller    vs.    People,    216    111. 
309. 

—  Feigned  Symptoms:    Wide  latitude  in  cross  examination  of 

plaintiff  in  personal  injury  case  should  be  allowed,  where  extent 

of  her  disabilities  is  in  dispute,  and  character  thereof  such  that 

the  symptoms  may  be  feigned. 

Chi.  U.  Trac.  Co.  vs.  Miller,  212  111.  49. 

—  Ownership:  Where  witness  has,  upon  direct  examination, 
testified  to  ownership,  it  is  proper  upon  cross  examination,  to  in- 
quire into  the  location,  situation  and  character  of  property,  where 


CROSS  EXAMINATION  377 

sucli  inquiry  will  tend  to  sliow  that  his  testimony  in  chief  was 
the  statement  of  a  conclusion. 

Prussian  Ins.  Co.  vs.  Empire  Co.,  113  App.  G7. 

—  Impeaching  WiUiess:  It  is  proper,  upon  cross  examination 
of  an  impeaching-  witness,  to  show  for  whom  he  acted  in  seeking 
information  from  plaintiif,  as  to  how  injury  occurred,  in  order  that 
the  fact  and  manner  of  his  interest  may  a})pear. 

Natl.  E.  &  S.  Co.  vs.  Fagan,  115  App.  590. 

—  Fraud:  In  admitting  evidence  to  estalilish  fraud,  a  reason- 
able latitude  must  be  allowed  on  both  direct  and  cross  examination, 
and  in  case  of  the  latter,  the  court  should  admit  evidence  having  a 
reasonable  tendency  to  throw  light  on  the  transaction,  even  though 
inquiry  is  as  to  matters  not  touched  on  in  direct  examination. 

Fabian  vs.  Treager,  215  111.  220;  Hollenbach  vs.  Todd,  119  111.  543; 

Strohm  vs.  Hayes,  70  111.  41. 

It  is  correct  practice  to  ask  general  and  direct  questions  as  to 

good  faith,  leaving  opposite  party,  on  cross  examination,  to  call 

for  details  and  collateral  circumstances  of  transaction,  if  he  desires 

them. 

Miner  vs.  Phillips,  42  111.  123. 
On  defense  to  action  on  tire  insurance  policy  that  fire  was  pro- 
cured by  insured  and  he  had  conspired  with  others  to  procure  in- 
surance upon  stocks  of  goods  in  order  to  have  them  destroyed  by 
fire,  it  is  error  to  refuse  to  permit  cross  examination  that  will 
develop  alleged  fact  that  a  conspiracy  existed. 

Milhim  vs.  Hawkeye  Ins.  Co.,  171  App.  262. 

—  Specific  Contract  Price:  Refusal  to  permit  inquiry  into  cost 
of  constructing  the  work  is  not  undue  restriction  of  cross  exami- 
nation of  plaintiff's  witnesses  in  suit  to  recover  specific  contract 
price  for  the  work,  there  being  no  direct  examination  upon  ques- 
tion of  cost. 

Streator  Tel.  Co.  vs.  Construction  Co.,  217  111.  577. 

—  Sanity  of  Testator:  A  witness  who  had  expressed  an  opinion 
that  testator  was  of  sound  mind,  may,  on  cross  examination,  be 
asked  relevant  to  testator's  treatment  of  his  family. 

Petefish  vs.  Becker,   176  111.  448. 

—  Character:  A  witness  who  has  testified  in  criminal  case  that 
the  general  reputation  of  accused  as  being  a  peaceable  and  law- 
abiding  man  is  good,  can  not  be  asked,  on  cross  examination, 
whether  he  has  heard  rumors  of  accused  having  been  connected 

with  former  criminal  acts. 

Aiken  vs.  People,  183  111.  215. 
It  is  error  to  allow  a  witness,  called  to  show  previous  good  char- 
acter of  one  on  trial  for  rape,  to  prove,  on  cross  examination,  that 
he  had  heard  people  say  defendant  gambled.  And  when  defend- 
ant testifies  in  his  own  behalf,  it  is  error  to  compel  him,  on  cross 
examination,  to  state  that  he  had  visited  houses  of  ill-fame  before, 
and  the  number  of  times,  and  of  his  having  connection  with  the 

inmates,  and  that  he  had  plaved  cards  for  money. 

Gifford   vs.   People,   87   111.   210;    Addison  vs.   People,    193   111.   405; 
Johnson  vs.  People,  202  111.  53. 
Affirmative  evidence  of  general  bad  character  cannot  be  intro- 
duced on  cross  examination. 

C.  P.  St.  Ry.  Co.  vs.  Priest,  89  App.  304. 


378  CROSS  EXAMINATION 

Accused  properly  cross  examined  as  to  relations  with  disreput- 
able women  where  such  relations  already  in  evidence. 
Halloway  vs.  People,  181  111.  544. 

But  without  such  matter  being  in  evidence,  cross  examination 
to  show  such  relation  discretionary. 

Schields  vs.  People,  132  App.  "l09. 

—  Gaming:  In  action  to  recover  treble  the  amount  lost  by 
plaintiff's  brother  in  gaming,  if  the  loser  testified  for  plaintiff 
that  he  never  brought  suit  against  defendants,  it  is  proper  to  ask 
him,  on  cross  examination,  if  he  did  not  state  to  a  certain  person 
in  a  certain  place,  at  a  specified  time,  that  he  had  been  advised  by 
his  attornej's  to  wait  six  months  and  then  sue  in  his  brother's  name 
for  treble  the  amount,  and  that  he  was  going  to  have  his  brother 
bring  the  suit. 

Kizer  vs.  Walden,  198  111.  274. 

—  Specific  Fact  in  Contradiction:  If  defendant  calls  a  witness 
who  testifies  that  he  had  never  known  a  case  where  a  person  had 
been  knocked  forty  feet  by  an  engine  and  lived,  it  is  proper,  on 
cross  examination,  for  plaintiff's  counsel  to  ask  him  if  he  did  not 
know  a  certain  person  who  lived  in  the  vicinity,  who  had  been 
knocked  fifty  feet  bv  an  engine  and  was  still  living. 

C.  &  A.  R.  R.'^Co.  vs.  Lewandowski,  190  111.  301. 

—  Accomplices:  In  cross  examining  a  witness  jointly  indicted 
with  accused,  and  who,  in  testifying  for  the  people,  after  having 
been  granted  a  separate  trial,  establishes  his  own  guilt  and  im- 
plicates accused,  great  latitude  should  be  allowed ;  and  it  is  error 
for  court  to  refuse  to  permit  inquiry  as  to  whether  or  not  he  ex- 
pected if  he  testified  for  the  people  he  would  be  more  lightly  pun- 
ished than  if  he  did  not. 

Stevens  vs.  People,  215  111.  593. 

—  Contents  of  Letter:  Defendant  laid  foundation  for  introduc- 
tion in  evidence  of  letter  handed  to  witness,  who  identified  the 
letter,  and,  on  his  direct  examination,  stated  its  contents  to  the 
jury.  On  cross  examination  the  letter  itself  admissible.  If  con- 
tents were  proper  evidence  for  defendant,  the  letter  itself  is  also 
for  plaintiff. 

C.  &  E.  R.  R.  Co.  vs.  Holland,  122  111.  461. 

—  Prejudice  of  Witnesses:  Where  children  of  deceased  testify 
against  interest  of  the  estate  in  proceeding  to  establish  a  claim,  it 
is  proper  to  show,  by  cross  examination  that  they  are  prejudiced 
against  the  executor  or  interested  in  favor  of  claimant;  but  mere 
proof  that  they  are  dissatisfied  with  their  father's  will,  without 
showing  the  reason  for  their  dissatisfaction,  does  not  go  far  enough 
to  establish  such  prejudice  or  interest,  and  its  admission  is  pre- 
judicial, in  affording  the  jury  an  improper  basis  for  surmising  that 
such  witnesses  were  swayed  by  improper  motives. 

Nagle  vs.  Sehnadt,  239  111.  595. 

—  By  Trial  Judge:  Persistent  cross  examination  by  the  trial 
judge,  of  witnesses  testifying  for  accused  upon  the  defense  of  in- 
sanity, by  which  false  tests  of  sanity  are  suggested  to  the  jury  and 
from  which  the  jury  might  well  conclude  that  the  defense  was 
without  merit,  unless  it  was  proven  by  positive  evidence  that  the 


CUMULATIVE    EVIDENCE  379 

accused  was  an  imbecile  or  the  victim  of  an  insane  delusion,  is 

ground  for  reversal. 

O'Shea  vs.  People,  218  111.  352. 

—  Failure  to  Signal:  Where  defendant's  witness  has  stated 
that  she  heard  the  whistle  and  went  to  her  door  and  saw  the  train 
moving,  and  plaintiff  lying  beside  the  track,  it  is  proper  to  sus- 
tain plaintiff's  objections  to  the  defendant's  questions  whether  it 
was  a  usual  or  unusual  thing  for  the  train  to  pass  along  the  track, 
and  whether  she  had  seen  an  engine  pass  there  before. 

C.  B.  &  Q.  E.  E.  Co.  vs.  Pollock,  195  111.  156. 

—  Custom  of  Physician  in  dialing  Examination:  If  full  cross 
examination  of  a  physician,  testifying  in  a  personal  injury  case, 
is  permitted  as  to  manner  in  wdiicli  he  made  the  particular  exam- 
ination of  plaintiff's  injuries,  refusal  to  permit  cross  examination 
as  to  what  was  the  usual  custom  of  the  witness  in  making  exami- 
nations of  that  kind  is  proper. 

P.  C.  C.  &  St.  L.  E.  E.  Co.  vs.  Banfill,  206  111.  553. 

—  Expert  Mechanic:     If  witness  has  stated  in  chief  that  there 

is  no  way  of  determining  whether  stay-bolts  are  cracked  wdthout 

taking  the  engine  to  pieces,  on  cross  examination  it  may  be  shown 

that  if  hollow  staybolts  were  used,  cracks  therein  could  be  detected 

by  leakage  of  water  and  steam. 

I.  C.  E.  E.  Co.  vs.  Prickett,  210  111.  140. 

—  Eminent  Domain:     A  witness,  having  testified  to  the  damages 

to  a  particular  tract  of  land  touched  by  the  track,  cannot,  upon 

cross  examination,  be  required  to  testify  as  to  the  effect  upon  other 

tracts  owned  bv  same  party. 

P.  P.  &  "j.  E.  E.  Co.  vs.  Laurie,  63  111.  264. 


CRUELTY 

See  Divorce. 

CUMULATIVE  EVIDENCE 

LIMITING  NUMBER  OF  WITNESSES. 
Facts  Conceded: 

After  the  examination  of  a  great  number  of  witnesses  as  to  cer- 
tain facts  which  are  conceded  by  the  opposite  party,  there  is  no 
error  in  refusing  to  hear  other  witnesses  to  prove  the  same  facts. 
West  Skokie  Drain.  Dist.  vs.  Dawson,  243  111.  175;  L.  S.  &  M.  S.  E.  E. 
Co.  vs.  Brown,  123  111.  162;  Mueller  vs.  Eebham,  94  111.  142;  Union 
Natl.  Bank  vs.  Boklenwick,  45  111.  375;  Gray  vs.  St.  John,  35  111. 
222;  Clement  vs.  Brown,  30  111.  43;  XIV  111.  Notes  847,  §69. 
And  may  limit  the  number  of  depositions  to  be  read  to  prove  a 

particular  fact. 

West  Skokie  Dr.  Dist.  vs.  Dawson,  243  111.  175. 
If  the  fact  is  not  controverted,  it  is  no  doubt  in  the  discretion 
of  the  court  to  limit  the  number  of  witnesses  to  prove  it,  but  when 
the  truh  of  the  fact  is  contested,  it  is  otherwise. 

I.  C.  E.  E.  Co.  vs.  Treat,  179  111.  576;  Village  of  Danvalle  vs.  Jacobs, 
42  App.  533. 


380  CUMULATIVE  EVIDENCE 

And  if  point  is  subsequently  disputed,  court  should  permit  call- 
ing of  other  witnesses. 

Green  vs.  Phoenix  Ins.  Co.,  134  111.  310. 

Principal  Issue: 

Wlieii  the  controlling  fact  is  controverted,  each  party  has  a  right 

to  have  all  the  witnesses  heard  wlio  have  knowledge  of  facts  and 

circumstances  bearing  upon  the  contested  point,  and  to  deny  such 

right  is  error. 

Cook  Brew.  Co.  vs.  Eyan,  98  App.  44-1;  Crane  Co.  vs.  Stammers,  83 
App.  329;  Union  Natl.  Bank  vs.  Baldenweck,  45  111.  375. 

Collateral  Matters: 

Court  may  limit  number  of  witnesses  as  to  collateral  matters. 
People  vs.  Arnold,  248  111.  169. 

Experts : 

AVhik-  the  number  of  expert  witnesses  may  be  limited  in  the 

sound  discretion  of  the  court,  as  may  also  the  number  of  witnesses 

to  prove  a  given  fact  w'hich  is  uncontroverted  or  merely  collateral 

to  the  main  issue,  that  discretion  must  be  exercised  in  a  reasonable 

and  not  arbitrary  manner,  jndged  by  the  special  facts  of  the  case 

itself. 

West  Skokie  Drain.  Dist.  vs.  Dawson,  243  111.  175 ;  Burhaus  vs.  Vil- 
lage of  Norwood  Park,  138  111.  147;  Greca  vs.  Phoenix  Ins.  Co.,  134 
111.  310;  White  vs.  Hermann,  51  111.  243. 

As  a  general  rule,  the  party  has  a  right  to  call  as  many  witnesses 

as  he  sees  tit  to  and  can  produce  in  support  of  ins  contention,  but 

in  the  case  of  expert  witnesses  called  upon  a  matter  collateral  to 

the   main   issue,   and   of   impeaching  witnesses,   and  in   other  like 

cases,  the  trial  court  has  the  light  to  limit  the  number  of  witnesses 

to  be  produced,  such  right  to  be  exercised  within  the  bounds  of  a 

reasonable  discretion ;  and  in  determining  whether  the  right  was 

properly   exercised,   a   court  of  appeal   will   inquire   whether   the 

evidence  already  presented  by  the  party  was  sufficient  to  establish 

his  side  of  tbe  issue,  as  it  is  not  proper  to  reject  further  evidence 

where   the   judicial   mind   remains   unconvinced   by   that   already 

produced. 

Traders'  Ins.  Co.  vs.  Catlin,  71  App.  569. 

Practice : 

—  Notice   of  Limitation:     Court  should  notify  parties  of  pro- 
posed limitation  at  beginning  of  trial. 

Greene  vs.  Phoenix  Ins.  Co.,  134  111.  310. 

—  Rebuttal:     Court  nuiy  admit  or  exclude  merely  cumulative 
evidence  when  offered  in  rebuttal. 

Chytraus  vs.  City  of  Chicago,  160  111.  18;  Casey  vs.  Biscuit  Co.,  163 
App.  145. 

—  Costs:     The  trial  court  may,  with  propriety,  put  a  limit  upon 

evidence  presented,  to  tbe  extent  of  the  payment  of  costs  for  wit- 

nesses  called  after  a  given  number  have  been  examined  upon   a 

certain  point,  and  require  tbat  all  witnesses  examined  thereafter 

upon  the  same  point  shall  be  at  the  cost  of  the  party  calling  them. 
Chi.  City  Ey.  Co.  vs.  Wall,  93  App.  411. 

Statute  does  not  prevent  party  calling  as  many  witnesses  as  he 
pleases,  if  he  chooses  to  take  tlie  risk  of  paying  their  fees. 

Eork  vs.  Minor,  109  App.  12;  White  vs.  Hermann,  51  III.  243;  Dan- 
ville Ts.  Jacobs,  42  App.  533. 


CUMULATIVE  EVIDENCE  381 

Discretion  of  trial  court  iiiuler  this  section  in  refusing  to  tax 
witness  fees  against  defendant  will  not  be  reviewed  by  Appellate 
Court. 

C.  P.  &  St.  L.  R.  R.  Co.  vs.  Eatou,  loG  111.  9;  Roik  vs.  Minor,  109 
App.  12. 

It  does  not  necessarily  follow  that  witness  fees  should  not  be 
allowed  because  the  offered  evidence  was  excluded,  nor  because  the 
witness  was  not  examined.  A  witness  may  properly  be  summoned 
to  meet  some  anticipated  evidence,  which  is  not  offered  because  the 
witness  is  present,  when  it  would  have  been  if  he  were  al)sent. 

Smith  vs.  Kinkaid,  1  App.  620;  Tewes  vs.  Harmon,  29  App.  254; 
Highway  Comrs.   vs.   Hamilton,   21   App.   199. 

A  motion  to  limit  the  nund)er  of  witnesses  called  by  a  defendant, 
whose  fees  are  to  be  taxed  against  the  plaintiff,  made  before  the 
defendant  has  examined  his  witnesses,  is  premature  and  therefore 
properly  overruled. 

'  C.  B.  &  N.  R.  R.  Co.  vs.  Bowman,  122  III.  595. 

Action  on  this  section  must  be  taken  before  fee  bill  is  made  up 

by  clerk. 

Terves  vs.  Harmon,  29  App.  254. 

EMPHASIS  BY  RE-EXAMINATION. 

A  court  may  sustain  an  objection  to  questions  propounded  by 

counsel  to  a  witness  which  are  mere  repetitions  of  those  he  has 

already  answered. 

Stern  vs.  Smith,  225  111.  430;  Buck  vs.  Maddox,  1G7  111.  219. 

After  a  witness  for  the  People  has  identified  the  accused  as  the 

person  who  fired  the  shots,  it  is  improper  to  allow  counsel  for  the 

People  to  induce  the  witness  to  emphasize  his  former  statements 

by  asking  the  leading  question,  "Are  you  positive  that  he  is  the 

man  that  shot  the  deceased  ? ' ' 

Briggs  vs.  People,  219  111.  330. 

NEW  TRIALS. 
Civil  Causes: 

To  entitle  a  party  to  a  new  trial  on  the  ground  of  newly  dis- 
covered evidence,  it  must  appear  that  due  diligence  was  used  to 
discover  and  produce  the  evidence  at  the  trial,  and  that  the  evi- 
dence is  conclusive  and  not  merely  cumulative. 

Springer  vs.  Sehultz,  205  111.  144;  Conlan  vs.  Mead,  172  111.  13;  Bemis 
vs.  Horner,  165  111.  347;  Plumb  vs.  Campbell,  129  111.  101;  Monroe 
vs.  Snow,  131  Til.  126;  Sterling  vs.  Merrill,  124  111.  522;  Cunning- 
ham vs.  I.  C.  R.  R.  Co.,  179  App.  505;  XIII  111.  Notes  977,  §68. 

Criminal  Action: 

Newly  discovered   evidence  affords  no   ground  for  a  new  trial 

unless  diligence  to  procure  same  at  the  trial  is  shown,  and  not  then, 

where  the  same  is  merely  ciimulative. 

Williams  vs.  People,  164  111.  481;  Burns  vs.  People,  126  111.  282; 
Adams  vs.  People,  47  111.  376. 

Newly  discovered  evidence  on  motion  for  new  trial  must  be 
clearly  conclusive  in  its  character. 

Henry  vs.  People,  198  Til.  162;  Lathrop  vs.  People,  197  111.  169;  Fein- 
berg  vs.  People,  174  111.  609;  Spahn  vs.  People,  137  111.  538;  Bean 
vs.  People,  124  111.  576. 

Impeaching-  Evidence: 

—  Civil  Causes:     A  new  trial  will  not  be  awarded  in  civil  causes 


382  CUSTOM  AND  USAGE 

on  ground  of  newly  discovered  evidence  which  is  cumulative  or  by 
way  of  impeachment,  merely,  and  in  its  nature  not  conclusive. 

C.  &  N.  W.  E.  K.  Co.  vs.  Cal.  Stock  Farm,  194  111.  9;  Jacobson  vs. 
Gunzberg,  150  111.  13.3;  Knickerbocker  vs.  Gould,  80  111.  388;  Mar- 
tin vs.  Ehrenfels,  24  111.  187 ;  W.  C.  R.  E.  Co.  vs.  Eoss,  142  111.  9. 
—  Criminal  Actions:    And  same  rule  applies  to  criminal  actions. 
Gradv  vs.   People,   125   111.    122;    Kennedy  vs.   People,   108   111.   519; 
Collins  vs.  People,  103  111.  21;  Friedberg  vs.  People,  102  111.  160. 

CONTINUANCE  FOR. 

It  is  not  error  to  refuse  to  grant  a  continuance  of  an  action  to 
enable  a  party  to  procure  evidence  cumulative  to  that  actually 

introduced  on  the  trial. 

McKichan  vs.  McBean,  45  111.  228. 
Affidavit  for  continuance  should  state  that  the  party  has  no 
other  than  the  absent  witness  by  whom  the  same  facts  could  be 
proven. 

Hodges  vs.  Nash,  141  111.  391;  Dunn  vs.  People,  109  111.  635;  Jarvis 
vs.  Shacklock,  60  111.  378;   Barnes  vs.  Hennessy,  22  111.  629. 


CUSTOM  AND  USAGE 

See  Assumpsit. 
In  General: 

—  Defined:  While  words,  usages  and  customs  are  generally 
used  s,ynonymously  in  legal  writings  and  in  popular  language,  they 
have  not  entirely  the  same  significance.  "Customs"  as  applied  to 
the  conduct  of  men,  does  include  usage,  but  usage  does  not  neces- 
sarily include  custom.  A  custom  is  such  usage  as,  by  common  con- 
sent and  uniform  practice,  has  become  the  law  of  the  place  where 
it  exists,  or  of  the  subject  matter  to  which  it  relates.  Usage  is  a 
method  of  dealing  adopted  in  a  particular  place  or  by  those  en- 
gaged in  a  particular  vocation  or  trade,  which  acquires  legal  force 
because  people  make  contracts  with  reference  to  it. 

Currie  vs.  Syndicate,  104  App.  165. 

—  Wliai  Constitutes:     Habit  does  not  constitute  usage.    A  habit 

or  practice  of  a  particular  person  or  of  persons  in  a  particular 

trade  does  not  of  itself  constitute  usage.     It  is  only  when  practice 

has  come  to  have  the  essential  characteristics  of  usage  that  it  can 

be  considered  as  such. 

Curry  vs.  Syndicate,  104  App.  165. 

The  rules  and  enactments  of  voluntary  organizations  in  a  busi- 
ness, trade  or  occupation,  are  neither  law  nor  custom,  and  do  not 
have  the  force  and  effect  of  such  upon  the  community. 
Severn  vs.  Churchill,  155  App.  505. 

—  Nature  and  liequisiies:  Custom,  to  become  a  law,  must  be 
so  ancient  that  the  memory  of  man  runneth  not  to  the  contrary. 
Usage  need  only  be  old  enough  to  be  well  established  in  the  trade 

or  place. 

Currie  vs.  Flower  Syndicate,  104  App.  165;  Packard  vs.  Van  Schoick, 

58  111.  79. 

To  establish  a  usage  or  custom,  it  is  not  sufficient  to  prove  certain 

isolated  instances.     The  usage  must  be  positively  established  as  a 

fact,  and  not  left  to  be  drawn  as  a  matter  of  inference  from  trans- 


CUSTOM  AND  USAGE  383 

actions.  A  usage  which  is  to  govern  a  question  of  right,  should 
be  so  certain,  uniform  and  notorious  as  probably  to  be  known  to 
and  underetood  by  the  parties  as  entering  into  their  contract,  and 
cannot  be  proven  by  single  isolated  instances,  nor  by  particular 
instances  in  a  certain  place  or  business  institution.  It  is  not 
proved  by  evidence  that  it  Was  acted  upon  in  a  few  particular 
instances  of  dealing,  nor  is  such  evidence  admissible  to  establish 
its  existence.  A  custom  or  usage  to  be  binding  must  be  so  uniform, 
long  established  and  generally  acquiesced  in,  and  so  well  known 
as  to  induce  the  belief  that  the  parties  contracted  with  reference 
to  it,  and  that  failure  to  confonn  to  it  would  be  an  exception.  The 
custom  must  be  generally  uniform;  it  must  be  certain,  reasonable 
and  sufficiently  ancientjas  to  afford  the  presumption  that  it  is  gen- 
erally known. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Jenkins,  174  111.  398. 
If  a  usage  is  relied  upon,  it  must  be  shown  to  be  ancient,  certain, 
uniform,   continuous,  reasonable  "and  so  general  as  to  furnish  a 
presumption  of  knowledge  by  the  parties. 

Wilson  vs.  Baunian,  80*  111.  493;  Papin  vs.  Goodricli,  103  111.  86; 
Turner  vs.  Dawson,  50  111.  85;  Anier.  Ins.  Co.  vs.  France,  111  App. 
310;  Quinn  vs.  Herhold,  100  App.  320;  XII  111.  Notes  5,  §  5  et  seq. 

Must  be  observed  by  party  seeking  advantage  of  same. 

I,  B.  Assn.  vs.  Cooke  Brew,  Co.,  169  App.  347. 
Evidence  of  any  other  than  a  general  custom  is  incompetent  in 
an  action  for  death  by  wrongful  act. 

Casey  vs.  Chi.  City  Ey.  Co.,  159  App.  562. 
It  must  appear  that  the  custom  is  ancient,  certain,  uniform  and 
reasonable,  and  so  general  as  to  furnish  a  presumption  that  the 
parties  contracted  with  reference  to  it. 
Bissell  vs.  Eyan,  23  111.  566. 

—  Extent  of  Custom  or  Usage:  In  offering  evidence  of  a  general 
practice  or  custom,  the  inquiry  should  not  be  limited  within  the 
arbitrary  lines  of  a  mere  political  subdivision  of  the  state. 

Muren  Coal  Co.  vs.  Howell,  107  App.  1. 

—  Admissibility:  Proof  of  a  custom  is  improper  where  it  does 
not  tend  to  prove  any  material  fact  in  issue. 

Smith  vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  149  App.  348. 
Proof  of  a  custom  is  incompetent  where  party  has  no  right  to 

rely  thereon. 

O  'Dell  vs.  Vandalia  Ey.  Co.,  149  App.  610. 
Is  sometimes  competent  on  question  of  notice. 

Wibel  vs.  I.  C.  E.  E.  Co.,  155  App.  349. 
Proof  of  a  custom  is  incompetent  if  it  is  in  conflict  with  a  sub- 
stantive legal  right. 

Machine  Co.  vs.  Clow  &  Son,  148  App.  421. 

Proof  of  a  custom  is  admissible  in  action  for  personal  injury 

though  not  pleaded. 

Sturn  vs.  Con.  Coal  Co.,  248  111.  20;  Donnelly  vs.  Chi.  City  Ey.  Co., 
163  App.  7. 
A  particular  custom  or  usage,  in  order  to  be  invoked  and  proved 
by   a  party  to   a   contract,   must   be   specially  pleaded,   evidence 
thereof  not  being  admissible  under  the  general  issue. 
Mobile  Fruit  Co.  vs.  Judy,  91  App.  82. 


384  CUSTOM  AND  USAGE 

Custom  is  competent  where  proof  thereof  tends  to  show  that  an 
injury  resulted  from  the  non-observance  of  such  custom. 
Sturm  vs.  Con.  Coal  Co.,  155  App.  1. 
Known  and  customary  method  of  doing  work  is  competent  on 

question  of  assumed  risk. 

Uy.  Co.  vs.  Walker,  127  App.  214. 

A  general  custom  that  has  existed  for  such  length  of  time  that 
the  master  could  have  known  it,  is  admissible  on  question  of  neg- 
ligence. 

Amer.  C.  &  F.  Co.  vs.  Draper,  136  App.  12. 
And  on  question  of  due  care  of  plaintiff. 

Engel  vs.  Parmalee  Co.,  169  App.  410. 
The  usual  manner  of  conducting  a  business  at  the  place  of  acci- 
dent, established  by  rules  duly  promulgated  by  persons  in  author- 
ity, or  growing  out  of  the  practice  of  employees  long  continued, 
is  competent  to  be  shown  as  shedding  light  on  the  acts  and  con- 
duct of  the  parties,  and  has  a  bearing  on  the  question  of  negligence. 
Yeates  vs.  I.  C.  E.  E.  Co.,  145  App.  11. 
Where  a  negligent  construction  is  alleged  as  the  basis  of  an 
action,  evidence  as  to  the  usual  and  customary  manner  of  such 

construction  is  inadmissible. 

Hansen  vs.  Clark,  214  111.  399;   Beidler  vs.  Bransliaw,  200  111.  425; 
Union  Wire  Matt.  Co.  vs.  Weigref,  133  App.  506. 
But  proof  of  a  customary  method  of  doing  work  by  persons  who 
are   habitually   required   to   perform   it,   is   some   evidence   as   to 
whether  the  method  is  or  is  not  negligent. 

Campbell  vs.  C.  E.  I.  &  P.  By.  Co.,  243  111.  620. 
There  is  no  error  in  refusing  proof  of  a  custom  in  a  particular 
place  to  atford  a  purchaser  of  land  an  opportunity  to  inspect  his 
vendee's  deed  before  making  payment,  when  no  offer  is  made  to 
show  it  was  uniform,  long  established,  generally  acquiesced  in,  and 
so  well  known  as  to  induce  the  belief  that  the  parties  contracted 

with  reference  to  it. 

Papin  vs.  Goodrieli,  103  111.  86;  Turner  vs.  Davrsou,  50  111.  85;  Pack- 
ard vs.  Van  Schoiek,  58  111.  79. 

—  Niimher  and  Cotnpctaicij  of  Witnesses:    A  custom  cannot  be 

established  bv  a  single  witness. 

Audoiman  vs.^C.  &  N.  W.  Ey.  Co.,  153  App.  169;   Bissell  vs.  Eyan, 
23  111.  566. 
May  be  shown  bv  witnesses  although  not  qualified  as  experts. 
Wilson  vs.  Bauman,  80  111.  493. 

—  Judicial  Notice:     The  courts  will  take  judicial  notice  of  some 

commercial  customs  while  others  must  be  proven  as  a  matter  of 

fact.     Where  a  custom  is  so  universal  and  of  such  antiquity  that 

all  men  must  be  presumed  to  know  it,  courts  will  take  judicial 

notice  of  it. 

Nash  vs.  Classem,  163  111.  409;  Munn  vs.  Birch,  25  111.  35. 

So  judicial  notice  will  be  taken  of  banks  allowing  depositors  to 

check  out  their  funds  in  parcels. 
Munn  vs.  Birch,  25  111.  35. 
And  tliat  banks  close  before  a  certain  hour  in  the  afternoon. 

Barton  vs.  People,  35  App.  573. 
And  that  dollars  in  an  ordinary  check  upon  a  bank  means  law- 
ful money  of  the  United  States. 

Howes  vs.  Austin,  35  111.  396. 


CUSTOM  AND  USAGE  385 

Or  that  borrowers  pay  interest. 
Ayers  vs.  Metcalf,"  39  111.  307. 

That  a  purchase  of  grain  is,  as  a  rule,  governed  by  the  last 
available  quotation. 

Nash  vs.  Classen,  1G3  111.  409. 
That  when  one  is  employed  as  a  travelling  salesman,  some  pro- 
vision is  made  as  to  his  travelling  expenses. 
Berriman  vs.  Marvin,  59  Apjj.  440. 
But  particular  trade  usages  or  customs,  however  extensive  they 
may  be,  cannot  be  noticed  by  the  court  unless  established  by  proof. 
Morris  vs.  Jamieson,  205  111.  87. 

Contracts : 

—  Presumption  as  to  Contracting  ^¥ith  Reference  To:  A  per- 
son entering  into  a  contract  in  the  ordinary  course  of  business,  is 
presumed  to  have  done  so  in  reference  to  any  existing  general  usage 
or  custom  relating  to  such  business. 

Steidtman  vs.  Lay  Co.,  234  111.  84;  Collins  Co.  vs.  Stephens,  189  111. 
200;  Chisholni  vs.  Bcaman  Mach.  Co.,  IfiO  111.  101;  Leavitt  vs. 
Kennieott,  157  111.  235;  First  Nat'l  Bank  vs.  Hogff  Harris  Co., 
181  App.  220. 

And  this  whether  he  knew  of  the  custom  or  not. 

Steidtman  vs.  Lay  Co.,  234  111.  84;  Taylor  vs.  Bailey,  169  111.  181; 
Samuels  vs.  Oliver,  130  111.  73;  Bailey  vs.  Bensley,  87  111.  556; 
Clark  vs.  Milling  Co.,  165  App.  177. 

Such  general  custom  and  technical  meaning  of  words  may  be 
proven  without  being  specially  pleaded. 

Steidtman  vs.  Lay  Co.,  234  111.  84;  Stewart  vs.  Smith,  28  111.  397. 
The  promise  to  pay  interest  may  be  inferred  from  particular 
mode  of  dealing  between  parties,  or  from  usage  of  trade  which 
governs  the  business  in  which  the  parties  are  engaged. 
Ayers  vs.  Medcalf,  39  111.  307. 

Where  it  is  a  long  and  generally  established  custom  of  a  railroad 
company,  in  delivering  freight  to  connecting  lines,  to  deliver  as 
consignors,  a  shipper  who  has  been  in  the  habit  of  shipping  over 
such  road,  will  be  presumed  to  be  familiar  with  such  custom,  and 
to  contract  with  reference  to  it. 

I.  B.  &  W.  Ey.  Co.  vs.  Murray,  72  111.  128. 

One  employing  another  to  act  for  him  in  buying  and  selling  in  a 
certain  market,  will  be  held  as  having  intended  that  the  business 
should  be  conducted  according  to  the  general  usages  of  such 
market,  though  he  does  not  know  of  their  existence. 

Where  a  transaction  involving  purchase  of  stocks  on  the  market 
is,  in  fact,  a  real  purchase  under  an  authorized  contract,  the  cus- 
toms of  the  market  may  be  considered  in  construing  the  contract, 
and  in  interpreting  the  otherwise  indeterminate  intention  of  the 

parties. 

Taylor  vs.  Bailey,  169  111.  181. 
In  case  of  general  agent,  the  law  permits  usage  to  enter  into  and 
enlarge  liability  of  principal  in  respect  to  contracts  made  by  agent ; 
and  the  usages  of  a  particular  business  or  trade  are  admissible  for 
purpose  of  interpreting  the  powers  given  to  the  agent  or  factor. 

Natl.  Furnace  Co.  vs.  Mfg.  Co.,  110  111.  427. 

Ev.— 2  5 


386  CUSTOM  AND  USAGE 

—  Admissibility  of  Custom  and   Usages:     Admissible  to  ascer- 
tain and  explain  and  fix  terms  of  a  contract. 

Turner  vs.  Colortype  Co.,  223  lU.  629;  Gilbert  vs.  McGinnies,  114  111. 
28;  Corbett  vs.  Underwood,  83  111.  324;  Lonergan  vs.  Stewart, 
55  111.  44. 

Custom  or  usage  is  inadmissible  to  explain  or  alter  unambiguous 
technical  language  in  a  deed. 

Morton  vs.  Babb,  251  111.  488. 

Evidence  of  usage  is  admissible  to  show  true  meaning  of  parties 
in  making  contract. 

Currie  vs.  Syndicate,  104  App.  166. 
Inadmissible  to  contravene  established  rule  of  law,  or  to  vary 
terms  of  an  express  contract. 

Turner  vs.  Osgood  Colortype  Co.,  223  111.  629;  Ben.  Soe.  vs.  Baldwin, 
86  111.  479;  Lonergan  vs.  Stewart,  55  111.  44;  Bank  vs.  Burney,  28 
111.  90;  Whipple  vs.  Tucker,  123  App.  223;  XII  111.  Notes  6,  §  15. 
Proof  of  usage  can  only  be  received  to  show  intention  or  under- 
standing of  parties,  in  absence  of  special  agreement. 

Graham  vs.  Sadlier,  165  111.  95;  Dixon  vs.  Dunham,  14  lU.  324. 
Evidence  of  a  particular  custom  or  usage  of  trade  is  also  admis- 
sible for  purpose  of  engrafting,  as  it  were,  new  terms  into  a  con- 
tract, subject,  however,  to  the  qualifications  that  the  terms  are  not 
expressly  or  impliedly  excluded  by  the  express  agreement.     To 
have  this  effect,  the  custom  or  usage  must  be  reasonable,  and  not 
in  conflict  with  any  general  rule  of  law. 
Gilbert  vs.  MeGiunis,  114  111.  28. 
Evidence  of  a  custom  and  usage  is  not  admissible  to  vary  the 
terms  of  a  contract,  but  is  admitted  on  the  ground  that  the  custom 
and  usage  entered  into  and  became  a  part  of  the  contract  and  the 
contract  should  be  so  read  and  construed.     A  custom,  to  be  com- 
petent, must  be  so  certain,  uniform,  general  and  well  known  that  it 
must  be  presumed  to  have  been  contemplated  by  the  parties  enter- 
ing into  the  contract  in  question. 

Klaub  vs.  Vokoun,  169  App.  434. 
But  it  is  not  admissible  to  prove  a  custom  or  usage,  the  effect  of 
which  will  be  to  add  to  an  express  agreement  a  condition  or  limi- 
tation which  is  repugnant  or  inconsistent  with  the  agreement  itself. 
Such  evidence  is  never  admitted  to  vary  or  contradict,  either  ex- 
pressly or  by  implication,  the  terms  of  an  agreement,  written  or 

verbal. 

Gilbert  &  Co.  vs.  McGinnis,  114  111.  28. 

The  law  recognizes  no  validity  in  any  custom  which  violates  its 
own  rules,  and  it  is  not  error  to  exclude  evidence  which,  if  admitted, 
would  tend  to  relieve  party  from  a  just  legal  obligation. 
W.  U.  Cold  Storage  Co.,  vs.  Produce  Co.,  94  App.  618. 

The  custom  in  the  theatrical  profession  not  to  pay  for  services 
as  manager  of  a  theater  except  during  the  theatrical  season,  may  be 
regarded  in  construing  a  contract  employing  a  manager  at  a  weekly 
salaiy,  with  an  added  percentage  of  profits.  Evidence  of  such 
custom  is  not  admissible  as  an  attempt  to  vary  the  language  of  the 
contract  of  hiring,  but  is  merely  by  way  of  explanation. 
Leavitt  vs.  Kennicott,  157 'lll."235. 

Where  a  contract  of  insurance  refers  to  a  policy,  which  both 
parties  knew  had  no  existence,  to  define  the  conditions  of  the  con- 


CUSTOM  AND  USAGE  387 

tract,  and  where  it  is  apjoareiu  that  both  understood  the  agreement 
was  to  be  governed  by  same  terms  and  conditions  as  such  an  in- 
strument woukl  contain  if  in  existence,  the  contract  will  be  gov- 
erned by  the  unifonn  and  settled  custom  of  the  company  with 
reference  to  the  conditions  contained  in  like  policies. 

Home  Ins.  Co.  vs.  Favorite,  46  111.  263. 
In  suit  against  a  firm  of  private  ])ank(>rs,  npon  note  given  by 
their  clerk  and  cashier  for  money  borrowed  by  iiim  in  the  lirm 
name  and  appropriated  to  Iiis  own  use,  in  which  the  cashier's 
authority  to  give  the  note  put  in  issue,  evidence  of  the  custom  of 
bankers  at  the  place  in  which  defendant's  liank  is  located,  to  borrow 
money  on  time,  is  proper,  as  tending  to  show  that  borrowing  money 
was  within  the  scope  of  the  ordinary  and  customary  business  of 
defendants. 

Grain  vs.  ^^'irst  iYatl.  Bank,  114  111.  516. 
In  suit  where  plaintiff  sought  to  recover  for  building  certain 
houses,  a  commission  of  ten  per  cent  on  the  cost,  where  evidence 
tended  to  prove  a  contract  to  pay  such  per  cent  as  commission, 
evidence  on  part  of  defendant,  as  to  what  was  general  or  custom- 
ary commissions  paid  on  such  buildings  is  properly  rejected,  as 
same  is  wholly  immaterial. 

Lonergan  vs.  Courtney,  7.5  111.  580. 
Proof  of  custom  is  inadmissible  where  it  is  not  shown  how  it 
would  affect  the  contract  of  the  parties. 

Peoria  Com.  Co.  vs.  McGuire,  53  App.  470. 

And  is  inadmissible  where  tliere  is  no  evidence  showing  con- 
tract made  with  reference  to  it. 

Ayer  vs.  Mead,  13  App.  625;  Decatur  Natl.  Bank  vs.  Murphy   9  App. 
112. 

Proof  of  usage  is  only  admissible  to  show  intention  of  parties, 
in  absence  of  special  agreement. 
Fay  vs.  Strauu,  32  111.  295. 

Custom  is  inadmissible  to  show  authority  to  contract  where  not 
relied  upon  bv  parties. 

Braun  Vs.  Hess  &  Co.,  187  111.  283. 

Competent  on  question  of  warranty,  where  parties  are  presumed 
to  have  knowledge  of  it,  and  to  have  contracted  with  reference 
thereto. 

Everingham  vs.  Lord,  19  App.  565. 

In  action  for  breach  of  oral  agreement,  it  is  not  proper  to  estab- 
lish agreement  by  evidence  of  usual  and  customary  terms  and  pro- 
visions put  in  all  contracts  of  the  character  of  the  one  sued  on, 
when  nothing  was  said  between  the  parties  on  that  subject,  or  when 
what  was  said  did  not  relate  to  any  such  provisions,  expressly  or 
b}'  implication. 

Nolan  vs.  O 'Sullivan,  148  App.  316. 

Employer  and  Employe: 

As  a  general  rule,  if  a  regulation  is  habitually  violated,  with  the 
knowledge  and  ac(iuiescence  of  the  employer,  it  is  to  be  treated 
as  inoperative  against  the  employe. 

Kenny  vs.  Marquette  Cement  Co.,  243  HI.  396;  Hampton  vs.  Cbi.  Rv. 
Co.,  236  111.  249. 

But  this  rule  does  not  apply  where  disobedience  to  the  rule  is 


388  CUSTOM  AND  USAGE 

not  necessary  to  carry  on  the  business  in  which  the  employe  is 
engaged,  and  there  is  an  honest  endeavor  on  the  part  of  the  em- 
ployer  to   keep    the   rule   in    force,    by   constant    warning   to    the 

employe  to  desist  from  a  dangerous  practice. 
Hodshire  vs.  Corn  Prod.  Co.,  179  App.  529. 

Railroads : 

—  Ballaating  Track:  Evidence  that  track  was  ballasted  in  usual 
and  customary  manner  is  inadmissible  where  there  is  no  com- 
plaint as  to  general  manner  in  which  same  was  ballasted. 

L.  E.  &  W.  Ky.  Co.  vs.  Wilson,  189  111.  89. 

Custom  of  railroads  to  use  unballasted  track  is  competent  on 
question  of  vigilance  required  of  brakemen. 
Penn.  Co.  vs.  Hankey,  93  111.  580. 

—  Operation  of  Yards:  In  action  for  death  of  car  inspector, 
due  to  alleged  negligence  of  company  in  placing  cars  in  yard, 
custom  of  company  in  letting  cars  into  yard  is  competent  on  ques- 
tion of  due  care  of  deceased. 

Penn.  Co.  vs.  Stolke,  104  111.  201. 

"'  —  Method  of  Doing  Work:  Proof  of  a  customary  method  of 
doing  an  act  by  those  who  are  frequently  and  habitually  required 
to  perform  it,  is  some  evidence  as  to  whether  the  method  is  or  is 
not  negligent. 

Campbell  vs.  C.  E.  I.  &  P.  Ey.  Co.,  243  111.  620;  Hayes  vs.  Wabash 
E.  Co.,  180  App.  511. 

—  Permitting  Persons  to  Ride  on  Cars  not  for  Passengers:     It 

is   proper   to    permit   proof   that    many   conductors   had   pursued 

same  course  in  permitting  or  directing  persons  to  ride  on  employes 

car,  as  tending  to  show  defendant  had  notice,  or  should  have  had 

notice  of  such  custom. 

St.  L.  A.  &  S.  Ey.  Co.  vs.  Zink,  229  111.  180. 

—  Lnspcctioii  of  Engine  and  Cars:  Evidence  as  to  custom  of 
other  railroads  in  inspecting  engines  is  inadmissible.  The  ques- 
tion in  each  case  is  what  is  reasonable  care  and  insi:)ection  in  the 

particular  case. 

I.  C.  E.  E.  Co.  vs.  Priekett,  109  App.  468. 

—  Receiving  and  Transporting  Ship)iients:  On  issue  whether 
car  load  of  potatoes  was  received  in  good  condition,  plaintiff  may 
show  a  custom  of  railroad  company,  when  goods  were  delivered  in 
bad  order,  to  note  same  on  bill  of  lading. 

Weinberg  vs.  Weinberg,  163  App.  420. 

In  action  to  recover  value  of  (juantity  of  coal  alleged  to  have 

been  taken  from  cars  while   in   transit,   evidence  of  a  custom  of 

railroad's  servants  to  coal  engines  from  shippers'  car  in  transit, 

is  irrelevant. 

Smith  vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  149  App.  348. 

—  Use  of  Track  as  Foot-path:  Evidence  that  occupants  of 
several  houses  along  the  railroad  track  had  been  accustomed  to  use 
the  track  as  a  foot-path,  does  not  establish  a  duty  on  the  part  of 
the  engineer  to  use  care  to  see  and  avoid  injury  to  persons  upon  the 
track  at  that  place,  where  the  company  has  operated  the  road  but 
a  short  time,  and  has  done  nothing  to  encourage  such  use  of  its 

Wabash  Ey.  Co.  vs.  Jones,  163  111.  167. 


CUSTOM  AND  USAGE  389 

—  Permitting  Shippers  to  Ride:  Evidence  of  a  custom  of  de- 
fendant in  allowing  sliippors  of  live  stock  to  ride  npon  its  engines 
and  cars  containing  stoek,  to  tlie  stock  yartls,  is  admissible  as  tend- 
ing to  show  the  anthority  of  the  servants  of  the  company  to  thus 
carry  deceased,  and  that  the  Litter  was,  at  the  time,  a  passenger 
for  reward. 

L.  S.  &  M.  S.  By.  Co.  vs.  Brown,  123  111.  162. 

—  Regulaiion  of  Laborers'  Living  Quarters:  Proof  that  men 
composing  the  gang  of  track  laborers,  of  which  plaintiff  was  a  mem- 
ber, were  accustomed  to  crawl  under  the  living  (;ars  in  going 
for  water,  and  to  attend  to  their  cooking,  and  that  they  had  been 
told  to  do  so  by  their  native  foremen,  tends  to  show  that  defend- 
ant's train  employes,  who  were  stationed  at  the  same  place,  knew 
of  such  custom,  and  is  admissible. 

I.  C.  R.  E.  Co.  vs.  Panebiango,  227  111.  170. 

—  Boarding  and  Alighting  from  Trains:  Evidence  tending  to 
show  a  custom  or  habit  in  boarding  or  alighting  from  trains  else- 
where than  at  the  depot,  with  the  knowledge  or  consent  of  the  car- 
rier, is  admissible  in  action  by  passenger  for  injuries  while  so 
alighting. 

C.  &  W.  I.  R.  R.  Co.  vs.  Doan,  195  111.  168 ;  Penn.  Co.  vs.  McCaffery, 
173  [11.  169;  L.  S.  &  M.  S.  Ey.  Co.  vs.  Ward,  135  111.  511;  Eckels 
vs.  Bryant,  137  App.  234.  .7 

—  Recommending  Employees:  A  letter  of  recommendation  by 
a  railway  company  to  an  employe,  which  is  purely  personal,  and 
shows  on  its  face  it  is  not  a  general  form  which  would  be  given 
to  other  employes,  does  not  tend  to  establish  a  custom  on  the  part 
of  the  company  to  issue  clearance  cards  to  employes  leaving  the 
sei^vice. 

The  fact  that  a  railroad  company  requires  the  production  of 
certificates  of  recommendation  by  persons  seeking  employment  does 
not  create  the  legal  duty  on  its  part  to  issue  the  same  to  retiring 
employes,  nor  does  it  in  any  way  tend  to  establish  a  custom  of 
issuing  them. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Jenkins,  174  111.  398. 

Street  Railways: 

—  Position  of  Conductor  on  Cars:  A  general  custom  of  street 
car  conductors  to  be  upon  rear  platform  of  cars  at  time  of  crossing 
transfer  points,  is  inadmissible  when  company's  rule  on  same  sub- 
ject is  in  evidence,  and  it  is  not  contended  that  rule  is  habitually 
and  knowingly  violated. 

Bennett  vs.  Chi.  City  Ry.  Co.,  243  111.  420. 

—  Position  of  Passengers  on  Cars:  It  is  proper  to  admit  evi- 
dence tending  to  show  that  it  was  the  custom  to  ride  upon  the 
running  board  of  the  street  car  towards  the  sidewalk,  and  that 
the  other  running  board  was  turned  up  so  that  no  one  could 
stand  upon  it. 

Chi.  U.  Trac.  Co.  vs.  Kolberg,  107  App.  90. 

—  Boarding  and  Alighting  From  Cars:  It  is  competent,  as 
bearing  upon  the  question  of  negligence,  to  show  that  other  pas- 
sengers got  upon  moving  cars  at  this  place,  and  that  defendant^ 


390  CUSTOM  AND  USAGE 

through  its  conductors,  permitted  them  to  do  so,  without  objec- 
tion, and  even  encouraged  the  practice. 

N.  Chi.  St,  Ry.  Co.  vs.  Kaspers,  186  111.  246;  Penn.  Co.  vs.  McCaffery, 
173  lU.  169;  S.  Chi.  City  By.  Co.  vs.  Dufresne,  200  111.  456. 
Evidence  of  a  custom  or  common  practice  among  passengers  to 
get  oK  cars  at  a  certain  railroad  crossing,  when  the  cars  were 
stopped  there  to  ascertain  whether  it  was  safe  to  cross  tlie  tracks, 
is  proper  in  action  for  injuries  received  by  a  passenger  thrown  to 
the  ground  by  the  sudden  starting  of  the  car  as  he  was  alighting 
at  such  place. 

Chi.  City  Ey.  Co.  vs.  Lowitz,  218  111.  24. 

—  Eegulating  Cars  at  Street  Crossings:  A  custom  and  practice 
with  respect  to  regulating  and  handling  cars  at  a  street  crossing 
is  competent  upon  question  of  negligence  of  company,  charged  to 
have  taken  place  at  a  particular  crossing  included  within  such 
custom. 

Chi.  City  Ey.  Co.  vs.  Sugar,  117  App.  578. 

—  Running  on  Particular  Tracks:  Evidence  of  the  custom  to 
run  south-bound  cars  upon  one  track,  and  north-bound  cars  on  the 
other,  is  admissible  on  question  of  negligence  and  care  where  de- 
ceased was  struck  from  behind  by  a  north-bound  car  running  on 
the  south-bound  track,  although  the  departure  from  such  custom 

was  not  charged  as  negligence. 

N.  Chi.  St.  Ey.  Co.  vs.  Irwin,  202  111.  345. 

—  Stopping  Cars  at  Particular  Place:     Where  issue  is  whether 

train,  which  deceased  attempted  to  lioard,  was  running  slowly  or 

at  full  speed,  upon  which  point  the  evidence  is  contradictory,  it  is 

error  to  permit  plaintiff  to  show,  in  corroboration  of  his  evidence, 

that  the  train  was  running  slowly,  that  defendant  was  accustomed 

to  stop  its  trains  or  run  slowly  for  purpose  of  receiving  passengers 

at  place  of  accident. 

W.  Chi.  St.  Ey.  Co.  vs.  Thorpe,  187  111.  610. 

Mines  and  Mining:  ''^'^^i 

A  mine  owner  is  presumed  to  know  of  a  custom  of  long  standing, 

in  the  manner  of  operating  a  cable  in  a  mine,  and  a  servant,  in  the 

performance  of  his  duty,  has  a  right  to  rely  upon  such  custom,  in 

absence  of  any  notice  or  warning  that  same  will  not  be  observed. 
Sturm  vs.  Con.  Coal  Co.,  248  111.  20. 

Evidence  that  plaintiff,  for  three  successive  mornings,  wrote  his 
order  for  props  and  timbers  on  the  blackboard  provided  for  that 
purpose,  in  accordance  with  the  custom  established  by  defendant, 
is  sufficient  to  authorize  the  jury  in  finding  that  plaintiff"  made 
demand  for  props  and  timbers. 

Donk  Bros.  Coal  Co.  vs.  Peton,  192  111.  41. 

In  action  under  statute  for  failure  of  mine  owner  to  keep  props 

on  hand,  witnesses  who  have  testified  that  when  there  were  props 

on  hand,  they  were  kept  at  the  bottom  of  the  shaft,  may  testify 

whether  at  the  time  of  the  accident  there  were  any  props  at  the 

bottom  of  the  shaft. 

Mt.  Olive  Coal  Co.  vs.  Eademacher,  190  111.  538. 

As  bearing  on  question  whether  a  mule  driver  in  a  mine  was 

exercising  due  care  for  his  safety,  as  alleged  in  his  declaration,  he 

may  prove  usual  customs  as  to  time  of  firing  shots  in  mine  entries, 


CUSTOM  AND  USAGE  391 

even  though  the  declaration  does  not  allege  such  custom  nor  aver 
its  violation  on  the  day  of  injury.  h 

Donk  Bros.  Coal  Co.  vs.  Thil,  228  111.  233, 

Public  Officers: 

Contents  of  court  files  cannot  be  proven  by  showing  a  custom 
of  the  clerk  to  copy  certain  statements  contained  in  replevin  affi- 
davits into  the  writ,  there  being  no  testimony  that  he  did  so  "in  the 
particular  case. 

Franks  vs.  Matson,  211  111.  338. 

Foreign  Customs  and  Usages:  p, 

In  absence  of  proof,  courts  will  proceed  on  presumption  that 
customs  and  usages  of  a  foreign  country  are  the  same  as  those  of 
its  own  jurisdiction. 

Deinster  vs.  Stephen,  63  App.  126. 

Transfer  Companies: 

On  question  of  delivery  of  baggage  to  a  carrier,  proof  that  it  was 
not  customary,  in  exchanging  checks  from  one  transportation  com- 
pany to  another,  to  examine  and  see  whether  the  baggage  actually 
passed,  is  incompetent. 

G.  &  M.  Trans.  Co.  vs.  Young,  117  App.  257. 

A  custom  may  not  be  competent  as  bearing  upon  negligence 
charged  against  defendant,  and  yet  be  competent  if  it  tends  to  show 
whether  plaintiff,  at  time  of  his  injury,  was  in  the  exercise  of  ordi- 
nary care  for  his  safety. 

Engel  vs.  Parmalee  Co.,  169  App.  410. 

Manufacturers : 

Where  a  charge  of  negligence  is  in  the  sudden  starting  of  a 
detached  car,  upon  which  plaintiff  was  engaged  in  unloading  brick, 
without  previous  notice  of  warning,  by  the  collision  of  other  cars 
being  puslied  back,  evidence  tending  to  show  that  the  pushing  of 
cars,  instead  of  pulling  them  was  not  negligence,  is  inadmissible. 
The  customs  in  other  yards,  as  to  pushing  or  drawing  cars  in  such 
case  is  wholly  inadmissible. 

Eollin'g  Mill  Co.  vs.  Johnson,  114  111.  57. 

In  action  for  damages  for  an  injury  sustained  by  plaintiff  while 
repairing  a  motor,  which  was  suddenly  started  by  some  unknown 
person,  it  is  proper  for  plaintiff  to  prove  by  electrician  in  charge 
of  the  electrical  apparatus  of  the  building,  that  he  had  told  plaintiff, 
Avho  was  his  helper,  about  a  week  before  the  injury,  while  they 
were  discussing  the  condition  about  a  certain  other  motor,  that 
whenever  he  saw  a  motor  in  that  condition,  he  should  stop  and  fix 
it,  at  once. 

Marqnette  Cement  Co.  vs.  Williams,  230  111.  26. 

Building-  Trades: 

Knowledge  by  a  stone-setter,  of  a  well  recognized  custom,  in  the 
erection  of  stone  veneer  buildings,  for  the  brick  masons  to  erect  the 
scaffolding  upon  which  the  stone-setters  worked,  does  not  waive 
the  right  of  the  stone-setter  to  have  his  master  provide  for  him 
a  reasonably  safe  place  to  work,  in  absence  of  proof  that  his  con- 
tract of  employment  was  made  with  reference  to  such  custom. 
McBeath  vs.  Eawle,  102  111.  626. 

Evidence  that  deceased,  who  was  in  charge  of  the  handling  of 
heavy  loads  by  a  derrick,  and  who  was  killed  by  the  sudden  drop- 


392  CUSTOM  AND  USAGE 

ping  of  the  boom  as  a  load  was  being  lowered,  was  standing,  as  was 

his  custom,  in  place  where  he  could  reach  the  load  as  it  descended 

and  steady  it  to  place,  tends  to  shoAv  he  was  exercising  due  care 

for  his  safety. 

Miroslawski  vs.  F.  &  L.  Foundry  Co.,  232  111.  630. 

Cominercial  Transactions : 

Evidence  of  a  custom  among  real  estate  agents,  that  upon  the 

termination  of  the  agency  by  the  pnncipal,  the  agent  is  entitled 

to  two  and  one-half  per  cent  commission  on  amount  of  rent  for  tho 

unexpired  term  of  lease   made  prior  to  the   termination  of   the 

agency,  is  admissible. 

Polzin  vs.  McCarthy,  159  App.  526. 

Where  action  is  brought  on  special  contract  for  commissions, 
custom  and  usual  charge  of  real  estate  agents  is  inadmissible. 
Davidson  vs.  Zorger,  181  App.  113. 

A  party  dealing  in  a  particular  market  is  presumed  to  know  all 
the  customs  of  that  market  bearing  upon  the  transaction  in  which 

he  is  engaged. 

Cothran  vs.  Ellis,  107  111.  413;  Haas  Lumber  Co.  vs.  Harty  Bros.,  169 
App.  323. 
Proof  of  custom  of  paying  insurance  premiums  is  admissible  in 

action  on  contract  to  renew  a  policy. 

Hawthorne  vs.  German  Ins.  Co.,  181  App.  88. 

One  employing  another  to  act  for  him  in  bujang  and  selling 
in  a  certain  market,  will  be  held  as  having  intended  that  the  busi- 
ness should  be  conducted  according  to  the  general  usages  and  cus- 
toms of  that  market,  although  he  did  not  know  of  their  existence. 
Taylor  vs.  Bailey,  169  111.  181. 
Course  of  dealing  competent  on  question  of  agent's  authority. 
Bank  of  Saugatuck  vs.  Peters,  181  App.  432. 

Paddng-  Companies: 

Evidence  tending  to  show  a  general  custom  of  shippers  to  climb 
fences  between  the  pens  wdiile  attending  to  their  stock,  is  competent, 
and  the  degree  of  care  required  of  the  defendant  should  be  deter- 
mined  in   view   of   general   practice   of   those   rightfully   on   the 

premises. 

Franey  vs.  U.  Stock  Yards  Co.,  235  HI.  522. 

Where  servant  injured  while  doing  work  in  a  particular  way  at 
the  master's  direction,  evidence  that  it  was  the  master's  custom  to 
do  the  work  in  another  way  is  admissible  not  for  purpose  of  show- 
ing such  way  was  safer,  but  as  bearing  on  the  question  of  assumed 
risk,  as  the  servant  assumes  only  the  risks  ordinarily  incident  to 
the  master's  business,  and  to  his  known  manner  of  having  it  per- 
formed. 

Kennedy  vs.  Swift  &  Co.,  234  111.  606. 

Evidence  with  reference  to  the  location  of  buildings,  tracks  and 
cars,  and  of  the  usual  manner  of  conducting  the  business,  is  com- 
petent, as  shedding  light  upon  the  acts  and  conduct  of  the  parties. 
St.  Louis  Stock  Yards  Co.  vs.  Godfrey,  198  lU.  288. 

Elevators: 

In  action  for  injuries  received  while  plaintiff  was  riding  on  a 
freight  elevator,  it  is  proper  to  prove  that  it  was  his  custom,  as 
well  as  the  custom  of  the  employes  of  other  tenants  of  the  build- 


DATE  ;i9:j 

ing,  to  accompany  freight  being  elevated  or  lowered  by  them,  when 
the  elevator  was  operated  by  defendant's  agent. 
Springer  vs.  Ford,  189  111.  430. 


DATE 

See  Alterations  and  Erasures. 
RULE  OF  FIXING. 

It  is  a  well  known  rule  of  evidence  that  as  a  means  of  fixing 
the  date  of  a  given  transaction,  it  may  be  proven  by  a  witness  that 
at  a  given  time  he  heard  of  the  transaction. 

Fisher  vs.  People,  103  111.  101 ;  Miner  vs.  Phillips,  42  111.  128. 

JUDGMENT. 

The  date  of  a  judgment  is  as  material  as  any  other  portion  of  it, 
and  can  no  more  be  contradicled  by  parol  evidence  than  the  amount 
or  character  of  the  judgment. 

Wiley  vs.  Southerland,  41  111.  25. 
Parol  evidence  is  admissible  to  show  that  an  execution  was  issued 
before  the  judgment  was  entered. 

Baker  vs.  Barber,  16  App.  621 ;  Humphries  vs.  Swaim,  21  App.  232. 
But  further  evidence  that  the  judgment  was  written  up   two 
days  later  than  its  date  and  the  date  of  the  issuance  of  the  execu- 
tion is  inadmissible. 

Knights  vs.  Martin,  155  111.  486 

CLERK'S  CERTIFICATE. 

If  the  certificate  of  tbe  clerk  which  constitutes  the  process  for 
a  tax  sale  is  dated,  the  date  is  evidence  of  the  time  the  certificate 
was  made,  without  regard  to  the  question  whether  it  is  or  is  not 
necessary  to  date  such  certificate. 
Glos  vs.  Dyche,  214   111.  417. 

ABSTRACTS  OF  TITLE. 

An  abstract  is  presumed  to  have  been  made  and  signed  at  its 
date,  such  presumption  being  subject  to  rebuttal. 
C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111.  413. 

FILING  BILL  IN  CHANCERY. 

The  record  of  a  chancery  suit  containing  a  docket  entry  giving 
the  general  number  of  the  suit,  its  title,  names  of  attorneys  and 
nature  of  the  action,  and  which  states  that  the  suit  was  commenced 
on  a  certain  date,  sufficiently  shows  that  the  bill  was  filed  on  such 
date,  since  there  is  no  way  of  beginning  a  chancery  suit  but  by 
filing  the  bill. 

Miller  vs.  Eich,  204  111.  444. 

It  cannot  be  shown  by  oral  evidence  that  a  bill  was  filed  at  a 
different  date  than  was  indicated  by  the  file  mark,  endorsed  by  the 
clerk. 

Hodgen  vs.  Guttery,  58  111.  431. 
DEED. 
Execution : 

—  Presumption:  The  date  of  a  deed,  in  the  absence  of  other 
proof,  will  be  presumed  to  be  the  true  date  of  its  execution,  not- 


394  DATE 

withstanding  the  deed  may  not  have  been  acknowledged  until  after- 
wards. 

Callegaa  vs.  Callegan,  259  111.  52 ;  Darst  vs.  Dates,  51  111.  439. 

—  Parol:  Parol  evidence  is  admissible  to  contradict  the  date  of 
deed  as  not  the  date  of  its  delivery ;  the  date  of  the  instrument  not 
being  essential  to  its  operation. 

Blake  vs.  Fash,  44  111.  302. 

Delivery : 

—  Presumption:  A  warranty  deed  which  has  been  delivered 
will  be  presumed  in  the  absence  of  evidence  to  the  contrary,  to  have 
been  delivered  on  the  date  of  its  date. 

Kimball  vs.  City  of  Chicago,  253  111.  105;  Redmon  vs.  Cass,  226  111. 
120;   Harden  vs.  Crate,  78  111.  533;   Jayue  vs.  Gregg,  42  111.  413; 
.    Stuart  vs.  Button,  39  111.  91;  Dunneger  vs.  McConnell,  41  111.  227; 
Smiley  vs.  Fries,  104  111.  416;  Walker  vs.  Doaue,  131  111.  27;  XII 
111.  Notes  114,  §179.     . 
The  presumption  that  a  deed  was  delivered  at  its  date  is  not  re- 
butted by  the  fact  that  the  certificate  of  acknowledgment  bears  a 
later  date,  nor  by  the  testimony  of  the  grantee  that  it  did  not  come 
to  his  personal  possession  until  after  it  was  acknowledged,  where 
the  deed  was  procured  l\v  the  grantee's  attorney,  and  evidence 
does  not  show  when  the  attorney  received  it. 

L.  E.  &  W.  E.  E,  Co.  vs.  Whitham,  155  111.  514;  Smiley  vs.  Fries,  104 
111.  416.     (See  Acknov^ledgments.) 

Filing: 

Where  a  prior  deed  is  sought  to  be  given  in  evidence  to  affect 
rights  claimed  under  a  subseiiuent  deed,  if  it  be  attempted  to 
show  by  parol  that  the  former  deed  was  recorded,  with  a  view 
to  notice,  the  time  of  recording  should  be  shown. 

But   parol   evidence    is   not   the    best   evidence   to   show   that    a 
deed  was  recorded,  and  should  not  be  allowed  unless  the  proper 
foundation  is  laid  for  secondary  evidence. 
Harpham  vs.  Little,  59  111.  509. 

Parol  evidence  is  competent  as  to  time  of  filing. 

Cook  vs.  Hall,  6  111.  575;  Eeed  vs.  Kemp,  16  111.  445;  Nattinger  vs. 
Ware,  41  111.  245. 

FORCIBLE  ENTRY  AND  DETAINER. 

The  precise  date  of  the  entry  is  immaterial,  and  it  is  not  neces- 
sary to  prove  the  entry  to  have  been  made  on  the  day  named  by  the 
complainant. 

Spurek  vs.  Forsythe,  40  HI.  438. 

PENAL  ACTION. 
Cutting  Timber: 

In  a  penal  action  for  cutting  timber,  the  allegation  of  the  time 
is  not  essential,  and  tlie  proof  of  the  act  on  any  other  day  after 
that  alleged  and  before  the  commencement  of  the  suit  is  sufficient. 
Gebhard  vs.  Adams,  23  111.  397. 

CONTRACT. 

Delivery : 

Presumption  is  that  a  contract  was  delivered  on  the  day  of  its 

date,   and  the   burden   of   proof   is  upon   the   party   who    alleges 

contrary. 

City  of  Paxton  vs.  Bogardus,  201  111.  628. 


DATE  395 

Parol:  fj 

Parol  evidence  is  admissible  to  show  date  of  contract. 

Lampke  vs.   Manning,   171  111.  612;   School  Dist.  vs.  Stilly,  36  App. 
133;  Horn  vs.  Booth,  22  App.  385. 

Priority  as  to  various  writinejs  may  be   established   by   parol. 

Sehaepiu  vs.  Glade,  105  111.  62, 

PLEADINGS  AND  PROOF. 

Assumpsit  on  Contract: 

In  assumj)sit  upon  a  parol  contract,  the  day  upon  which  it  is 
made  being-  alleged  only  for  form,  and  where  the  time  within  which 
the  contract  is  to  be  performed  is  not  determined  from  that  date, 
plaintiff  is  as  liberty  to  prove  a  contract,  express  or  implied,  made 
at  any  time. 

Watson  vs.  Fagner,  208  111.  136;  Singer  vs.  Hutchinson,  183  111.  606; 
Long  vs.  Conklin,  75  lU.  32;  Trench  vs.  Canning  Co.,  168  111.  135. 
But  if  date  or  time  is  material,  an  allegation  under   videlicet 
is  insufficient. 

Steel- Wedeles    Co.    vs.    Choodock   Co.,    153    App.    577;    Harrison    vs. 
Thackaberry,  154  App.  2-46. 

Case: 

If  time  is  averred  under  a  videlicet,  proof  of  exact  date  alleged 

need  not  be  made. 

Pumphrey  vs.  Giggey,  150  App.  473 ;  Rose  vs.  Mut.  Ins.  Co.,  144  App. 
434;  City  of  Dubuque  vs.  Burhyte,  173  111.  553. 
A  plaintiff  is  not  held  to  proof  that  the  injury  was  committed 
on  the  day  alleged  in  the  declaration,  but  may  prove  it  to  have 

been  done  at  anv  time  within  the  statute  of  limitations. 
T.  p.  &  W.  Rv.  Co.  vs.  McC;iannon,  41  HI.  238. 

NEGOTIABLE  INSTRUMENTS. 
Execution : 

While  the  date  of  a  note  is  prima  facie  pioof  of  date  of  its  exe- 
cution, it  is  not  conclusive. 

Hunter  vs.  Harris,  24  App.  637. 

Assignment : 

When  the  transfer  of  a  negotiable  note  is  made  by  indorsement 
without  date,  and  the  actual  time  of  the  transfer  is  not  proven, 
presumption  of  law  is  that  the  note  was  transferred  before  matu- 
rity ;  this  presumption,  however,  is  slight,  and  weak  and  may  be 

overcome  by  proof. 

Bussey  vs.  Hemp,  48  App.  195;  Cisne  vs.  Chidester,  85  111.  523. 

Where  made  without  date,  presumption  is  that  it  was  of  date 

of  note,  and  presumption  will  prevail  unless  rebutted. 

White  vs.  Weaver,  41  111.  469;  Rodriguez  vs.  Merrinian,  133  App.  372; 
Johnson  vs.  Loar,  145  App.  443 ;  Kingsland  vs.  Koepper,  35  App.  81, 

But  such  presumption  may  be  rebutted  by  evidence  of  actual 

date. 

Smith  vs.  Nevlin,  89  111.  193, 

Indorsement : 

It  will  he  presumed  that  an  undated  indorsement  was  made  at 

the  date  of  the  note. 

DeClerque   vs.    Campbell,    231   111.   442;    Kingsland   vs,    Koepper,    35 
App.  81. 


396  DEADLY  AVEAPONS 

DEADLY  WEAPONS 

Judicial  Notice: 

Such  things  as  all  persons  of  ordinary  intelligence  are  pre- 
sumed to  know  are  not  required  to  be  proven.  It  is  not,  there- 
fore, necessary  on  the  trial  of  parties  for  an  assault  with  a  loaded 
pistol,  and  a  hoe,  with  intent  to  murder,  to  prove  that  they  were 

deadly  weapons. 

Hamilton  vs.  People,  113  111.  34;  Schwarz  vs.  Poehlman,  178  App.  235; 
Sleeting  vs.  Superior  Tribe  of  Ben  Hur,  161  App.  449. 

Defined: 

Any  weapon  likely  to  produce  death ;  any  instrument  by  which 

death  may  be  produced. 

Schwarz  vs.  Poehlman,  178  App.  235. 
A  deadly  weapon  is  one  likely  to  produce  death  or  great  bodily 

harm  by  the  use  made  of  it. 

McNary  vs.  People,  32  App.  58. 


DEAF  WITNESS 

Method  of  Examining: 

Where  a  witness  is  deaf  his  testimony  may  be  secured  by  what- 
ever means  are  necessary  and  best  adapted  to  the  case,  which  is  a 
matter  resting  largely  in  the  discretion  of  the  trial  court ;  and  the 
mere  fact  that  attorney,  when  examining  such  deaf  witness  in  his 
own  behalf,  wrote  the  questions  and  handed  them  to  him  to  read 
and  answer  does  not  show  an  abuse  of  the  trial  court's  discretion. 
Harrison  vs.  Thackberry,  248  111.  512;  Selenak  vs.  Selenak,  150 
App.  399. 


DEATH 

SEVEN  YEARS  ABSENCE. 
Presumptions : 

—  In  General:  The  unexplained  absence  of  a  person  from  his 
usual  place  of  abode  for  seven  continuous  years,  and  from  whom 
no  intelligence  has  been  received  within  that  time,  raises  the  pre- 
sumption of  death  upon  which  the  jury  may  act,  where  no  suf- 
ficient facts  or  circumstances  are  proven  to  overcome  the  presump- 
tion. 

Donovan  vs.  Major,  253  111.  179;  Policemen's  Ben.  Soc.  vs.  Eyce,  213 

111.  9;  Hintz  vs.  Alcrren,  170  111.  60;  City  of  Litchfield  vs.  Keagy, 

78  App.  398 ;  XII  111.  Notes  54,  §  2. 

Where  a  person  goes  abroad  and*  is  not  heard  from  for  a  long 

time,   the   presumption  of  the   continuance  of  life   ceases  at  the 

expiration  of  seven  years  from  the  period  when  he  was  last  heard 

from. 

Whiting  vs.  Nicholl,  46  111.  230. 
The    presumption    of    death    from    seven    years'    unexplained 
absence  does  not,  by  law,  arise  until  the  full  period  elapses  and 
the   presumption   of  life  will  continue   to   the   end  of  the  seven 


DEATH  897 

years,  unless  facts  are  proven  which  show  the  absent  party  prob- 
ably died  sooner. 

Eeedy  vs.  Millizen,  155  111.  63G ;  Eeed  vs.  Camfield,  159  111.  25-1. 
The  presumption  of  death  arises  from  a  continuous  al)sence 
abroad  for  seven  years,  during  which  time  nothing  is  heard  from 
the  absent  party  by  those  who  would  naturally  have  heard  from 
him  if  alive.  From  non-claimer  of  rights  or  exposure  to  peculiar 
sickness,  death  at  an  earlier  period  may  be  inferred.        i:.  "- 

Eobinson  vs.  Eo])iiison,  51  App.  317;  Whiting  vs.  Nicholl,  46  111.  230. 
The  general  presumption  is  that  life  continues  for  seven  years 
after  an  alisent  party  is  last  heard  from,  and  after  the  lapse  of 
that  time,  death  is  presumed;  but  the  presumption  is  not  conelu- 
sive  and  may  be  rebutted  by  proof  of  facts  and  circumstances 
inconsistent  with  and  sufficient  to  overcome  it. 

Johnson  vs.  Johnson,  114  111.  611. 
Seven  years  must  elapse  before  the  presumption  of  death  arises. 
After  that  length  of  time,  death  is  presumed,  but  there  is  no  pre- 
sumption  that   the   life   continued   throughout   the   entire  period, 
or  that  it  was  not  extinguished  at  any  particular  time  within  it. 

Johnson  \s.  Johnson,  114  111.  611. 

—  liaising  Presumption:  In  order  to  raise  the  presumption  of 
death  of  a  person  after  seven  years'  absence,  there  must  be  evi- 
dence of  diligent  inquiry  at  his  last  place  of  residence,  and  among 
his   relatives   and   any   other  persons  who   would   probably   have 

heard  from  him  were  he  living. 
Hitz  vs.  Ahlgren,  170  111.  60. 

Admissibility  of  Evidence: 

—  Circumstantial:  That  the  absentee  was  exposed  to  some  spe- 
cific peril ;  that  he  sailed  in  a  vessel  which  had  never  been  heard 
from,  though  many  months  overdue;  that  he  was  last  seen  as  a 
passenger  on  an  ocean  steamer  in  mid-ocean,  at  night,  and  was 
never  seen  or  heard  of  afterward  though  diligeiit  search  was  made 
the  next  morning;  that  he  made  threats  to  commit  suicide  prior 
to  his  disappearance;  that  the  condition  of  his  health  was  des- 
perate; that  he  was  afflicted  with  some  disease  likely  to  under- 
mine his  health  is  competent.  The  health,  age,  habits,  disposi- 
tion, manner  of  life,  pecuniary  circumstances  and  family  rela- 
tions are  all  proper  circumstances  to  be  considered  in  tending  to 

raise  a  just  inference  of  death. 

Donovan  vs.  Major,  253  111.  179;  Johnson  vs.  Johnson,  114  111.  611. 

And  upon  such  question,  proof  that  when  the  person  disap- 
peared he  was  poor,  disgraced  by  his  own  fault,  advanced  in 
years,   and  despondent,   is  not  without  probative   force. 

But  this  may  be  contradicted  by  proof  that  when  last  heard 
from  he  had  become  more  hopeful  and  had  resolved  by  a  future 
and  better  life  to  Avipe  out  the  stain  upon  his  name. 
Whiting  vs.  Nichols,  46  111.  230. 

All  the  conditions  by  which  the  presumption  of  life  for  seven 
years  may  be  affected,  such  as  health,  age,  habits,  disposition, 
pecuniary  circumstances,  family  relations,  etc.,  may  properly  be 
considered  in  determining  whether  the  life  of  the  absent  party 
continued  the  entire  seven  years  or  tenniuated  sooner. 
Eeedy  vs.  Millizen,  155  111.  636. 


398  DEATH 

—  Jnquirii  After  Scv^n  Years:  An  inquiry  as  to  the  where- 
abouts of  a  missing  person  during  the  i)i'riod  oJ:  seven  years  sub- 
sequent to  his  disappearance  may  be  made  after  sueh  seven  years 
have  elapsed,  and  proof  that  such  inquiry  has  been  made  is  not 

improper. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

—  Inquiry  After  Suit  Brought:  In  action  by  beneficiary  under 
an  insurance  benefit  certificate  to  recover  the  amount  thereof  by 
reason  of  death  of  insured,  based  on  presumption  of  death  from 
seven  years'  absence,  evidence  relating  to  letters  written  subse- 
(juent  to  time  of  bringing  suit  is  admissible  when  letters  are  part 
of  investigation  begun  shortly  following  disappearance  of  insured. 

Kennedy  vs.  Modern  Woodmen,  149   App.   471. 

—  Hearsay:     Hearsay  evidence   is  admissible. 

Havriek  vs.  Modem  Woodmen,  158  App.  570;   Modern  Woodmen  vs. 
Graber,   128  App.  585. 

—  Rumors:  Mere  rumor  that  an  absent  party  not  heard  from 
for  several  years  is  dead  or  living,  is  not  admissible  in  evidence 
either  to  aid  or  rebut  the  presumption  of  his  life  or  death  at  a 
particular  time  after  he  was  last  heard  from. 

Johnson  vs.  Johnson,  114  111.   611. 

—  Reputation  Among  Ki)idred:  The  rule  is  that  it  is  general 
reputation  among  kindred  only  of  a  deceased  person  that  is  admis- 
sible in  proof  of  death,  but  this  rule  has  been  relaxed  in  cases 
where  the  deceased  left  no  kindred  that  are  known,  and  in  such 
cases,  reputation  among  the  acquaintances  of  deceased  is  sufficient 

proof  of  the  fact. 

Ein(;;hoiise  vs.  Keever,  49  111.  471. 

Weight  and  Sufficiency: 

—  Preponderance  Sufficient:    In  a  civil  suit  the  facts  from  which 

the  law  presumes  the  death  of  a  missing  person  must  be  proven 

by  a  preponderanoe  of  the  evidence,  but  it  is  not  necessary  that 

the  evidence  shall  be  sufficient  to  remove  all  reasonable  doubt  that 

such  person  is  alive. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560;  Affg.,  149  App.  471. 

—  Rumors:  The  mere  rumor  that  a  person  has  been  seen  does 
not  necessarily  rebut  the  presumption  of  death  arising  from  seven 
years'  unexplained  absence,  even  though  such  rumor  is  not  fol- 
lowed by  diligent  search  and  inquiry,  but  its  probative  force  must 

be  governed  by  the  particular  facts  and  circumstances  of  the  case. 
Kennedy  vs.  Modern  Woodmen,  243  111.  560;  Cf.  Johnson  vs.  Johnson, 
114  ill.  611. 

—  Hearsay:  Where  the  only  proof  of  a  person's  death  was  a 
statement  of  a  witness,  that  a  sister  of  the  person  said  that  such 
person  "married  a  river  man,  and  went  on  a  boat,  and  the  boat 
blew  up  and  she  got  killed",  it  was  held  that  while  the  evidence 
might  perhaps  justify  a  finding  in  favor  of  the  person's  death, 
yet  it  was  not  sufficient  to  set  aside  a  contrary  finding. 

Scheel  vs.  Eidman,  77  111.  301. 
Mere  absence  of  a  person  from  a  place  where  his  relatives  reside, 
which  is  not  his  residence,  and  mere  failure  on  the  part  of  his  rela- 
tives to  receive  letters  from  him  for  a  period  of  seven  years,  are 
not  of  themselves,  sufficient  to  raise  the  presumption  of  death. 

City  of  Litchfield  vs.  Keagy,  78  App.  398. 


DEATH  399 

A   man   suddenly   disappearing,    under  the   age   of   fifty  years, 

whose  prospeet  of  life  wi'.s  good  notwithstanding  a  slight  ailment, 

who  had  no  children,  and  whose  relations  with  his  wife  were  not 

cordial,   who  was  being  hai'assed   by  creditors  he  could   not  pay, 

who  had  said  he  was  "going  to  leave  the  coujitry,"  and  who,  there 

was  slight   evidence,   was  seen  in  another  state   five  or  six  years 

after  his  disai)pearance,  will  be  taken  to  have  lived  the  entire  seven 

years. 

Eeedy  vs.  Millizen,  155  111.  636. 

—  Date  of  Death:  The  rule  is  that  a  person  is  presumed  to 
be  dead  who  has  not  been  heard  of  for  seven  years,  leaving  it 
incumbent  upon  the  party  who  claims  a  benefit  or  interest  in  his 
being  alive  within  that  period,  to  prove  it.  At  what  particular 
time  a  party  died  is  of  no  importance  to  a  j^erson  claiming  a  right 
which  becomes  established  on  a  death,  but  it  may  be  important  to 
one  resisting  that  right,  and  so  it  becomes  an  affirmative  fact, 
which  the  party  alleging  must  prove. 

Whiting  vs.  Nichols,  46  111.  230. 

Witnesses : 

—  Credibiliti) :  Where  plaintiff  relied  upon 'the  presumption  of 
death  from  seven  years'  unexplained  absence,  a  witness  who  tes- 
tified to  having  seen  the  missing  man  during  that  period  may  be 
impeached,  and  the  mere  fact  that  his  testimony  is  not  contra- 
dicted by  any  witness  does  not  require  the  court,  on  motion  to 
direct  a  verdict,  to  accept  his  testimony  as  true,  but  it  is  for  the 
jury  to  determine  his  credibility  and  say  whether  the  presumption 

of  death  is  rebutted. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

—  Impeachment:  Where  the  defendant  draws  out,  on  cross 
examination  of  plaintiff,  an  admission  that  she  had  been  told  that 
a  certain  woman  reported  having  seen  the  missing  husband  of 
plaintifi  within  seven  years  after  his  disappearance,  plaintiff  is 
entitled  to  call  witnesses  to  prove  the  reputation  of  such  woman 
for  truth  and  veracity  was  bad  and  that  she  had  made  conflicting 
statements  on  the  matter. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

CAUSE  OF  DEATH. 
Presumption : 

In  absence  of  proof  of  cause  of  death,  natural  causes  will  be 

presumed. 

Knights  Templar  ^  s.  Crayton,  209  111.  550 ;  F.  &  C.  Ins.  Co.  vs.  Weise, 
182    111.    496;    Amer.    Home   Circle   vs.    Schneiter,    134   App.    601; 
Guardian  Ins.  Co.  vs.  Hogan,  80  HI.  35. 
Where  the  evidence  shows  that  the  deceased  suffered  an  injury 
which  caused  his  death,  and  there  is  no  proof  from  which  it  can 
be  determined  w^hether  the  injury  was  accidental  or  self-inflicted, 
the  presumption  is  that  the  injurv  was  accidental. 
Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205. 

Admissibility  of  Evidence: 

—  Circumstantial  Evidence:  Where  there  are  no  eye  witnesses 
to  the  accident,  the  manner  of  death  may  be  proven  by  circum- 

Waschow  vs.  Kelly  Coal  Co.,  245  111.  516;  Coinmon.  Elec.  Co.  vs.  Rose, 
214  111.  545;  Economy  L,  &  P    Co    vs^  8bpj-idau,  200  111.  439. 


400  DEBT 

—  Coroner's  Inquisition:     The  verdict  of  a  coroner's  jury  is 

competent  prif.  a  facie  evidence  of  the  cause  of  death. 

Stollery  vs.  Cicero  St.  Ky.  Co.,  243  111.  290;   Pyle  vs.  Pyle,  158  111. 

289;   Grand  Lodge  vs.  Wieting,  168  111.  408;   U.  S.  Life  Ins.  Co. 

vs.  Voche,  129  111.  557. 

The  legitimate  object  of  the  inquest  is  fulfilled  in  finding  simply 

the  cause  of  death.     The  expression  of  negligent  cause  in  action 

for  causing  death  is  extraneous  to  the  province  of  the  inquest, 

and  should  be  excluded  or  controlled  by  proper  instruction. 

P.  C.  &  St.  L.  Ky.  Co.  vs.  McGrath,  115  111.  172;  L.  S.  &  M.  S.  Ey.  Co. 
vs.   Taylor,  46  App.   506;    C.   M.   &   St.   P.   Ry.   Co.  vs.   Stack,   46 
App.  499. 
But  depositions  taken  at  coroner's  inquest  are  incompetent. 

Knights  Templars  vs.  Crayton,  209  111.  550;  P.  C.  C.  C.  &  St.  L.  Ey. 
Co.  vs.  McGrath,  115  111.  172. 

CONTINUANCE  OF  LIFE. 

In   bastardy  i^roceediugs,   where   a  cliild  is  shown   by   the   evi- 
dence to  have  been  once  alive,     and  there  is  no  evidence  tending 
to  show  its  death,  the  presumption  is  that  it  is  still  living. 
Lewis  vs.  People,  87  App.  588. 

A  person  who  gave  a  power  of  attorney  is  presumed  to  have 
been  alive,  in  absence  of  proof  to  the  contrary,  five  years  later, 
when  certain  deeds  were  executed  for  him  by  virtue  of  the  power 

of  attorney. 

C.  &  A.  Ey.  Co.  vs.  Keegan,  185  111.  70. 
Where  it  is  shown  that  a  certain  person  was  living  some  years 
before  trial  of  a  suit,  no  presumption  will  be  indulged,  in  absence 

of  proof,  that  he  has  since  died. 

Lowe  vs.  Fulk,  103  111.  58 ;  Mosheimer  vs.  Usselman,  36  111.  233. 
"Where  a  pleading  shows  on  its  face  that  a  person  mentioned 
therein  had  been  heard  of  within  seven  years  necessary  to  raise 
the  presumption  of  death,  the  presumption   that  such  person  is 

living  results. 

Sinsheimer  vs.  Skinner  Mfg.  Co.,  165  111.  116. 


DEBT 

See  Penalties,  Denial  of  Execution,  Bonds. 
Burden  of  Proof: 

—  ^il  Debit:  Where  plaintiff  in  action  of  debt  joins  issue 
upon  plea  of  nil  debit,  he  must  prove  every  allegation  of  his  dec- 
laration. 

Poster  vs.  People,  121  App.  165. 

—  Non  Est  Factum:  Under  such  a  plea,  the  burden  of  proof 
is  upon  defendant,  the  plea  being  an  affirmative  one. 

Sudgen  vs.  Beasley,  9  App.  71. 

Payment : 

riea  of  is  a  plea  of  confession  and  avoidance,  and  puts  in  issue 
no  averment  of  the  declaration. 

Smith  vs.  Lozano,  1  App.  171. 

Actions  on  Specialties: 

—  Non  Est  Feictum:    Puts  in  issue  the  giving  of  the  instrument, 


DEBT  401 

including  delivery.     It  admits  all  material  allegations  of  the  dec- 
laration. 

Pritebett  vs.  People,  6  111.  525;  FitzSimmons  vs.  Iliill,  84  111.  538; 
Osborne  vs.  Gaylonl,  13  App.  30;  King  vs.  See,  6  Ap]).  189;  Cully 
vs.  People,  73  Ai)p.  501. 

Plea  must  be  sworn  to  or  does  not  put  execution  of  bond  in 
issue. 

Herriek  vs.  Swartoiit,  72  111.  340. 

Proof  of  the  signature  of  a  deed  declared  on  need  not  be  made 
where  the  plea  interposed  is  not  verified. 
Laiult  vs.  MeCullough,  130  App.  515. 

Is  fully  met  hy  introducing  such  a  bond  as  is  declared  on. 
Smith  vs.  Lozano,  1  App.  IT}. 

But  under  such  a  plea  to  debt  on  a  bond  to  one  person,  a  bond 
to  two  persons  is  inadmissible. 

Phillips  vs.  Singer  Mfg.  Co.,  88  111.  305. 

In  suit  upon  an  executor's  bond,  when  plea  of  non  est  fart  urn 
is  interposed,  it  is  competent  to  prove  by  clerk  of  probate  court 
that  such  bond  is  in  his  possession  as  part  of  the  court  papers  in 
his  office,  received  from  his  predecessor,  as  tending  to  show  it  to 
be  the  same  bond  referred  to  in  the  papers  relating  to  the  estate 
of  deceased  testatrix  among  the  files  of  the  court,  and  when  in 
addition,  it  is  shown  by  one  witness  that  the  names  of  defendants 
appearing  on  such  bond  are  in  their  handwriting,  the  bond  is 
properly  admitted  in  evidence. 

Cully  vs.  People,  73  App.  501. 

In  suit  upon  a  Iwnd  given  upon  an  appeal  to  the  supreme  court, 
it  is  unnecessary  to  introduce  a  copy  of  the  record  of  the  judg- 
ment appealed  from,  when  it  is  recited  in  the  condition  of  the 
bond,  as  defendant  is  estopped  from  denying  its  existence. 

Herriek  vs.  Swartout,  72  111.  340;  Smith  vs.  Whittaker,  11  111.  418. 

—  Nul  Till  Record:  Ntd  tiel  record  is  not  proper  plea  to  action. 
Suit  is  brought  on  bond  and  not  on  record. 

Arnott  vs.  Friel,  50  111.  175. 
In   action   on  appeal  bond,  judgment   is  not  sustained  by  evi- 
dence where  there  is  no  proof  that  there  was  default  in  payment 
of  judgment  mentioned  in  bond. 

Eabb  vs.  Thomas,  137  App.  255. 

Actions  on  Records: 

—  In  General:  Where  a  record  is  the  foundation  of  the  action, 
a  sufficient  record  must  exist  or  be  shown.  But  eveiy  fact  essen- 
tial to  a  recovery  need  not  necessarily  appear  by  the  record. 

People  vs.  Baughman,  18  111.  152. 

—  Judgments:  Averment  of  affirmance,  under  plea  of  payment 
and  non  est  factum,  not  being  traversed,  need  not  be  proven. 

Smith  vs.  Lozano,  1  App.  171. 

—  Money  Counts:  Judgments  inadmissible  under  plea  of  nil 
debit  nor  can  original  consideration,  upon  which  judgment  ren- 
dered be  recovered  under  common  counts. 

Eunnamaker  vs.  Cordray,  54  111.  303. 

—  Verbal  Promise:  Proof  of  defendant's  promise  to  pay  a 
binding  judgment  against  him  is  incompetent. 

Eunnamaker  vs.  Cordray,  54  111.  303;  McLean  vs.  McBean,  74  111.  134. 
Ev. — 26 


402  DECEIT 

DECEIT 

See  Fraud  and  Deceit. 

DECREE 

See  Records,  Judgments,  Best  and  Secondary. 


DECEASED  WITNESS 

See  Former  Testimony,  Bill  op  Exceptions,  Certificates  op 
Evidence. 

DECLARATIONS 

See  Admissions  and  Declarations. 

DEDICATION 

Presumptions  and  Burden  of  Proof: 

Dedication  may  be  inferred  from  length  of  user  and  acqui- 
escence by  the  owner. 

Alden  Coal  Co.  vs.  Challis,  200  111.  222. 
Acceptance    by    a '  municipality,    of   streets    and    alleys,    cannot 
be  presumed  from  mere  proof  of  execution  and  recording  of  the 
plat. 

Jordan  vs.  City  of  Chenoa,  166  111.  530. 
An  acceptance  by  city  or  village   of  some  of  the  streets  and 
alleys  appearing  on  a  plat  is  presumed   to   be  an  acceptance  of 
the  entire  system  of  streets  and  alleys,  unless  intention  to  limit  is 
shown. 

Kimball  vs.  City  of  Chicago,  253  111.  105. 
Burden  ol  proof  is  upon  one  who  asserts  existence  of  highway 
by  prescription,  to  show  that  user  was  open,  notorious,  exclusive, 
continuous,  and  uninterrupted  for  tifteen  years,  and  was  under 
claim  of  right,  with  knowledge  of  owner,  and  without  his  con- 
sent. 

Palmer  vs.  City  of  Chicago,  248  111.  201;  Eose  vs.  City  of  Farmiug- 
ton,  196  111.  226;  O 'Connell  vs.  Chi.  Term.  Co.,  184  ill.  308. 
Burden  is  upon  party  alleging  abandonment  to  prove  same  by 

clear  and  satisfactory  evidence. 

Highway  Comrs.  vs.  Kinahan,  240  111.  593 ;  Cox  vs.  Comrs.  of  High- 
vi^ays,  194  111.  355. 

Admissibility  of  Evidence: 

—  Parol  'i)i  General:  The  Statute  of  Frauds  does  not  apply  to 
the  dedication  of  ground  to  the  public.  It  may  be  evidenced  by 
acts,  and  declarations,  and  without  any  writing.  No  particular 
form  is  required  to  the  validity  of  a  dedication.  It  is  purely  a 
question  of  intention,  the  manner  is  immaterial. 

Wormley  vs.  Wormley,  207  111.  411;   Alden  Coal  Co.  vs.  Challis,  200 
111.  222. 


DEDICATION  403 

—  Direct  Proof  hrj  Owner:  The  owner  may  testily  as  to  what 
his  intention  actually  was,  and  this  testimony  is  to  he  consid- 
ered in  comicetion  with  all   the  other  facts  and  circumstances  in 

the  case. 

Town  of  Loviugton  vs.  Adkins,  232  111.  510 ;  Town  of  Bethel  vs.  Pruett, 
215  111.  162;  Seidschlag  vs.  Town  of  Antioch,  207  111.  280;  City  of 
Chicago  vs.  C.  R.  I.  &  P.  Ry.  Co.,  152  111.  561;  O 'Connell  vs. 
Bowman,  45  App.  654. 

—  Flats  and  Flatting:  That  the  owner  of  land,  after  making 
and  recording  a  plat,  conveyed  by  general  warranty  deed  certain 
of  the  lots,  in  which  deed  the  subdivision  of  the  tract  into  lots, 
blocks  and  streets,  and  the  recording  of  the  plat  are  recited,  tends 
to  show  a  complete  dedication. 

N.  Chillicothe  vs.  Burr,  185  111.  322;  MayAvoo.l  vs.  Maywood,  118  111. 
61;  Gridley  vs.  Hopkins,  84  111.  528;  Field  vs.  Carr,  59  111.  198; 
Trustees  vs.  Walsh,  57  111.  363. 

The   making   of  a   plat,   laying  off  land   into   lots   and  blocks, 

separated   by  streets  and  alleys,   and   the   sale   of  lots   thereafter 

by  the  owner,   is  evidence   of  a   common   law   dedication  of  the 

streets  to  the  public,  even  tliough  the  plat  is  defectively  executed. 
Nelson  vs.  Randolph,  222  111.  531. 

AVhere  the  owner  of  land  subdivides  it,  and  makes  and  acknowl- 
edges and  records  a  plat  of  the  subdivision,  designating  thereon 
certain  strips  of  land  as  streets  or  highways,  such  plat,  though 
not  made  in  accordance  with  the  statutory  requirements,  will  be 
evidence  of  an  intention,  as  well  as  an  oifer,  to  dedicate  to  the 
public  a  right  of  way  over  the  strips  thus  designated'  as  at  com- 
mon law. 

City  of  Chicago  vs.  Drexel,  141  111.  89. 

The  owner  of  real  estate  is  not  bound  by  acts  of  others  in 
respect  to  the  property,  done  without  his  direction  and  not  at 
his  instance.  The  making  of  a  plat  by  a  stranger  to  the  title, 
showing  the  dedication  of  a  part  of  a  lot  for  a  street,  and  the 
building  of  a  fence  indicating  the  same  thing,  not  shown  to  have 
been  built  by  or  for  the  other,  is  not  evidence  against  him,  of  a 
dedication. 

City  of  Chicago  vs.  Johnson,  98  111.  618. 

Platting  ground  claimed  may  be  admitted  to  show  that  owner 

had  not  dedicated  same  to  use  of  public. 
Kelly  vs.  City  of  Chicago,  48  111.  389. 

—  Explanation  of  Flat:  Where  a  plat  fails  to  indicate  for 
what  purpose  a  piece  of  land  included  in  a  boundary  line  was 
intended,  subsequent   user  is  admissible  to  explain.  •  fiorr 

City  of  Chicago  vs.  Vanlngen,  152  111.  624;  Princeville  vs.  Anten,  77 
111.  325. 
Where  nothing  appears  to  indicate  for  what  purpose  a  grant 
or  donation  of  land  is  made  to  the  public,  parol  evidence  is  admis- 
sible to  show  the  object  to  which  it  was  to  be  devoted.  Where  the 
intention  is  made  manifest,  at  the  time  of  the  dedication,  as  to 
the  use,  extrinsic  evidence  will  not  be  received  to  show  an  inten- 
tion to  devote  the  land  to  a  different  use. 

Berge  vs.  Citv  of  Centralia,  218  111.  503;  Princeville  vs.  Auten,  77 
111.  325;  City  of  Chicago  vs.  Ward,  169  111.  392. 

—  Acts  and  Declarations:     The  declarations  of  a  land  owner, 


404  DEDICATION 

made  at  time  of  doing  acts  claimed  to  have  constituted  a  dedica- 
tion, and  also  his  subsequent  declarations  and  acts,  are  admissible 
to  show  such  owner's  intentions. 

City  of  Ottawa  vs    Yentzer,  IGO  111.  509;   Smith  vs.  Town  of  Flora, 
64  111.  93;   XII  111.  Notes  83,  §50. 

An  offer  by  an  owner  of  land,  to  dedicate  it  for  a  public  high- 
way, may  be  proven  by  his  oral  declarations. 
Woodbnrn  vs.  Town  of  Sterling,  184  111.  208. 

Acts  and  declarations  of  the  grantor  cannot  be  relied  upon  to 
establish  a  dedication,  for  street  jDurposes,  of  land  abutting  upon  a 
lot,  where  the  plat  with  reference  to  wbich  the  lot  was  sold,  and 
upon  which  the  grantee  relied,  not  only  fails  to  indicate  a  street, 
but  shows  the  ground  to  be  platted  as  an  inside  lot,  part  of  which 

the  grantee  purchased. 

Schneider  vs.  Sulzer,  212  111.  87. 

To  establish  a  highway  by  dedication,  it  is  not  necessary  that 
the  intention  on  the  part  of  the  owner,  to  dedicate  the  same  at 
the  time  the  public  began  using  it,  should  be  shown.  Such  an 
intention  may  as  well  have  been  formed  and  entertained  subse- 
quently. 

Town  of  Havana  vs.  Biggs,  58  111.  483. 

Declarations  of  one  in  possession  of  land,  in  disparagement  of 
title  of  declarant,   are  admissible.     So  declarations  of  a  former 
owner,  while  in  possession,  as  to  location  of  line  of  a  street  are 
admissible  in  evidence  against  one  claiming  under  him. 
City  of  Elgin  vs.  Beckwith,  119  111.  367. 

—  Not  Listed  for  Taxation:     The  fact  that  a  strip  of  land  was 

not  listed  for  taxation  is  admissi])le  to  show  dedication,  but  is  not 

conclusive. 

Poole  vs.  Lake  Forest,  238  111.  305. 

—  Owner's  Motives:  Where  there  is  an  intention  by  the  owner 
to  dedicate  land  to  the  public,  and  an  act  of  dedication  by  him, 
upon  acceptance  by  the  public,  of  the  easement,  it  becomes  perfect 
and  irrevocable,  whatever  may  have  been  the  personal  motives 
of  the  owner  in  making  the  dedication. 

Agricultural  Board  vs.  Holly,  169  111.  9. 

—  Condemnation  Proceedings:  AVhere  a  common  law  dedica- 
tion of  a  part  of  a  lot  for  a  street  is  claimed  from  the  acts  of  the 
city  in  grading  the  ground,  and  those  of  the  owners,  subsequent 
to  proceedings  to  condemn  the  land  necessary  for  the  street,  the 
record  of  such  proceedings,  although  failing  to  show  a  condemna- 
tion of  tlie  property  in  question,  is  proper  evidence  to  rebut  the 
presumption  of  a  dedication,  and  as  explaining  the   conduct  of 

the  parties. 

City  of  Chicago  vs.  Johnson,  98  111.  618. 

Fencing  Premises:     Proof  is  admissible  to  show  that  owner, 

at    ditferent   times   since    fencing   out,    maintained   cross   fencing, 
cultivated  ground  and  forbade  authorities  from  working  strip. 
-.:•:,         Waggeman  vs.   Village,   42   App.   132. 

Or  that  he  resisted  use  of  highway  fenced  off. 
Fox  vs.  Yergen,  5  App.  515. 

Adjusting   Assessment:     The   compromising  with   a   city   in 

respect  to  the  amount  of  special  assessment  upon  a  lot,  whereby 


DEDICATION  405 

the  owner  pays  less  than  the  sum  assessed,  is  not  evidence  of  an 
intention  to  dedicate  any  part  of  the  lot  for  a  street,  where  such 
compi-omise  is  made  pending  a  suit  between  the  lot  owner  and 
the  city  to  recover  the  part  claimed  to  be  dedicated. 
City  of  Chicago  vs.  Johnson,  98  111.  618. 

—  Condition  in  Deed:     Condition  in  a  deed  that  grantee  should 

permit  certain  tract  to  be  open,  is  admissible  to  show  dedication 

by  grantor  in  such  deed. 

Eicheson  vs.  Eicheson,  8  App.  204. 

—  User:  Acceptance  may  be  shown  by  user  by  the  public,  or 
acts  of  officers.  No  express  act  of  dedication  is  necessary,  and 
consent  may  be  implied  from  acquiescence  and  user  by  the  pub- 
lic, and  the  user  does  not  depend  upon  any  fixed  period  of  time. 

The  user  by  the  public  must  be  in  such  a  way  and  at  such  a 
time   as  that  the   public   accommodation    and   private   rights   will 
be  materially  affected  bv  the  interruption  of  "the  enjoyment. 
Alden  Coal  Co.  vs.  Challis,  200  111.  222. 

Weight  and  Sufficiency  of  Evidence: 

—  Acts  and  Declarations:  In  order  to  constitute  a  dedication 
of  land  for  a  public  highway,  it  is  not  essential  that  the  intention 
be  evidenced  by  words,  either  written  or  spoken.  If  the  acts  of 
the  party  indicate  an  intention  to  dedicate  the  land  to  a  public 
use,  it  is  sufficient,  and  if  the  dedication  is  accepted  by  the  pub- 
lic, as  by  use  and  travel,  it  is  complete.  It  is  trae  the  acts  may 
be  explained  by  an  agreement  or  other  circumstances  rebutting 
an  intention  to  dedicate,  but  if  the  acts  are  unexplained,  they 
will  prove  a  dedication. 

Wragg  vs.  Penn  Township,  94  111.  11. 
A  dedication  for  a  right  of  way  for  a  highway  may  be  estab- 
lished by  a  grant  or  written  instrument,  or  by  the  acts  and  dec- 
larations of  the  owner  of  the  premises.  It  may  be  inferred,  from 
long  and  uninterrupted  user  by  the  public,  with  the  knowledge 
and  consent  of  the  owner,  but  there  must  be  clear  intent  shown 
to  make  a  dedication ;  the  evidence  should  be  clear,  either  of  an 
actual  intent  to  do  so,  or  of  such  acts  and  declarations  as  will 
equitably  estop  the  owner   from  denying  such  intent. 

Mclntyre  vs.  Storey,  80  111.  127 ;  Warren  vs.  Jacksonville,  15  111.  236. 

—  Blank  in  Plat:  The  leaving  of  a  blank  space  in  a  plat,  with- 
out any  designation  of  purpose,  is  not  sufficient  proof  of  an  inten- 
tion of  the  owner  to  dedicate  to  public  use  the  premises  so  undes- 
ignated. 

Poole  vs.  Lake  Forest,  238  111.  305. 
Undesignated  part  does  not,  of  itself,  show  dedication.  But 
parol  evidence  is  admissible  to  show  the  object  to  which  it  was  to 
be  devoted.  Where  the  intention  is  made  manifest,  at  the  time  of 
dedication,  as  to  the  use,  extrinsic  evidence  will  not  be  received 
to  show  an  intention  to  devote  the  land  to  a  different  use. 

Birge  vs.  City  of  Centralia,  218  111.  503;   Village  of  Princeville  vs. 
Auten,  77  111.  325. 
The  fact  that  the  owner  marked  a  certain  strip  "depot"  upon 
a  plat  of  a  tract  of  land  into  blocks  and  lots,  negatives  the  idea 
of  an  intention  to  dedicate  use  to  public. 
McWilliams  vs.  Morgan,  61  111.  89. 


406  DEDICATION 

—  Judgment  Recovered  for  Ohstructing :  The  record  of  a  judg- 
meut  recovered  against  a  party  in  a  suit  by  the  town  authorities 
for  obstructing  a  highway,  is  not  conclusive  evidence  of .  the  exist- 
ence of  a  public  highway  at  the  point  in  dispute,  in  suit  by  the 
owner  of  the  hind  to  enjoin  such  town  authorities  from  opening  a 
road  over  his  hmd  at  the  disputed  point. 

Mclntyre  vs.  Storey,  80  111.  127. 

—  Fencing  Out  Road:  Tlie  construction  of  a  fence  by  land 
owner,  so  as  to  leave  out  a  strip  of  land  claimed  to  be  a  highway, 
is  not  conclusive  evidence  of  a  dedication. 

Ottawa  vs.  Yentzer,  160  111.  509;  Sehiiitz  vs.  Eitterholtz,  20  App.  614. 

The    fact   that    a   party    fenced    out    the    road    in    controversy, 

through  a  tract  of  land  owned  by  him  in  one  town,  is  not  evidence 

tJiat  he  intended  to  dedicate  to  tiie  public  the  land  over  which 

said   road  passes  througli   another  tract  of  his   land  in  another 

town,  where  he  fenced  up  same  soon  after  he  became  the  owner 

of  it. 

Grube  vs.  Nichols,  36  111.  93. 

—  Building  Sidewalk:  The  building  of  a  sidewalk  on  a  lot  by 
the  owner  of  the  same,  so  as  to  show  ground  left  for  a  street,  made 
while  the  lot  was  in  the  adverse  possession  of  another,  and  in  obe- 
dience to  the  requirements  of  an  ordinance,  and  under  the  mis- 
taken belief  that  part  of  the  lot  had  been  condemned,  is  not  evi- 
dence sufficient  to  show  a  conniion  law  dedication. 

City  of  Chicago  vs.  Johnson,  98  111.  618. 

—  Reference  in  Deed:  A  deed  by  one  owning  a  lot  shown  by 
the  plat  to  be  a  certain  width,  which  describes  the  tract  conveyed, 
as  *  *  *  "thence  running  to  a  public  alley/'  does  not  consti- 
tute a  dedication  for  a  public  alley  of  the  part  of  the  lot  not  spe- 

eificially  conveyed. 

Carlinsville  vs.  Castle,  177  111.  105. 
If  the  term  "alley"  is  used  in  a  deed,  or  in  a  plat,  it  will  be 
taken  to  mean  private  alley,  where  the  word   "private"  is  pre- 
fixed, or  where  the  context  requires  that  a  different  meaning  than 

of  a  public  allev  is  to  be  given  the  term. 
Chicago  vs.  Borden,  190  111.  430. 
Requisites  of  a  common  law   dedication  are,    (1)    an  intention 
of  the  owner  to  donate  the  land  to  a  public  use,   (2)   acceptance 
thereof  by  the  public,  and   (3)   proof,  clear  and  unequivocal,  of 

these  facts. 

Chicago  vs.  C.  E.  I.  P.  Ey.  Co.,  152  111.  561. 

To  establish  a  public  highway,  by  prescription,  the  use  by  the 
public  must  be  shown  to  have  been  adverse,  under  claim  of  right, 
continuous,   uninterrupted,  and  with  knowledge  of  the  owner  of 
the  estate;  and  proof  of  occasional  travel  is  not  sufficient. 
Chicago  vs.  Wilder,  240  111.  215. 

Before  title  can  be  divested  by  dedication,  the  proof  must  be 
very  satisfactory,  either  of  an  actual  intention  to  dedicate,  or  of 
such  acts  or  declarations  as  will  equitably  estop  the  owner  from 
denying  such  intention. 

The  two  prominent  elements  to  be  considered  in  determining 
whether  there  has  been  a  common  law  dedication  or  not,  are  the 
iiitention  of  the  owner  to  dedicate,  and  the  acceptance  by  the  pub- 


DEDICATION  407 

lie  of  tlie  intended  dedication.     The  land  owner  must  do  some  act, 
or  suffer  some  act  to  be  done,  from  wliich  it  can  fairly  l)e  inferred 

that  he  intended  a  ciedication  to  the  public. 

City  of  Chicago  vs.  Stinson,  124  111.  510;  Blooiiiin<,'ton  vs.  Cemetery 
Assn.,  126  Til.  221;  Kyle  vs.  Town  of  Logan,  87  111.  64;  XII  111. 
notes  71,  §  3.  >•.  ,•'!' 

—  As  to  Intent:     And  it  is  essential  that  the  proof  be  clear 

and  iineciuivocal  as  to  tlie  intention  of  the  proprietor  to  dedicate 

to  public  use. 

City  of  Chicago  vs.  Wilder,  240  111.  215. 

To  establish  a  dedication,  it  should  clearly  appear  that  the  owner 
intended  to  give  the  land  to  tlie  public.     It  is  not  enough  to  show 
that  it  is  not  intended  for  private  use.     The  particular  use  for 
which  the  land  was  intended  must  plainly  appear. 
Poole  vs.  Lake  Forest,  238  111.  305. 

—  As  to  Acceptance :  There  must  be  an  acceptance  by  the  pub- 
lic. It  may  be  express  or  implied.  When  the  dedication  is  bene- 
ficial or  greatly  convenient  or  necessary  to  the  public,  an  accep- 
tance w411  be  implied  from  slight  circumstances. 

Owen  vs.    Villuge  of  Brookport,  208  111.  35;   Wormley  vs.  Wormley, 

207  111.  411.  .  .      .       ^    ni  i.oaiiir.Kr. 

Eecognition  of  a  road  by  public  authorities  is  not  essential  to 
its  establishment  as  a  pubic  highway  by  prescription. 
Town  vs.  Gallagher,  159  111.  105. 
Public  acceptance  of  land  for  highway  purposes  is  strongly  indi- 
cated by  evidence  that  the  municipality  accepted  and  retained  the 
deed,  put  in  a  stone  culvert  with  graded  approaches,  gravelled 
and  macadamized  a  part  of  the  highway  and  cut  weeds  and  under- 
brush therefrom,  and  some  years  afterwards  accepted  a  deed  from 
another  owner  extending-  such  highway. 

Woodburn  vs.  Town  of  Sterling,  184  111.  208. 
Proof  that  alley  lymg  outside  the  limits  of  a  municipality,  but 
dedicated  to  the  pulilic,  was  traveled  for  years,  without  obstruc- 
tion, by  all  persons  going  that  way,  that  there  was  a  well  detined 
track  its  entire  length  and  that  repairs  were  made  thereon  by  the 
public  authorities,  is  sufficient  to  show  public  acceptance  of  the 
dedication. 

There  must  be  some  evidence  of  adoption  by  the  public,  such 
as  user  or  some  other  act  indicating  acceptance  by  those  authorized 
in  such  matters  to  represent  the  public.  All  the  facts  are  admis- 
sible in  evidence,  and  what  will  amount  to  an  acceptance  depends 
upon  the  circumstances  and  conditions. 

Fairbury  Agricultural  Soc.  vs.  Holly,  169  111.  9. 
To  justify  a  claim  that  land  has  been  dedicated  by  the  owner 
for  public  use,  the  proof  should  be  very  satisfactory,  either  of  an 
actual  intention  to  dedicate,  or  of  such  acts  and  declarations  as 
should  equitably  estop  the  owner  from  denying  such  intention. 

Wollcott  vs.  City  of  Chicago,  187  111.  504;  City  of  OttaAva  vs.  Yent- 
zer,  160  111.  509;  Waggeman  vs.  N.  Peoria,  155  111.  545. 

The  intent  cannot  be  a  secret  one,  but  must  be  one  which  is 
expressed  in  the  visible  conduct  and  open  acts  of  the  owner.  A 
dedication  is  not  an  act  of  omission  to  assert  a  right,  but  is  the 
^affirmative  act  of  the  donor  resulting  from  an  active  and  not  a 


408  DEDICATION 

passive  condition  of  the  owner's  mind  on  the  subject.     A  mere 

non-assertion  of  right  does  not  establish  a  dedication  unless  the 

circumstances  establish  a  purpose  or  intention  to  donate  the  use 

to  the  public. 

Stacy  vs.  Glen  Ellyn  Hotel  Co.,  223  111.  546. 

To  establish  a  common  law  dedication  of  land  for  a  highway,  it 
must  be  proven,   clearly   and  unequivocally,   that   there   was   an 
intention  to  dedicate  and  an  acceptance  by  the  public. 
Wheatfield  vs.  Grundman,  164  111.  250. 

But  where  it  is  sought  to  be  shown  that  a  road  is  a  public  high- 
way, by  proving  that  it  has  been  known  and  used  as  a  highway 
common  to  all  people,  for  the  statutory  period  of  prescription,  it 
is  unnecessary  to  show  the  original  intent  of  the  owners  of  the 

soil. 

Town  of  Madison  vs.  Gallagher,  159  111.   105. 

Estoppel: 

Where  property  is  subdivided  and  a  plat  made  thereof  which 
does  not  comply  in  every  respect  with  the  statute,  but  which  is 
recorded,  there  is  a  common  law  dedication,  and  if  the  owner  of 
lots  designated  on  such  plat  conveys  according  to  the  description 
contained  in  the  plat,  and  by  reference  thereto,  he  adopts  the 
plat  with  all  its  dedication,  and  he  and  those  who  succeed  to  his 
title  are  estopped  to  deny  such  dedication. 
Marshall  vs.  Lynch,  256  111.  522. 
A  defective  dedication  under  the  statute  may  be  such  evidence 
of  a  common  law  dedication  as  to  constitute  an  estoppel. 

Kussell  vs.  City  of  Lincoln,  200  111.  511 ;  Clark  vs.  McCormick,  174  111. 

164;    Augusta   vs.    Tyner,    197   111.    242;    Marsh   vs.    Fairbury,    163 

111.  401 ;  XII  111.  Notes  79,  §  34. 

Where  public   authorities   take    legal   steps,   upon   petition,    to 

take  a  strip  of  land  to  widen  a  street,  and  appoint  commissioners 

to  assess  damages,  etc.,  this  will  be  an  admission  that  will  estop 

them  from  claiming  a  prior  dedication. 

Town   of   Princeton   vs.  Templeton,   71   111.   68;    City  of  Chicago  vs. 

Johnson,  98  111.  618;  Mclntyre  vs.  Storey,  SO  111.  127. 

The  owner  of  land  cannot  exercise  his  statutory  right  to  vacate 

his  plat  even  though  no  lots  have  been  sold,  if  such  vacation  will 

result  in  destruction  of  valuable  intervening  public  rights  which 

he  has  created ;  and  this  is  true  whether  dedication  is  statutory  or 

common  law. 

Stevenson  vs.  Lewis,  244  111.  147. 

A  plat  showing  a  square  named  and  marked  "private"  will 

estop  a  claim  that  such  land  was  not  dedicated  to  public  use  where 

lots  are  sold  by  o^^^ler  with  reference  thereto  as  public  ground. 

Village  vs.  McLain,  210  111.  308 ;  Smith  vs.  Heath,  102  111.  130. 
In  a  prosecution  for  obstructing  an  alleged  street  by  fences, 
evidence  that  defendant,  before  building  the  fences,  went  to  the 
streets  and  alley  committee  of  the  village  and  requested  permis- 
sion to  build  a  lane  across  the  strip  of  ground,  calling  it  a  street, 
which  request  was  denied,  is  not  admissible,  as  an  estoppel  cannot 
rest  upon  what  defendant  said,  the  request  being  denied. 

People  vs.  Johnson,  237  HI.  237. 


DEEDS  409 

DEEDS 

See  Delivery,  Consideration,  Good  Faith,  Date,  Description, 
Possession,  Title,  Ejectment,  Identity,  Acknowledgments,  Am- 
biguity, Alterations  and  Erasures,  Parent  and  Child,  Husband 
and  Wife,  Fiduciary  Relations,  Forcible  Entry  and  Detainer, 
Cloud  on  Title,  Color  op  Title,  Tax  Deeds,  Lost  Instruments, 
Parol,  Best  and  Secondary. 
Admissibility : 

—  Guardian's  Deed:  Where  record  fails  to  show  that  the  guar- 
dian had  reported  the  sale  or  that  it  was  confirmed,  such  deed 
does  not  transfer  the  title  of  the  minor. 

Phelps  vs.  Nazwortby,  226  111.  254;  Musgrove  vs.  Conover,  85  111.  374; 
Young  vs.  Keougb,  11  111.  642. 

—  Master's  Deed:  W^here  a  decree  authorizes  the  making  of  a 
deed,  and  it  has  been  made,  it  is  legitimate  evidence  of  the  title. 
Order  of  confirming  sale  need  not  be  shown. 

Eetlmond  vs.  Cass,  226  111.  120 •;  Walker  vs.  Schum,  42  111.  462. 

—  Slie riff's  Deed:  Judgment,  execution  and  levy  must  be  pro- 
duced before  deed  can  be  read  as  evidence  of  title. 

Stribling  vs.  Prettyman,  57  111.  371. 
Return  of  execution  need  not  be  proven. 

Holman  vs.  Gill,  107  111.  467;  Kinney  vs.  Knoebel,  47  111.  417, 
A  sheriff's   deed,  and   a  certified   copy   thereof,   is  prima  facie 
evidence  of  the  existence,  the  issuing  and  contents  of  the  execution 
under  which  land  has  been  sold. 
Keith  vs.  Keith,  104  111.  397. 
But  when  it  becomes  necessary  to  rely  upon  a  sheriff's  deed  as 
a  link  in  chain  of  title,  the  party  is  only  required  to  produce  the 
judgment  and   execution   thereon   and   the  sheriff's   deed  for  the 
premises. 

Livingston  vs.  Moore,  252  111.  447. 

—  Tax  Dc(  d:  A  tax  deed  cannot  be  received  as  evidence  of 
paramount  title  unless  proceedings  anterior  to  execution  of  tax 
deed,  required  by  statute, — that  is,  a  judgment,  precept,  notice, 
etc.,  have  been  had. 

Glanz  vs.  Ziabek,  233  111.  22;  Met.  El.  Ey.  Co.  vs.  Esehner,  232  III. 
210;   Kepley  vs.  Scully,  185  111.  52;  Anderson  vs.  McCormiek,  129 
111.  308. 
So  one  desiring  to  avail  himself  of  effect  of  a  tax  deed  as  evi- 
dence of  title  and  not  color  of  title  merely,  should  introduce  in 
evidence  the  anterior  proceedings  on  which  same  is  founded. 
Kepley  vs.  Foulke,  187  111.  162. 

—  Foreign  Deed:  A  deed  executed  in  a  foreign  state  and 
acknowledged  before  a  notary  public  there,  the  certificate  of 
acknowledgment  being  in  due  form  under  our  statute,  and  authen- 
ticated by  the  seal  of  the  notary,  is  properly  admitted  in  evidence 
without  a  certificate  that  acknowledgment  was  in  conformity  with 
laws  of  the  foreign  state. 

Glos  vs.  Gerrity,  190  111.  545. 
Foreign  deed  acknowledged  in  conformity  with  laws  of  foreign 
state  is  admissible. 

Esker  vs.  Hefferman,  159  111.  38. 


410  DEEDS 

Proof  of  proper  acknowledgment  in  foreign  state  may  be  made 
by  introduction  of  statute  book  of  such  state. 
.'. .;.  t'l        Shooting  Club  vs.  Crosby,  181  111.  266. 

•  -^Wariunty  Deed:     A   warranty   deed  without   proof   of   pos- 
session or  title  in  the  grantor  is  not  proof  of  title  in  the  grantee.    ■ 
Godfrey   vs.    Dixon   Power   Co.,   247   111.    124;    Met.   El.   Ey.   Co.   vs. 
Eschor,  232  111.  210;  Glos  vs.  2^1iller,  213  111.  22;   Hewes  vs.  Glos, 
170  111.  436;  Doty  vs.  Burdick,  S3  111.  473;  McGowan    vs.  Glos,  258 
111.  217. 
In  ejectment  by  a  corporation  entitled  to  hold  real  estate  for 
any  purpose,  the  deeds  under  which  it  claims  title  cannot  be  denied 
admission  upon  alleged  ground  tliat  tlie  corporation  exceeded  its 
powers  in  taking  convevances. 

C.  &  A.  Ey.  Co.  vs.  Keegan,  185  111.  70. 

Execution  of  Deed: 

Certificate  of  acknowlpdcjment  is  priyaa  facie  proof  of  execution. 

Spencer  vs.  Eazor,  251  111,  278;  Sehroeder  vs.  Smith,  249  111.  574. 
The   execution  of  a   deed   cannot   l)e  proven  by   secondary  evi- 
dence unless  the  fact  of  the  loss  or  destruction  of  the  alleged  deed 
is  first  proven. 

Switzer  vs.  Homi,  254  111.  621. 
When  a  deed  is  properly  acknowledged  and  recorded,  it  is  prop- 
erly admitted  in  evidence,  without  further  proof  of  its  execution. 
McConnell  vs.  Johnson,  3  111.  522 ;  Sehroeder  vs.  Smith,  249  111.  574. 
Certified  copy  of  the  record  of  an  unacknowledged  instrument 

is  incompetent  as  evidence. 

Winter  vs.  Dibble,  251  111.  200. 

But  a  deed  which  has  been  on  record  more  than  thirty  years  is 
an  ancient  deed,  and  a  certified  copy  thereof  is  admissible  in  evi- 
dence although  the  deed  was  not  acknowledged  as  required  by  the 

law  in  force  when  it  was  executed. 

Bradley  vs.  Lightcap,  201  111.  511. 

Recording : 

Parol  evidence  is  competent  as  to  time  of  filing  of  deed. 

Cook  vs.  Hall,  6  Til.  575;  Eeed  vs.  Kemp,  16  111.  445;  JSTatthinger,  vs. 

Ware,  41  111.  245;   Tucker  vs.  Shaw,  158  111.  326;  Dowie  vs.  C.  & 

N.  W.  Ey.  Co.,  214  111.  49. 

But  parol  is  not  the  best  evidence  of  the  time  of  recording,  and 

should   not  lie  allowed  unless  the  proper   foundation  is   laid   for 

secondary  evidence. 

Harpham  vs.  Little,  59  111.  509, 

Where  a  prior  deed  is  sought  to  be  given  in  evidence  to  affect 

the  rights  claimed  under  a  subsequent   deed,   if  it  be  attempted 

to  show  by  parol  that  the  former  deed  was  recorded,  w4th  a  view 

to  notice,  the  time  of  recording  should  be  shown. 
Haipham  vs.  Little,  59  111.'  509. 

Description : 

As  between  grantor  and  grantee  and  their  privies,  parol  is  not 

admissible  to  show  descriptioi]*  written  in  deed  is  wrong. 
Duggan  vs.  Uppandahl,  197  111.  179. 

But  latent  ambiguity,  sueli  as  omission  to  refer  to  any  meridian, 

mav  be  obviated  by  proof. 

r,    '  Dougherty  vs.  Purdy.  18  111.  206. 

Or  failure  to  state  number  of  township  north, 
Clark  vs.  Powers,  45  111.  284.  '-^-i   .irniuT 


DEEDS  AS  MORTGAGE  411 

Or  omission  of  number  of  block,  in  describing  premises.  " 

Youu^-   vis.   Lorain,    11    111.    625. 

Consideration : 

Recital  in  deed  is  hearsay  and  inadmissible. 

Spohr  vs.  Citv  of  Chicago,  20G  111.  411 ;  O 'Hare  vs.  C.  M.  &  N.  Ey.  Co., 
139  111.  151. 


DEED  AS  MORTGAGE 

Presumption : 

The  law  presumes  a  deed  is  what  it  purports  to  be, — an  abso- 
lute convevanee. 

Gannon  vs.  Moles,  209  111.  180;  Williams  vs.  Williams,  ISO  111.  361; 
Cray  vs.  Hayhmst,  157  App.  4SS;  Fisber  vs.  Gieen,  142  111.  8U; 
Green  vs.  Capps,  142  111.  286. 

Burden  of  Proof: 

One  asserting  a  deed,  absolute  on  its  face,  to  be  a  mortgage  has 

the  burden  of  proof.  1 1  "l 

Deadman  vs.  Yantes,  230  111.  243;  Eankin  vs.  Eankin,  216  111.  132; 
Williams  vs.  Williams,  ISO  111.  361;  Heatou  vs.  Gaines,  198  111. 
479;  Kuowles  vs.  Knowles,  86  111.  1;  Xili  111.  Notes,  6Ul,  §  31. 

Parol  Evidence: 

Parol  evidence  is  admissible  to  show   that  a  deed  absolute  on 

its  face,  whatever  its  covenants,  was  intended  as  a  mortgage.     ,, 

Conant   vs.  Eiseborougli,   139  111.  383;   Bearss  vs.  Ford,  108  111.  16; 

Knowles  vs.  Knowles,  86  111.   1;   Herritt  vs.  Dement,  57  111.  500; 

Eeigard  vs.  McNeil,  38  111,  400;  Purvain  vs.  Holt,  8  111.  395. 

But  not  as  a  defense  in  action  of  ejectment. 

Ladd  vs.  Ladd,  252  111.  43;  Finlon  vs.  Clark,  118  111.  32. 
Parol  evidence  is  admissible  so  far  as  it  conduces  to  show  the 
relations  of  the  parties,  or  to  show  any  other  fact  or  circumstances 
of  a  nature  to  control  a  deed,  and  to  establish  such  an  equity  as 
would  give  a  right  to  redemption  and  no  further. 
Sutphen  vs.  Cushman,  35  111.  186. 
Deed  intended  as  a  mortgage  may  be  rendered  an  absolute  con- 
veyance by  parol. 

Hutchinson  vs.  Page,  246  HI.  71. 
The  kind  of  parol  evidence  properly  receivable  to  show  an  abso- 
lute deed  to  be  a  mortgage  is  that  of  facts  and  circumstances  of 
such  a  nature  as  in  a  court  of  equity  will  control  the  operation  of 
the  deed,  and  not  of  lose  declarations  of  parties,  touching  their 

intentions  and  understandings. 

Lindauer  vs.  Cummiugs,  57  ^11.  195. 
The  fact  that  land  was  conveyed  only  as  a  security  for  a  debt 
may  be  shown  by  parol  evidence,  although  a  written  defeasance 

may  be  in  existence. 

Tilson  vs.  Molten,  23  lU.  648. 
And  as  to  subsequent  purchasers,  with  knowledge  of  transaction. 

Shafer  vs.  Woodard,  28  111.   277. 
Deed  may  be  shown  to  be  a  mortgage  by  admissions  and  dec- 
laration of  grantee. 

Eeichman  vs.  Alwood,  71  111.   155. 
Or  of  a  third  person,  to  whom  the  party  to  be  charged  has 
referred  another  for  information. 

Bartoletti  vs.  Hoerner,  154  App.  336. 


412  DEFAULT 

Weight  and  Sufficiency: 

The  proof  must  be  clear,  satisfactory  and  convincing. 

Deadman  vs.  Yantis,  230  111.  243;  Eankin  vs.  Eankin,  216  111.  132; 
Heaton  vs.  Gaines,  198  111.  479;  Burgett  vs.  Osborne,  172  III.  227; 
Williams  vs.  Williams,  180  111.  361;  Bartling  vs.  Brashun,  102 
111.   441;    XIII   ill.   Notes  601,    §31. 

A  deed  is  never  held  a  mortgage  on  vague  and  uncertain  or 

doubtful  evidence. 

Blake  vs.  Taylor,  142  111.  482 ;  Smith  vs.  Cramer,  71  111.  185. 

The  burden  of  overcoming  the  presumption  that  a  deed  is  what 

it  purports  to  be  is  not  established  by  a  mere  preponderance  of  the 

evidence. 

Heaton  vs.  Gaines,  198  111.  479 ;  Martinet  vs.  Duff,  178  App.  199. 

must  appear  that  a  debt  existed  from  the  mortgagor  to  the 

mortgagee. 

Gannon  vs.  Moles,  209  111.  180;  Heaton  vs.  Gaines,  198  111.  479; 
Freer  vs.  Lake,  115  111.  662;  Eue  vs.  Dole,  107  111.  275. 

Proof  must  show  that  an  obligation  existed  between  the  parties 

to  the  deed,  which  that  instrument  was  intended  to  secure. 

Burgett    vs.    Osborne,    172    111.    227;    Bartoletti    vs.    Hoemer,    154 
App.  336. 
It  is  not  enough  to  show  merely  a  parol  agreement  to  reconvey; 
there  must  be   a   continuing  valid   indebtedness   secured   by   the 
deed,  which  may  be  enforced  by  action  at  law,  or  it  is  not  a  mort- 
gage, whatever  else  it  might  be. 

Batcheller  vs.  Batcheller,  144  111.  472. 


DEFAULT 

See  Abatement. 
Admission  by  Default: 

The  entire  cause  of  action,  except  the  amount  of  damages,  is 

admitted  by  a  default. 

Eeid  Murdock  Co.  vs.  Bank,  135  App.  49;  Phoenix  Ins.  Co.  vs.  Hed- 
rick,  73  App.  601;  Cook  vs.  Skelton,  20  111.  107. 
But  the  amount  of  damages  must  be  proven  notwithstanding  the 

default. 

Pflaff  vs.  Pac.  Ex.  Co.,  251  111.  243;  Hemington  vs.  Stevens,  26 
111.  298. 

Right  to  Introduce  Evidence  After  Default: 

Defendant  is  not  permitted  to  introduce  substantive  defense. 
Default  admits  the  material  allegations  of  the  declaration  and  the 
only  question  remaining  for  trial  is  amount  of  damages.  He  has 
right  to  cross  examine  plaintiff's  Avitnesses  on  question  of  dam- 
ages, but  not  in  support  of  special  pleas,  and  may  introduce  evi- 
dence to  reduce  amount  of  recovery. 

Pflaff  vs.   Pacific  Express  Co.,   251   111.   243;   Wolf  vs.   Powers,   241 

111.  9;  First  Natl.  Bank  vs.  Miller,  235  111.  135;  Foreman  Shoe  Co. 

vs.  Lewis,  191  111.   155;   Phoenix  Ins.  Co.  vs.  Perkey,  92  111.   164; 

Binz  vs.  Taylor,  79  111.  248;  XII  111.  Notes  48,  §  231. 

Motion  to  Set  Aside  Default: 

Counter  affidavits  are  admissible. 

Hartford  Ins.  Co.  vs.  Eossiter,  196  111.  277;  Hefferling  vs.  VanZandt, 
162  111.  162 ;  Swigart  vs.  Holmes,  96  App.  43 ;  Holliday  vs.  Tuthill, 
94  App.  424. 


DELIVERY  413 

But  court  cannot  try  inerits  of  cause  in  hoarinf?  motion  on  such 

affidavits,  but  it  is  necessary  for  the  defendant  to  show  a  defense 

prima  facie  on  the  merits. 

GiU'lirist  Trans.  Co.  vs.  N.  Grain  Co.  204  111.  510;   Mondell  vs.  Kim- 
ball, 85   111.  582. 

DEGREE  OF  PROOF 

See  Weight  and  Sufficiency,  Penalties,  Reasonable  Doubt. 

DELIVERY 

See   Account   Stated,   Acknowledgments,   Bailment,  Bonds, 
Fraudulent  Conveyances,  Gifts,  Presumptions,  Assent,  Burden 
OF  Proof. 
INTENT. 

To  make  delivery,  which  is  essential  to  the  validity  of  a  deed, 
the  grantor  must  part  with  all  dominion,  power  and  control  over 
the  deed  and  must  retain  no  rij^ht  to  reclaim  or  recall  it. 

Stevens   vs.   Stevens,   256   111.   140;    Kavanaugh   vs.   Kavanaugh,    260 
111.  179. 

The  delivery  of  a  deed  is  an  essential  part  of  its  complete  execu- 
tion and  is  almost  wholly  a  matter  of  intention.     For  the  purpose 

of  showing  intention  parol  evidence  is  admissible. 

Hathaway  vs.  Cook,  258  111.  92.  *• 

It  is  not  necessary  that  there  should  be  actual  manual  delivery 

of  the  deed. 

Prince  vs.  Prince,  258  111.  304. 

The  very  essence  of  delivery  is  the  intention  of  the  parties  and 
is  the  controlling  element. 

Hoyt  vs.  Nortlnip,  256  111.  604;  Miller  vs.  Hears,  155  111.  284;  Trubey 
vs.  Pease,  240  111.  513;  Creighton  vs.  Roe,  218  111.  619;  ShuUz  vs. 
Shultz,  159  111.  654;  XII  111.  Notes  97,  §42. 
And  the  delivery  of  a  deed  will  be  presumed  from  slight  cir- 
cumstances where  there  is  proof  of  an  intention  on  the  part  of 
the  grantor  to  convey  to  the  grantee. 
Crabtree  vs.  Crabtree,   159  111.  342. 
The  delivery  of  a  written  contract  is  not  indispensable  to  its 
binding   effect,  and  such   delivery  is  not  conclusively  proven   by 
merely  showing  the  placing  of  the  paper  by  one  of  the  alleged  con- 
tracting parties  in  the  hands  of  the  other.     Delivery  is  a  ques- 
tion of  intent  and  it  depends  upon  whether  the  parties  at  the  time 

meant  it  to  take  effect  presentlv. 
Jordan  vs.  Davis,   108  111.  336. 

The  intention  to  deliver,  on  the  one  hand,  and  of  acceptance, 

on  the  other,  may  be  shown  by  direct  evidence  of  the  intention, 

or  may  be  presumed  from  acts  and  declarations  or  both  acts  and 

declarations,  of  the  parties,  constituting  part  of  res  gestae,  which 

manifest  such  intention.     In  like  manner,  the  presumption  of  a 

delivery  may  be   rebutted  or  overcome   by  proof  of  a   contrary 

intention,  or  of  the  acts  and  declarations  from  which  the  contrary 

presumption  arises. 

Price  vs.  Hudson,  125  111.  284. 


414  DELIVERY 

In  ease  of  a  voluntary  conveyanee,  the  retention  of  the  deed 
in  the  possession  of  the  grantor  will  not  destroy  its  etfeet  as  a  deed, 
unless  there  are  circumstances  showing  it  was  not  intended  to  be 
absolute  and  to  operate  as  a  present  conveyance. 

Ployt  vs.  Northup,  256  111.  604. 
For  the  purpose  of  showing  intention  parol  evidence  is  admis- 
sible. Where  a  deed  has  been  actually  delivered  to  the  grantee  in 
the  life  time  of  the  grantor,  even  though  it  contains  a  provision 
that  it  is  not  to  take  effect  until  the  grantor's  death  it  will  be  sus- 
tained  as  a  present  grant  of  a  future  interest. 

Hathaway  vs.  Cook,  258  111.  92;  Noble  vs.  Fickes,  230  111.  594; 
Rliackleton  vs.  Sebree,  86  111.  616. 

PRESUMPTION. 
Deeds : 

—  Possession:  Where  a  deed  duly  executed  is  found  in  the  pos- 
session of  the  grantee  named  therein,  it  is  presumed  to  have  been 
properly  delivered. 

"Hathaway  ys.  Cook,  258  111.  92;  Schroeder  vs.  Smith,  249  111.  574; 
Iniiiau  vs.  Svvearingeii,  198  111.  437;  Diinlop  vs.  Laml),  182  111.  319; 
McCanii  vs.  Atherton,  106  111.  31. 

And  presumption  prevails  though  the  parties  to  the  instrument 
were  in  the  lifetime  of  the  grantor,  members  of  the  same  family. 

Schroeder  vs.  Smith,  249  111.  575;  Inman  vs.  Swearingen,  198  HI. 
437;   Lines  vs.  Willey,  253  111.  440. 

Where  deed  is  found  in  the  possession  of  grantee  after  death 
of  grantor  delivery  is  presumed  in  absence  of  evidence  to  the 
contrary.  ;r'!i (If; fff  ff^rttni;  -.rl  f,lii 

Brock  vs.  Stines,  258  111.  346;  Blake  vs.  Ogden,  223  111.  204. 

—  Recording:  The  execution  and  recording  of  a  deed  raises 
the  presumption  in  law  that  the  grantor  intended  to  divest  himself 
of  title,  and  unless  such  presumption  is  rebutted  it  must  be  held 

the  deed  was  delivered. 

Spencer  vs.  Eazor,  251  111.  278;  Brady  vs.  Huber,  197  111.  291; 
Harshbarger  vs.  Carroll,  163  111.  636;  Heimes  vs.  Keighblinger,  14 
HI.  469. 

And  is  prima  facie  evidence  of  delivery. 

Konser  vs.  Konser,  219  111.  466;  Calkins  vs.  Calkins,  220  111.  111. 

And  this  although  grantor  retained  possession  of  the  deed,  where 

grantee  is  infant  son  of  grantor. 

Decker  vs.  Stansberry,  249  111.  487. 
But  such  presumption  is  not  conclusive  and  may  be  rebutted. 

Hathaway  vs.  Cook,  258  111.  92;  Wilenou  vs.  Ha'nlon,  207  111.  104; 
Clark  vs.  Harper,  215  111.  24;  Warron  vs.  Jacksonville,  15  111.  236; 
Ackman  vs.  Potter,  239  111.  578. 

—  Voluntary  Settlements:  The  presumption  in  favor  of  deliv- 
ery of  a  deed  in  case  of  a  voluntary  settlement  is  stronger  than  in 

ordinary  bargain  and  sale. 

Prince  vs.  Prince,  258  111.  304;  Weigran  vs.  Eutschke,  253  111.  260; 
Eiegel  vs.  Riegel,  243  111.  626;  Ward  vs.  Conklin.  232  111.  553;  Kirk- 
wood  vs.  Smith,  212  111.  395;  XII  111.  Notes  113,  §  176. 

And  this  is  especiallv  true  where  the  grantee  is  an  infant. 

Thurston  vs.  Tiibbs,  257  111.  465;  Decker  vs.  Stansberry,  249  111.  487; 
Baker  vs.  Hall,  214  111.  364;  Schultz  vs.  Schultz,"  159  111.  654; 
Blankeriship  vs.  Hall,  233  111.  116. 

—  Date  of  Delivery:  In  absence  of  evidence  to  contrary,  pre- 
sumption is  that  a  deed  is  delivered  on  day  of  its  date,  and  fact 


DELIVERY  415 

that  acknowledgment  bears  a  later  date  does  not  rebut  the  pre- 
sumption. 

Kcdman  vs.  C:iss,  f226  111.  120;  Walker  vs.  Doane,  131  111.  27;  Stuart 
vs.  Dutton,  o!)  HI.  91;  Jayne  vs.  Gregg,  42  111.  413. 

But  such  presumption  is  not  conclusive  and  may  be  overcome  by 

proof. 

Whitman  vs.  Henneberry,  73  111.  1(>9.     (See  Acknowledgments.) 

Letters : 

(See  Letters.) 
Personal  Property  as  Payment: 

AVliore  there  is  an  agreement  to  pay  a  certain  sum  by  the  deliv- 
ery of  specified  articles  of  personal  property,  but  no  date  for 
delivery  is  fixed,  the  law  will  presume  delivery  to  be  made  on 
demand  or  within  a  reasonable  time. 
McKinnie  vs.  Lane,  230  111.  544. 
And  a  failure  to  deliver  as  agreed  converts  the  transaction  into 
a  money  obligation. 

Slaiiter  vs.  Wallbaum,  45  111.  44. 

Date  of  Contract: 

The  presumption  is  that  contract  was  delivered  on  the  day  of  its 
date,  and  burden  is  upon  party  alleging  contrary. 
City  of  Paxton  vs.   Bogardus,  201  111.  628. 

PAROL  EVIDENCE. 
Conditional  Delivery: 

—  In  General:  While  it  may  be  shown  that  a  deed  or  contract 
is  not  to  be  delivered  until  a  condition  is  performed,  yet  it  cannot 
be  shown  by  parol  that  actual  delivery  was  made  under  an  agree- 
ment that  a  condition  should  be  performed,  and  that  the  contract 
or  deed  should  not  be  operative  unless  it  was  performed.  In  the 
one  case,  the  purpose  of  the  proof  is  to  show  want  of  legal  deliv- 
ery, but  in  the  other  case,  the  eifect  of  the  proof  is  to  contradict 
an  instrument  absolute  on  its  face,  by  showing,  contrary  to  its 
terms,  that  it  was  not  absolute  but  conditional. 

Eyau  vs.  Cook,  172  111.  302;  Eyan  vs.  McArdle,  159  App.  579. 

—  Contracts:  If  a  contract  is  delivered  to  the  obligee  or  his 
agent,  and  not  to  a  stranger,  it  is  absolute,  and  parol  evidence  of 
conditions  qualifying  the  delivery  or  its  operation  is  inadmissible. 

Baiim  vs.  Parkhiirst,  26  App. ^128;  Haven  vs.  Chi.  S.  D.  Co.,  96  App, 

92;  Chi.  Steel  Co.  vs.  Clark,  87  App.  658. 

Though  parol  evdence  is  not  admissible  to  vary  the  terms  of  a 

wrtten  contract,  yet  such  evidence  is  always  competent  to  shov/ 

that  by  reason  of  the  circumstances  under  which  the  instrument 

was  executed,  it  did  not  take  effect. 

Bellville  Sav.  Bank  vs.  Bowman,  124  111.  200;  Biederman  vs.  O 'Conner, 
117   111.   493;    Hartley  vs.   Gilhofer,   109   App.   527;    Demesney  vs. 
Gravelin,  56  111.  93.  ' 
Possession  of  a  written  agreement  by  a  party  thereto,  after  its 
execution  by  the  other  party,  raises  presumption  of  delivery. 
Diinlop  vs.  Lamb,  182  111.  319. 

But  is  not  conclusive. 

Biederman  vs.  O 'Conner,  117  111.  493. 

—  Deed:     Where   an   actual   delivery   of  a   deed  is  made  to  a 


416  DEMA^TO 

grantee  or  his  agent,  parol  evidence  is  inadmissible  to  show  that 

delivery  was  in  escrow. 

Clark   vs.   Harper,   215   111.   24;    Fletcher   vs.   Shepard,   174   111.   262; 
Baker  vs.   Baker,   1.59   111.   394;    Weber  vs.   Christen,   121   111.   91; 
Stevenson  vs.  Crapnell,  114  111.  19;  McCann  vs.  Atherton,  106  111.  31. 
If  there  was  a  delivery  in  escrow  upon  conditions  which  were 
subsequently  performed,  jjurden  is  upon  grantee  to  sliow  what  con- 
ditions were  and  their  performance. 

Kavaiiaiigh  vs.  Kavaiiaugh,  260  111.  179. 

Conditions  of  delivery  in  escrow  may  be  shown  by  parol, 
Osby  vs.  Eeynolds,  260  111.  576. 

—  Bond:  It  cannot  be  shown  by  parol  that  a  bond  was  deliv- 
ery to  a  principal  on  condition  that  another  signs  as  co-surety 
before  delivery  to  obligee,  if  fact  was  unknown  to  such  obligee. 

Comstock  vs.  Gage,  91  111.  329;  Smith  vs.  Peoria  Co.,  59  111.  412;  Chi. 
Pressed  Steel  Co.  vs.  Clark,  87  App.  658. 

—  Negotiable  Instrument:  Delivery  of,  between  parties  other 
than  holder  in  due  course,  may  be  shown  by  parol  to  have  been 

conditional. 

Straus  vs.  Citizens  State  Bank,  164  App.  420. 

OPINIONS  OF  WITNESSES. 

Whether  an  instrument  was  delivered  or  not,  is  a  question  of 

fact,  and  the  statements  of  a  witness  that  it  was,  is  a  mere  legal 

conclusion,  and  therefore,  incompetent. 
Burnal  vs.  Sharpsteen,  149  111.  225. 

DEMAND 

See  Bailments,  Confusion  of  Goods,  Forcible  Entry  and 
Detainer,  Replevin,  Trover  and  Conversion. 

DEMONSTRATIVE  EVIDENCE 

:,  i  See  Exhibition  of  Injury,  Experiments,  View^  by  Jury,  Phys- 
ical Examination,  Photographs,  Magnifying  Glass,  Diagrams^ 
Plats,  Illegally  Obtained  Evidence. 
In  General: 

Exhibits  for  inspection  of  jury  are  within  discretion  of  trial 
court,  which  will  not  be  interfered  with  unless  abused. 

In  many  cases  the  exhibition  of  physical  objects  may  explain 
and  illustrate  better  than  anything  else  the  occurrence  under  in- 
vestigation, in  others,  they  may  only  tend  to  mislead  and  confuse. 
Zipkie  vs.  City  of  Chicago,  117  App.  418. 

It  is  common  practice,  justified  by  judicial  decisions,  to  dis- 
play before  the  jury,  and  to  formally  introduce  in  evidence,  phys- 
ical objects  which  form  a  part  of  or  serve  to  illustrate  the  trans- 
actions on  occurrence  which  is  the  subject  of  investigation.  Evi- 
dence of  this  character  is  frequently  resorted  to,  both  in  civil  and 
criminal  cases,  and  the  propriety  of  its  use  cannot  be  successfully 

called  into  question. 

Painter  vs.  People,  147  111.  444. 
In  criminal  cases  exhibits  are  not  admissible,  unless  instruments 
of  crime,  or  have  tendency  to  prove  controverted  fact. 

People  vs.   Arnold,   248  111.   169. 


DEMONSTRATIVE  EVIDENCE  417 

If  the  manner  in  which  plaintiflf  was  injured,  or  the  nature  or 
character  of  tlie  injury  can  better  be  explained  by  the  production 
of  physical  objects,  such  evidence  may  be  admitted. 
Tudor  Iron   Works,   vs.   Weber,   129   111.   535. 
Jury  may  take  exhibits  ui)on  retirement. 
McCoy  vs.   People,   175  111.  224. 

Preliminary  Proof: 
An  article  involved  in  a  certain  transaction  must  be  identified. 

Quini-y  G.  &  E.  Co.  vs.  Bauiiian,  203  111.  295;  Marzen  vs.  People,  173 
111.  43;  Painter  vs.  People.  147  111.  444;  VonReeden  vs.  Evans,  52 
App.  209;  Yates  vs.  People,  38  111.  527;  Chicago  Trans.  Co.  vs. 
Korando,  129  A})p.  620. 

Admissibility  Generally : 

—  In   General:     Adniissil)le  in  chief. 

Henry  vs.  People,  198  111.  162;  Painter  vs.  People,  147  111.  444; 
Tudor  Iron  Works  vs.  Weber,  129  111.  535. 

—  Ancillary:  Physician  testifying  as  to  injury  to  plaintiff's 
ankle  may  use  skeleton  of  human  foot  in  explaining  anatomy  of 
the  foot  to  the  jury. 

C.  &  A.  R.  R.  Co.  vs.  Walker,  217  111.  605. 
Model  of  locomotive  engine  admissible. 

I.  C.  R,  R.  Co.  vs.  Bereus,  208  111.  20. 
IModel  of  coal  hoist. 

Penn.  Co.  vs.  Kelly,  156  111.  9. 

—  Particular  Instances:  Revolver  and  bullet  in  prosecution  for 
homicide. 

McCoy  vs.  People,  175  111.  224. 
And  in  civil  action  for  negligent  killing. 

Foster  vs.  Shepard,  164  App.  199. 
Torn  clothing  worn  by  party  at  time  of  inquiry. 

Quincy  G.  &  E.  Co.  vs.  Bauman,  203  111.  395;   Tudor  Iron  Works  vs. 
Weber,  129  111.  535;  Trans.  Co.  vs.  Korando,  129  App.  620. 
Clothing  showing  blood  stains. 

People  vs.  Morris,  254  111.  559;  Painter  vs.  People,  147  111.  444. 
Or  burned  by  powder. 

Henry  vs.  People,  198  111.  168. 
Bed  in  room  where  person  was  murdered,  and  mattress,  sheets 
and  other  bed  clothing  pertaining  thereto. 
Painter  vs.  People,  147  111.  444. 
Buggy  in  which  deceased  was  shot, — to  enable  witness  to  explain 
position  of  deceased,  position  of  accused,  range  of  shot  which  passed 
through  deceased  and  lodged  in  back  cushion. 
Henry  vs.  People,   19^8  111.  162. 

Buggy  alleged  to  have  been  stolen  and  appearance  altered. 

Miller  vs.  People,  229  111.  376. 
Vial  and  poison. 

Siebert  vs.  People,  143  111.  571. 

Burglar's  tools  found  upon  accused.     (Trial  for  burglary.) 
Williams  vs.  People,  196  111.  173. 

Roll  of  paper  sulistituted  for  money,  on  trial  for  larceny. 

Keating  vs.  People,  160  111.  480. 
Part  of  chair  with  which  assault  was  made. 

VonReeden  vs.  Evans,  52  App.  229. 
Eye  and  piece  of  skull  which  had  been  removed. 

Seltzer  vs.  Saxton,  71  App.  229. 

Farm  gate. 

Goodrich  vs.  C.  G.  &  W.  Ry.  Co.,  148  App.  579. 
EV.— 27 


418  ;    DEMURRER  TO  EVIDENCE^ 

Bombs.    .[?  •■(-, 

Spies  vs.  People,   122  111.  1, 
Plaster  casts  worn  after  injury. 

Village  of  Gardner  vs.  Paulsen,  117  App,   17. 
Imitation  diamond  rings  substituted  for  real  diamond  ring  alleged 
to  have  l)een  stolen. 

Gindrat  vs.  People,  138  III.  103.  : 

Brass  couplings  for  purpose  of  identification  and  proving  kind 
of  property  stolen. 

Jupitz  vs.  People,  34  111.  516. 
Door  with  hook  or  screw  for  purpose  of  illustrating  whether 
person  could  commit  suicide  by  hanging. 
Juniperts  vs.  People,  21  111.  375. 
Can  of  yeast  similar  to  that  shipped,  in  action  against  carrier 
for  loss  by  breaking  or  puncturing  can. 

Amer.  Express  Co.  vs.  Spillman,  90  111.  455. 

Improper  to  introduce  child  in  bastardy  case  to  show  resemblance 
between  it  and  defendant. 

Eobnett  vs.  People.  16  App.  299 ;  Morrison  vs.  People,  52  App.  482. 

Profert  of  person  not  admissible  on  question  of  age. 

People  vs.  Davidson,  240  111.  191;  Wistrand  vs.  People,  213  111.  72; 
Porter  vs.  People,  158  111.  370. 

Except  in  civil  cases. 

Houston  vs.  Quinn,  168  App.  593. 

Objections: 

It  is  no  objection  to  demonstrative  evidence  that  its  use  is  cal- 
culated to  excite  sympathy. or  passions  or  prejudice  the  jury. 

Seltzer  \s.  Saxton,  7l'App.  229;  YonEeeden  vs.  Evans,  52  App."  209. 


DEMURRER  TO  EVIDENCE 

See  Directing  Verdict. 
Must  Be  in  Writing: 

A  dcnuirrer  to  the  evidence  must  be  in  writing  and  set  out  par- 
ticularly the  facts  which  the  evidence  fairly  tends  to  prove,  and 
not  the  evidence  which  tends  to  prove  the  facts,  and  admitting  the 
facts  leaves  the  court  nothing  to  do  but  apply  the  law  to  them. 

Eockhill  vs.  Congress  Hotel  Co.,  237  111.  98;  Landt  vs.  McCollough, 
218  111.  607;  Crowe  vs.  People,  92  111.  231;  Creach  vs.  Taylor, 
3  111.  277. 

Wliat  It  Admits: 
Admits  not  only  all  the  plaintiff's  testimony  has  proved,  but  all 

that  it  tends  to  prove. 

Pent  vs.  T.  P.  &  W.  Ey.  Co.,  59  111.  349;  Heidrick  vs.  Heidrick,  18 
App.   142. 
But  does  not  admit  forced  and  violent  conclusions,  but  the  tes- 
timony must  be  taken  most  strongly  against  him. 
Pliillips  vs.  Dickersou,  85  111.  11. 

Joinder : 

In  order  to  authorize  the  court  to  take  a  case  from  the  jury  by 
demurrer  to  the  evidence,  all  the  facts  which  the  evidence  tends 
to  prove  must  be  admitted  by  the  demurrer  specifically.  It  will 
not  do  to  demur  to  the  evidence  generally,  and  then  submit  the 
same  to  the  court  to  sift  out  and  see  what  facts  the  evidence  tends 


DENIAL  OF  EXECUTIOxN  419 

to  prove.  AMiere  the  e'vidence  is  nneortnin,  it  is  for  tlio  court  to 
tleterinine  tlie  sufficiency  of  the  demurrer,  as  to  whether  or  not  it 
admits  all  the  facts  which  the  evidence  tends  to  prove,  and  if  in 
the  judgmejit  of  the  court  it  does  so,  the  plaintiff  will  be  required 
to  join  in  the  demurrer,  which,  if  he  refuses  to  do,  judf^ment  will 
go  for  defendant.  When  demurrer  is  joined,  the  admission  of 
facts  therein  contained  operates  as  a  special  verdict  of  the  jury, 
upon  which  the  court  gives  judgment  according  to  the  law  of  the 

CclSG 

I.  &  St.  L.  K.  K.  Co.  vs.  Liuk,  10  App.  29'2'.  ' 


DENIAL  OF  EXECUTION  C 

See  Corporations,  Seals. 
Issues  Raised: 

— 1)1  General:  The  plea  of  )ion  est  factum,  verified,  without 
any  other  plea,  admits  all  allegations  of  declaration  except  execu- 
tion of  instrument. 

Eudesill  vs.  Jefferson  Co.,  85  111.  4-1(3;  Strong  vs.  Hastcrlik,  146  App. 
346;  Landt  vs.  MeCnllough,  130  App.  515;  Oberne  vs.  Gaylord,  13 
App.  30;  Sugden  vs.  Beasley,  9  App.  71. 

In  chancery,  verified  denial  of  execution  raises  no  other  defense. 
Proof  that  president  and  secretary  of  a  corporation  actually  exe- 
cuted bonds  establishes  a  prima  facie  case,  notwithstanding  denial. 
MeCormick  vs.  Unity  Co.,  239  111.  307. 

—  Guarautij  of  Promissorij  Note:  AVhere  execution  of  guar- 
anty is  denied  by  plea  properly  verified,  burden  of  proof  is  upon 
plaintiff,  not  only  to  establish  the  signature  appearing  on  back  of 
note,  as  that  of  defendant,  but  that  the  guaranty  was  on  note 
before  he  indorsed  it,  or  he  authorized  it  to  be  placed  thereon. 

Hinsey  vs.  Studebaker  l\Ifg.  Co.,  73  App.  278. 

—  Covenant  on  Lease:  In  action  on  a  lease,  a  plea  of  non  est 
factum  only  puts  in  issue  the  execution  of  th.e  lease,  and  does  not 
deny  the  alleged  breach  or  set  up  any  other  matter  in  defense. 

Goldstein  vs.   Eeynolds,   190   111.   124.  ,..    r  ^ 

—  Delivery:  Plea  of  non  est  factum  puts  in  issue  signing  aiid 
delivery  of  instrument. 

Cully  vs.  People,  73  App.  501 ;  Hunt  vs.  Wier,  29  111.  83. 

—  Authority  of  Agent:    And  if  executed  bv  agent,  his  authority. 

City  of  Chicago  vs.  English,  ISO  111.  476;  Chi.  Eleo.  Co.  vs.  Hutchin- 
son, 25  App.  476. 

Where  an  instrument  is  executed  by  an  agent,  the  plea  of  non  est 
factum  puts  in  issue  the  authority  of  the  agent  to  do  the  act,  and 
if  a  municipal  corporation  can  only  execute  an  instrument  in  a 
certain  form,  it  puts  in  issue  whether  it  was  executed  in  such  legal 
form ;  but  if  the  proof  shows  the  execution  of  the  instrument  by  the 
parties,  the  power  to  make  it  cannot  be  questioned  under  the  plea, 
and  any  defense  which  would  make  it  void  or  voidable  must  be 
specially  pleaded. 

"  City  of  Chicago  vs.  English,  180  111.  476. 

—  Where  Instrument  Not  Set  Out:  Where  declaration  in 
assumpsit  contains  general  common  counts  and  one  count  on  spe- 


420  DExNIAL  OP  EXECUTION 

cial  promise  to  pay  money,  but  no  document'  is  set  out  or  described 
in  either  count,  proof  of  execution  of  documents,  not  promissory 
note,   introduced  in   evidence  by  plaintiff,   is  not   dispensed  with 
though  defendant  does  not  deny  such  execution  on  oath. 
Smcntek  vs.  Cornhauser,  17  App.  266. 

—  Foreclosure:  Proof  of  execution  of  note  is  not  necessary  on 
foreclosure,  in  absence  of  sworn  answer  denying  execution. 

Dean  vs.  Ford,   180  111.  309. 
Where  defendant  neither  denied  under  oath  upon  witness  stand 
or  in  any  answer  or  pleading  the  execution  of  an  extension  agree- 
ment or  of  the  two  notes  made  in  pursuance  thereof,   it  is  not 
necessary  to  prove  their  execution  on  a  foreclosure. 

Bourke  vs.  Hefter,  104  App.  126. 

The  Affidavit:  i 

—  Who  Should  Make:  The  affidavit  required,  in  order  to  put 
plaintiff  upon  proof  of  the  execution  of  a  written  instrument,  must 
be  made  by  defendant  charged  with  the  execution  of  same,  and 
cannot  be  made  by  his  agent. 

The  proviso  permitting  a  denial  of  execution  of  a  written  instru- 
ment on  information  and  belief,  where  the  party  making  the 
denial  is  not  the  one  charged  with  the  execution  of  the  instrument, 

does  not  authorize  an  affidavit  by  a  stranger  to  the  record. 
Warman  vs.  Bank,  185  111.  60;  Davis  vs.  Searritt,  17  111.  202. 

A  person  alleged  to  have  executed  an  instrument  relied  upon  as 
a  defense  is  the  proper  person  to  deny  an  execution  by  affidavit. 
Hartje  vs.  Keeles,  133  App.  461. 

Affidavit  of  one  defendant  denying  execution  of  instrument 
sued  on  makes  proof  thereof  necessary  as  to  him  but  not  as  to 
other  defendants. 

Davis  vs.  Searritt,  17  111.  202;  Warman  vs.  Natl.  Bank,  18.5  III.  60. 

—  ^Vhen  Filed:  Court  may  permit,  in  its  discretion,  the  filing 
of  verified  denial  after  plaintiff  has  closed  his  case. 

Cummings  vs.  Sobey,  164  App.  444. 

—  As  Evidence:    The  affidavit  is  not  evidence,  but  merely  puts 

plaintiff  to  proof,  and  cannot  be  considered. 

Hunter  vs.  Harris,  131  111.  482;  Walter  vs.  School  Trustees,  12  111.  63. 

Admissibility  of  Evidence: 

—  In   General:     Execution   of   instrument   can   only   be   denied 

by  plea  of  non  est  factum  or  non  assumpsit  verified. 

Bailey  vs.  Valley  Natl.  Bank,  127  111.  332;  Gaddy  vs.  McCleave,  59 
111.  182;  Chi.  Elec.  E.  Co.  vs.  Hutohins,  25  App.  476. 

Notice  of  denial,  though  verified,  is  insufficient. 

Bailey  vs.  Valley  Natl.  Bank,  127  111.  332. 
General  issue  not  verified  does  not  put  in  issue  allegation  in  dec- 
laration that  contract  was  made  by  defendant. 

Catholic  Press  Co.  vs.  Ball,  69  App.  591. 

Verified  plea  of  general  denial  may  be  waived  by  stipulation. 
S.  V.  Bank  vs.  D.  N.  Bank,  58  App.  306. 

—  Authority  of  Corporate  Officers:  A  verified  plea  is  essential 
to  the  right  to  deny  authority  of  the  president  of  a  corporation 
to  execute  an  instrument  in  name  of  corporation. 

Firemens  Ins.  Co.  vs.  Barnisoh,  161  111.  629;  Eiehlieu  Hotel  Co.  vs. 
Mil.  Enc.  Co.,  140  111.  248;  Kennedy  vs.  Supreme  Lodge,  124 
App.  55. 


DENIAL  OF  EXECUTION  421 

—  Alteration:  Of  note  cannot  lie  proven  without  sworn  plea 
denying  execution. 

Eicharilson  vs.  Mather,  178  111.  449;   Affg.,  77  App.  62(5;   Dewey  vs. 
Warriner,  71  111.  liKS. 

Evidence   cannot   be   admitted   to   prove   that   a   provision   was 

fraudulently  omitted  from  an  order,  in  absence  of  verification. 
Aiiltinan  vs.  Henderson,  32  App.  331. 

—  Personal  Obligation:  A  defendant  may,  without  tiling  a 
sworn  plea,  deny  that  a  note,  the  signing  of  which  he  admits,  con- 
stitutes his  personal  obligation. 

Frankland  vs.  Johnson,  147  111.  520. 

In  suit  on  contract  by  one  as  "agent,"  such  execution  must  be 
proven,  although  not  denied  by  sworn  plea. 
Gray  vs.  Gilliam,  15  111.  454, 

—  Policy  of  I)isuranc€:  If  execution  is  not  denied  on  oath,  is 
admissible  in  evidence  without  proof  of  execution. 

Firemens  Ins.  Co.  vs.   Baruseh,  161  111.   629;    111.   Ins.   Co.   vs.  Mar- 
seilles Mfg.   Co.,   6  111.   236. 

—  Lease:  Execution  of  lease  cannot  be  denied  in  action  for  rent 
accruing  thereunder  where  copy  thereof  is  attached  to  declaration, 

unless  general  issue  is  verified. 

City  of  Chicago  vs.  Peck,  98  App.  434. 
In  action  on  lease  and  assignment  thereof,  if  defendant  has  filed 
no  affidavit  denying  their  execution,  such  instruments  are  admis- 
sible in  evidence  without  proof  of  execution. 

Schufeldt  vs.  Henderson,  26  App.  593;   Eeed  vs.  Phillips,  5  111.  40. 

—  Bonds:  Execution  of  appeal  bond  must  be  proven  by  plain- 
tiff suing  thereon,  when  execution  has  been  denied  by  veritied  plea. 

Bonner  vs.  Ames,  82  App.   93. 

And  such  proof  is  not  waived  by  failure  to  object  to  instrument 

sued  on,  when  denied  by  verified  plea. 
Carlson  vs.  Gilbert,  99  App.   575. 

The  execution  of  a  bond  cannot  be  denied  in  absence  of  plea  of 
non  est  factum  verified. 

Oberreich    vs.    Foster,    152    App.    302;    People    vs.    Ackerman,    146 
App.  301. 

AYhen  on  action  of  debt  on  replevin  bond,  the  bond  is  stated  in 
legal  effect  in  the  declaration,  it  is  not  necessary  to  prove  its  execu- 
tion unless  it  has  been  denied  by  plea  verified  by  affidavit. 

Homer  vs.  Boyden,  27  App.  573;  Fleet  vs.  Hertz,  98  App.  564. 

Preponderance  Sufficient : 

Upon  a  plea  of  non  est  factum  verified  by  affidavit  in  court  of 
record,  the  issue  is  to  be  found  according  to  the  preponderance  of 
the  evidence.  If  plaintiff  fails  to  prove  the  execution  of  the 
instruments,  or  its  adoption  by  defendant,  by  a  preponderance 
of  the  evidence,  defendant  is  entitled  to  verdict,  though  testimony 

fends  to  show  a  forgery. 

Wolverton  vs.  Sunmer,  53  App.  115. 
Proof   required   of   execution    of   instrument,    the    execution   of 
which  has  been  denied  by  verified  plea,  is  only  such  as  will  be  suf- 
ficient, if  uncontradicted,  to  satisfy  reasonable  minds  of  such  exe- 
cution. 

Ingram  vs.  Eeeman,  81  App.  123, 


422  DEPOSITIONS 

DEPOSITIONS 

Who  May  Take: 

—  Notaru  Public:    Depositions  in  all  cases  may  be  taken  before 

a  notary  public.  ' 

T.  W.  &  W.  Ry.  Co.  vs.  Baddeley,  54  111.  19. 
And   when   the   notary   named   in   the   certificate   certifies    that 
"each  of  said  depositions  was  so  taken  by  me,"  there  can  be  no 
presumption  that  any  of  the  depositions  were  taken  by  any  other 

than  such  notary. 

Behrensmeyer  vs.  Kreitz,  135  111.  591. 

—  Disinterested  Person:  A  commission  to  take  depositions  may 
issue  to  any  disinterested  person  to  take  the  deposition  as  commis- 
sioner, and  such  person  may  be  designated  by  the  name  of  the 
office  which  he  holds  as  well  as  by  his  proper  name. 

Brown  vs.  Lehrs,  79  111.  575. 

—  Naming  Commissioner:  A  commission  to  take  depositions  may 
specifically  name  any  competent,  disinterested  person,  or  it  may 
designate  generally  any  judge,  master  in  chancery,  .justice  of  the 
peace,  notary  public,  or  it  may  designate  a  particular  person,  or 
any  judge,  master  in  chancery,  notary  public  or  justice  of  the 
peace,  etc.  In  whatever  form  the  commission  runs,  it  can  only 
be  executed  by  the  commissioner  named  in  the  commission  or  desig- 
nated therein.  He  must  be  a  person  expressly  named  in  the  com- 
mission, or  he  must  be  of  a  class  expressly  designated  therein.  He 
gets  his  power  to  act  from  the  commission,  and  must  be  embraced 

in  the  language. 

Savings  Ins.  Co.  vs.  Cannon,  103  App.  534. 
A  commission  to  take  depositions  may  be  directed  to  any  disin- 
terested person,  whether  he  holds  an  office  or  not,  and  in  either 
case,    he    derives    authority    from   the    commission    and    no    other 
authority  need  be  shown. 

Temby  vs.  Brunt  Pottery  Co.,  229  111.  540. 
Where  a  commission  is  directed  to  a  person  by  name  to  take 
a  deposition,  he  derives  his  authority  from  the  appointment  which 
carries  with  it  all  the  powers  necessary  to  execute  the  commission, 
including  the  power  to  administer  oaths  to  witnesses  and  his  official 
capacity  is  immaterial.     A  deposition  taken  by  a  foreign  notary 
public  is  admissible  without  proof  of  foreign  law  authorizing  a 
notary  public  to  administer  oaths,  where  the  commission  to  take 
depositions  is  directed  to  him  by  name. 
Tompkins  vs.  Tompkins,  257  111.  557. 
General  direction  of  commission  to  any  judge,  master  in  chan- 
cery, notary  public  or  justice  of  the  peace  of  the  county  in  which 
witness  resides  is  sufficient. 

Bracket  vs.  Nikirk,  20  App.  525. 
Upon  death  of  magistrate,  deposition  may  be  taken  beforje  another 
Phelps  vs.   Young,   1   111.   327. 

Caption  and  Certificate: 

—  Character  of  Officer  Certifying:  The  proviso  requiring  that  a 
deposition  taken  before  a  foreign  officer  shall  be  "accompanied"  by 
a  certificate  of  his  official  character,  contemplates  merely  that  the 


DEPOSITIONS  423 

official   cliaraeter  of  such   officer  shall    be   established  before   the 

deposition  is  read  in  evidence. 

Scott  vs.  Bassett,  186  111.  98;  Bishop  vs.  Hilliard,  227  111.  382, 

—  Form:  The  statute  has  fixed  no  form  for  either  the  caption 
or  certificate  to  be  attached  to  depositions.  If  they  are  taken  and 
certified  in  substantial  compliance  with  the  requirements  of  the 
statute,  they  will  not  be  suppressed  on  merely  technical  objections. 

The  fact  that  depositions  were  typewritten  does  not  show  that 
they  were  not  "reduced  to  writing,"  as  required  by  the  statute. 
And  when  the  notary  named  in  the  notice  certifies  that  "each  of 
said  depositions  were  so  taken  by  me,"  etc.,  there  can  be  no  pre- 
sumption that  any  of  the  depositions  were  taken  by  another  than 

such  notary. 

Behrensmeyer  vs.  Kreitz,  135  111.  591. 

—  Waiver  of  Issuance  of  Commission:  A  party  who  receives 
notice  that  depositions  will  be  taken  in  the  case,  and  who  appears 
at  the  times  and  places  designated  and  cross  examines  witnesses 
without  objection  that  a  commission  has  issued,  waives  the  issu- 
ance of  such  commission. 

Bishop  vs.  Hilliard,  227  111.  382. 

—  Time  of  Taking:  Although  the  certificate  of  the  magistrate 
before  whom  a  deposition  is  taken  does  not  state  at  what  hour  the 
deposition  was  taken,  yet  if  he  appends  the  notice  under  which  it 
was  taken,  and  in  the  caption  of  the  deposition  states  that  such 
deposition  was  taken  on  the  day  fixed  in  the  notice,  "by  virtue  of 
the  annexed  notice,"  and  in  his  certificate  states  that  "it  was 
taken  at  the  time  and  place  mentioned  in  the  caption,"  this  will 
be  a  sufficient  statement  of  the  hour  to  entitle  the  deposition  to  be 

read  in  evidence. 

I.  C.  E.  E.  Co.  vs.  Cowles,  32  111.  116. 
Certificate  need  not  state  time  and  place  of  taking. 
Phelps  vs.  Young,  1  111.   327. 

—  Swearing  Witness:    It  is  not  ground  for  sustaining  objection 

to  deposition  that  certificate  of  officer  failed  to  state  witness  was 

sworn. 

County  of  Greene  vs.  Bledsoe,  12  111.  267. 

—  Certificate  of  Identity:  Where  a  commission  is  issued  to  a 
person  by  the  name  of  the  office  which  he  holds,  the  certificate  of 
the  person  taking  the  deposition,  that  he  took  it  in  pursuance 
of  the  commission,  is  evidence  of  his  identity. 

Brown  vs.  Leuhrs,  79  111.  575. 

—  Necessity  for  Notarial  Seal:  Where  a  commission  to  take 
depositions  is  directed  to  a  certain  person  by  name,  the  fact  that 
he  is  also  described  as  a  notary  public  does  not  render  it  neces- 
sary that  his  certificate  to  the  depositions  shall  be  under  his  nota- 
rial seal,  or  that  there  be  a  certificate  of  his  official  character  as 

notary  public. 

Temby  vs.  Brunt  Pottery  Co.,  229  111.  540. 
A  commissioner  need  not  certify  anything  as  to  his  commission. 
And  a  mistake  thereon  as  to  his  name  is  immaterial  where  caption 

properlv  names  party. 

'  Kendall  vs.  Limburg,  69  111.  355. 

—  Accompanying   Deposition:      The    certificate    of    the    official 


424  DEPOSITIONS 

character  need  not  accompany  depositions  where  dedimus  proves 
officer's  authority  to  take.  Certiiicate  may  be  attached  at  any 
time  before  the  deposition  is  read  in  evidence,  and  it  need  not  cer- 
tify that  the  notary,  before  whom  the  deposition  was  taken,  was 
authorized,  by  the  "laws  of  the  state  where  he  resides,  to  adminis- 
ter oaths. 

North  Amer.  Ace.  Ins.  Co.  vs.  Williamson,  118  App.  670. 

Indorsements : 

Sufficient  if  indorsement  indicates  in  what  case  proceeding  to 

take  depositions  was  had. 

I.  &  I.  S.  Ey.  Co.  vs.  Wilson,  77  App.  603. 
Requirement  that  names  of  litigants  shall  be  indorsed  on  depo- 
sitions is  complied  with  by  indorsing  name  of  firm. 
Forsythe  vs.  Baxter,   3   111.   9. 
Requirement  is  directory ;  not  ground  for  suppression  where  no 

injury  is  shown. 

Cole  vs.  Choteau,  18  111.  439. 

Notice : 

—  Necessity  for:  The  party  who  gives  notice  that  he  will  sue 
out  a  dedimus' io  take  the  testimony  of  a  witness  upon  written 
interrogatories,  after  receiving  notice  that  the  party  to  whom  the 
notice  was  given  has  elected  to  take  the  deposition  upon  oral  inter- 
rogatories, should  reply  with  notice  of  the  time  and  place  where 
such  depositions  will  be  taken  upon  oral  interrogatories  in  accord- 
ance with  the  statute ;  he  is  the  party  desiring  the  testimony  and 
should  give  notice  of  time  and  place  for  taking  same. 

Lewis  vs.  Fish,  40  App.  372. 

—  Names  of  Witnesses:  Notice  need  not  state  names  of  all  wit- 
nesses called,  and  need  not  state  witness  is  necessary. 

Dryer  Co.  vs.  Foundry  Co.,  60  App.  390. 

—  Residence  of  Witness:     Nor  need  it  state  the  residence  of  the 

witness. 

Hays  vs.  Borders,  6  111.  46. 

—  Objection:  An  objection  that  on  notice  of  taking  deposition 
of  witness  named,  "and  other  witnesses,"  testimony  of  such  other 
witnesses  should  not  have  been  read  to  the  jury,  comes  too  late 
when  the  case  has  come  to  trial.  It  should  have  been  taken  by 
direct  application  to  the  court  before  the  case  was  called  for  trial 

and  submitted  to  jury. 

P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Story,  104  App.  132. 
Objection  to  the  insufficiency  of  the  notice  upon  which  the  tak- 
ing of  depositions  was  predicated  must  be  made  before  trial. 

Koedt  vs.  Josephsen,  158  App.  388. 

—  Waiver:  An  appearance  and  cross  examination  of  witnesses 
is  a  waiver  of  objection  to  the  sufficiency  of  the  notice. 

County  of  Greene  vs.  Bledsoe,  12  111.  267. 
An  agreement  between  parties  to  suit  that  depositions  previ- 
ously taken  shall  be  evidence  upon  trial,  amounts  to  a  waiver  of 
failure  to  give  notice  of  time  and  place  of  taking  same. 
Wilkinson  vs.  Ward,  42  App.  541. 

—  Filing  Interrucjatories:  In  absence  of  showing  as  to  time 
when  interrogatories   to  be   propounded  to  witness  upon   taking 


DEPOSITIONS  425 

deposition  were  actually  filed,  presumption  is  they  were  filed  before 
date  fixed  for  issuance  of  dcditn  us. 
Haish  vs.  Dreyfus,  111  App.  44. 

—  What  Insuffici(  )i{ :  An  affidavit  that  notice  and  copy  of 
interrogatories  was  given  to  adverse  party  ten  days  before  speci- 
fied day  is  insufficient.  Court  cannot  know  that  notice  was  given 
ten  days  before  suing  out  of  the  dcdimus. 

Corgan  vs.  Anderson,  30  111.  95. 

—  What  Siifflcioil :  The  notice  that  plaintiffs  ''will,  on  such  a 
day,  etc.,  at  the  office  of  Samuel  jMcCrery,  in  the  town  of,  etc.,  take 
depositions,"  and  same  to  be  taken  before  Sanuiel  McCrery  as 
justice  of  the  peace,  is  sufficient  and  entitles  them  to  admission. 

Patterson  vs.  Hubbard,  30  111.  201. 
Where  a  party  taking  a  deposition  sent  notice  by  mail  to  the 
attorney  of  the  adverse  party,  at  place  where  he  kept  his  office, 
and  it  was  returned  with  admission  of  service,  and  acted  upon 
under  belief  that  it  was  signed  by  the  authority  of  the  attorney 
who  was,  in  fact,  absent,  and  it  appeared  the  admission  was  signed 
by  the  attorney's  son  and  law  partner;  such  fact,  coupled  with  the 
late  motion  to  suppress  the  deposition,  was  a  sufficient  reason  for 
overruling  the  motion. 

Brown  vs.  Clement,  68  111.  192.  :,f 

—  Claim  Against  Estate:  In  taking  a  deposition  in  support  of 
a  claim  filed  against  an  estate,  it  is  not  necessary  to  notify  every 
person  who  has  an  ultimate  interest  in  the  distribution  of  the 
property.  It  is  sufficient  to  notify  the  executor  and  any  other  per- 
son who  may  have  appeared  to  resist  the  claim.  The  executor  as 
to  the  personal  estate  represents  all  parties  in  interest,  unless  such 
other  parties  in  interest  have  personally  appeared. 

One  who,  on  his  own  application,  is  allowed  to  appear  after 
depositions  have  been  taken,  is  bound  by  the  depositions  already 
taken,  although  he  is  entitled  to  further  cross  examination  of  wit- 
nesses whose  depositions  have  already  been  taken,  if  he  applies 
for  that  permission. 

Deuterman  vs.  Euppell,  103  App.   106. 

—  Joint  Debtors:  Both  defendants  to  suit  on  joint  contract 
are  entitled  to  notice;  if  one,  only,  is  notified,  deposition  can  be 
used  onlv  as  against  him. 

McConnell  vs.   Stettimus,  7  HI.   708. 

Affidavit : 

The  consent  of  the  parties  at  law  to  taking  depositions  of  resi- 
dent witnesses  dispenses  with  the  necessity  of  filing  the  affidavit 
required  by  the  statute. 

Pikard  vs.  Bates,  38  111.  40. 

Adjournments: 

A  commissioner  appointed  to  take  depositions  has,  within  rea- 
sonable limits,  and  for  reasonable  causes,  power  to  adjourn  the 
taking  of  the  depositions. 

Bueb  vs.  Dressier,  104  App.  409. 
Notation  of  adjournments  had  during  taking  of  depositions  does 
not,  of  itself,  warrant  suppression  in  absence  of  injury. 
I.  &  I.  S.  Ey.  Co.  vs.  Wilson,  77  App.  603. 


426  DEPOSITIONS 

Opening : 

Opening  a  deposition  by  thoughtless  act  of  <ilerk,  no  harm  being 
done,  is  not  sufficient  ground  for  suppression. 
Hughes  vs.  Hunphrey,  102  App.  194. 

Depositions  taken  by  a  commissioner  and  not  returned  to  the 
justice  issuing  the  dedimus,  as  required  by  law,  but  delivered  to 
the  attorneys  and  kept  by  them  until  the  trial,   and  then  pre- 
sented unsealed,  etc.,  are  irregular  and  not  admissible. 
L.  N.  A.  &  C.  Ey.  Co.  vs.  Heilprin,  95  App.  402. 

Upon  objection  to  a  deposition  on  the  ground  that  it  came  to 
the  clerk  unsealed,  it  will  be  presumed  that  the  officer  who  took 
the  deposition  did  his  duty,  and  sent  same  properly  sealed,  --yid 

burden  is  upon  objector. 

In  re  Noble,  lb4  111.  266. 
A  rule  of  court  that  the  clerk  shall  enter  an  order  on  the  first 
day  of  each  term  giving  leave  to  the  clerk  to  open  and  tile  all  depo- 
sitions returned  or  to  be  returned  to  that  term  of  court,  is  valid 
and  binding,  and  authorizes  the  clerk  to  enter  such  order  and  act 

thereunder. 

Gage  vs.  Eddy,  167  111.  102. 

Attendance  of  Witnesses: 

Where  a  party  gives  notice  and  fails  to  notify  the  witness,  it  is 
his  fault  that  the  witness  fails  to  attend.     The  burden  of  showing 
why  a  witness  fails  to  attend  the  taking  of  depositions  is  upon  party 
who  calls  or  gives  notice  that  he  will  call  him. 
Sinzheinier  vs.  Skinner  Mfg.  Co.,  43  App.  608. 

Objections  and  Motions  to  Suppress: 

—  Grounds:  It  is  no  ground  for  suppressing  a  deposition  taken 
in  another  state,  under  stipulation,  that  the  witness  did  not,  at 
the  time,  reside  in  such  state,  where  it  does  not  appear  that, 
at  the  time  of  signing  such  stipulation,  the  facts  were  not  known  to 

the  moving  party. 

Mason  vs!  Trust  Co.,  77  App.  20. 
Irregularities  in  indorsement  of  names  of  parties  litigant  is  not 
ground  for  suppression,  when  no  injury  or  surprise  results. 
By.  Co.  vs.  Wilson  &  Son,  77  App.  607. 
Motion  to  suppress  is  inappropriate  unless  depositions  have  been 

returned. 

L.  N.  A.  &  C.  E.  E.  Co.  vs.  Heilprin,  95  App.  402. 

Mere  presence  of  one  of  the  counsel  at  the  taking  of  a  depo- 
sition of  a  subscribing  witness,  under  section  4  of  AVills  act,  is  not 
ground  for  striking  the  deposition  from  the  files. 
In  re  Arrovi^smith,  206  111.  352. 
Delay  in   returning  depositions  does  not  warrant  suppression. 

Marsh  vs.  French,  82  App.  82. 
A  motion  to  suppress  a  deposition  taken  upon  written  inter- 
rogatories, should  be  sustained  where  subsequent  to  the  giving  of 
notice  of  intention  to  take  the  same,  the  opposite  party  gave  notice 
of  his  election  to  take  it  upon  oral  interrogatories. 
Lewis  vs.  Fish,  40  App.  372. 
Interrogatories  in  the  deposition  of  a  subscribing  witness  inquir- 
ing whether  he  would  have  signed  the  instrument  except  in  the 
presence  of  testatrix,  and  whether  all  the  things  mentioned  in  the 


DEPOSITIONS  427 

attestation   clause  were   eonplied   with,   whicli    clause   recited   the 
doing  of  things  required  hy  the  statute  to  make  a  valid  will,  are 
improper,  and  the  interrogatories  and  answers  should  be  suppressed. 
Green  vs.  Hitchcock,  222   111.  21G. 

When  incompetent  testimony  gets  into  the  case  in  the  shape  of 
depositions,  or  otherwise,  the  court  should,  on  motion,  exclude  same. 
And  right  to  have  such  evidence  excluded  is  not  lost  by  failure  to 
object  to  it  when  road  from  the  deposition. 
Sailors  vs.  Print  Co.,  20  App.  509. 

Where  suit  was  brought  against  the  "IMerchants'  Dispatch  Com- 
pany," and  a  deposition  taken  on  behalf  of  plaintiff,  together  with 
notice  of  same,  was  in  the  same  name,  and  afterwards,  by  leave  of 
court,  the  sunnnons  was  amended  so  as  to  describe  the  defendant  as 
the  ''Merchants'  Dispatch  Transportation  Company,"  under  the 
circumstances,  the  slight  mistake  in  defendant's  name  in  notice 
and  in  deposition  was  not  sufficient  error  to  exclude  the  deposi- 
tion' as  evidence. 

M.  D.  T.  Co.  vs.  Leysor,  89  111.  42. 
A  misdescription  of  note  sued  on,  in  interrogatory  in  depo- 
tion,  as  to  rate  of  interest,  describing  it  as  bearing  ten  per  cent, 
instead  of  twelve,  is  not  suffiicient  variance  to  exclude  answer  as 
evidence,  where  it  is  apparent  that  note  referred  to  in  answer  is 
the  one  in  suit. 

Stowell  vs.  Moore,  89  111.  563. 
It  is  no  objection  that  party  wrote  or  dictated  his  own  deposi- 
tion. 

Wood  vs.   Shaw,  48   111.   273. 
A  partj'^  cannot  offer  deposition  of  adverse  party,  or  parts  thereof, 
and  then  urge  objections  to  any  portions  so  offered  by  him. 

Worthing  vs.   Hall,   153  App.  587. 

Objections   which   were   noted   cannot   be   urged,   if  portion   to 
which  objections  referred  was  not  read  in  evidence. 
Worthing  vs.  Hall,  153   App.  587. 
A  party   cannot  have  the  depositions  taken  by   opponent  sup- 
pressed for  want  of  full  answers  by  witness  to  interrogatories. 
Cole  vs.  Chotau,  18  111.  439. 
AVhere  witness   testifies   to   mere   conjectures   and   suppositions, 
it  is  error  to  admit  such  evidence  to  jury,  when  objected  to  by 
opposite  party. 

Menifee   vs.   Higgins,   57   111.   50. 
Retransmission  of  deposition  to  commissioner,  over  objection  of 

one  of  parties,  is  ground  for  suppression. 

Chi.  City  Ey.  Co.  vs.  Shafer,  121  App.  334. 
So  also,  are  alterations  in  the  language  of  the  depositions,  after 

subscribed  and  sworn  to. 

Chi.  City  Ry.  Co.  vs.  Shafer,  121  App.  334. 
Where  commissioner  sends  one  part  of  deposition  to  clerk  and 
balance  to  attorney,  deposition  should  be  suppressed. 
Edleman  vs.  Byers,  75  111.  367. 
Where  errors,  which  resulted  in  order  to  suppress  depositions, 

have  been  amended,  such  order  may  be  set  aside. 
Warth  vs.  Lowenstein,  219  111.  222. 


428  DEPOSITIONS 

Where  a  deposition  is  taken,  after  the  time  fixed  by  the  court,  it 
is  a  matter  of  legal  discretion  with  the  court  to  suppress  it  or  not 
for  that  cause. 

Mix  vs.  Baldwin,   156  111.  313. 

Where  a  party  is  likely  to  be  prejudiced  from  the  late  return  of 
a  deposition,  the  proper  practice  is  to  interpose  a  motion  for  con- 
tinuance over  the  term,  or  for  delay  until  preparation  for  trial 
can  be  made ;  and  the  fact  that  the  deposition  was  not  returned 
until  the  date  set  for  trial  is  not  ground  for  suppressing  it. 
Marsh  vs.  French,  82  App.  76. 

The  issuance  of  a  dedimns,  dated  a  day  later  than  that  men- 
tioned in  the  notice,  is  not  ground  for  the  suppression  of  a  depo- 
sition, where  the  interrogatories  were  filed  in  apt  time,  and  no 
injury  appears  to  have  resulted. 

Haish  vs.  Dreyfuss,  111  App.  44. 

When  a  part}^  gives  notice  of  taking  of  depositions  of  several,  wit^ 

nesses  in  different  places  at  the  same  time,  so  that  the  other  party 

can  not  be  present  at  all  the  places  and  cross  examine,  the  latter 

may  elect  which  examination  he  will  attend  and  have  the  other 

depositions  suppressed. 

Hamkiuson  vs.  Lombard,  2-5  111.  572, 

A  deposition  should  not  be  suppressed  for  the  reason  that  the 

clerk  of  the  court  opened  same  and  marked  it  filed,  when  such  act 

is  done  Avith  the  authority  of  the  court. 
Sullivan  vs.  Eddy,  164  111.  391. 

It  is  not  sufficient  ground  for  striking  the  deposition  from  the 
files  that  it  has  been  improperly  opened  by  the  clerk  without  special 
order  of  the  court,  where  no  harm  has  been  done  by  such  action. 
Hughes  vs.  Humphries,  102  App.  194. 
—  Time:  A  motion  to  suppress  a' deposition  on  the  ground  that 
it  was  not  properly  sealed  and  directed,  comes  too  late  after  a  gen- 
eral order  for  opening  of  all  depositions,  unless  some  good  reason 
is  given  for  the  delay.  The  court,  upon  objection  taken  before 
such  order  is  made,  can  then  decide  the  motion  by  inspection  instead 
of  acting  upon  affidavits. 

In  re  Noble,  124  111.  266. 
The  practice  is  well  settled  in  this  state  to  move  to  suppress 
the    depositions   of   non-resident   witnesses   after    leave    has   been 
obtained  to  open  them,  and  before  the  trial  has  been  entered  upon. 
Corgan  vs.  Anderson,  30  lU.  95. 
Objection  to  competency  of  witness,  whose  testimony  appears  in 
form  of  deposition,  may  be  interposed  at  trial. 

I.  C.  E.  E.  Co.  vs.  Panebiango,  227  HI.  170;  Albers  Co.  vs.  Sessell, 
193  111.  153. 
Objections  to  competency  of  witness  after  deposition  has  been 

read  comes  too  late. 

Warren  \s.  Warren,  105  111.  568, 

As  depositions  may  be  used  by  either  party  and  may  if  sup- 
pressed, be  retaken,  objections  to  form  should  be  promptly  made. 
Hughes  vs.  Humphreys,  102  App.  194. 


DEPOSITIONS  429 

Objection  to  the  interrogatories  and  answers  of  a  witness  in  a 
deposition,  that  the  same  are  in  error  in  substance  and  not  in  form, 
may  properly  be  made  at  the  trial  when  the  deposition  is  offered. 
Love  vs.  McElroy,  106  App.  294. 

Statements  in  a  deposition  which  are  hearsay,  may  be  objected 
to  on  the  trial,  but  those  objectionable  because  of  the  secondary 
evidence  should  be  objected  to  before  the  trial. 

Cooke  vs.  Orne,  37  111.  187;  L.  N.  &  A.  Ry.  Co.  vs.  Shires,  108  III. 
617;  Hickox  vs.  Dawes  Co.,  64  App.  630. 

Objections  to  depositions  which  might  be  obviated  by  issuing  a 
new  connnission  and  re-examining  the  witness,  cannot  be  heard 
after  the  case  is  called  for  trial.  A  motion  to  suppress  for  such 
objections,  when  the  case  is  called  for  trial  or  reached  on  the 
docket,  comes  too  late. 

Hutchinson  vs.  Bonbas,  240  111.  624;   Kassing  vs.  Mortimer,   80  111. 
602 ;  Smith  vs.  Swigart,  149  App.  21 ;  XII  111.  Notes  126,  §  40. 

If  the  objection  to  answer  given  in  deposition  taken  upon  notice 
is  one  which  may  be  obviated  by  better  evidence,  the  proper  method 
of  urging  such  objection  is  by  motion,  before  trial,  to  suppress  the 
deposition. 

I.  C.  R.  E.  Co.  vs.  Foulks,  191  111.  57;  Balkwill  vs.  Furnishing  Com- 
pany, 62  App.  663. 
And   upon   a   question   in   a    deposition,   which   may   have   been 
cured  by  re-taking,  if  not  made  when  deposition  was  taken,  nor 
before  trial,  by  motion  to  suppress,  comes  too  late  upon  the  trial. 
Olson  vs.  Brundage,   139  App.   559. 

It  is  too  late  to  object  to  mere  matters  of  form  in  depositions,  as 
to  the  sufficiency  of  the  notice,  on  the  trial.  To  permit  such  a 
practice  would  entrap  the  party  of¥ering  them.  If  formal  objec- 
tions to  depositions  exist,  they  should  be  taken  and  settled  on 
exception  before  the  trial,  so  that  if  they  are  sustained,  the  party 
in  whose  favor  they  were  taken,  may  otherwise  procure  the  evi- 
dence of  the  witness  on  the  trial,  or  retake  his  deposition.  Only 
objections  as  to  the  substance  or  pertinency  of  evidence  in  deposi- 
tion can  be  taken  on  the  trial. 

Winslow  vs.  Newlan,  45  111.  145. 

—  Form:  Objections  to  the  form  of  questions  in  a  deposition 
should  be  taken  before  the  trial  by  motion  to  suppress,  and  not 
when  the  depositions  are  read  on  the  hearing;  but  error  in  sustain- 
ing such  objections  on  the  hearing  is  not  harmful  where  the  ques- 
tions concerned  a  subject  fully  proved  by  other  uncontradicted 

evidence. 

Benedict  vs.  Dakin,  243  111.  384. 

If  the  objection  to  testimony  contained  in  a  deposition  is  based 
on  the  form  of  question  and  answers,  the  objection  must  be  made 
by  motion  to  suppress ;  but  an  objection  to  the  competency  of  the 

testimony  may  be  made  upon  the  trial. 

i.  C.  R.  R.  Co.  vs.  Panebiango,  227  111.   170;   Hosier  vs.  Knox  Col- 
lege, 32  111.  155. 
Objection  that  fact  cannot  be  proven  by  parol  should  be  made 
by  motion  to  suppress. 

C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Bender,  69  App.  262. 


430  DEPOSITIONS 

Objections  must  be  specific. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Bender,  69  App.  262. 
General  objections  to  depositions  are  upon  the  substance  and  not 
to  the  form,  and  cannot  ])e  taken  on  the  trial  of  the  case. 

Thomas  vs.  Dunaway,  30  111.  373. 

—  Waiver:  Where  present  at  taking,  waiver  results  from  fail- 
ure to  object  at  time  to  leading  questions. 

Goodrich  vs.  Hanson,  33  111.  499. 

Objection  that  answer  is  expression  of  opinion  waived  unless 
made  at  trial. 

M.  D.  T.  Co.  vs.  Leysor,  89  111.  43. 

Where  a  party  appears  and  cross  examines  a  witness,  and  fur- 
ther stipulates  that  witness  shall  be  examined,  he  waives  all  objec- 
tion to  the  dcdinuis  on  score  of  form. 

Eoekford  Co.  vs.  Stevenson,  65  App.  609. 

Admissibility  in  Evidence: 

—  Immaterial  Evidence:  A  deposition  which  is  not  material  to 
the  issue  should  not  be  admitted  in  evidence. 

Low  vs.  Greenwood,  30  App.  184. 
Wliere  a  deposition  of  a  witness,  taken  and  read  on  the  trial  of 
a  former  cause,  is  lost  and  the  witness  dead,  the  contents  of  such 
deposition  may,  when  material,  be  proven  by  any  person  who  knows 
and  can  testify  to  its  contents.  There  is  no  difference  in  this 
respect  between  lost  depositions  and  any  other  written  testimony 
except  that,  if  tlie  witness  l)e  living,  proof  of  the  contents  cannot 
be  made,  as  that  would  not  be  equal,  as  testimony,  to  the  production 

of  the  witness  himself. 

Angler  vs.   Smith,  34  111.   534. 

—  Copies:     Where    deposilion    of   witness   residing   in   another 

state  is  shown  to  have  been  lost  from  the  files,  without  fault  of  the 

parties,  a  copy  may,  upon  proper  showing  to  the  court,  be  admitted 

in  evidence. 

Gage  vs.  Eddy,  167  111.  102. 

Where  depositions  taken  in  a  ause  were  destroyed  by  fire,  and 
in  a  second  suit,  in  which  parties  and  subject  matter  were  identical 
with  the  first,  an  agreement  was  made  to  admit  transcript  of  rec- 
ord of  first  suit  filed  in  Supreme  Court,  as  evidence,  which,  on 
application,  was  not  allowed  to  be  withdrawn,  copies  of  the  depo- 
sitions, duly  certified  by  clerk  of  supreme  court,  were  competent 

evidence  on  the  hearing  of  second  suit,  proper  to  be  considered. 
Dowden  vs.  Wilson,  108  111.  257. 

—  Taken  in  Another  Suit:  A  deposition  taken  in  a  prior  suit 
may  be  read  in  evidence  in  a  second  suit  when  the  parties  in  inter- 
est in  both  suits  are  the  same,  and  the  issues  in  both  suits  are 

substantially  the  same. 

Pratt  vs.  Kendig,  128  111.  293;  Wade  vs.  King,  19  111.  301. 

Depositions  taken  in  an  ejectment  suit  are  admissible  as  evi- 
dence in  suit  in  chancery  between  the  same  parties  and  involving 

the  same  subject  matter. 

McConnell  vs.  Smith,  23  HI.  611;  Wade  vs.  King,  19  111.  301, 


DEPOSITIONS  431 

After  a  deposition  hns  been  read  without  objection  upon  one 
trial  it  cannot  afterwards  be  objected  to  on  account  of  any  defect 
existing  at  the  time  first  used. 

Brackett  vs.  Nikirk,  20  App.  525. 

A  deposition  taken  on  proper  notice  and  in  conformity  with  law, 

in  a  suit  whilst  pending  before  a  justice  of  the  peace,  may  properly 

be  read  in  the  circuit  court  on  the  trial  of  the  same  cause  on  appeal. 

Jarrett  vs.  Phillips,  90  111.  237;  In  re  estate  of  Arrowsmith,  206  111. 

352. 

Depositions  taken  before  a  master  in  a  mechanic's  lien  proceed- 
ing, prior  to  the  first  appeal  therein,  are  competent  to  be  admittedj, 
at  a  subsequent  hearing  of  said  suit  following  a  reversal  therein, 
— the  parties  to  the  issues  remainiiig  substantially  the  same. 
Miller  vs.  Calumet  Lbr.  Co.,  121  App.  56. 

—  Stipulation:  Under  a  stipulation  that  depositions  taken  in 
a  previous  foreclosure  case  may  be  read  in  evidence  by  either 
party,  and  that  "either  party  may  have  the  right  to  use  such  addi- • 
tional  evidence  as  either  may  desire  and  as  shall  he  held  competent 
under  the  pleas  therein,"  objections  may  be  made  to  "additional" 
evidence,  but  not  to  the  depositions. 

An  objection  that  a  deposition  read  in  evidence  was  not  properly 
identified  as  the  one  which  counsel  had  stipulated  might  be  read 
from  the  record  of  a  former  foreclosure  suit  then  on  file  in  the 
Appellate  Court,  is  not  well  taken,  where  the  transcript  of  the 
record  sent  to  the  Appellate  Court  in  the  former  cause,  and  which 
contained  the  deposition  read  in  evidence,  was  identified  by  the 
circuit  clerk. 

Parlin  &  Orendorff  vs.  Hutson,  198  III.  389. 

—  Party  Making  Evidence  for  Himself:  As  a  general  rule,  a 
party  cannot  make  evidence  for  himself,  or  be  permitted  to  use  it 
on  the  trial  of  his  cause,  and  the  fact  that  such  evidence  may  be 
contained  in  a  deposition  taken  by  the  opposite  party  in  the  cause 
makes  no  difference  in  the  application  of  the  rule. 

Eyan  vs.  Brant,  42  111.  78;  Forbes  vs.  Snyder,  94  111.  374.  -^'^^ 

—  Other  Parties:  A  deposition  taken  in  another  and  different 
suit  is  not  competent  evidence  against  one  not  a  party  to  the  suit 
in  which  it  was  taken,  to  prove  any  fact,  except  that  it  may  be 
proper  for  the  purpose  of  showing  notice  of  the  pendency  of  the 
proceeding  in  which  it  was  used. 

Cookson  vs.  Eicbardson,  69  111.   137. 

—  Hearsay:  An  miction  was  brought  against  a  bank  and  its 
cashier,  but  was  dismissed  as  to  the  latter  before  the  trial,  at  which 
plaintiff  offered  in  evidence  a  deposition  of  the  cashier,  taken  in  an- 
other suit  between  the  bank  and  another  party,  held,  that  such 
deposition  could  not  be  admitted  as  original  evidence,  in  the  last 
action,  as  the  cashier  was  not  a  party  thereto.  His  statements  in 
the  deposition  would  only  be  admissible  in  the  later  suit  for  pur- 
pose of  contradicting  him,  a  proper  foundation  being  first  laid  for 
that  purpose. 

Bartelott  vs.  International  Bank,  119  111.  259. 

—  Like  Matters:  Where  the  seller  of  goods  seeks  to  avoid  the 
sale  for  fraud  and  to  recover  the  goods  as  against  the  purchaser 


432  DEPOSITIONS 

of  the  stock,  depositions  taken  in  other  suit  by  other  parties  against 
the  seller  on  the  ground  of  like  trauds  are  not  admissible. 
Brown  vs.  Biemian,  24  App.  574. 

—  Taken  in  Foreign  Languages:  A  deposition  taken  abroad,  in 
foreign  language,  stands  as  testimony  of  the  witness  and  may  be 
interpreted  in  same  way,  but  translation  may  be  shown  to  be 
erroneous. 

Christman  vs.  Eay,  42  App.  Ill, 

—  Former  Testimomj:  Depositions  taken  in  former  suit  be- 
tween same  parties,  involving  same  question  or  subject  matter, 
are  admissible  when  question  again  arises  for  judicial  determi- 
nation. 

Wade  vs.  King,  19  111.  301;  Goodrich  vs.  Hanson,  33  111.  499. 

And  where  parties  and  issues  are  same. 
Pratt   vs.  Kendig,  128  111.   293. 

Deposition   is  competent  though   parties  to  two  suits  are  not 
nominally  the  same  upon  record,  where  they  are  same  in  interest. 
Goodrich  vs.  Hanson,  33  111.  499.  ■v){Vi\<  ■'■  I 

—  Taken  at  Coroner's  Inquest:  Depositions  taken  at  coroner's 
inquest  are  incompetent. 

Knights   Templars  vs.   Crayton,   209   111.   550;    C.   &   A.   Ey.   Co.   vs. 
McGrath,  115  111.  172;  Gooding  vs.  Ins.  Co.,  46  App.  307. 

—  Subscribing  Witnesses:  A  deposition  of  a  subscribing  wit- 
ness to  a  will,  taken  under  section  4  of  Wills  act,  upon  commission 
issued  by  county  court,  may  be  read  in  evidence  in  circuit  court  on 
appeal  from  county  court  order  admitting  will  to  probate. 

In  re  estate  of  Arrowsmith,  206  111.  352. 

—  Dictated  or  Written  by  Attorney:  Depositions  dictated  or 
written  by  attorney  in  the  case  are  inadmissible. 

King  vs.  Dale,  2  111.  513. 

Party  may  write  his  answers  but  neither  he  nor  his  attorney  can 
write  or  dictate  answers  of  other  witnesses. 
Woods  vs.  Shaw,  48  111.  273. 

—  When  Deponent  Present  at  Tibial:  Depositions  may  be  read 
although  deponent  is  present. 

Prink  vs.  Potter,  17  111.  406;  Bradley  vs.  Gissellmau,  17  111.  571. 

—  Presence  of  Attorney:     The  Wills  Act  providing  for  taking 

of  depositions  of  subscribing  witnesses  and  the  evidence  act  which 

prohibits  the  presence  of  counsel  at  taking  of  depositions  by  written 

interrogatories  are  independent  of  each  other. 
In  re  estate  of  Arrowsmith,  206  111.  352. 

—  After  Substitution  of  New  Parties:  In  a  chancery  case,  the 
court,  by  an  order,  found  that  the  original  complainant  had  no  such 
interest  in  the  subject  matter  as  to  enable  him  to  maintain  the  bill, 
whereupon  he  was  given  leave  to  amend  same  by  addition  of  a  new 
party  complainant ;  and  for  filing  of  cross  bill,  but  the  original  bill 
was  not  dismissed ;  it  was  ordered  by  consent  of  parties  that  depo- 
sitions and  evidence  before  taken,  so  far  as  competent,  might  be  read 
on  the  final  hearing,  wiiich  was  continued.  There  was  no  error  in 
admitting  such  depositions  in  evidence  upon  the  final  hearing. 

Bush  vs.  Stanley,  122  111.  406. 

The  deposition  of  complainant  in  a  chancery  case,  which  relates 
to  transactions,  conversations  and  communications  with  defend- 
ant, is  not  competent  against  latter 's  executor,  substituted  upon 


DEPOSITIONS  433 

defendant's  death,  which  occurred  after  the  deposition  was  filed 
and  read  in  evidence,  hut  before  his  own  evidence  was  heard  in  tlie 
case. 

Smith  vs.  Billings,  177  111.  446. 

—  Parts  Untrustii'orlhy:  Parts  of  sentences  in  a  deposition 
cannot  be  detached  and  considered  as  true  and  the  residue  of  his 
testimony  rejected  as  not  entitled  to  credence.  If  part  of  it  is 
rejected  as  unworthy  of  belief,  all  of  it  must  be  rejected. 

Forweil  vs.  Myer,  35  111.  42, 

Weig-ht  as  Evidence: 

Depositions  sliould  be  given  the  same  consideration  by  the  jury 
as  if  the  deponents  had  testified  in  open  court,  and  it  is  lii'ghly 
proper,  where  the  evidence  is  partly  oral  and  partly  by  deposi- 
tions, to  give  an  instruction  to  that  effect. 

Coburn  vs.  M.  E.  M,  &  W.  Ry.  Co.,  243  111.  448. 
It  is  not  improper  to  give  an  instruction  stating  a  deposition 
is  as  good  and  competent  evidence  as  though  the  witness  had  been 
present  and  testified  orally  in  open  court. 
Olcese  vs.  Mobile  Friiit  Co.,  211  111.  539. 

Depositions  are  equal  in  weight  as  evidence  with  sworn  answers. 

Davis  vs.   Stambaugh,  1G3  111.  557. 

Parties  Entitled,  to  Use: 

—  May  he  Used  by  Either  Party:  All  depositions  so  long  as 
they  are  on  file  in  the  clerk's  office,  if  properly  taken  and  contain 
evidence  pertinent  to  the  issue,  may  properly  be  used  in  evidence 
on  the  trial,  and  if  the  party  taking  the  deposition  does  not, 
before  the  trial,  obtain  leave  to  withdraw  it,  or  fails  or  refuses  to 
read  it  himself,  it  may  be  introduced  by  the  other  party. 

Adams  vs.  Eussell,  85  111.  284;  Bartelott  vs.  Slusher,  117  App.  138; 
Gnsti;s  vs.  Murdock,  154  App.  270;  McCormick  IMach.  Co.  vs.  Lesler. 
81  App.  316. 

—  Right  of  Opposite  Party  to  Hare  Whole  Read: 
See  Whole  op  Utterance. 

—  Subsequent  Party  to  Suit:  One  who  on  his  own  application 
is  allowed  to  appear  after  depositions  have  been  taken,  is  bound 
by  the  depositions  already  taken,  although  he  is  entitled  to  fuj-- 
ther  cross  examine  witnesses  whose  depositions  have  been  taken, 
if  he  applies  for  that  permission. 

Deiiterman  vs.  Euppell,  103  App.  106. 

Effect  of  Use : 

Party  introducing  deposition  cannot  introduce  another  to  con- 
tradict it. 

MeCormick  Mach.  Co.  vs.  Lester,  81  App.   316. 
Plaintiff  using  deposition  of  defendant  is  bound  by  it. 

Chi.  Die  Co.  vs.  Nathan,  141  App.  171.  ,. 

Where  deposition  of  a  witness,   taken  by  plaintiff,   is  read  iuf; 
evidence  by  defendant,  the  person  whose  deposition  has  been  SQ;. 
taken  and  read  will  not  be  the  witness  of  plaintiff,  who  Avill  have 
the   same  right  to  contradict  such  witness   as  any  other  witness 
introduced  by  defendant. 

City  of  Bloomington  vs.  Osterle,  139  111.  120;  McCormick  vs.  Lester, 
81  App.  316. 

Right  to  Examine  Deponent  at  Trial : 

The  deposition  of  a  witness  may  be  read  on  a  trial,  although  wit-i 

Ev.— 2S 


434  DEPOSITIONS 

ness  is  present,  and  the  other  party  may  make  the  witness  his  own 
and  examine  him  if  he  choose. 

Frink  vs.  Potter,  17  111.  406;   Bradley  vs.  Geiselman,  17  111.  571. 

Anciently,  when  a  witness  had  given  his  deposition,  neither 
party  was  permitted  to  again  examine  him,  by  deposition  or  other- 
wise; But  the  rnle  has  been  modified,  so  that  when  the  deposi- 
tion of  a  witness  has  been  read  to  the  jury,  the  opposite  party  may 
call  him  as  his  own  witness. 

But  where  the  deposition  has  been  regularly  taken,  the  oppo- 
site party,  having  right  to  attend  and  cross  examine  the  witness,' 
on  failure  to  exercise  that  right,  cannot  be  permitted  to  after- 
wards cross  examine  him  as  the  witness  of  the  party  who  took  the 
deposition.     By  failure  to  attend  at  the  taking  of  the  deposition, 

the  adverse  party  waives  his  right  to  a  cross  examination. 
I.  &  M.  Canal  Co.  vs.  Adler,  49  111.  311. 

Attaching'  Exhibits: 

—  Statutory  Frovisionss  The  requirements  of  the  statute  that 
all  exhibits  produced  to  the  officer  taking  the  deposition,  or  which 
shall  be  proved  or  referred  to  by  a  witness,  shall  be  indorsed  and 
sealed  up  with  the  deposition,  commission  and  interrogatories, 
and  directed  to  the  clerk  of  the  court  in  which  the  action  shall  be 
pending  etc.,  is  for  the  protection  of  the  parties  interested,  and 
to  prevent  any  fraud  or  mistake  by  the  substitution  of  papers 
not  produced  before  the  connuissioner  or  referred  to  by  the  wit- 
ness in  his  testimony. 

Where  the  deposition  of  two  witnesses  was  taken  concerning  an 
original  draft,  and  one  of  them  afterwards  testified  at  the  trial 
concerning  the  draft,  Avhich  was  then  produced  and  offered  in  evi- 
dence, the  court  will  not  suppress  the  deposition  of  the  other 
witness  because,  instead  of  the  original  draft,  a  copy  of  it  was 

attached  to  his  deposition. 

Met.  Natl.  Bauk  vs.  Mer.  Natl.  Bank,  77  App.  316.  ,p 

Every  provision  of  the  statute  regulating  the  mode  of  taking 

depositions  must  be  substantially  complied  with.     Where  a  note, 

professedly    an    exhibit,    referred    to    in    a    deposition,    was    not 

attached    or   enclosed   with    the    commission    and    interrogatories 

sealed  and  sent  to  the  clerk,  but  a  part  only  of  the  papers  were 

so  sent  by  the  commissioner,  while  the  note,  interrogatories  and 

commission,  and  other  papers,  were  sent  by  him  to  the  party's 

attorneys,  the  deposition  should  have  been  suppressed  on  motion. 
Edleman  vs.  Gilmore,  7.5  111.  367. 

—  Copies  of  Originals:  Where  an  original  paper  is  in  the  hands 
of  a  third  person,  residing  out  of  the  state,  and  he  refuses  to 
attach  same  to  his  deposition  when  taken,  and  requested  to  do  so, 
a  sworn  copy  taken  by  another  person  present,  who  attaches 
such  copy  to  his  deposition,  is  admissible  in  evidence. 

Fisher  vs.  Green,  95  111.  94;  McDonald  vs.  Erbes,  231  111.  295. 
Must  be  shown  due  effort  was  made  to  secure  original. 

McDonald  vs.  Erbes,  231  111.  295 ;  Bisliop  vs.  Preserving  Co.,  157  IlL 

284;  Dickison  vs.  Breeden,  25  111.  186. 

It  is  proper  for  a  witness  who  is  testifying  as  to  the  admissions 

made  by  a  party,  to  embody  in  his  deposition  a  certified  copy  of  a 

bill  of  exceptions  taken  at  another  trial  to  which  he  has  referred 


DEPOSITIONS  ■  435 

to  refresh  his  memory  as  showing  the  substance  of  the  admissions 
sought  to  be  proven,  as  he  now  proves  tliein.  That  tlie  admissions 
made  were  sworn  admissions  does  not  make  any  differen(;e,  nor 
need  it  be  shown  by  record  evidence  that  the  trial  was  had  in 
which  the  ])ill  of  exceptions  was  taken. 
TnjTlchart  vs.   Jernc<j;ni,   IG    111.   513. 

Election  of  Method  of  Examination: 

Where,  before  entering  upon  the  trial,  notice  of  the  taking  of 
a  deposition  is  served,  upon  one  of  tlie  parties  thereto,  he  may 
elect  whether  he  will  examine  the  witness  orally,  and  he  cannot  be 
required  to  leave  the  trial  in  order  to  exercise  his  right. 
Carter  vs.  Carter,  37  App.  219. 

Errors  and  Corrections : 

Before  signing  deposition,  partv  has  right  to  correct  answers. 

Harrison  vs.  Thackaberry,  248^111.   512;''Affg.,  154  App.  246. 
Any  error  in  a  deposition  is  cured  where  the  party,  having  sub- 
sequently put  that  witness  on  the  stand,  orally  examines  him  on 

the  whole  case. 

Tinkbam  vs.  Hallam,  106  App.  144. 

Second  Depositions: 

A  party  may  take  a  second  deposition  from  the  witness  without 

leave  for  that  purpose,  but  it  is  discretionary  with  the  court  as  to 

which  shall  be  read. 

Beech  vs.  Sclinultz,  20  I]l.  1S6. 

Misdemeanors : 

In  cases  of  misdemeanor,  the  depositions  of  absent  witnesses 
may  be  taken  by  consent. 

Eiehardson  vs.  People,  31  111.  170. 

Rendering-  Adverse  Party  Competent: 

Under  exception  5  of  Section  3  of  the  Evidence  act,  an  adverse 
party  to  a  suit  by  or  against  the  executor  of  a  deceased  person 
may,  when  the  deposition  of  the  deceased  person  is  read  in  evi- 
dence, testify  to  all  "matters  and  things"  testified  to  in  such  a 
deposition,  not  excluded  for  irrelevancy  or  incompetency. 
Turner  vs.  Lee,  254  111.  141. 

Where  the  complainants  in  chancery,  suing  as  heirs,  took  the 
deposition  of  a  part}^  defendant,  and  sulvsequently  another  per- 
son, interested  in  the  subject  matter  of  the  suit,  was  brought  in 
as  a  defendant,  and  against  whom  the  deposition  was  sought  to 
be  used,  the  party  so  subsequently  made  defendant  has  the  right 
to  examine  the  witness  in  respect  to  any  matter  testified  to  in  the 
deposition,  as  upon  cross  examination,  and  in  such  case  the  wit- 
ness will  not  be  considered  as  testifying  on  his  own  motion  upon 
such  subsequent  examination,  so  as  to  furnish  a  good  objection  to 
his  competency  to  testify  against  the  complainants. 
Caprez  vs.  Trover,  '96  111.  456. 

Examination  of  Witness: 

When  the  examination  is  to  be  upon  oral  interrogatories,  the 
party  desiring  the  testimony  must  begin  the  interrogation;  his 
questions  are  in  chief,  and  his  adversary  has  the  right  to  cross 
examine. 

Lewis  vs.  Fish,  40  App.  372. 

Examination  should  be  limited  to  subject  matter  or  order. 
Fuchs  &  Lang  vs.  Kittredge  Co.,  146  App.  351. 


436  DESCENT  AND  DISTRIBUTION 

DESCENT  AND  DISTRIBUTION 

See  Survivorship,  Advancements,  Heirship,  Pedigree,  Intes- 
tacy, Legitimacy,  Death,  Residence,  Burden  of  Proof. 


DESCRIPTION 

Admissibility  of  Evideiice: 

—  Contracts  for  Bale  of  Real  Estate:  The  description  in  a  con- 
tract for  the  sjile  of  hind  is  not  so  uncertain  as  to  prevent  specific 
performance  if,  from  the  words  employed,  the  description  can  be 
made  certain  by  extrinsic  evidence  of  the  facts,  physical  condi- 
tions, measurements  and  monuments  referred  to  in  the  contract. 

Fowler  vs.  Fowlor,  204  111.  82;  Evans  vs.  Gerry,  17-1  111.  595;  Clayton 
vs.  Lenien,  233  111.  435;  Elwell  vs.  Hieks,  238  111.  170. 

AVherever  the  language  used  in  a  written  contract  may  apply 
indifferently  to  different  things,  it  is  competent  to  show  by  parol 
evidence  what  the  parties  were,  in  fact,  contracting  about,   and 
this  rule  applies  to  contracts  for  sale  of  real  estate  even  where 
the  Statute  of  Frauds  has  been  pleaded. 
Hedrick  vs.  Donovan,  248  111.  479. 
{Compare:     If  the  contract  is  so  uncertain  and  indefinite  that 
the  land  cannot  be  ascertained  or  identified  and  Court  cannot  order 
a  conveyance  of  the  particular  land  to  be  conveyed,  a  specific  per- 
formance cannot  be  decreed.     A  description  of  land  may  be  suf- 
ficient if  a  surveyor  can  locate  it  and  where  a  sufficient  descrip- 
tion is  given,  parol  evidence  may  be  resorted  to  to  locate  the  prem- 
ises,  but   where   there   is  no    description   and    the   uncertainty   is 
patent,  parol  proof  cannot  be  permitted  to  show  what  was  intended. ) 
Wetniore  vs.  Watson,  253  111.  88;  Ranipke  vs.  Bnehler,  203  111.  384; 
see  also  Glos  vs.  Wilson,  198  111.  44;   Winter  vs.  Trainor,  151  111. 
191;  Hamilton  vs.  Harvey,  121  111.  469;  XIV  111.  Notes  581,  §  14. 

—  Deeds:  As  between  grantor  and  grantee  and  those  in  pri- 
vity with  them,  the  language  employed  in  the  deed  to  describe 
the  premises  must  control  in  action  of  ejectment. 

Duggan  vs.  Uppendahl,  197  111.  179. 
But  latent  andnguity,  such  as  an  omission  to  refer  to  any  me- 
ridian, may  be  obviated  by  proof. 

Dougherty  vs.  Purdy,  18  111.  206. 
Or  failure  to  state  a  number  of  township  north. 

Clark  vs.  Powers,  45  111.  283. 
Or  omission  of  number  of  block,  in  describing  premises. 

Yoimg  vs.  Lorain,  11  111.  628. 
The  location  of  a  town  lot  or  other  tract  of  land  may  l)e  fixed 
by  the  witness  from  hearsay  or  common  repute,  independent  of 

any  plat. 

Smith  vs.  Stevens,  82  111.  554;  Holbrook  vs.  Debo,  99  lU.  372;  Judson 
vs.  Glos,  249  111.  82;  Wettig  vs.  Bowman,  39  111.  416. 

—  Wills: 

See  Identity,  Ambiguity. 
Burden  of  Proof: 

In  action  for  contract  price  of  personal  property,  sold  by  descrip- 


DESTRUCTION,  FABRICATION,  ETC.  437 

tion,  the  burden  of  identifying  the  same  rests  on  vendor,  wliere 
identity  forms  the  subject  matter  of  tlie  contract. 

Morris  vs.  Wibaux,  LI!)  111.  627;  Wolf  vs.  Dietzseh,  75  111.  205;  ScLulds 
vs.  Eiebe,  9  App.  598. 


DESERTION 

See  Divorce,  Abandonment. 

DESTRUCTION,  SUPPRESSION  AND  FABRICA 

TION  OF  EVIDENCE 

See  Best  and  Secondary,  Refusal  to  Produce  Evidence,  Pro- 
duction OP  Document;^. 
Destruction  and  Suppression: 

—  Presumption:  Where  a  pereon  is  proved  to  have  destroyed 
any  written  instrument,  a  presumption  will  arise  that,  if  the  truth 
had  appeared,  it  would  have  been  against  his  interest,  and  that  his 
conduct  is  attributed  to  his  knowledge  of  the  circumstances.  The 
general  rule  is.  Omnia  pnrsuvuinfur  contra  spoliatorem. 
Tanton  vs.  Keller,  167  111.  129. 

When  a  person  is  proved  to  have  suppressed  any  species  of  evi- 
dence or  to  have  defaced  any  written  instrument,  a  presumption 
will  arise  that  truth  was  against  the  interest  of  the  spoliator. 
Winohell  vs.  Edward,  57  111.  41. 

Every   reasonable  presumption  as   to   the  subject  matter  is   to 

prevail  against  the  wrongdoer. 

Downing  vs.  Pate,  90  111.  268. 
The  presumi)tion  of  innocence  may  be  overthrown,  and  a  pre- 
sumption of  guilt  raised  by  the  misconduct  of  party  in  suppress- 
ing or  destroying  evidence  which  he  ought  to  produce  or  to  which 

the  other  partly  is  entitled. 

Rector  vs.  Rector,  8  111.  106. 

Where  a  party  destroys  evidence  of  payments  made  to  him 
upon  purchase  of  land,  wrongfully  if  not  fraudulently,  every  pre- 
sumption as  to  subject  matter  will  prevail  against  him ;  and  if  he 
otfers  to  convey  at  time  of  such  destruction,  upon  payment  of  a 
certain  sum,  court  will  be  fully  warranted  in  finding  that  no  more 
than  such  sum  was  due,  after  deducting  the  payments. 
Downing  vs.  Pate,  90  111.  268. 

There  is  no  presumption  on  destruction  of  surrendered  lease. 
Rogan  vs.  Arnold,  135  App.  281. 

If  the  real  reason  for  destroying  documents  were  to  prevent 
exposure  to  public  of  business  transactions,  and  not  to  destroy 
evidence  in  the  suit,  adverse  presumption  is  not  so  strong  as  if 

latter  had  been  the  purpose. 

Gage  vs.  Parmalee,  87  111.  329. 
The  suppression,  destruction  or  concealment,  by  accused,  of  evi- 
dence against  himself  will  warrant  the  jury  in  drawing  some  infer- 
ence of  his  guilt,  though  it  would  be  error  to  instruct  them  that 
from  such  fact  they  should  draw  the  strongest  inference  of  guilt. 

Miller  vs.  People,  39  111.  458. 


438  DESTRUCTION,  FABRICATION,  ETC. 

Weak  evidence  becomes  strong  by  neglect  of  party  against  whom 
it  is  put  in,  in  not  showing,  l)y  means  within  the  easy  control  of 
that  party,  that  the  conclusion  drawn  from  such  evidence  is 
untrue. 

P.  Ft.  W.  &  C.  Ey.  Co.  vs.  Callaghan,  50  App.  676 ;  Gt.  West.  Ey.  Co. 
vs.  Bacon,  30  111.  348. 

But  evidence  offered  must  tend  to  establish  averment,  otherwise 
adverse  party  is  under  no  obligation  whatever  to  offer  proof  of  any 
character. 

Condon  vs.  Schoenfeld,  214  111.  226;  Smith  vs.  Chi.  City  Ey.  Co.,  165 
App.  190. 

—^ Eight  to  Prove:  It  may  be  show^n  that  a  party  had  destroyed 
or  suppressed  evidence. 

U.  S.  Brg.  Co.  vs.  Eiuldy,  203  111.  306. 

—  Destruction  hij  Co-Defendant  or  Joint  Obligor:  Principal's 
admission  that  an  instrument  was  destroyed  is  evidence  of  the 
fact  not  only  as  against  himself,  but  against  his  co-obligors  as 
well. 

In  absence  of  fraud,  if  the  parties  have  a  joint  interest  in  the 
matter  in  suit,  whether  as  plaintiffs  or  defendants,  an  admission 
made  by  one  is,  in  general,  evidence  against  all.  They  stand  to 
each  other  in  this  respect  in  a  relation  similar  to  that  of  existing 
co-partners.  And  where  two  are  bound  in  a  single  bill,  the  admis- 
sion of  one  is  held  good  against  both  defendants. 
Ehode  vs.  McLean,  101  111.  467. 

—  Relief  from  Burden:  The  presvimption  of  law  arising  from 
the  destniction  or  non-production  of  evidence  does  not  relieve  the 
opposite  party  from  tlie  burden  of  proving  his  case.  The  destruc- 
tion does  not  make  proof. 

Gage  vs.  Parmalee,  87  111.  329. 
Secondary  evidence  of  destroyed  documents  is  strengthened  and 
aided  by  presumption. 

Gage  vs.  Parmalee,  87  111.  329. 
But  presumption  is  not   conclusive. 

Chi.  IT.  Trac.  Co.  vs.  Arnold,  131  App.  599. 

Fabrication : 

—  Presumption :  The  fabrication  of  evidence  is  calculated  to 
raise  a  presumption  against  the  party  who  has  recourse  to  such 
procedure  no  less  than  when  evidence  has  been  suppressed  or  with- 
held. 

Winehell  vs.  Edwards,  57  111.  41. 

—  Bight  to  Prove:  It  may  be  sho^vn  that  a  party  has  destroyed 
or  suppressed  material  evidence,  or  has  fabricated  such  evidence, 
because  it  is  in  the  nature  of  and  implies  an  admission  that  he  had 
no  right  to  recover  if  the  case  were  tried  on  the  evidence  in  the 
case  as  it  exists ;  that  it  is  not  sufficient  to  recover  on  unless  aided 
by  suppression  of  evidence  or  the  fabrication  of  more  evidence. 
It  follows,  that  all  efforts  to  suborn  witnesses,  made  by  a  party  or 
his  authorized  agent,  are,  for  these  reasons,  proper  to  be  shown. 

U.  S.  Bridge  Co.  vs.  Euddy,  203  111.  306;   Winehell  vs.  Edwards,  57 
ni.  41;  Chi.  City  Ey.  Co.  vs.  McMahon,  103  111.  485. 

—  Appearance  of  Document:  The  fact  that  the  outside  leaves 
are  lost  from  a  book  of  account,  there  being  nothing  to  indicate 


DESTRUCTION,  FABRICATION,  ETC.  439 

fraud,  is  no  reason  for  oxelnding  the  entries  proved.     The  condi- 
tion of  the  book  is  a  matter  jioing  to  the  weight  and  credibility. 
Weigle  vs.  Brautigam,   74  App.  285. 

A  book  of  account  undeniably  mutilated  is  not  entitled  to  credit. 
Deimel  vs.  Brown,   35  App.  303. 

The  fact  that  a  letter  press  copy  is  somewhat  discolored  and 
shows  that  the  original  was  crowded  on  the  same  page  with  another 
letter,  and  tliat  certain  defects  of  the  type  machine  appearing  in 
the  copies  of  other  instruments  of  the  same  date  are  absent  from 
the  copy,  are  not  conclusive  that  it  was  written  and  copied  later 
than  its  date,  particularly  where  two  type  machines  of  the  same 
make  were  in  use  in  the  office  where  the  instrument  was  written. 
Union  Natl.  Bank  vs.  Hines,  177  111.  417. 

A  portion  of  a  letter,  containing  statements  against  the  interest 
of  the  writer,  he  having  at  hand  a  letter-press  copy  of  the  whole 
letter  is  admissible,  the  person  to  whom  it  was  addressed  being 
his  agent  in  a  given  transaction. 

Cramer  vs.  Gregg,  40  App.  442. 

Secondary  Evidence: 

Where  a  i)aper,  admissible  in  evidence,  is  surreptitiously  taken 
and  detained  by  the  adverse  party,  evidence  is  admissible  to  prove 
its  contents. 

Medley  vs.  People,  49  App.  219. 

Where  party  fradulently  obtains  possession  of  written  instru- 
ment, parol  evidence  is  admissible  to  prove  contents,  on  proof  of 
service  of  notice  on  defendant  to  produce  same,  especially  where 
there  is  proof  that  party  had  said  he  destroyed  them,  which  was 
not  contradicted  on  the  trial. 

Marlowe  vs.  Marlowe,  77  111.  633. 

—  Party  Destroying  Caiinot  Offer  Seconclwry:  Where  a  party 
voluntarily  destroys  a  written  instrument,  he  cannot  prove  its 
contents  by  secondary  evidence,  unless  he  repels  every  inference  of 
a  fraudulent  design.  The  general  rule  is  that  the  highest  and  best 
evidence  of  which  a  case  is  susceptible  must  be  produced. 

Blake  vs.  Fash,  44  111.  303 ;  Palmer  vs.  Goldsmith,  15  App.  544. 
And  preliminary  proof  must  show  that  original  instruments  were 
not  intentionally  destroyed  or  in  any  manner  disposed  of  for  the 
purpose  of  iiitrodueiiig  a  copy  thereof  in  place  of  the  original. 

Bauer  vs.  Glos,  244  111.  627;  Scott  vs.  Bassett,  194  111.  602. 

—  Weight  and  Snfficiency :  Where  one  deliberately  or  pur- 
posely induces  another  to  destroy  a  written  instrument  of  any 
kind,  and  the  contents  thereof  subsequently  become  a  matter  of 
judicial  inquiry,  between  the  spoliator  and  an  innocent  party, 
the  latter  will  not  be  required  to  make  strict  proof  of  the  contents 
of  such  instrument  in  order  to  establish  a  right  founded  upon  it. 
In  such  case,  slight  evidence  will  suffice. 

Anderson  vs.  Irwin,  101  111.  411. 
So  where  a  will,  duly  executed  and  attested,  was  destroyed,  with 
the  connivance  of  a  part  of  the  heirs  of  the  testator,  and  no  copy 
appearing  to  be  in  existence,  in  a  suit  by  a  devisee  not  a  party  to 
such  destruction,  the  latter  was  only  required  to  show,  in  general 
terms,  the  dispositions  which  the  testator  made  of  his  property 


440  DETFXTIYES 

by  the  instrument,  and  that  it  purported  to  be  his  will,  and  was 
duly  attested  by  the  requisite  number  of  witnesses. 
Anderson  vs.  Irwin,  101  111.  411. 
The  maker  of  notes,  after  the  death  of  the  payee,  fraudulently 
possessed  himself  of  the  same,  and  confessed  a  judgment  in  another 
court  in  favor  of  the  administrator,  for  tlie  use  of  the  maker's  wife, 
and  filed  such  notes  in  the  other  court.  In  an  action  by  the  admin- 
istrator upon  the  notes,  it  was  stipulated  that  copies  of  the  notes 
might  be  used  as  evidence  if  the  originals  were  proper  evidence : 
Plaintitf  might  properly  recover  on  notes  wdthout  producing  them 
upon  the  trial.  In  such  case,  the  defendant  could  not  take  advan- 
tage  from  his  own  wrongful  act  in   placing  the   original   notes 

beyond  the  reach  of  plaintiff. 

Mount  vs.  Scholes,  120  111.  394. 
"Where  a  vendor  of  land  wrongfully  destroys  vendee's  contract 
of  purchase,  upon  which  are  endorsed  the  receipts  of  his  various 
payments,  testimony  of  vendor  as  to  amounts  of  such  credits  can- 
not be  allowed  to  control  the  evidence  of  the  opposite  party.  The 
unsupported  testimony  of  a  party,  as  to  the  contents  of  a  writing 
which  he  has  wrongfully  destroyed,  it  being  the  only  written  evi- 
dence which  had  been  in  existence,  will  not  be  allowed  to  prevail 

against  the  testimony  of  any  other  witness. 
Dov^ning  vs.  Pate,  90  111.  268. 


DETECTIVES 

See  Accomplice. 
Credibility : 

—  Criminal  Action:  The  fact  that  a  witness  is  a  detective  and 
was  employed  to  aid  in  bringing  criminals  to  justice  should  not 

discredit  his  testimony. 

Needham  vs.  People,  98  111.  275 ;  Burns  vs.  People,  45  App.  70. 
The  evidence  of  a  decoy  detective  to  tlie  eti'ect  that  he  hired 
himself  to  the  defendants  to  do  a  criminal  act,  and  that  he  did 
such  act  at  the  instance  of  the  defendants,  is  not  sufficient  to  con- 
vict of  a  criminal  charge. 

Johnson  vs.  People,  124  App.  213. 

The  fact  that  witness  is  a  detective  may  be  shown.  All  the  cir- 
cumstances connected  with  a  witness  or  that  might  tend  to  affect 
his  credibility  or  bias  his  judgment  are  competent  to  be  shown  to 
and  considered  by  the  jury  in  determining  the  weight  and  credit 
to  be  given  to  his  testimony. 

Hronek  vs.  People,  134  111.  139;  People  vs.  Newbold,  260  111.  196. 
It  is  error  to  instruct  that  evidence  of  a  detective  "should  be 
received  with  a  large  degree  of  caution." 

People  vs.  Gardt,  258  111.  468;  Hronek  vs.  People,  134  111.  139;  Peo- 
ple vs.  Whalen,  151  App.  16;  XIV  111.  Notes  1148,  §  267. 

So  an  instruction  which  tells  the  jury  that  they  were  the  sole 
judges  of  the  credibility  of  each  witness,  but  the  fact  that  a  wit- 
ness is  a  policeman  or  a  detective,  or  engaged  in  any  other  law- 
ful business  does  not  render  such  witness  incompetent  to  testify, 
or  furnish  ground  for  arbitrarily  rejecting  such  testimony;  that 


DIAGRAMS  441 

his  business  is  a  lawful  one.  that  his  testimony  should  not  be 
rejected  through  caprice  or  prejudice,  and  that,  wliile  the  jury 
inay  consider  the  business  and  surroundings  of  the  witness,  they 
must  consider  his  testimony  with  candor  and  fairness,  falls  within 
that  class  of  instructions  which  call  attention  to  particular  wit- 
nesses antl  should  not  be  given. 

People  vs.  Campbell,  234  111.  391. 
—  Civil  Actions:  The  testimony  of  a  private  detective,  hired 
by  a  husband  to  watch  his  wife,  with  view  to  learn  the  facts  upon 
which  to  base  a  suit  for  divorce  is  to  be  regarded  with  suspicion, 
especially  where  it  does  not  appear  that  his  pay  does  not  depend 
upon  the  successful  eifect  of  his  evidence. 

Blake  vs.  Blake,  70  111.  618;  Chapman  vs.  Chapman,  129  111.  386. 
But  it  is  error  to  instruct  jury  that  they  should  look  upon  the 
evidence  of  »uch  persons  with  suspicion  and  that  such  testimony 
should  be  received  by  them  with  great  caution. 

Riesen  vs.  Eiesen,  148  App.  460;  DeLong  vs.  Giles,  11  App.  33. 
And  that  it  must   be  corroborated  by  other  and  credible  evi- 
dence. 

Riesen  vs.  Riesen,  148  App.  460. 

A  witness  is  not  to  be  discredited  from  simple  fact  that  he  may 
fill  the  character  of  an  informer  or  spv. 
President  vs.  O  'Malley,  18  111.  40-8. 


DIAGRAMS 

Competency : 

—  In  General:  Maps,  pkts  and  diagi'ams  explanatory  of  loca- 
ations  may  be  introduced  in  evidence  in  connection  with  the  tes- 
timony of  witnesses  in  verification  thereof. 

Prussner  vs.  Brady,  136  App.  396;  Chi.  City  Ry.  Co.  vs.  McLaughlin, 
146  111.  353 ;  Brown  vs.  Galesburg  Brick  Co.,  132  111.  648 ;  Nicholas 
vs.  People,  171  111.  377;  Harney  vs.  Sanitary  Dist.,  260  111.  54. 

And  may  be  used  as  independent  evidence. 

Wahl  vs.  Laubersheimer,  174  111.  338;  City  of  Rockford  vs.  Russell, 
9  App.  229. 
But  inadmissible  where  containing  memorandum  that  is  written 
testimony   of  maker  and  concerning  matter  explainable  by  oral 

testimony. 

Hatcher  vs.  Quincy  Horse  Ry.  Co.,  181  App.  30. 

—  Preliuiinanj  Proof:    Should  first  be  shown  to  be  correct. 

Williams  vs.  Carterville,  97  App.  160. 

A  diagram  made  from  actual  measurements  by  a  surveyor  and 

shown  to  be  correct,  is  admissible. 

Rehbuss,  vs.  Hill,  243  111.  140;  Seidschlag  vs.  Town  of  Antioch,  207 
111.  280;  Justen  vs.  Scliaaf,  175  111.  45;  Wahl  vs.  Laubersheimer,  174 
111.  338. 

—  AnciUary   Use:     A  pencil  diagram  purporting  to   show  the 

situation  and  location  may  be  used  in  the  argument  by  way  of 

illustration   to   aid   the  jury   in   understanding   the   evidence   and 

need  not  be  introduced  in  evidence. 

Lake  St.  El.  Ry.  Co.  vs.  Burgess,  200  111.  628. 

—  Plat  of  Street  and  Intersection:     A  plat  of  streets,  etc.,  is" 


442  DIRECT  EXAMINATION 

admissible  in  evidence  when  a  surveyor  testifies  that  it  is  a  cor- 
rect survey  of  the  intersections  of  the  two  roads,  and  that  it  is  a 
ground  plan  of  streets  and  intersections  of  streets,  and  also  that 
it  shows  the  position  of  car  tra(;ks  that  cross,  etc. 
Chi.  City  Ey.  Co.  vs.  McLaughliu,  146  111.  353. 

—  Division  Fence:  A  plat  of  a  lot  described  in  the  declaration, 
showing  the  location  of  the  division  fences,  is  not  improperly  admit- 
ted in  an  action  of  trespass  quare  clausum  f regit,  where  the  party 
who  made  the  plat  testified  that  it  is  accurate  in  measurement^ 

and  correct. 

Wahl  vs.  Laubersheimer,  174  111.  338. 

—  Location  of  Property:  In  an  action  for  damages  to  prop- 
erty, after  a  witness  was  examined  at  considerable  length  in  rela- 
tion to  property,  he  produced  a  rough  draft  or  sketch  of  the  prem- 
ises, made  by  himself  from  observation,  and  not  mathematically 
correct,  showing  the  relative  situation  of  the  property  of  plaintiff, 
which  court,  trying  the  case  without  a  jury,  admitted.  The  draft 
or  sketch  merely  located  the  injured  property  without  giving  any 
indication  as  to  whether  it  had  been  injured  at  all  or  to  what 
extent;     Held,  no  prejudicial  error. 

Brown  vs.  Galesburg  Brick  Co.,   132  111.  648. 

—  Suriyey:  Where  a  surveyor  appointed  by  court  to  make 
examinations  and  surveys  for  the  puipose  of  ascertaining  whether 
the  mine  was  being  worked  upon  the  land  of  an  adjacent  owner, 
the  plat,  without  proof  of  its  correctness,  much  less  report  or  data 
of  surveyor  on  same,  not  admissible.  The  surveyor  might  be  a 
witness  and  make  a  plat  explanatory  of  his  survey,  and  then  intro- 
duce in  connection  with  testimony  showing  its  accuracy.    ,-.-,-:-!.  H 

Monmouth  Mfg.  Co.  vs.  Eegmier,  49  App.  385. 

—  Blue  Print:    A  blue  print  of  a  machine  is  admissible,  although 

part  of  it  is  torn  off,  it  not  appearing  that  the  part  so  torn  had 

anything  to  do  with  the  case. 

Fuchs  &  Lang  vs.  Kittredge  &  Co.,  242  111.  88. 

—  Profile  of  Improvement :    Admissible  in  suit  against  city  for 

damages  for  grading  street. 

City  of  Elgin  vs.  Eaton,  83  111.  535. 

DIRECT  EXAMINATION 

See  Cumulative  Evidence,  Leading  Questions,  Adverse  Party, 
Bias  and  Hostility,  Cross  Examination. 


DIRECTINa  VERDICT 

Motion : 

—  Defineel:  A  motion  to  take  a  case  from  the  jury  at  the  close 
of  the  plaintiff's  evidence  is  in  the  nature  of  a  demurrer  to  the 
evidence,  and  by  it  the  defendant  admits  that  the  plaintiff's  evi- 
dence is  true,  and  that  all  the  facts  which  it  fairly  tends  to  prove 

are  established. 

Geary  vs.  Bangs,  138  111.  77. 


DIRECTING  VERDICT  443 

—  When  Molion  Waived:  A  defondant  Avho  proceeds  to  intro- 
duce evidence  after  his  molion  to  direct  a  verdict,  made  at  the 
close  of  phiintiff's  evidence,  is  denied,  waives  the  motion,  not- 
withstanding he  excepted  to  the  Court's  ruling,  where  such  motion 
was  not  renewed  at  the  close  of  all  the  evidence. 

t  Langan  vs.   Enos  Fire   Escape  Co.,  233   111.  308;   Warth  vs.  Lowen- 

stein,  219  111.  222;  Harres  vs.  Shebek,  151  111.  287. 
"When  a  written  instruction  is  not  presented  with  the  motion  and 
error  is  assigned  on  the  refusal  of  the  court  to  give  the  instruc- 
tion, appellate  court  has  before  it  uo  legal  question  for  determi- 
nation. 

Variety  Mfg.  Co.  vs.  Landaker,  227  111.  22;  West  Chi.  St.  E.  Co.  vs. 
Foster,  175  111.  396;  Variety  Mfg.  Co.  vs.  Mills,  1-15  App.  387. 

Evidence : 

—  Not  Weigheel:  Evidence  cannot  be  weighed  and  if  the  facts 
are  reasonably  capable  of  a  construction  favorable  to  plaintiff,  such 
construction  must  be  adopted. 

Wolf  Co.  vs.  Refrigerator  Co.,  252  111.  491;   Donelson  vs.  E.  St.  L. 
Ry.  Co.,  235  111.  625. 
The  only  question  is,  is  there  any  testimony  fairly  tending  to 
support  plaintiff's  cause  of  action,  and  Court  is  not  authorized  to 
consider  weight  or  preponderance. 

C.  &  E.  I.  R.  Co.  vs.  Snedaker,  223  111.  395;  Blakslees  vs.  Ford,  215 
111.  230;  Union  Trac.  Co.  vs.  Lundahl,  215  111.  289;  C.  &  E.  I.  R. 
Co.  vs.  Sehmitz,  211  111.  446;  C.  &  A.  R.  Co.,  vs.  Howell,  208  111. 
155;  Chi.  Citv  liv.  Co.  vs.  Carroll,  206  HI.  318;  Chi.  City  Ry.  Co. 
vs.  Martenson,  198  111.  511;  XIV  111.  Notes  866,  §  216. 

—  Taken  as  True:  In  passing  upon  motion  to  direct  a  verdict 
for  the  defendant  in  a  personal  in.jury  case,  the  evidence  favor- 
able to  the  plaintiff  must  be  assumed  to  be  true. 

Savage  vs.  J.  E.  E.  Co.,  238  Ih.  392;  Waschow  vs.  Kellv  Coal  Co., 
245  111.  516. 

—  Plaintiff  EntitJeel  to  Benefit  of  AH  Evielence:    Upon  motion 

to  direct  verdict  for  defendant,  plaintiff  is  entitled  to  benefit  of 

all  evidence  favorable  to  him,  whether  produced  by  him  or  by 

defendant,  and  if  such  evidence  fairly  tends  to  prove  his  cause  of 

action  as  alleged,  motion  should  be  denied  and  case  submitted  to 

jury. 

Math  vs.  City  of  Chicago,  243  111.  114;  Alton  Mfg.  Co.  vs.  Garret 
Ins.,  243  111.  298;  Roloff  vs.  Luer  Bros.,  ISO  App.  127. 

—  Scintilla  Rule:  The  term  "evidence  tending  to  prove,"  used 
in  relation  to  peremptory  instructions,  means  more  than  a  mere 
scintilla  of  evidence,  denoting  evidence  upon  which  a  jury  could, 
without  acting  unreasonably  in  the  eye  of  the  law,  decide  in  favor 

of  party  offering. 

"Bowles  \s.  Bryan,  254  111.   148;    Offutt  vs.  Col.   Exp.   175  111.   472; 
Bartelot  vs.  "int.  Bank,  119  111.  259;  Simmons  vs.  C.  &  T.  Ey.  Co., 
110    111.    340;    Kinnare   vs.    Klein,    88    App.    304;    XIV    111.    Notes 
864,  §  196. 
A  mere  scintilla  of  evidence  in  favor  of  plaintiff  does  not  jus- 
tify court  in  refusing  to  direct  verdict  because  that  riuantum  of 
evidence  only  cannot  be  said  to  fairly  tend  to  prove  any  material 

averment  of  the  declaration. 

Lil.bv,  McNeill  &  Libby  vs.  Cook,  222  111.  206;  Derges  vs.  C.  B.  & 
Q."r.  Co.,  148  App.  639;  Butters  vs.  C.  B.  &  Q.  E.  Co.,  157  App. 
369;   Nolan  vs.  Morris,  108  App.  261. 


444  DISCOVERY 

DISCOVERY 

See  Immunity,  Contempt. 
BILLS  OF  DISCOVERY. 

Defined: 

A  bill  of  discovery  properly  and  technically  so  called  is  a  bill 

to  obtain  by  means  of  a  sworn  answer  of  the  defendant  a  discovery 

of  facts,  resting  in  his  knowledge,  or  of  deeds,  writings  or  other 

things  in  his  custody  or  power. 

Phila.  Ins.  Co.  vs.  Cent.  Natl.  Bank,  1  App.  344. 

Jurisdiction  in  Equity: 

Where  a  duty  rests  upon  a  defendant  to  account,  and  where  the 

matters  for  which  an  accounting  is  sought  are  peculiarly  within 

knowledge  of  defendant,  and  discovery  is  sought,  equity  will  assume 

jurisdiction  to  compel  the  discovery,  and  after  a  disclosure  will 

retain  the  bill  to  grant  complete  relief. 

Eefrigerator  Co.  vs.  Davis,  40  App.  616. 

Cumulative  Remedy: 

"The  statute  contains  no  words  prohiliitory  or  restrictive  of 
the  original  power  of  courts  of  equity;  and  while  there  may  be 
many  cases  in  which  these  concurrent  and  cumulative  remedies 
would  be  the  more  convenient,  there  may  be  many  also,  in  which 
plaintiff  would  wisely  prefer  not  to  depend  upon  testimony  of  his 
adversary  before  a  jury  for  proof  of  anything,  or  to  use  him  for 
formal  proof  and  yet  not  venture  to  ask  him  about  the  merits,  or 
to  risk  the  necessity  of  trying  to  impeach  one  whom  he  had  him- 
self offered  as  a  witness.    AYe  think  these  remedies  do  not  bar  the 

relief  sought  in  e(|uity. " 

Grimes  vs.  Hilliard,  38  App.  246;  Garden  City  Sand  Co.  vs.  People, 
118  App.  372. 

Necessary  Averments  of  Bill: 

Bill  must  state  that  discovery  is  indispensable  to  the  attainment 

of  justice. 

Co.  of  Cook  vs.  Davis,  143  111.  151. 
And  that  the  facts  as  to  which  discovery  is  sought  are  exclu- 
sively  within   knowledge   of   defendant   and   cannot   be   otherwise 

proven  than  by  defendant's  answer. 

Vennuni  vs.  Davis,  35  111.  568;   New  Era  Fuel  Co.  vs.  Shannon,  44 
App.  477. 
And  must  pray  that  action  at  law  be  stayed  until  coming  in  of 

the  answer. 

Primmer  vs.  Patton,  32  111.  528. 

Who  Entitled  to  Relief : 

Complainant    must,    before   court   will   compel   discovery,   show 

he  is  entitled  to  relief  prayed. 

Mason  vs.  Leich,  GO  App.  527;  Kendallville  Eef.  Co.  vs.  Davis,  40 
App.  616;  Helmle  vs.  Quillnan,  18  App.  103. 
It  is  ordinarily  a  good  objection  to  a  bill  of  discovery  that  it 
seeks  the  discovery  from  a  defendant  who  is  a  mere  witness  and 
has  no  interest  in  the  suit ;  for,  as  he  may  be  examined  in  the  suit 
as  a  witness,  there  is  no  ground  to  make  him  a  party  to  a  bill  of 
discovery,  since  his  answer  would  not  be  evidence  against  any  other 

person  in  the  suit. 

Detroit  Mills  Co.  vs.  Ledwidge,  162  111.   305;   Yates  vs.  Monroe,  13 

111.  212. 


DISORDERLY  llOFSE  445 

And  will  not  lie  against  city. 

Addyston  Pipe  Co.  vs.  City  of  Chicago,  170  111.  580. 

Incriminating:  Matters  : 

Courts  of  equity  have  always  withheld  their  aid  in  actions  which 
were  penal  in  their  nature,  and  would  never  compel  a  defendant  to 
disclose  facts  which  would  tend  to  expose  him  to  criminal  punish- 
ment or  prosecution,  or  to  pains,  penalties,  fines  or  forfeitures. 
A  defendant  may  refuse  to  answer,  not  only  as  to  facts  directly 
incriminating  him,  but  as  to  any  fact  which  might  form  a  link 
in  the  chain  of  evidence  establishing  his  liability  to  punishment, 
penalty  or  forfeiture.  This  was  the  settled  rule  of  the  English 
courts  of  equity,  and  the  principle  was  made  a  part  of  our  funda- 
mental law  in  our  state  and  federal  constitutions.  Il  makes  no 
difference  that  the  suits  brought  by  complainant  are  civil  in  form!. 
They  are  brought  for  penalties  for  alleged  offenses  against  laws  of 
the  state,  and  are  criminal  cases  within  the  meaning  of  the  con- 
stitutional provision.  They  are  criminal  prosecutions,  in  aid  of 
which  plaintiff,  by  a  bill  of  discovery,  calls  upon  defendant  to 
convict  himself,  and  rules  of  equity  as  well  as  state  and  federal 

constitutions  forbid  such  proceedings. 

Kobson  vs.  Doyle,  191  111.  566;  Hayes  vs.  Caldwell,  10  111.  34. 

Answer : 

—  By  Wliom  Must  Be  Made:     Should  be  made  by  defendant 

himself  and  an  unauthorized  statement  cannot  be   made   in  lieu 

thereof. 

Ball  vs.  Leonard,   24  111.   146. 

Respondent  has  a  right  to  state  all  the  circumstances  connected 
with  the  matters  about  which  discovery  is  sought,  as  well  that 
which  makes  for  as  against  him. 

Chambers  vs.  Warren,  13  111.  319. 

—  Effect  of  Ansiver:  Disclosures  made  by  answer  to  a  bill  in 
chancery  requiring  a  discovery  concerning  matters  charged  therein 
are  not  conclusive,  but  upon  replication  being  filed,  may  be  dis- 
proved or  contradicted. 

Harbert  vs.  Mershon,  169  111.  52;  Bonton  vs.  Smith,  113  111.  481; 
Schroeder  vs.  Brown,  59  Apj).  24;  Heisler  vs.  Dickinson,  17  App. 
193. 

Contra. 

Harbert  vs.  Mershon,  64  App.  297;   Fifield  vs.  Gorton,  15  App.  458; 

Phila.  Ins.  Co.  vs.  Cent.  Natl.  Bank,  1  App.  344 ;  U.  S.  Ins.  Co.  vs. 

Cent.  Natl.  Bank,  7  App.  426;  Yates  vs.  Monroe,  13  111.  212;  XII 

111.  Notes  141,  §  13. 

But  party  answering  cannot  be  impeached  as  being  unworthy  of 

belief. 

Chambers  vs.  Warren,  13  111.  319. 


DISORDERLY  HOUSE 

Admissibility  of  Evidence: 

—  General  Reputation:     Evidence  of  the  general  reputation  of 
a  house,  the  keeper  of  which  is  charged  with  keeping  a  house  of 
ill-fame,  which  is  based  upon  mere  hearsay,  is  inadmissible  as  tend- 
ing to  establish  the  guilt  of  the  accused. 
Parker  vs.  People,  94  App.  648. 


446  DISTANCE 

—  Circumstantial  Evidence:  That  the  owner  or  keeper  of  an 
alleged  disorderly  house  had  knowledge  that  the  house  was  being 
used  for  purposes  rendering  it  disorderly  may  be  shown  by  cir- 
cumstantial evidence. 

Ward  vs.  People,  23  App.  510;  Stevens  vs.  People,  67  111.  587. 

In  the  prosecution  for  keeping  a  house  of  ill-fame,  proof  of 
events  occurring  in  the  house  prior  to  the  time  covered  by  the 

indictment  is  competent. 

Parker  vs.  People,  94  App.  648. 
Proof  of  lewd  conversation  between  men  and  girls  in  house,  but 
not  in  presence  of  defendant,  are  inadmissible.  Nor  are  records 
of  conviction  of  persons  patronizing  house.  Nor  is  testimony  as  to 
what  charges  were  booked  against  patrons  taken  in  raid.  Nor 
may  witness  give  opinion  as  to  wdiether  defendant  kept  disorderly 

house. 

People  vs.  Newbold,  260  111.  196. 

Patrons  of  Disorderly  House: 

—  Defined:  The  patrons  of  a  house  of  ill-fame,  within  the  mean- 
ing of  the  statute,  making  it  a  misdemeanor,  are  those  who  go 
there  in  the  character  of  purchasers,  to  be  entertained  in  the  way 
of  a  bawdy  house,  and  not  women  who  are  inmates  of  such  house. 

Eaymond  vs.  People,  9  App.  344. 

DISTANCE 

See  Space  and  Distance. 

DIVORCE 

See    Adultery,    Marriage,    Residence,    Detectives,    Letters, 
Weight  and  Sufficiency,  Keasonable  Doubt. 
Degree  of  Proof: 

Requires  only  a  preponderance  of  the  evidence. 

Heyman  vs.  Heyman,  210  111.  524;  Stiles  vs.  Stiles,  167  111.  570; 
Pitman  vs.  Pitman,  72  App.  500;  Balswicz  vs.  Balswic,  179  App. 
118. 

Answer: 

The  divorce  statute  does  not  require  an  answer  to  a  bill  tor 
divorce  to  be  sworn  to,  but  provides  that  it  need  not,  and  is  differ- 
ent from  general  chancery  practice  in  that  respect.  The  statute 
having  dispensed  with  such  oath,  the  defendant  acquires  no  advan- 
tage by  swearing  to  his  answer  in  such  a  ease.  Such  a  sworn  answer 
has  no  more  effect  than  the  bill,  and  is  not  evidence. 

Coiusey  vs.  Coursey,  60  111.  186;  Adlard  vs.  Adlard,  65  111.  212. 

Cruelty : 

—  Defined:  Means  physical  acts  of  violence;  bodily  harm,  such 
as  endangers  life  or  limb;  such  acts  as  raise  a  reasonable  appre- 
hension of  bodily  harm  and  show  a  state  of  personal  danger  incom- 
patible with  the  marriage  state.  . 

Bad  temper,  petulance  of  manner,  rude  language,  want  of  civil 
attentions  or  angry  or  abusive  words  are  not  sufficient  grounds  for 

divorce  as  extreme  and  repeated  cruelty.  ,o«  t„ 

Trenchard  vs.  Trenehard,  245  111.  313;  Maddox  vs.  Maddox,  189  ill. 
152  •  Fizette  vs.  Fizette,  146  111.  328 ;  Henderson  vs.  Henderson,  88 
111.  248;  XII  111.  Notes  159,  §  12. 


DIVORCE  447 

—  Abusive  Language:    Proof  of  abusive  language  is  admissible 

to  characterize  acts  of  cruelty. 

Farnham  vs.  Farnbam,  73  111.  497. 

—  Drunkenness:  Evidence  of  drunkenness  may  be  considered 
by  jury  in  connection  with  acts  of  personal  violence.  Such  evi- 
dence tends  to  explain  the  nature  and  character  of  violence. 

Garrett  vs.  Garrett,  252  111.  318;   Coursey  vs.  Coursey,  60  111.   186; 
Harmon  vs.  Harmon,  16  111.  85. 

—  Failure  to  Support:  May  be  admitted  as  tending  to  show 
cruelty. 

Rupp  vs.  Eupp,  59  App.  569. 

—  Complaint  by  Wife:  Proof  of  complaint  by  wife  and  exhibi- 
tion of  marks  of  violence  immediately  after  acts  charged,  compe- 
tent in  corroboration. 

Berdell  vs.  Berdell,  80  111.  604;  Contra,  Meyer  vs.  Meyer,  64  App.  175. 

—  Single  Act:     In  no  case  is  a  single  act  of  physical  violence 

sufficient  grounds  for  divorce. 

Hitchens  vs.  Hitchens,  140  111.  326 ;  Werres  vs.  Werres,  102  App.  360. 

—  Two  or  More  Acts:  Whether  two  or  more  acts  of  violence 
constitute  extreme  and  repeated  cruelty,  depends  upon  the  char- 
acter of  the  violence,  manner  of  party  committing  it  and  all  otlier 
circumstances  attending  and  having  a  bearing  upon  sdch  acts. 

Lenning  vs.  Lenning,  176  111.  180, 

—  Action  by  Husband:  When  the  husband  is  complainant,  it 
is  not  sufficient  to  show  slight  acts  of  violence  on  part  of  wife 
towards  him,  so  long  as  there  is  no  reason  to  suppose  that  he  will 
not  be  able  to  protect  himself  by  the  proper  exercise  of  his  marital 

powers. 

Garrett  vs.  Garrett,  252  111.  318;  Duberstein  vs.  Duberstein,  171  111. 

133;   Hitchens  vs.  Hitchens,  140  111.  326;  DeLaHay  vs.  DeLaHay, 

21  111.  252. 

Where  the  husband  asks  for  a  divorce  from  his  wife  upon  the 

gi-ounds  of  extreme  and  repeated  cruelty,  he  must  make  out  a  clear 

case  and  it  is  not  sufficient  for  him  to  show  slight  acts  of  violence 

on  her  part  towards  him,  so  long  as  there  is  no  reason  to  suppose 

that  he  cannot  protect  himself  b}^  the  proper  exercise  of  his  marital 

powers. 

Severns  vs.  Severns,  107  App.  141. 

Desertion: 

—  Burden  of  Proof:  In  proceeding  for  divorce  upon  ground  of 
desertion,  burden  is  upon  complainant  to  show  that  defendant  wil- 
fully deserted  and  absented  himself,  without  reasonable  cause,  for 

the  space  of  two  years. 

Gustafson  vs.  Gustafson,  66  App.  40. 

—  Time  of  Absence:     The  statute  requires  that  the  desertion 

shall  continue  without  cause  for  the  space  of  two  years  before  a 

divorce  can  be  obtained  for  that  cause. 

Thomas  vs.  Thomas,  51  111.  162 ;  Phelan  vs.  Phelan,  135  111.  445.       ' 

Wilful  desertion  without  any  reasonable  cause  as  ground  for 
divorce  must  continue  for  full  space  of  two  years  prior  to  filing  of 
bill.  The  period  of  such  desertion  is  to  be  computed  by  excluding 
the  first  day  and  including  the  last. 

Trimmer  vs.  Trimmer,  117  App.  64;  Affd.,  215  111.  121. 

Where  a  bill  for  divorce,  on  ground  of  desertion,  is  dismissed,  a 


448  DIVORCE 

subsequent  bill  for  same  cause  will  not  lie  for  at  least  two  years 

thereafter. 

Haltenhof  vs.  Haltenhof,  44  App.  135. 

Intention:  There  must  be  proof  that  the  desertion  was  wil- 
ful or  that  it  was  without  any  reasonable  cause. 

Chatterton  vs.  Chatterton,  231  111.  449;  Embree  vs.  Embree,  53  111.  394. 

Intention  has  a  large  if  not  controlling  influence.  If  a  party 
leaves  with  intention  of  returning,  and  continuues  to  provide  for 
his  wife  and  family,  and  is  kept  away  over  two  years,  this  will  be 
no  desertion  or  abandonment. 

Kennedy  vs.  Kennedy,  87  111.  250. 

Forsaking  and  abandoning  a  wife  is  desertion,  and  not  the  less 
so  because  allowance  for  support  is  made  to  her.  Abandonment, 
where  intentional  and  designed  to  be  permanent,  depriving  wife  of 
society,  protection  and  companionship  of  husband,  wilfully  deny- 
ing every  right  of  a  wife  except  an  allowance,  and  permanently 
al)senting  himself  is  desertion.  Desertion  and  absence  are  synony- 
mous. 

Elzas  vs.  Elzas,  171  111.  632. 

Wife  absenting  herself  from  husband's  home  must  show  cause 

therefor. 

Carter  vs.  Carter,  62  111.  439. 
4|  The  fact  that  after  more  than  two  years'  unjustifiable  absence 
the  wife  returns  to  her  lius])and's  home  and  that  she  lives  in  the 
same  house  with  him  does  not  amount  to  a  condonation  of  her  de- 
sertion, where  she  had  no  intention  of  resundng,  and  did  not 
resume,  her  marital  relations  with  him,  but  employed  detectives  to 
watch  her  husband  and  devoted  her  energies  to  unearthing  cause 
which  would  entitle  her  to  a  divorce  from  him. 

Lindsay  vs.  Lindsay,  226  111.  309. 

Reasovahle  Cause:     As  to  desertion     and  absence,  must  be 

such  as  will  entitle  to  a  divorce. 
Fritz  vs.  Fritz,  138  111.  436. 

—  Offer  to  Return:    Made  in  good  faith  before  period  elapsed, 

will  bar  suit  for  desertion. 

Albee  vs.  Albee,  141  111.  550 ;  Gustafson  vs.  Gustafson,  66  App.  41. 

—  Consent:    Absence  by  consent  is  not  cause  for  divorce. 

Loftns  vs.  Loftns,  134  App.  360. 

—  JJncorrohorated  Testimony:  Desertion  as  a  ground  for  divorce 
cannot  be  established  by  the  uncorroborated  testimony  of  com- 
plainant alone. 

WellinLtton    vs.   Wellington,    137   App.   394;    Somers   vs.    Somers,    16 
App."  77. 

Impotency : 

—  Defined:  The  words  "naturally  impotent"  means  to  be 
impotent  or  incapable  in  the  matter  of  performing  coition  with 
the  other  sex  as  nature  prompts,  and  incurably  so.  The  origin  of 
the  impotency  is  unimportant.  It  is  equally  a  ground  of  nullity 
whether  it  existed  at  birth  or  came  afterwards  from  the  party's 
own  fault,  or  from  the  fault  of  another,  or  from  an  accident  for 

which  no  one  is  responsible. 

Griffith  vs.  Griffith,  162  111.  368;  Hehcrt  vs.  Hebert,  118  App.  448. 
Burden  of  Proof:     Where  impotency  is  charged,  the  burden 


DIVORCE  449 

of  proof  is  upon  complainant  to  establish  not  only  the  irapoteney 
charged,  but  also  that  it  is  incurable. 

Kinkaid  vs.  Kinkaid,  256  111.  548;  Lorenz  vs.  Lorcnz,  93  111.  376. 

—  Lapse  uf  Time:     Where  there  has  been  cohabitation  for  a 

number  of  years,  without  complaint,  this  may  be  a  circumstance 

tending  to  show  fabrication. 

Lorenz  vs.  Lorenz,  93  111.  376;  Peipho  vs.  Peiplio,  88  111.  438;  Jorden 
vs.  Jorden,  93  App.  633. 

Drunkenness : 

—  Ilahiiual  Drunkenness  Defined:  There  is  habitual  drunken- 
ness within  meaning  of  statute  where  for  the  statutory  period 
defendant  is  frequently  and  customarily  or  habitually  given  to  the 
excessive  use  of  intoxicating  drink,  and  by  such  indulgence  loses 
the  power  or  the  will  to  control  his  appetite. 

Eichards  vs.  Richai'ds,  19  App.  465. 
Drunkenness  as  ground  of  divorce  is  that  state  or  condition  which 
follows  excessive  use  of  alcoholic  or  other  intoxicating  liquors ;  the 
word  is  used  in  statute  in  ordinary  and  popular  sense. 

Young  vs.  Young,  130  HI.  230. 

—  After  Filing  Suit:  Evidence  of  intoxication  since  filing  suit  is 
competent,  not  to  show  substantive  cause,  but  to  show  a  continu- 
ing habit. 

Smitli  vs.  Smith,  149  App.  596. 

—  Sobriety:  Evidence  of  sobriety  of  defendant  after  period 
upon  which  charge  is  predicated  is  incompetent. 

Loftus  vs.  Loftus,   134  App.  360. 

—  What  Sufficient  Proof  Of:  Wliere  charge  of  drunkenness 
is  supported  by  a  number  of  witnesses,  who  state  defendant  was  in 
haliit  of  becoming  intoxicated  from  one  to  three  times  a  week, 
that  his  habits  of  drinking  cover  a  period  of  four  or  five  years 
preceding  hearing,  and  that  he  was  in  habit  of  drinking  intoxicat- 
ing liquor,  generally  whiskey  on  an  average  of  three  to  five  times 
a  day,  it  is  sufficient  as  a  ground  for  divorce. 

Marous  vs.  Marous,  86  App.  597. 

—  Negative  Testimony:  Of  witnesses  that  they  have  met  defend- 
ant frequently  and  have  never  seen  him  intoxicated  is  competent. 

Smith  vs.  Smith,  149  App.  596. 

But  it  is  of  little  value  as  opposed  to  positive  evidence  by  oth- 
ers of  intemperance. 

Eichards  vs.  Eichards,  19  App.  333. 

Defenses : 

—  Adultery:  Proof  that  complainant  has  been  guilty  of  adul- 
tery is  a  complete  bar  to  divorce  whether  alleged  in  pleadings  or 
not. 

Zimmerman  vs.  Zimmerman,  242  111.  552;  Decker  vs.  Decker,  193 
111.  285;  Duberstein  vs.  Duberstein,  171  111.  133;  Gordon  vs.  Gor- 
don, 141  111.  160;   XII  111.  Notes  160,  §17. 

And  during  pending  of  litigation. 
Davis  vs.  Davis,  19  111.  334. 

—  Connivance:  A  husband  who  either  procures  or  connives  at 
the  debauching  of  his  wife  is  thereby  estopped  from  improving 
his  marital  condition  by  securing  a  divorce  the  grounds  for  which 
were  brought  about  by  his  own  perfidy. 

Reisen  vs.  Eeisen,  148  App.  400 ;  Eames  vs.  Eames,  133  App.  665. 

Ev.— 2  9 


450  DIVORCE 

Condonation: 

— ■I)(fitud:     Condonation  is  forgiveness  for  the  past,  upon  con- 
dition that  the  wrong  shall  not  he  repeated.     It  is  dependent  upon 
future  good  conduct  and  must  he  voluntary. 
Wessels  vs.  Wessels,  28  App.  253. 

Condonation  is  regarded  as  resting  upon  an  agreement,  express 
or  implied,  granting  forgiveness  for  an  offense  upon  condition  it 

shall  not  be  repeated. 

Duberstein   vs.   Duberstein,   171   111.    133;    Kennedy  vs.   Kennedy,   87 
111.  250. 

—  Presumption:  An  unexplained  delay  in  proeeedings  for  relief 
raises  a  presumption  of  condonation. 

Kitchens  vs.   Kitchens,   140  111.   326. 

—  Specific  Acts:  The  act  of  condonation  operates  only  to  for- 
give the  specific  acts  condoned,  when  the  forgiveness  is  applied  to 
specific  acts,  but  where  no  specific  acts  of  oifense  are  known  or  dis- 
closed, and  where  no  inquiry  is  made  as  to  specific  acts  and  there 
is  no  concealment  or  denial  upon  inquiry,  but  the  confession  is 
of  general  infidelity  without  specifications,  a  condonation  also 
general  applies  as  well  to  one  precedent  offense  as  to  another,  and 

includes  them  all. 

Moorhonse  vs.  Moorhouse,  90  App.  401. 

—  Knowledge:  Cohabitation  subsequent  to  alleged  causes  for 
divorce  must  be  with  knowledge  to  amount  to  condonation. 

Phillips  vs.  Phillips,  1  App.  245. 

—  SuhseqtiDit  Conduet:  Condonation  of  offense  of  cruelty  is 
avoided  where  forgiven  party  is  subsequently  guilty  of  such  con- 
duct as  to  lead  the  condoning  party  to  believe  that  the  offense  will 

be  repeated. 

Abbott  vs.  Abbott,  192  111.  439. 

—  Cohabitation:  Single  act  of  cohabitation  after  act  of  extreme 
and  repeated  crueltv  is  not  a  condonation. 

Phillips  vs.  Phillips,  1  App.  245. 
Single  act  of  cohabitation  during  period  of  desertion  is  not  a 

condonation. 

Kennedy  vs.  Kennedy,  87  111.  250. 
But  relief  will  not  be  granted  where,  since  bill  was  filed,  peti- 
tioner has  lived  with  the  other  for  months,  to  all  appearance  in  the 

marital  relation. 

Lee  vs.  Lee,  51  App.  565. 

Witnesses : 

—  Nuniher  Of:    Divorce  cannot  be  had  upon  testimony  of  only 

one  witness  on  default. 

Chatterton  vs.  Chatterton,  132  111.  31;  Kline  vs.  Kline,  104  App.  274. 

Nor  upon  testimony  of  only  one  witness  examined  in  open  court, 

and  the  deposition  of  one  witness. 

Suesemilch  vs.  Suesemilch,  43  App.  573. 

—  Divorced  Wife :     A  divorced  wife  is  incompetent  as  witness 

in   suit   by   a   second   wife  on   ground   of   impotency.      And    this 

whether  her  knowledge  was  derived  from  his  admissions,  in  which 

case   she  would   be   incompetent  under   the   statute,   or   from  her 

observation.     In  either  case,  public  policy  would  forbid  that  she 

speak   of  what  she   learned   in    the   confidences   of   the   marriage 

relation. 

Griffeth  vs.  Griffeth,   162   111.   368. 


POMICILE  451 

DOCKETS 

See  Justice  op  Peace,  Judge's  Docket  and  Minutes,  Records. 

DOCTORS 

See  Expert  and  Opinion,  INIedical  and  Surgical  Services,  Phys- 
icians AND  Surgeons. 

DOMESTIC  RELATIONS 

See  Wages,  Earning  Capacity  and  Domestic  Relations. 


DOMICILE 

See  Citizenship,  Residence,  Contested  Elections. 
Presumptions : 

—  C&ntinuatice:  A  domicile  once  acquired  is  presumed  to  con- 
tinue, and  one  alleging  that  a  change  has  taken  place,  has  the  bur- 
den of  proof. 

People  vs.  Estate  of  Mohr,  207  111.  180;  Moffit  vs.  Hill,  131  111.  239. 
Domicile  once  being  shown,  there  is  a  presumption  that  it  will 
continue,  but  none  as  to  when  it  began. 
Cloiigh  vs.  Kyne,  40  App.  234. 

A  domicile  is  not  lost  until  a  new  one  is  acquired. 

Wilkins  vs.  Marshall,  80  111.  74. 

Defined: 

—  In  General:  The  domicile  of  a  person  is  where  he  has  his 
true,  fixed  permanent  home,  and  principal  establishment,  and  to 
which,  whenever  he  is  absent,  he  has  the  intention  of  returning. 
Actual  residence  is  not  indispensable  to  retain  a  domicile  after 
it  has  once  been  acquired,  but  is  retained  by  the  mere  intention 
not  to  change  it  and  adopt  another. 

Holt  vs.  Hendee,  248  111.  288;  Hays  vs.  Hays,  74  111.  312. 
A  resident  of  a  place  is  one  whose  abode  is  there  and  has  no 
present  intention  of  removing  therefrom. 
Dorsey  vs.  Brigham,  177  111.  250. 
A  domicile  of  a  citizen  may  be  in  one  state  or  territory  and  his 
actual  residence  in  another. 

Jenks  vs.  Eoimds,  87  App.  284. 

—  Infants:  Every  person,  at  birth,  has  his  or  her  domicile  in 
the  place  in  which,  at  the  time,  the  person  on  whom  the  infant  is 
legally  dependent  is  then  domiciled,  whether  such  domicile  be  at 
the  place  of  its  birth  or  elsewhere.  This  domicle  of  origin,  which, 
in  the  case  of  legitimate  children,  is  the  domicile  of  the  father,  if 
living,  and  if  not,  that  of  the  mother,  continues  to  be  the  legal 
domicile  of  the  child,  unless  changed  by  the  parent  during  infancy, 
until  he  or  she,  upon  attaining  majority,  or  perhaps  after  being 
emancipated  by  the  parents,  acquires  another. 


452  DOI\IICILE 

During  dependency,  the  legal  home  or  place  of  domicile  fol- 
lows that  of  its  parents.  If  both  parents  are  dead,  the  domicile 
of  the  child  will  be  that  of  its  origin,  or,  if  that  has  been  changed 
by  the  parents,  that  of  its  last  surviving  parent.    The  infant,  of  its 

own  volition,  cannot  change  its  dondcile. 
Van  Matre  vs.  Sankey,  148  111.  536. 

—  Married  Women:  After  the  marriage  of  a  woman,  and  so 
long  as  the  relations  between  her  and  her  husband  are  not  adverse, 
his  domicile  will  be  her  domicile,  and  will  change  with  his  through- 
out their  married  life. 

Cooper  vs.  Beers,  143  111.  25;  Kennedy  vs.  Kennedy,  87  111.  250;  Phil- 
lips vs.  Springfield,  39  111.  82;  Aslibaugli  vs.  Ashbaugli,  17  111.  476; 
XII  111.  Notes  182,  §  13. 
The  rule  that  the  domicile  of  the  husband  is  the  domicile  of  the 
wife  has  no  application  where  the  wife,  without  fault  on  her  part, 
leaves  her  husband's  home,  and  in  good  faith  goes  to  another  juris- 
diction intending  to  make  it  a  permanent  home. 

Hill  vs.  Hill,  166  111.  54;  Wluttaker  vs.  Whittaker,  151  111.  266. 
A  wife,  after  the  conunission  by  her  husband  of  an  offense  of 
injury  which  entitles  her  to  a  divorce,  is  under  no  further  legal 
obligations  to  make  his  residence  or  domicile  hers,  but  is,  for  all 
the  purposes  of  seeking  redress  under  the  statute  in  relation  to 
divorce,  at  liberty  to  acquire  or  establish  for  herself  a  residence 
or  domicile  separate  from  his,  and  if  such  residence  has  in  it  the 
proper  element  of  permanence,  and  is  acquired  in  good  faith,  it  is 
sufficient  to  authorize  a  decree  of  divorce,  although  tlie  residence 
and  domicile  of  the  husband  may  be  in  another  and  foreign  juris- 
diction. 

Derby  vs.  Derby,  14  App.  645. 
The  domicile  of  the  husband  is  the  domicile  of  the  wife,  and 
unless  there  is  a  distinct  averment  of  a  different  residence,  the 
presumption  is  that  the  residence  of  the  husband  is  the  residence  of 

the  wife. 

Davis  vs.  Davis,  30  111.  180. 

—  Persons  Non  Compos:  An  idiot  cannot  acquire  residence  or 
settlement  in  any  place  by  virtue  of  his  own  acts.  The  residence 
of  such  a  person  is  fixed  either  by  the  father  or  those  having  para- 
2B0unt  control  over  him. 

Payne  vs.  Town  of  Dunham,  29  111.  125. 
Depends  upon  degree  of  insanity. 

Co.  of  McHenry  vs.  Co.  of  Dorr,  39  App.  240. 

—  Pauper:  As  a  general  rule  persons  under  legal  disability  or 
restraint,  persons  of  non-sane  memory,  or  persons  in  want  of  free- 
dom, are  incapable  of  losing  or  gaining  a  residence  by  acting  under 
the  control  of  others.  Without  intent,  the  residence  cannot  be 
changed,  and  a  pauper  maintained  at  the  poor  farm  is  not  an 
exception  to  the  rule. 

Freeport  vs.  Board  of  Supervisors,  41  111.  495. 
A  pauper  remaining  at  the  county  house,  and  sent  there  from 
another  township,  does  not  acquire  a  residence  in  the  township  in 
which  the  poorhouse  is  located,  so  as  to  entitle  him  to  vote  in  the 

latter  township. 

Clark  vs.  Robinson,  88  111.  498. 


DOMICILE  453 

Persons  under  legal  restraint  are  incapable  of  losing  or  gaining 
a  residence. 

Co.  of  Franklin  vs.  Co.  of  Henry,  26  App.  193. 

—  Persons  in  Military  or  Naval  Service:  The  residence  of  one's 
origin  is  not  lost  by  reason  of  special  duties  out  of  the  state,  in 
the  naval  service,  during  a  portion  of  the  necessary  time,  even 
though  during  a  part  of  the  time  he  kept  house  with  his  wife  in 
another  state. 

Knowlton  vs.  Knowlton,  155  111.  158. 

—  College  Students:  A  college  student,  as  respects  matters  of 
residence,  may  have  his  domicile  at  the  place  where  the  college  is 
located  if  he  is  free  from  parental  control.  * 

Welsh  vs.  Shumway,  232  111.  54;  Dale  vs.  Irwin,  78  III.  170. 
But  a  student  is  presumed  not  to  have  the  right  to  vote,  and  if 
he  attempts  to  do  so,  the  burden  is  upon  him  to  prove  his  residence. 
Welsh  vs.  Shumway,  232  111.  54. 

—  Corporations: 

See  Residence — Corporations. 
Admissibility  of  Evidence: 

—  Declarations:  Any  declarations  of  the  party,  so  connected 
with  the  act  of  going  that  they  characterize  the  act,  are  admissible 
as  evidence  tending  to  establish  intent  of  the  party. 

Matzenbaugh  vs.  People,  194  111.  108 ;  Wells  vs.  Parrott,  43  App.  656. 

But  mere  declarations  of  intention  to  change  domicile  without 
actual  change  of  residence  is  not  sufficient  to  establish  a  new  dom- 
icile. 

Holt  vs.  Hendee,  248  111.  288 ;  People  vs.  Estate  of  Mohr,  207  111.  180. 

Declarations  of  voters,  for  the  purpose  of  showing  that  they  were 
not  qualified  to  vote,  if  made  subsequent  to  election,  are  not  admis- 
sible. 

Behrensmeyer  vs.  Kreitz,  135  111.  591;  Beardstown  vs.  Virginia,  81 
111.  541. 
Declarations  while  admissible  on   question  of  domicile,   are  of 
but   little   weight   when  inconsistent  with  acts  of  party  making 

them. 

Holt  vs.  Hendee,  248  111.  288;  People  vs.  Estate  of  Mohr,  207  111.  180. 
Intent  of  party  to  establish  a  residence  can  be  determined  only 
by  the  acts  and  declarations  of  the  party. 

People  vs.  Kirkpatrick,  164  App.  328, 

—  Voting:  Exercise  of  right  of  suffrage  is  a  circumstance  tend- 
ing to  prove  domicile,  but  is  not  conclusive. 

Welsh  vs.  Shnmway,  232  111.  54;  Moffitt  vs.  Hill,  131  111.  239;  Hayes 
vs.  Hayes,  74  111.  312. 

—  Party's  Own  Testimony:  It  is  competent  for  a  party  whose 
domicile  is  in  question  to  testify  to  his  purpose  and  intention. 

Welsh  vs.   Shumway,   232   111.  54;   Wilkins  vs.  Marshall,   80   111.   74; 

Whitaker  vs.  Whitaker,  151  111.  266;  Albee  vs.  Albee,  141  111.  550. 

But  mere  declarations  of  intention  to  change  are  not  sufficient 

to  establish. 

People  vs.  Kirkpatrick,  164  App.  328. 

—  Avoidatice  of  Process:    It  may  be  shown  that  person  left  state 


454  DOWER 

to  avoid  service  of  process,  and  took  np  his  residence  in  another 
state,  intending  to  remain  there  indefinitely. 

Witbeck  vs.  Marshall,  188  111.  154. 
—  Real  Inquiry:     Purpose  and  intention. 

Jenks  vs.  Eounds,  87  App.  284. 


DOWER 

See  Death,  Ante-Nuptial  Contract,  Life  Tables,  Adultery, 
Husband  and  AVife,  Marriage,  AVitnesses,  Trusts. 
Proof  Necessary: 

—  In  General:  To  entitle  a  wife  to  dower,  she  must  prove  seizin 
in  the  husband,  marriage  and  death  of  husband. 

Whiting  vs.  Nieholl,  46  111.  230. 

Proof  of  seizin  of  husband  at  some  time  when  claimant  was  his 

wife,  and  his  subsequent  death,  makes  prima  facie  case. 
Reich  vs.  Berdell,  120  111.  499. 

—  Marriage:  AVhere  a  marriage  in  fact  is  shown,  the  law  raises 
a  strong  presumption  in  favor  of  its  legality,  and  the  burden  is 
cast  upon  party  questioning  validity  to  prove  such  facts  and  cir- 
cumstances as  will  establisli  its  invalidity. 

Jones  vs.  Gilbert,  135  111.  27. 
If  husband   acquires  title,   and  his  then   wife   is   subsequently 
divorced  for  his  fault,  and  there  is  no  provision  in  the  decree  bar- 
ring her  right  of  dower,  she  is  entitled  to  dower  in  such  interest 
after  his  death. 

Kirkpatrick  vs.  Kirkpatrick,  197  111.  144. 

—  Death  of  Husband:  Proof  of  seven  years'  absence  is  compe- 
tent and  may  make  prima  faeie  case. 

Whiting  vs.  Nieholl,  46  111.  230. 

Seizin  of  Husband: 

— Burdvn  of  Proof :     To  entitle  a  widow  to  recover  dower  in 

land,  the  burden  of  proof  is  upon  her  to  show  that  her  deceased 

husband,  during  the  coverture,  was  seized  of  a  legal  or  equitable 

estate  of  inheritance  in  the  premises. 
Cobb  vs.  Oldfield,  151  111.  540. 

—  Estate  of  Inheritance:     Must  be  shown. 

Stribling  vs.  Eoss,  16  111.  122. 
If,  at  the  time  of  his  death,  the  husband  was  in  a  position  to 
enforce  a  conveyance  of  land,  by  a  bill  for  specific  performance, 

the  widow  will  be  dowable  in  such  land. 
Owens  vs.  Eobbins,  19  111.  545. 

—  Estate  in  liemaincler :    But  dower  does  not  attach  to  realty  in 

which  husband  has  an  estate  in  remainder,  unless  particular  estate 

terminates  during  coverture. 

KirkPairiek  vs.  KirkPatrick,  197  111.  144. 

—  Time  of  Seizin:  If  the  seizin  is  beneficial,  it  matters  not  that 
it  was  but  momentary. 

Sutherland  vs.   Sutherland,   69  111.  481. 

—  Prima  Facie  Evidence  of  Seizin:  Possession  under  claim  of 
ownership  affords  prima  facie  evidence  of  seizin  in  fee. 

Gordon  vs.  Dickerson,  131  111.  141;  Gosselin  vs.  Smith,  154  111.  74. 

—  Title  Deeds:     Under  the  issue  of  non-seizin,  the  demandant 


DOWER  455 

in  dower  is  not  required  to  make  strict  proof  of  a  re^nilar  paper 
title.  Hence  the  widow  need  only  produce  such  evidence  as  will 
raise  a  fair  presumption  of  the  seizin  of  her  husband.  Such  pre- 
sumption may  be  rebutted  by  proof  of  a  better  and  paramount  title 
derived  from  other  source  than  the  husband. 
Becker  vs.  Quigg,  54  111.  390. 

To  Bar  Dower: 

—  Degree  of  Proof:  The  same  strictness  of  proof  that  is  required 
in  order  to  make  out  the  bar  of  statute  in  actions  of  ejectment  is 
required  to  sustain  the  bar  when  it  is  interposed  as  an  objection 
to  a  claim  of  dower. 

Hart  vs.  Eaiidolph,  142  111.  521. 

—  Adultery:  Adultery  accompanied  by  elopement  bars  dower, 
and  decree  of  divorce  is  not  necessary  to  effect  such  forfeiture. 

Decker  vs.  Decker,  193  111.  285. 

But  adultery  by  a  wife  after  she  has  been  wrongfully  deserted 
by  her  husband,  will  not  have  the  effect  of  barring  her  claim  for 
dower  in  her  husband's  lands,  and  evidence  of  the  same  on  bill 
to  assign  dower  is  inadmissible. 

Gordon  vs.  Dickerson,  131  111.  141. 

—  Ante-Nuptial  Contract:  A  widow's  dower  may  be  barred  by 
an  ante-nuptial  contract. 

Christy  vs.  Marmon,  163  111.  225;  Spencer  vs.  Boardman,  118  111.  553. 

—  Post-Nuptial  Contract:    Dower  may  be  barred  by. 

Colbert  vs.  Rings,  231  111.  404;  Merki  vs.  Merki,  212  111.  121;  Zack- 
mann  vs.  Zackmann,  201  111.  380. 

—  Eminent  Domain:  AVhere  a  husband's  lands  are  taken  by 
right  of  eminent  domain,  dower  is  defeated. 

Lavery  vs.  Hutchinson,  249  111.  86;  Bonner  vs.  Peterson,  44  111.  253. 

—  Limitations:  Widow's  dower  may  be  barred  as  against  a 
stranger  or  purchaser  who  has  been  in  possession  of  the  premises. 

Wells  vs.  Wells,  246  111.  469;  Haller  vs.  Hawkins,  245  111.  492;  Hart 
vs.  Eandolph,  142  111.  521. 

But  where  widow  and  heir  occupy  jointly  the  premises  in  which 
she  is  entitled  to  dower,  the  fact  that  they  remain  in  such  possession 
for  over  twenty  years,  does  not  bar  the  widow's  right  to  have  dower 
assigned. 

Brumhack  vs.  Brumback,  198  111.  66. 

Statute  does  not  begin  to  run  against  the  right  of  dower  during 
the  life  of  the  husband. 

Haller  vs.  Hawkins,  245  111.  492 ;  Miller  vs.  Pence,  132  111.  149 ;  Whit- 
ing vs.  Nicholl,  46  111.  230 ;  Stelli  vs.  Gellately,  41  111.  39. 

The  right  of  the  wife  to  dower  may  be  barred  by  delay  and  inac- 
tion for  such  a  period  of  time  and  under  such  circumstances  as 

amount  to  fraud. 

Haller  vs.  Hawkins,  245  111.  492 ;  Lohmeyer  vs.  Durbin,  213  111.  498 ; 
Gilbert  vs.  Reynolds,  51  111.  513. 

Value : 

—  Life  Tables:    The  tables  showing  the  probabilities  of  life  by 

which  dower  rights  can  be  computed,  are  recognized  by  courts  as 

proper  means  to  prove  such  value. 

McHenrv  vs.  Yokmn,  27  111.  160;  Henderson  vs.  Harness,  184  111.  520; 
Knight  vs.  Collins,  227  HI.  348. 


456  DRUNKENNESS 

—  Inchoate:     The  value  of  an  inchoate  right  of  dower  cannot 
be  approximately  ascertained  by  the  use  of  mortality  tables. 
Cowan  vs.  Kane,  211  111.  572. 
"AVhile  life  tables  may  be  resorted  to,  they  can  afford  but  a  mere 
expectancy  of  the  particular  life.     They  are,  doubtless,  correct  in 
the  aggregate,  but  cannot  be,  when  applied  to  individual  eases." 
Hartman  vs.  Hartmau,  59  111.  103;  Bouuer  vs.  Peterson,  44  111.  253. 


DRUNKENNESS 

See  Intoxication,  Homicide,  Intent,  Expert  and  Opinion. 

DRAM  SHOPS 

See  Intoxication,  Penalties,  Negative  in  Issue,  Anti-Saloon 
Territory. 

CIVIL  ACTION  FOR  DAMAGES. 
Presumptions : 

Injury  presumed  to  wife's  means  of  support  by  showing  her 
husband's  death,  and  that  it  was  occasioned  by  intoxication  pro- 
duced by  liquors  sold  or  given  him  by  defendant.  This  is  sufficient 
to  shift  the  burden  of  proof  and  entitles  plaintiff  to  at  least  nomi- 
nal damages. 

Flynn  vs.  Fogarty,  106  111.  263. 
One   knowingly   selling   to   habitual   drunkard   or  known   to  be 
already  intoxicated  is  presumed  to  intend  to  violate  the  law. 
England  vs.  Cox,  89  App.  551. 
It  is  not  presumed  that  defendants  knew  that  husband  would 
engage  in  gambling  and  thereby  lose  his  money. 
Gintz  vs.  Bradley,  53  App.   597. 

Burden 

Plaintiff  must  show  intoxication  from  sale  and  that  such  intoxi- 
cation was  the  effective  cause  of  the  injury. 

Baker  vs.  Summers,  201  111.  52. 
Loss  of  support  or  injurv  must  be  proven. 

Confrey  vs.  Stark,  73  111.  187;  Keedy  vs.  Howe,  72  111.  133. 

Burden  is  upon  plaintiff  to  show  intoxication  produced  by  liquor 

sold  or  given. 

McMahon  vs.  Sankey,  133  111.  636. 

Plaintiff  is  not  bound  to  make  out  case  against  all  defendants. 
Kennedy  vs.  Whittaker,  81  App.  605, 

Admissibility  of  Evidence: 

—  In  Gcnerol:     Sale  mav  be  proved  by  circumstantial  evidence. 

Horn  vs.  Smith,  77  111.  381 ;  Clowry  vs.  Holmes,  170  App.  125. 
Evidence  by  one  witness,  of  fact  of  intoxication  and  its  effect 
upon  plaintiff,  is  admissible  before  defendant's  connection  there- 
with is  proved,  and  afterwards  allowing  other  evidence  to  be  given 
by  other  witnesses  tending  to  show  defendant  caused  such  intoxica- 
tion. 

Hall  vi^.  Barnes,  82  HI.  228. 


DRAM  SHOPS  457 

Any  witness,  able  to  speak  from  personal  knowledge,  may  state 
that  another  was  in  the  habit  of  getting  intoxicated. 

Gallagher  vs.  People,  120  111.  179;  Whitesides  vs.  O 'Conner,  162  App. 
108;  Parker  vs.  Parker,  52  App.  333;  Sheppleman  vs.  People,  134 
App.  556;  XTII  111.  Notes  25,  §216. 
Husband  may  testify  that  he  was  discharged  from  employment 

because  of  his  drunkenness  while  on  duty.  '^ 

DeHaven  vs.  U.  S.  Brew.  Co.,  153  App.  126. 

—  OwncrsJiip:  Ownership  may  be  proven  by  deeds,  or  if  these 
cannot  be  obtained,  by  the  records  thereof.  Proof  may  be  made 
by  declarations  of  owner  if  title  not  directly  in  issue,  or  by  acts 
of  ownershij).  Where  knowledge  of  witness  appears  to  be  derived 
from  some  written  instrument  relating  to  title,  his  testimony  will 
not  be  received  unless  instrument  is  produced  or  accounted  for. 
Parol  evidence,  abstracts  of  title  or  inventories  connected  with  an 

estate  are  incompetent. 

Pumphrey  vs.  Giggey,  150  App.  473. 
Proven  as  of  a  specific  day,  is  presumed  to  continue  until  some 
change  or  alienation  is  shown. 

Eggers  vs.  Hardwick,  155  App.  254. 

—  Notice  and  Warnings:     Son  of  plaintiff,  being  a  minor,  notice 

of  such  fact  need  not  be  established. 

Mahoney  vs.  Goldblatt,  163  App.  563. 
Notice  from  wife  is  not  necessary  where  husband  is  an  habitual 

drunkard. 

Lane  vs.  Tippey,  52  App.  532. 
Evidence  that  wife  warned  defendant  more  than  five  years  before 

suit  is  admissible. 

Siegle  vs.  Rush,  173  111.  559. 
Warning  is  admissible  to  show  disregard  of  rights  and  to  author- 
ize punitive  damages. 

Danley    vs.    Hibbard,    222    HI.    88. 

—  Habits  and  Character:  What  deceased  had  done  in  his  life- 
time, character  of  his  business,  his  habits  of  thrift,  uicome,  age 

and  physical  condition  are  admissible. 
Flynn  vs.  Fogarty,  106  111.  263. 
Proof  that  deceased  was  industrious  when  sober,  though  no  alle- 
gation in  declaration  that  he  was  an  habitual  drunkard  is  admis- 
sible, and  it  may  also  be  shown  what  he  had  done  in  way  of  sup- 
porting his  wife. 

Buck  vs.  Haddock,  167  111.  219. 
Under  allegation  that  defendant  sold  to  habitual  drunkard,  hab- 
its of  deceased  of  using  intoxicating  liquors  is  admissible.     But  is 

not  admissible  for  allowance  of  punitive  damages. 

Smith  vs.  People,  141  111.  447;  Kelly  vs.  Malhout,  115  App.  23. 
Evidence  of  injury  and  ill  treatment  of  wife  while  husband  was 
drunk  is  inadmissible,  where  charge  is  injury  to  means  of  sup- 
port. 

Hackett  vs.  Smelsley,  77  111.  109;   McLees  vs.  Miles,  93  App.  442; 
Adams  vs.  Jurich,  160  App.  522. 

—  Associations:     Plaintiff  may  show  that  defendant  permitted 

prostitutes  and  women  of  lewd  character  to  visit  and  drink  in  his 

saloon,  and  that  her  son,  a  minor,  was  permitted  to  associate  with 

them.  '  * 

Mahoney  vs.  Goldblatt,   163  App.   563. 

—  Criminality:     Plaintiff  is  not  debarred  from  identifying  act 


458  DRAM  SHOPS 

complained  of  because  by  so  doing  defendant  would  appear  to  be 

guilty  of  an  infraction  of  a  statute  upon  which  it  was  not  relied 

for  recovery. 

Maloney  vs.  Daily,  67  App.  427. 

—  Gambling:  Where  it  is  claimed,  as  result  of  intoxication, 
husband  lost  his  money  at  gambling,  defendant  may  show  his  habit 
of  gambling. 

Gintz  vs.  Bradley,  53  App.  597. 

Evidence  of  warning  to  saloon  keeper  that  a  gambling  room 
was  being  conducted  in  an  unconnected  place  is  inadmissible,  though 
killing  occurred  in  such  place. 

Baker  vs.  Summers,  201  111.  52. 

—  Pecuniary  Circmnstances:     Wife  may  show  that  at  time  of 

husband's  death,  she  was  subsisting  on  and  being  supported  by 

husband's  labor,  and  that  she  had  no  means  of  support  except  his 

labor. 

Mayer  vs.  Smith,  121  111.  442. 

Wife  may  testify  as  to  what  had  been  the  earnings  of  her  hus- 
band and  as  to  what  the  support  per  week  out  of  his  earnings  were 
worth  to  her. 

Brandt  vs.  McEntee,  53  App.  467. 
Financial  condition  of  husband  at  time  of  death  is  admissible. 

Clears  vs.  Stanley,  34  App.  338. 
Plaintiff  may  show  that  after  husband  had  become  an  habitual 
drunkard,  he  failed  to  pay  his  rent  and  owed  for  expenses  of  treat- 
ment for  habit. 

Maloney  vs.  Daily,  67  App.  427. 
Notes  and  chattel  mortgages  are  competent  as  tending  to  show 
straits  to  which  family  of  intoxicant  was  reduced. 
DeHaven  vs.  U.  S.  Brew.  Co.,  153  App.  126. 
Evidence  of  money  borrowed  and  squandered  is  competent  on 
question  of  damages. 

Hendrix  vs.  Goldman,  163  App.  592. 
Evidence  of  destitute  condition  of  children  is  incompetent. 

Johnson  vs.  McCann,  61  App.  110. 
Inconveniences  wife  labored  under  since  husband 's  death ;  fact 
that  one  of  her  girls  worked  out ;  or  her  expenses  in  running  home, 
are  inadmissible. 

Flynn  vs.  Fogarty,  106  111.  263. 

Hardships  of  wife,  sickness  and  injury  of  children  of  plaintiff 
are  inadmissible. 

Hanewacker  vs.  Ferman,  152  111.  321. 
Proof  that  husband,  after  regaining  sanity,  was  unable  to  regain 
former  employment  is  admissible. 
Eoth  vs.  Eppy,  80  111.  283. 
But  evidence  is  not  admissible  as  to  what  he  would  have  made 
in  any  particular  business  ti-ansaction,  had  he  lived. 
Karan  vs.  Pease,  45  App.  382. 

Fact  that  wife  may  have  means  of  her  own  will  not  affect  her 
right  to  recover  damages  from  injury  to  her  means  of  support  on 
account  of  death  of  her  husband,  and  evidence  of  value  and  extent 
inadmissible. 

Deel  vs.  Heilgenstein,  244  111.  239;  Hackett  vs.  Smelsley,  77  111.  109. 


DRAM  SHOPS  459 

Evidence  as  to  what  wife  may  have  received  under  a  policy  of 
insurance  is  inadmissible. 

Deel   vs.   Heilgenstein,   244   111.   239;    Whitesides   vs.    O'Connor,    162 
App.  108. 

—  Expert  and  Opinion:  Person  need  not  be  expert  to  testify 
as  to  intoxication. 

Dimmick  vs.  Downs,  82  111.  570;  Whitesides  vs.  O'Connor,  162  App. 
108;  XII  111.  Notes  522,  §370. 

Non  expert  may  testify  that  substance  vomited  contained  whis- 
key. 

Marschal  vs.  Laughran,  47  App.  29. 
Opinion  that  intoxication  alleged  in  suit  was  same  as  that  for 
which  another  suit  had  been  brought  is  incompetent. 
Maloney  vs.  Daily,  67  App.  427. 

Defendant  may  show  how  long  usually  required  for  person  to 
sober  up. 

Brannan  vs.  Adams,  76  111.  331. 

Where  object  is  to  show  that  complete  effect  of  liquor  does  not 

immediately  follow  its  reception  into  the  stomach,  medical  expert 

may  testifv  how  liquor  acts  upon  human  svstem. 
Shorb  vs.  Weber,  89  App.  474;  Affd.,  188  111.  126. 

—  Refusal  to  Sell:  Where  exemplary  damages  not  claimed,  evi- 
dence that  saloon-keeper  gave  orders  to  bar-keeper  not  to  sell  to 

party,  incompetent. 

Mayers  vs.  Smith,  121  111.  442. 

Testimony  of  saloon-keeper  that  he  refused  to  sell  to  husband 
when  actually  drunk,  inadmissible  to  show  good  faith  or  regard  for 
wife's  rights. 

Wolf  vs.  Johnson,   152  111.  280. 

Nor  is  proof  that  another  refused  to  sell  to  plaintiff's  husband 

admissible. 

Wolfe  vs.  Johnson,  45  App.  122. 
But  where  exemplary  damages  are  claimed,  defendant  may  show, 
in  mitigation,  orders  to  clerk  not  to  sell. 

Freese  vs.  Trip,  70  111.  496;  Dunnigan  vs.  Ellis,  162  App.  185. 

—  License:    Fact  that  defendant  was  a  licensed  saloon-keeper  is 

immaterial. 

Both  vs.  Eppy,  80  111.  283, 

—  Connivance  and  Consent:  Consent  of  father  to  minor  son's 
drinking  may  be  shown  where  vindictive  damages  are  claimed, 
though  mother  sues  .jointly  with  father. 

Becherle  vs.  Brandon,  229  111,  323, 
Plaintiff's  consent  to   occasional   drink   not   bar   to   action,   but 
might  be  considered  in  mitigation  of  damages. 
Earp  vs.  Lilly,  217  111.  582. 
Proof  that  husband  and  wife  drank  together  may  be  considered 

in  mitigation  of  damages. 

Eoth  vs.  Eppy,  SO  111.  283. 
But  wife  may  show  husband  compelled  her  to  accompany  him. 

Hackett"  vs.  Smelsley,  77  111.  109. 
That  wife  might  have  destroyed  liquor  occasioning  intoxication 

and  consequent  death  mav  be  showm. 
Eeget  vs.  Bell,  77  111.  593. 

Part  hy  Defendant:     Proof  that  intoxication  was  caused  in 

part  by  liquors  obtained  from  others  is  inadmissible. 

Triggs  vs.  Melntyre.  215  111.  369;  Hacket  vs.  Smelsley,  77  111.  109; 
Dabney  vs.  Manian,  155  App.  238. 


460  DRAM  SHOPS 

—  Prior  Hahit:     Evidence  that  son  was  an  habitual  drunkard 

prior  to  decease  of  father  incompetent  in  action  by  mother. 
Dauley  vs.  Hibbard,  222  111.  88. 

—  Declarations  of  Intoxicant:  Testimony  of  statements  by  de- 
ceased that  he  did  not  care  to  live,  incompetent. 

Clears  vs.  Stanley,  34  App.  338. 

Testimony  of  deceased's  statement  that  he  wanted  another  drink 
competent  where  made  to  party  with  whom  he  had  just  been  in 
saloon  of  defendant  drinking. 

Mayers  vs.  Smith,  121  111.  442. 

—  Dying  Declaration:  Note  written  by  deceased  prior  to  sui- 
cide is  inadmissible  to  prove  statements  made  therein  for  reason 
for  his  act. 

Hammers  vs.  Knight,  168  App.  203. 

—  Agency:  That  one  of  defendants  was  agent  for  other  in  mak- 
ing sale  is  no  defense. 

Vetrovic  vs.  Meyers,  158  App.  391. 

Sale  of  liquor  by  defendant's  agent  is  a  sale  by  defendant. 
Deel  vs.  Heilgenstein,  244  111.  239. 

—  Weight  and  Sufficiency :    Preponderance  of  evidence  sufficient 

to  justify  recovery  of  damages. 

Woods  vs.  i)aily,  211  111.  495;  Eobinson  vs.  Eandall,  82  111.  521. 

It  is  not  required  that  evidence  shall  be  clear,  positive  and  spe- 
cific as  to  time,  place,  manner  and  each  item  of  loss  to  authorize 
jury  to  find  injury  to  the  support  of  the  family,  but  that  fact  may 

be  proved  like  any  other,  by  circumstances. 

Clowry  vs.  Holmes,  170  App.  125;  Horn  vs.  Smith,  77  111.  381. 

In  action  against  surety,  judgment  against  saloon-keeper  and 
owner  of  building  is  prima  facie  evidence  of  amount  of  damages, 
and  the  fact  that  in  first  action  exemplary  damages  could  have  been 
recovered  in  no  way  affects  the  binding  force  of  the  judgment. 
Wanach  vs.  People,  187  111.  116. 

Plaintiff  is  not  bound  to  prove  that  deceased  drank  any  partic- 
ular kind  of  liquor,  and  give  it  a  name.  It  is  enough  that  it  be 
proven  he  obtained  some  kind  of  a  drink  in  that  saloon  and  it  made 
him  drunk. 

Smith  vs.  People,  38  App.  638. 

Evidence  that  licjuor  was  bottled  lager  is  sufficient  proof  that 

it  was  intoxicating. 

Lahey  vs.  Crist,  130  App.  151. 

Proof  should  be  such  that  it  shows  defendant  sold  sufficient  num- 
ber of  drinks  to  materially  aid  in  inducing  habitual  drunkenness, 
but  positive  proof  of  numerous  sales  is  not  indispensable. 
Siegle  vs.  Eush,  173  111.  559. 

Allegations  of  declaration  are  divisible,  and  if  enough  of  the 

facts  alleged  in  a  count  of  the  declaration  are  proved  to  constitute 

a  cause  of  action,  there  can  be  a  recovery. 
Hammers  vs.  Knight,  168  App.  203. 

A  party  causing  intoxication  in  whole  or  in  part  cannot  escape 
liability  for  damages  to  means  of  support  caused  by  such  intoxica- 
tion because  he  may  not  reasonably  have  foreseen  the  consequence 

of  intoxication  produced  by  such  sales. 

Parson  vs.  Smith,  164  App.  509;  Schroeder  vs.  Crawford,  94  111.  357; 
Munz  vs.  People,  90  App.  647. 


DURESS  461 

Exemplary  damages  need  not  be  specially  declared  upon. 

Jacoby  vs.  Stark,  205  111.  34. 


DUEESS 

See  Threats. 
Defined: 

—  In  General:  A  party  in  his  right  mind  and  in  control  of  his 
faculties,  who  understands  what  he  is  doing,  and  has  full  power  to 
sign  a  paper  or  refuse,  is  not  under  duress. 

Bonney  vs.   Bonney,   237   111.   452;    Kertin  vs.   Hilton,   152   111.   658; 
Brower  vs.  Calleuder,  105  111.  88;  Stover  vs.  Mitchell,  45  111.  213.  ^^^ 
Mental  weakness  must  amount  to  inability  to  comprehend  the* 
contract  and  be  accompanied  by  imposition  or  undue  iufluenee. 
Huston  vs.  Smith,  248  111.  396. 

—  Threats  of  Civil  Action:    A  threat  to  enforce  a  legal  right  is 

not  duress. 

Hart  vs.  Strong,  183  111.  349;  Kreider  vs.  Fanning,  74  App.  230. 

—  Threats  of  Criminal  Prosecution:  Mere  vexation,  annoyance 
and  threats  of  imprisonment  for  w^iich  there  is  no  ground,  and 
threats  of  criminal  prosecution,  do  not  constitute  duress,  where  no 
proceeding  has  been  commenced  and  no  warrant  issued. 

Eendehnan  vs.  Eeudelman,  156  HI.  568;  L.  &  P.  Assn.  vs.  Holland, 
63  App.  58, 
Where  criminal  process  is  resorted  to  for  purpose  of  enforcing 
a  settlement  of  claim,  with  no  intention  of  enforcing  the  criminal 
law,  a  note  given  to  avoid  threatened  arrest  and  prosecution  under 
it  is  voidable  and  a  court  of  e(iuity  will  cancel  it. 
Green  vs.  Moss,  65  App.  594. 

Parties: 

—  Surety:  The  security  cannot  plead  duress  of  his  principal 
as  a  discharge  of  his  own  recognizance. 

Peacock  vs.   People,   83   HI.   331;    Huggins,  vs.   People,   39   111.   241; 
Plummer  vs.  People,   16  111.  358. 

—  Hushand  and  Wife:     Duress  may  be  shown. 

Mayer  vs.  Oldham,  32  App.  233. 

—  Parent  and  Child:    Duress  may  be  shown. 

Green  vs.  Moss,  65  App.  594. 

—  Innocent  Third  Party:    Cannot  be  shown. 

Keith  vs.  Buck,  16  App.  121. 

Although  a  woman  may  be  coerced  by  husband  to  execute  and 
acknowledge  a  mortgage  on  her  separate  property,  yet,  if  the  mort- 
gagee is  in  no  way  a  party  to  the  wrong,  and  she,  in  presence  of 
mortgagee  and  the  officer  taking  acknowledgment,  professes  to  exe- 
cute the  mortgage  of  her  own  free  will  and  thereby  induces  the 
mortgagee  to  give  up  other  adeciuate  security,  she  cannot  after- 
wards be  allowed  to  insist  that  the  mortgage  was  executed  against 
her  will,  and  thus  defeat  its  enforcement. 

Ladew  vs.  Paine,  82  111.  221;  Masten  vs.  Britteuham,  76  111.  611. 

To  sustain  the  defense  of  duress  of  imprisonment,  it  must  appear 
that  defendant's  action  was  influenced  by  the  restraint.  The  ques- 
tion whether  he  was  coerced  or  acted  willingly  is  one  of  fact,  and 


462  DURESS 

the  conclusion  of  coercion  from  the  fact  of  unlawful  restraint  is 
not  a  necessary  and  unavoidable  one. 

Schwartz  vs.  Schwartz,  29  App.  516. 

What  May  Be  Considered: 

Business  experience  and  mental  vigor. 

Post  vs.  First  Natl.  Bank,  138  111.  559. 
Health,  excitability  of  wife,  together  with  fact  that  at  the  time 
she  was  not  capable  of  transacting  business. 

Willetts  vs.  Willetts,  104  111.  122. 
Time  elapsing  between  duress  and  acts. 

Kendlenum  vs.  Kendleman,  156  111.  568. 

—  Laches:  Even  if  obtained  by  duress,  a  deed  or  mortgage  is 
not,  in  general,  void,  but  voidable,  and  may  be  ratified,  and  can 
only  be  avoided  by  prompt  action  on  the  part  of  the  injured  party 
after  the  restraint  has  been  removed,  and  cannot  be  avoided  if  rati- 
fied after  the  coercing  influence  has  ceased  to  operate. 

Bogue  vs.  Franke,  199  111.  411;  Erbstein  vs.  Willetts,  134  111.  101. 

Question  of  fact  for  jury.  .     „^  » 

Pemberton  vs.  Williams,  87  111.   15;   Schwartz  vs.  Schwartz,  29  App. 
516. 

Weight  and  Sufficiency: 

—  Threats:  In  order  to  justify  a  defense  that  the  makers  of  an 
instrument  were  induced  to  execute  same  by  means  of  threats  and 
through  fear,  it  must  be  shown  that  the  threats  were  such  as  would 
naturally  excite  siich  a  fear  as  would  overcome  the  will  of  a  per- 
son of  ordinary  courage,  and  such  fear  must  be  grounded  upon  the 
reasonable  belief  that  the  party  who  threatens  has  at  hand  the 
means  for  carrying  his  threat  into  present  execution. 

Young  vs.  Sims,  41  App.  28;  Lamson  vs.  Boyden,  57  App.  232. 
If  the  threat  is  of  such  character  as  to  terrify  a  man  of  ordi- 
nary and  reasonable  tirmness,  duress  will  be  established. 
Bane  vs.  Detrick,  52  111.  19. 
The  fact  that  a  person  pleading  duress  as  a  defense  to  a  prom- 
issory note  did  not  act  as  a  reasonable  man  would  have  done  under 
the  circumstances,  has  no  application  where  the  note  is  still  in  the 
hands  of  the  person  charged  with  the  duress,  and  the  action  is 

brought  by  him. 

Overstreet  vs.  Dunlap,  56  App.  486. 
Where  a  party  having  a  warrant  for  an  arrest,  threatens  to  exe- 
cute it  unless  the  person  against  whom  the  warrant  w^as  issued 
enters  into  a  certain  contract,  it  is  sufficient  duress  to  avoid  the 

contract. 

Bane  vs.  Detrick,  52  111.  19. 
Where  a  creditor  resorts  to  the  use  of  criminal  process  for  the 
purpose  of  coercing  the  father  of  a  debtor  into  securing  the  debt 
and  not  for  purpose  of  bringing  an  offender  against  the  criminal 
law  to  punishment,  it  is  an  abuse  of  process. 
Green  vs.  Moss,  65  App.  594. 
A  merchant  purchased  upon  credit  and  was  subsequently  com- 
pelled to  make  a  written  statement  of  his  financial  standing  in 
order  to  obtain  further  credit.     Failing  to  make  payment,  he  was 
arrested  upon  a  warrant  for  obtaining  goods  under  false  pretenses, 
and  while  a  prisoner  was  induced  to  procure  his  father  to  sign  a 
note  for  the  amount  of  the  debt.     Held  duress. 
Shenck  vs.   Phelps,  6  App.   612. 


DYING  DECLARATIONS  463 

By  agreement,  a  judgment  was  entered,  with  stay  of  execu- 
tion. Before  time  elapsed,  plaintiff  sued  out  an  execution,  and 
went  with  sheriff  to  defendant's  place  of  business,  threatening  to 
make  a  levy  and  close  up  his  store  unless  he  settled  the  debt  at 
once.  The  defendant  to  avoid  such  levy,  paid  part  of  the  debt 
and  then  gave  notes  with  security  for  tlie  balance,  due  at  a  shorter 
time  than  that  fixed  by  the  stay  of  execution :  Held,  that  the  notes 
were  extorted  by  the  improper  use  of  illegal  process,  and  were  with- 
out consideration. 

Thurman  vs.  Burt,  53   111.   129. 

—  Duress  of  Goods:  AVhere,  by  reason  of  the  peculiar  facts,  a 
reasonably  prudent  man  finds  that  in  order  to  preserve  his  property 
or  protect  his  business  interests,  it  is  necessary  to  make  a  pay- 
ment of  money  which  in  fact  he  does  not  owe,  and  which,  in  equity 
and  good  conscience,  the  receiver  ought  not  retain,  he  may  recover 
it  back ;  and  so,  when  such  payment  is  made  in  ignorance  of  mate- 
rial facts,  which,  if  known,  would  have  led  him  to  refrain  from 

making  the  payment. 

City  of*  Chicago  vs.  Sperbeck,  69  App,  562;  Prickett  vs.  Madison  Co., 
14  App.  454. 
In  action  to  recover  money  paid  to  a  city  for  a  merchant's  license, 
where  it  was  alleged  the  city  officials  fraudulently  represented  that 
an  ordinance  was  in  existence  requiring  such  a  license,  etc. ;  Held, 
that  there  could  be  no  recovery,  as  the  money  was  paid  without 
compulsion  or  duress  and  not  under  protest,  and  party  was  required 
at  his  peril  to  know  that  there  was  and  could  be  no  such  ordinance 

01*  I1C6IISG 

Holder  vs.  City  of  Galena,  19  App.  409. 

—  Imprisonment:  It  must  appear  defendant's  action  was  influ- 
enced by  the  restraint.  The  question  whether  he  was  coerced  or 
acted  willingly  is  one  of  fact  and  the  conclusion  of  coercion  from 
the  fact  of  unlawful  restraint  is  not  a  necessary  or  unavoidable  one. 

Schwartz  vs.  Schwartz,  29  App.  516. 
Even  if  the  imprisonment  be  law^ful,  yet  if  the  prosecutor  detain 
the  prisoner  in  prison  unlawfully,  by  covin  with  the  jailor,  this 

is  duress  which  will  avoid  a  deed. 

Schommer  vs.  Farwell,  56  111.  542. 
Where  the  imprisonment  is  lawful,  party  alleging  duress  must 
show  how  it  is  made  to  operate  upon  and  influence  his  laind  by  con- 
straint to  assent  to  and  do  acts  contrary  to  right  and  justice. 

Taylor  vs.  Cotterell,  16  111.  93. 

DUTY 

See  Officers. 

DYING  DECLARATIONS 

Defined:  i     ^    t 

Dying  declarations  are  such  as  are  made  relating  to  the  tacts 
of  the  injury,  of  which  the  person  making  them  immediately  after- 
wards dies,  under  the  fixed  belief  and  moral  conviction  that  imme- 


464  DYING  DECLARATlOxNS 

diate  death  is  inevitable  without  opportunity  for  repentance,  and 
without  hope  of  escaping  the  impending  danger. 

Simons  vs.  People,  150  111.  66;   Westbiook  vs.  People,  126  111.  81. 

Dying  declarations  are  such  as  are  made  ])y  the  party,  relating 
to  the  facts  of  the  injury  of  which  he  afterwards  dies,  under  the 
fixed  belief  and  moral  conviction  that  his  death  is  impending  and 
certain  to  follow  almost  innnediately,  without  opportunity  for  re- 
pentance, and  in  the  absence  of  all  hope  of  avoidance;  when  he 
has  despaired  of  life,  and  looks  to  death  as  inevitable  and  near  at 

hand. 

Scott  vs.  People,  63  111.  508;  Starkey  vs.  People,  17  111.  16. 

They  are  declarations  made  in  extremity,  when  the  party  is  at 
the  point  of  death,  and  where  every  hope  of  this  world  is  gone; 
where  every  motive  to  falsehood  is  silenced,  and  the  mind  is  induced 
by  the  most  jDowerful  consideration  to  speak  the  truth.  A  situa- 
tion so  solemn  and  so  awful  is  considered  by  the  law  as  creating 
an  obligation  equal  to  that  which  is  imposed  by  a  positive  oath  in 

a  court  of  justice. 

Brom  vs.  People,  216  111.  148;  Cf.  People  vs.  Warren,  259  111.  213. 

Principle  Upon  Which  Admitted: 

The  principle  upon  which  dying  declarations  are  admitted  is  that 
they  are  made  in  a  condition  so  solemn  and  awful  as  to  preclude  the 
supposition  that  the  party  could  have  been  influenced  by  malice, 
revenge  or  any  conceivable  motive  to  misrepresent  and  when  every 
inducement  was  to  speak  the  truth. 
People  vs.  Cassesse,  251  111.  422, 

Mental  Faculties: 

Before  written  statements  are  admissible  in  evidence  as  dying 
declarations,  it  must  be  shown  that  the  deceased  at  time  of  mak- 
ing them  was  in  possession  of  his  memory  and  mental  faculties  to 
such  an  extent  as  to  understand  the  nature  of  the  business  in  which 
he  was  engaged,  and  to  be  able  to  give  a  true  and  correct  account 
of  the  facts  to  which  the  statement  relates. 
Tracy  vs.  People,  97  111.   101. 

Extremity  of  Declarant: 

—  Fixed  Belief:  The  evidence  must  show  that  declarant  enter- 
tained a  fixed  belief  and  moral  conviction  that  his  death  was 
impending ;  that  he  had  no  hope  of  recovery,  and  that  he  had  des- 
paired of  life  and  looked  upon  death  as  inevitable  and  at  hand. 

People  vs.  Cassesse,  251  111.  422;  Westbrook  vs.  People,  126  111.  81. 

To  make  a  declaration  admissible,  the  party  making  it  must  be 
under  the  belief  that  his  dissolution  is  near  at  hand,  and  without 

liODC  of  recovery 

People  vs."  Cassesse,   251   111.  422;   Barnett  vs.  People,   54  111.   325; 

XII  111.  Notes  923,  §  67. 

The  belief  that  death  is  imminent  and  sure  to  follow  gives  to  the 

statements  of  one  in  such  frame  of  mind,  the  sanctity  of  an  oath, 

but  until  evidence   discloses  such  belief,   the   declarations  are  no 

more  competent  than  the  statements  of  any  other  unsworn  witness. 

Collins  vs.  People,  194  111.  506. 

Actual  Danger  of  Death:    Declaration  must  be 'made  under 

circumstances  when  the  person  making  same  is  in  actual  danger  of 


DYING  DECLARATIONS  465 

death,  and  has  given  up  all  hope  of  recovery.  Declarations  must 
be  made  under  fixed  belief  and  moral  conviction  of  person  making 
it  that  his  death  is  impending  and  certain  to  follow  almost  imme- 
diately, without  opportunity  for  repentance,  and  in  the  absence  of 
all  hope  of  avoidance,  when  he  has  despaired  of  life  and  looks  to 
death  as  at  hand. 

People  vs.   Cassesse,   251   111.   422  j    People  vs.   Brom,   216  111.   148; 
Staikey  vs.  People,  17  111.  16. 

To  render  dying  declarations  admissible  in  evidence,  it  is  not 
enough  that  the  party  shall  think  he  will  not  recover,  but  the  dec- 
laration must  be  made  under  impression  of  almost  immediate  disso- 
lution. 

North  vs.  People,   139  111.   81. 

—  Inducement  of  Belief:  The  fixed  belief  in  inevitable  and  im- 
minent death  which  must  be  entertained  by  a  declarant  to  render 
statement  admissible  as  a  dying  declaration,  may  be  induced  by 
statements  of  nurse  and  physician,  and  it  is  not  essential  that 
approaching  death,  which  occurred  within  an  hour  after  the  state- 
ment was  made,  be  presaged  by  own  personal  feelings. 

People  vs.  Buettner,  233  111.  272.. 
In  absence  of  evidence  that  deceased  was  advised  that  she  was 
going  to  die,  or  expressions  of  belief  by  her  in  the  probability  of 
such  event,  the  declarations  of  such  persons  are  not  admissible  as 
dying  declarations. 

Collins  vs.  People,  194  111.  506. 

—  How  Proof  May  Be  Made:  That  one  making  a  statement  of 
this  kind  was  in  extremity  may  be  proven  either  by  the  language 
used  or  acts  performed,  and  it  may  be  inferred  from  the  evident 
danger  of  the  party,  or  from  statements  made  to  him  b.y  medical  or 
other  attendants ;  Init  by  some  mode  of  proof  it  must  affirmatively 
appear  that  all  hope  of  recovery  was  gone. 

Westbrook  vs.  People,  126  'ill.  81, 

The  question  as  to  belief  of  person  wdiose  statements  are  sought 
to  be  introduced  as  dying  declarations,  that  his  death  was  impend- 
ing, must  be  determined  from  the  facts  proved,  and  not  by  mere 
opinions  of  witnesses.  No  weight  can  be  given  to  the  testimony  of  a 
witness  giving  it  as  his  opinion  that  a  wounded  person,  at  time  of 
making  statements  of  facts  of  the  case,  believed  he  was  about  to 
die,  without  giving  any  facts  upon  which  such  opinion  was  based. 
Westbrook  vs.  People,  126  HI.  81, 

—  Concerning  Religious  Consolation:  The  fact  that  declarant 
sends  for  no  minister  is  without  significance  where  there  is  no  min- 
ister of  his  faith  in  the  place. 

People  vs.  White,  251  111.  67. 

The  tenets  of  the  church  to  which  declarant  belonged,  that  there 
may  be  repentance  at  any  moment  before  death,  are  not  proper 
subject  of  inquiry  on  question  of  admissibility  of  his  dying  declara- 
tion, but  that  he  was  justified  in  believing  and  did  believe  to  the 
certainty  and  nearness  of  death. 
North  vs.  People,  139  111.  81. 

The  fact  that  declarant,  after  being  advised  by  her  nurse  and 
physician  that  she  was  probably  very  near  death,  sends  for  a  priest 
and  receives  the  last  sacrament  before  making  her  statement  is 

Ev. — 30 


466  DYING  DECLARATIONS 

strong  evidence  that  she  had  a  fixed  belief  in  inevitable  and  immi- 
nent death,  even  though  she  aftei-wards  stated,   in  answer  to  a 
question,  that- she  felt  "very  well." 
People  vs.  Buettner,  23*3  111.  272. 

—  Sufficiency  of  Proof:  About  twenty-five  minutes  before  the 
death  of  a  woman  from  poison,  she  stated  to  her  sister  that  defend- 
ant, to  whom  she  was  engaged  to  be  married,  had  given  her  a  cap- 
sule to  bring  back  her  monthly  courses ;  that  she  gave  way  to  this 
man.  Before  these  declarations,  in  speaking  to  her  two  sisters 
about  the  capsule,  she  stated,  "I  believe  it  will  kill  me."  Before 
making  this  statement  she  threw  up  her  arms,  and  said  to  one  of 
her  sisters,  "Don't  leave  me  any  more."  When  the  declaration 
was  made,  her  mind  seemed  to  be  perfectly  clear,  and  one  con- 
vulsion had  followed  another  for  over  an  hour,  each  with  increas- 
ing severity :  Held,  that  the  statements  of  deceased  were  properly 
admitted  in  evidence  against  defendant  as  dying  declarations. 
Simons  vs.  People,  150  111.  66. 

Evidence  that  deceased,  who  was  a  physician,  expressed  his  con- 
viction that  the  blows  he  had  received  would  cause  a  clot  to  form 
on  his  brain  and  that  his  death  would  inevitably  occur,  and  that 
he  directed  the  disposition  of  his  property  in  contemplation  of  his 
death,  which  occurred  some  three  weeks  later,  sutSciently  shows 

he  had  abandoned  all  hope  of  life. 
Kirkham  vs.  People,  170  111.  9. 
In  a  case  where  deceased  having  been  informed  by  his  physician 
that  he  was  in  a  critical  condition,  and  he  having  previously  said 
that  he  was  "killed"  and  was  "dying"  and  he  died  from  the  wounds 
some  four  or  five  hours  after  they  were  inflicted,  which  statements 
of  deceased,  with  all  the  surrounding  circumstances,  indicated  he 
was  fully  aware  of  his  condition,  the  declarations  of  deceased  were 

held  admissible  as  evidence  against  accused. 
Scott  vs.  People,  63  111.  508. 
Statement  by  person  in  actual  danger  of  impending  death,  while 
"suffering  intense  pain,  who  was  informed  of  the  belief  of  doctor 
that  he  could  not  recover,  and  expressed  a  belief  of  impending 
death,  and  a  desire  to  make  a  statement,  is  admissible  as  a  dying 

declaration. 

People  vs.  White,  251  111.  67. 
Where  deceased,  some  days  before  his  death  from  a  wound  he 
had  received,  made  a  statement  to  the  effect  that  defendant  shot 
him,  the  preliminary  proof  showing  that  at  time  of  making  the 
statement  he  had  not  been  informed  by  his  physician  or  any  one 
else  that  his  wound  was  mortal,  though  he  said  at  the  time  he 
would  not  live  three  days:  that  he  made  no  preparation  of  any 
kind  in  view  of  death,  often  used  profane  language,  and  spoke 
about  being  able  to  resume  his  business,  and  of  getting  married  in 
a  few  davs:  such  statement  not  admissible  as  a  dying  declaration. 

Digby  vs.  People,  113  Bl.  123.  ^ 
Proof  that  the  declarant,  when  informed  by  his  physician  that 
they  "thought"  that  there  was  no  hope  for  him,  remarked,  "I  guess 
it's  me  for  the  other  world,"  is  not  satisfactory  evidence  that  he 
fully  believed  his  death  to  be  certain  and  imminent. 

Brom  vs.  People,  216  111.  148. 


DYING  DECLARATIONS  467 

Statement,  that  declarant  was  feeling  bad  and  expected  to  die, 
and,  upon  suggestion  from  officer  that  he  make  statement,  answered 
questions  as  to  the  occurrence;  the  declaration  being  dictated  by 
officer  and  prefaced  by  statement  that  declarant  believed  he  was 
about  to  die  and  had  no  hope  of  recovery ;  and  no  qualified  person 
advising  him  that  death  was  near,  and  being  a  Catholic,  he  did 
not  ask  for  usual  services,  is  not  admissible. 
People  vs.  Cassesse,  251  111.  422. 

Statements  inconsistent  with  mental  attitude  requisite  to  ren- 
der a  statement  admissible  as  a  dying  declaration  are  admissible. 
Tracy  vs.  People,  97  111.  101. 

Statements  that  he  believed  he  would  not  recover,  authorizes 
admission  as  dying  declarations,  though  declarant  was,  at  the  time, 
under  influence  of  morphine,  and  nodded  assent  to  some  ques- 
tions, and  answered  others,  and  it  was  necessary  to  arouse  him 
at  times  during  taking  of  his  statements,  it  appearing  he  had  par- 
taken of  last  rites  of  his  church  prior  to  making  the  declaration. 
Murphy  vs.  People,  37  111.  447. 

A  written  statement  made  at  time  declarant  did  not  believe  he 

was  going  to  die,  is  not  admissible  as  a  dying  declaration,  although 

signed  by  him  onlv  a  few  hours  before  his  death. 
Brom   vs.  People,  216  111.   148. 

Province  of  Court  and  Preliminary  Proof: 

—  Admdssihilitii    Question    for   Court:     The    question   whether 

alleged  dying  declarations  are  made  under  such  circumstances  as 

to  render  them  admissible  in  evidence  is  to  be  determined  by  the 

court  upon  preliminarv  proof.  ^ 

People  vs.  White,  251  111.  67. 

—  Degree  of  Proof:  Proof  must  satisfy  the  court  beyond  a  rea- 
sonable doubt  that  the  declaration  was  made  in  extremity  and  was 

a  dying  declaration. 

People  vs.  White,  251  111.  67;   Westbrook  vs.  People,  126  111.  81. 

—  Presence  of  Jury:  The  court  should  determine  upon  the 
admissibility  of  such  declarations  upon  hearing  proof  of  the  con- 
dition of  mind  of  a  deceased  at  time  they  were  made,  which  proofs 
it  is  advised  should  not  be  taken  in  the  hearing  of  the  jury  empan- 
elled to  try  the  accused. 

Starkey  vs.  People,  17  111.  16;  Barnett  vs.  People,  54  111.  325.  / 

—  Fcpetition  of  Preliminary  Proof:  It  is  for  the  court  in  the 
first  instance,  to  determine  upon  the  admissibility  of  the  declara- 
tions, upon  proof  of  the  condition  of  mind  of  deceased  at  the  time 
they  were  made.  The  declarations,  however,  being  admitted,  the 
whole  evidence,  including  that  heard  by  the  court  as  to  condition  of 
mind  of  deceased  at  time  they  were  made,  should  then  go  to  the  jury 
to  enable  then  advisedly,  and  from  all  the  lights  the  f acts_  and  cir- 
cumstances afford,  to  determine  upon  the  credibility,  weight  and 
force  of  the  evidence.  The  condition  and  state  of  mind  of  deceased, 
with  all  attending  circumstances  bearing  upon  the  question,  are 
proper  for  their  consideration ;  and  there  is  no  ground  upon  prin- 
ciple or  authority  for  excluding  from  their  consideration  the  state- 
ments of  deceased  as  to  his  apprehension  of  death,  nor  of  the  sur- 
rounding circumstances  forming  the  res  gestae,  and  tending  to  estab- 


468  DYING  DECLARATIONS 

lish  the  existence  or  non-existence  of  that  condition  of  mind,  which 
would  constitute  his  statements  as  to  the  cause  of  the  injury  in  law 
dying  declarations. 

Nordgren  vs.  People,  211  111.  425;  Starkey  vs.  People,  17  111.  16. 

When  such  dying  declarations  are  admitted,  the  juiy  will  be 
entitled  to  hear  the  preliminary  evidence  given  to  the  court  show- 
ing their  admissibility. 

North  vs.  People,  139  111.  81. 

Where,  for  the  purpose  of  determining  admissibility  of  a  dying 
declaration,  court  excused  jury  and  heard  testimony  of  the  wit- 
nesses thereon,  both  of  whom  testified  as  to  the  state  of  mind  of  the 
declarant,  and  his  apprehension  of  death,  but  only  one  as  to  his 
declarations,  and  jury  then  recalled,  when  same  testimony  was 
repeated  and  in  addition,  witness  who  had  testified  only  on  the 
preliminary  as  to  mental  condition,  also  gave  declaration :  Held, 
not  error. 

Leigh  vs.  People,  113  111.  372. 

Permitting  prosecution  to  mahe  certain  proof  preparatory  to 
introducing  in  evidence  an  alleged  dying  declaration,  which  the 
court  subsequently  refused  to  admit  in  evidence,  is  not  improper 
when  no  part  of  the  declaration  was  read  to  the  jury  and  the  proof 
merely  showed  that  deceased  had  said  she  was  about  to  die  and 
wished  to  make  a  statement,  and  that  a  written  statement  was  made 

and  signed  by  her. 

People  vs.  Williams,  240  111.  633. 

Influence  of  Opiates: 

The  fact  that  declarant  was  given  a  hypodermic  injection  of 
morphia  on  the  morning  the  declaration  was  made  does  not  over- 
come the  testimony  of  a  number  of  witnesses  that  declarant's  mind 
was  clear  at  time  declaration  was  made. 

People  vs.  White,  251  111.  67. 
To  show  that  deceased  was  not  sufficiently  rational  at  time  to 
make  his  statements  admissible  as  dying  declaration,  a  duly  quali- 
fied medical  expert  may  testify  as  to  amount  of  chloroform  ordi- 
narily required  to  put  a  person  under  its  influence. 

Tracy  vs.  People,  97  111.  101. 

Writing  Best  Evidence: 

If  dying  declarations  are  reduced  to  writing  and  signed  by  the 
declarant,"the  writing  is  the  best  evidence  of  the  statement  made 
at  that  time,  and  must  be  produced  or  its  absence  accounted  for, 
but  the  fact  that  a  declaration  has  been  reduced  to  writing  will 
not  preclude  evidence  of  unwritten  declarations  made  on  other 

occasions. 

Dunn  vs.  People,  172  111.  582. 

Different  Statements: 

Prosecution  is  not  restricted  to  proof  of  declarations  made  on 

one  occasion  only.    Such  statements,  if  otherwise  admissible,  may  be 

proven  as  made  from  time  to  time. 
Donn  vs.  People,  172  111.  582. 

Time  of  Death : 

Fact  that  declarant  lived  thirty-five  days  after  making  statement 
does  not  render  same  inadmissible  as  a  dying  declaration,  if  made 


DYING  DECLAEATIONS  469 

under  belief  of  impending  death,  when  every  hope  of  recovery  is 

gone. 

People  vs.  Cassesse,  251  111.  422. 

Statement  Signed  by  Nurses: 

That  dying  declaration  was  signed  by  two  nurses  as  wimesses 
does  not  render  same  inadmissible  on  ground  that  jury  would  infer 
they  witnessed  the  facts,  when  it  clearly  appears  that  they  knew 
nothing  of  the  facts  but  simply  attested  the  signature  of  decla- 
rant. 

People  vs.  '^Tiite,  251  111.  67. 

Presence  of  State's  Attorney: 

The  fact  that  the  State's  attorney  was  present  when  deceased 
made  his  statements,  while  no  one  was  present  to  represent  accused, 
and  that  the  declarations  consisted  largely,  if  not  er.tirely,  of 
answers  made  to  questions  of  the  State's  attorney,  and  the  fact 
that  declarant  died  within  a  few  hours  after  the  statejuents  were 
made,  and  that  there  may  have  been  contradiction  or  some  obscur-j 
ity  in  such  statements,  are  matters  affecting  their  weight  and  effect 
as  evidence  rather  than  their  competency. 
North  vs.  People,  139  111.  81. 

Objection  to  testimony  of  assistant  state's  attorney,  as  to  what 
deceased  said  and  what  occurred  at  time  of  making  a  dying  declar- 
ation, on  ground  that  attorney  was  engaged  in  prosecution,  goes 
to  his  credibility  and  not  his  competency. 
People  vs.  White,  251  111.  67. 

Exoneration  of  Accused: 

Dying  declarations  are  admissible  in  behalf  of  the  accused. 

People  vs.  Hotz,  261   111.   239,  Cf.;   Moeck  vs.  People,   100  111.   242; 
Adams  vs.  People,  47  111.  376. 

The  dying  declarations  of  deceased,  that  he  did  not  wish  accused 
hurt,  for  what  he  had  done,  and  that  accused  had  merely  done  right, 
affords  no  evidence  of  anything  more  than  a  christian  spirit  of  for- 
giveness towards  one  who  had  done  him  a  great  wrong,  and  a  new 
trial  will  not  be  granted  for  purpose  of  enabling  accused  to  prove 
such    declaration,    upon    ground    that    it    was    newly    discovered 

evidence. 

Adams  vs.  People,  47  111.  376. 

Husband  and  Wife: 

Dying  declarations  are  not  inadmissible  for  reason  that  at  time 
made  the  declarant  and  accused  were  husband  and  wife. 
Collins  vs.  People,   194  111.  506. 

Statements  of  Others  Than  Injured  Person: 

Dying  declarations  are  only  admissible  in  evidence  where  death- 
of  deceased  is  the  subject  of  the  charge,  and  the  circumstances  of 
the  death  are  the  subject  of  the  dying  declarations.  Declarations 
of  what  a  third  person  had  told  declarant,  and  of  the  fact  that  he 
had  carried  a  warrant  for  defendant  at  a  former  time,  are  not 

admissible. 

North  vs.  People,  139  HI.  81. 
In  prosecution  for  murder,  by  producing  an  abortion,  a  state 
ment  made  by  a  former  victim,  in  the  form  of  a  dying  declaration, 
charging  defendant  with  producing  an  abortion  upon_  defendant 
several  years  before  commission  of  crime  charged  in  indictment. 


470  DYING  DECLARATIONS 

which  statement  was  read  aloud  in  presence  of  defendant  at  time 
it  was  made,  and  its  charges  not  denied  by  her,  is  competent  as  an 
admission  tending  to  show  the  defendant's  connection  with  death 
of  declarant,  and  as  tending  to  show  the  particular  abortion  charged 
in  the  indictment  was  not  necessary  to  save  the  mother's  life. 
People  vs.  Hagenow,  236  111.  514, 

Substance  of  Declaration: 

The  sul)stance  of  a  dying  declaration  may  be  given  in  evidence 
to  the  jury,  and  if  necessary,  through  interpreters. 
Starkey  vs.  People,  17  111.  16, 

Whole  of  Declaration: 

If  dying  declarations  are  permitted  to  go  to  the  jury,  then  also 
may  they  hear  the  whole  evidence  as  to  the  condition  of  the  mind 
of  deceased,  and  other  circumstances  at  time  they  were  made,  and 
pass  upon  their  credibility  and  weight. 
Starkey  vs.  People,  "l7  111.  16, 

Self-Exculpatory : 

A  statement  of  a  person,  mortally  wounded,  that  he  did  no 
wrong,  though  not  a  dying  declaration,  is  admissible  as  against 
accused  as  part  of  the  res  gestae,  when  made  in  his  presence  and 
hearing. 

Healy  vs.  People,  163  111.  372. 

Objections  to  Admission: 

The  proper  foumlation  for  detailing  the  dying  declarations  hav- 
ing been  laid,  the  defense,  in  order  to  take  advantage  of  the  objec- 
tion to  them  that  they  were  indefinite  or  not  pertinent  to  the  issue, 
should  move  to  exclude  them  from  the  consideration  of  the  jury. 
Scott  vs.  People,  63  111.  508. 

Weight  and  Probative  Force: 

If  a  dying  declaration  was  properly  taken  and  made  in  antici- 
pation of  death,  its  probal)ility  and  probative  force  are  for  the 
jury. 

People  vs.  White,  251  HI.  67;  Hagenow  vs.  People,  236  111.  514. 
A  dying  declaration  is  but  secondary  evidence  and  it  is  error  to 
instruct  the  jury  that  such  declarations  are  the  testimony  of  one 
witness  and  entitled  to  such  credit  as  it  would  be  entitled  to  if  it 
had  been  stated  to  the  jury  by  one  witness. 
Nordgren  vs.  People,  211  111.  425. 

Dying  declarations  are  competent  to  the  same  extent  as  if  made 
under  the  sanction  of  an  oath,  from  necessity.     An  instruction  that 
the  statements  are  entitled  to  the  same  weight  as  if  the  declarant 
had  testified  to  them  as  a  witness  is  error. 
People  vs.  Warran,  259  111.  213. 
Dying  declarations  not  taken  down  in  the  language  of  declar- 
ant and  only  voluntary  in  part,  are  entitled  to  little  weight. 
Murphy  vs.  People,  37  111.  447. 

Impeachment  of  Dying  Declarations: 

—  In   General:     Dying  declarations  are  hearsay  evidence  and 

may  be  impeached  by  any  of  the  modes  by  which  the  evidence  of 

the  declarant  could  have  been  impeached  had  he  or  she  been  alive 

and  testifying  in  open  court. 

Nordgren  vs.  People,  211  111.  425;  Dunn  vs.  People,  172  111.  582. 


EJECTMENT  471 

Dying  declarations  may  be  discredited  by  showing  the  character 
of  the  declarant  was  bad. 

Nordgren  vs.  People,  211  111.   425. 

—  Contradictory  Statements:  Dying  declarations  may  be  im- 
peached by  proof  of  contradictory  statements  on  material  points, 
though  such  contradictory  statements  were  not  made  in  extremis. 

Dunn  vs.  People,  172  111.  582. 
There  is  no  material  error  in  refusing  to  admit  in  evidence  an 
affidavit  made  by  a  party  assaulted  and  injured,  against  his  assail- 
ants, showing  the  facts  of  the  assault,  for  purpo.se  of  impeaching 
liis  dying  declarations,  made  afterwards,  when  there  is  nothing  in 
the  affidavit  contradictory  to  any  statements  in  his  dying  declar- 
ations. 

Leigh  vs.  People,   113  111.  372. 

—  Hostility  Toivards  Accused:  It  is  competent  for  accused  to 
show,  on  cross  examination  of  State's  witnesses,  or  by  other  wit- 
nesses, that  deceased  entertained  feelings  of  malice  and  hostility 

towards  accused. 

Nordgren  vs.  People,  211  111.  425. 

—  Condition  of  Declarant's  Mind:  Accused  may  show,  by  cross 
examination  of  People's  witnesses,  or  by  other  witnesses,  that  the 
deceased  at  time  of  making  statements,  was  in  a  reckless  and  irrev- 
erent state  of  mind,  and  proof  of  indulgence  in  profane  language 
at  or  about  the  time  of  making  the  statement  is  clearly  competent 

for  that  purpose. 

Tracy  vs.  People,  97  111.  101. 

Admissibility  in  Civil  Cases: 

Dying  declarations  are  not  admissible  as  part  of  res  gestae. 
C.  &  N.  W.  Ey.  Co.  vs.  Howard,  6  App.  569. 
In   an   action  to   recover   for  the   death   of   persons,   occasioned 
by  the  negligence  of  a  railroad  company,  the  dying  declarations  of 
the  person  killed,  are  not  admissible  in  evidence  to  charge  the 
defendant.     Such  declarations  are  not  admissible  in  any  civil  case. 
Marshall  vs.  C.  &  G.  E.  E.  E.  Co.,  48  ill.  475. 
So  in  an  action  under  the  Dram  Shop  act,  a  note  written  by  a 
party,  prior  to  committing  suicide,  if  not  shown  to  be  a  part  of 
the  res  gestae,  is  not  competent  as  a  dying  declaration. 
Hammers  vs.  Knight,  168  App.  203. 


EJECTMENT 

See  Adverse  Possession,  Title,  Tax  Deeds,  Delivery,  Posses- 
sion,   Consideration,    Parol,    Good    Faith,    Color    op    Title, 
Intestacy. 
Presumptions : 

—  Rightful  Possession:     In  ejectment  the  law  does  not  presume 
that  possession  of  defendant,  of  premises  to  which  he  holds  no  legal 

title  is  rightful. 

Sonneman  vs.  Mertz,  221  111.  362. 

—  Ownership  From  Possession:     It  is  presumed  that  claimant 

of  property  who  is  in  possession  is  the  owner. 

Harland  vs.   Eastman.    119   HI.   22;    Keith  vs.   Keith,   104   111.   397; 
Barger  vs.   Hobbs,   67   111.  592. 


472  EJECTMENT 

—-Possession  and  Source  of  Title:  Where  defendant  is  in  pos- 
session of  the  premises,  and  a  source  of  title  is  traced  to  him,  it  is 
prima  facie  evidence  that  he  holds  under  that  title,  and  it  devolves 
upon  him  to  show  the  contrary. 

Mettler  vs.  Miller,  129  III.  630. 

Evidence  that  grantee's  predecessors  in  title  were,  when  they 
conveyed  the  property,  in  possession  under  claim  of  ownership, 
and  that  grantee  took  possession  under  a  conveyance  to  him  raises 
a  presumption  of  title  in  him. 

Casey  vs.  Kimmell,  181  111.  154. 

One  who  enters  in  possession  of  land  under  a  conveyance  from  a 
party  having  no  title  to  convey,  or  under  a  paper  purporting  to  be 
a  deed,  without  a  seal,  is  presumed  to  enter  according  to  the  de- 
scription in  such  conveyance  or  paper,  and  his  occupancy  of  a  part 
claiming  the  whole  is  construed  as  a  possession  of  the  entire  tract 
which  instrument  purports  to  convey. 
Barger  vs.  Hobbs,   67   111.   592.  " 

—  Continuance  of  Possession :  Upon  conveyance,  it  will  be  pre- 
sumed that  grantee  continued  in  possession  of  premises  same  as 
grantor  had  done  before. 

Sholl  vs.  German  Coal  Co.,  139  111.  21. 

—  From  Possession:  Grantor's  remaining  in  possession  of  real 
estate  after  execution  of  deed  conveying  it  to  another,  does  not 
raise  presumption  of  law  that  he  holds  as  tenant  at  will  or  by 
sufferance  of  grantee. 

Knight  vs.  Knight,   178  111.  553. 

—  Validity  of  Title  from  Gorernment:  Title  from  the  govern- 
ment being  shown,  presumption  in  favor  of  its  validity,  and  of 
legal  possession  under  such  title  arise  and  remain  until  overcome 
by  evidence  to  contrary, 

Zirngebl  vs.  Calumet  Dock  Co.,  157  111.  430. 

—  Good  Faith:  The  law  presumes  that  all  men  act  in  good  faith 
until  there  is  evidence  to  the  contrary,  and  in  absence  of  evidence 
the  color  of  title  is  presumed  to  have  been  so  acquired. 

Brooks  vs.  Bruyn,  35  111.  392;  Wetig  vs.  Bowman,  39  111.  416. 

But  when  a  deed  upon  its  face  discloses  that  it  is  illegal,  and 
that  it  was  executed  in  defiance  of  law,  the  law  will  presume  bad 
faith. 

Wetig  vs.  Bowman,  39  111.  416. 

Burden  of  Proof: 

—  In  General:     Burden  of  proof  is  upon  plaintiff. 

North  vs.  Graham,   235  111.   178. 
The  burden  of  proof  is  upon  plaintiff  to  establish  the  title  which 
he  asserts,  by  a  preponderance  of  the  evidence. 
Eddy  vs.  Gage,  147  111.  162. 

—  Immediate  Possession:  Burden  is  upon  plaintiff  to  prove  his 
title  and  his  right  to  the  immediate  possession  of  premises  in  dis- 
pute 

Cobb  vs.  Lavalle,  89  111.  331. 

—  Existence  of  Property:  If  defendants  claim  there  is  no  such 
property,  the  burden  is  upon  them  to  show  such  fact. 

Glanz  vs.  Ziabek,  233  111.  22. 

—  Identity  of  Property:    Where  the  deed  is  subject  to  a  latent 


EJECTMENT  473 

ambiguity,  the  burden  of  proof  is  upon  plaintiff  to  show  that  such 
tract  was  a  part  of  laud  intended  to  be  conveyed  to  him. 
Bradish   vs.    Yocum,   130   111.   386. 

—  Compliance  With  Statute :  A  plaintiff  claiming  under  an 
execution  sale  of  the  land  of  a  decedent  made  upon  notice  to  the 
heirs  under  section  39  of  the  act  on  judgments,  has  the  burden  of 
showing  that  the  notice  Avas  given  as  required  by  statute. 

Wilson  vs.  Lowmaster,  181  111.  170. 

Pleading  and  Proof: 

—  As  to  Declaration:  Declaration  must  specify  whether  plaint- 
iff 's  claim  is  in  fee,  or  for  his  own  life  or  for  the  life  of  another,  but 
particular  character  of  fee  need  not  be  specified. 

Ladd  vs.  Ladd,  252  111.  43. 

—  Homestead:  A  remainder  man,  entitled  to  the  fee,  cannot 
maintain  ejectment  where  there  is  an  outstanding  legal  estate  in 
another,  for  the  reason  that  he  is  not  entitled  to  the  immediate 
possession.  The  right  of  possession  of  homestead  premises  is  in 
the  widow,  and  it  is  therefore  improper  for  the  widow  and  heir  to 
join  as  plaintiffs,  but  such  misjoinder  does  not  prevent  the  recov- 
ery by  the  widow  according  to  her  interest. 

Whitham  vs.  Ellsworth,  259  111.  243. 
Homestead  right  may  be  shown  under  plea  of  not  guilty. 

Johnson  vs.  Adleman,  35  111.  265. 
— -Limitations :     Limitations  may  be  shown  under  general  issue. 
Stubblefleld  vs.  Borders,  92  111.  279;  Emery  vs.  Keigan,  88  111.  482. 
Under  general  issue,  evidence  is  admissible  to  show  that  mort- 
gage debt  has  been  satisfied  or  barred  by  statute  of  limitations,  or 
that  there  has  been  no  default  in  payment. 
Ladd  vs.  Ladd,  252  111.  43. 

—  Denial  of  Interest:     Denial  of  interest  must  be  by  verified 

plea. 

Glos  vs.  Swanson,  227  111.  179, 

The  plea  of  not  guilty  is  not  a  denial  that  defendant  claims  title 
to  or  an  interest  in  the  premises.  That  issue  is  made  in  actions 
of  ejectment  by  filing  a  special  plea  verified  by  affidavit. 

Phillips  vs.  Glos,  255  111.  58;   Glos  vs.  Spitzer,  226  111.  82. 

—  Possession:  The  effect  of  a  special  plea  by  defendant  deny- 
ing possession  is  merely  to  require  plaintiff  to  prove  defendant 
was  in  possession  when  suit  was  brought. 

Whitham  vs.  Ellsworth,  259  111.  243. 

Plea  of  not  guilty  does  not  put  in  issue  the  possession  of  the 

premises  by  defendant,  or  that  he  claims  title  or  interest  in  the 

premises,  and  if  there  is  no  other  plea,  plaintiff  need  not  prove 

such  facts. 

Glos  vs.  Spitzer,  226  111.  82;  Wieland  vs.  Kobick,  110  111.  16. 

Under  this  plea,  plaintiff  is  only  required  to  prove  title  in  him- 
self to  maintain  his  action. 

Village  of  Shuniway  vs.  Leturno,  225  111.  601. 

Possession  by  defendant  of  entire  premises  claimed  in  declar- 
ation is  admitted  by  plea  of  not  giiilty. 

C.  R.  I.  &  P.  Ey.  Co.  vs.  Hardt,  138  111.  120. 

—  Demand:    Where   general   issue  is  the  only  plea,  proof  of 

demand  is  unnecessary. 

Carroll  vs.  Eabberman,  240  111.  450. 


474  EJECTMENT 

Where  entry  is  by  consent  of  life  tenant,  no  demand  is  necessary 

before  bringing  suit. 

Mapes  vs.  Vandalia  E.  E.  Co.,  238  111.  142. 

—  Default   of   One   Defendant:     Default   of   one   defendant   in 
ejectment    does   not    admit  cause    of    action    against    the   others. 

Glos  vs.  Swanson,  227  111.  179. 

Admissibility  of  Evidence: 

—  As  to  Desoiplion:     As  between  grantor  and  grantee  and  their 
privies,  parol  is  not  admissible  to  show  that  the  description  written 

in  the  deed  is  an  error. 

Duggan  vs.  Uppendahl,  197  111.  179. 
'But  latent  ambiguity,  such  as  an  omission  to  refer  to  any  merid- 
ian, may  be  obviated  bv  proof. 

Dougherty  vs.  Purdy,  18  111.  206. 
Or  failure  to  state  number  of  township  north. 

Clark  vs.  Powers,  45  111.  283. 
Or  omission  of  number  of  block,  in  describing  premises. 
Young  vs.  Lorain,   11  111.  625. 
"' — Consideration  in  Deed:     The  consideration  of  a  conveyance 
on  which  a  party  relies  is  not  a  proper  subject  of  inquiry. 
Gray  vs.  C.  M.  &  St.  P.  K.  E.  Co.,  189  111.  400. 
Evidence  offered  by  defendant,  claiming  as  a  tenant,  to  show 
that  plaintiff  was  holding  title  merely  as  trustee  for  former  lessor, 
to  defraud  defendant  out  of  his  lease,  is  properly  excluded,  as  the 
alleged  fraud  goes  merely  to  the  consideration  of  deed  and  not  its 

procurement. 

Union  Brew.  Co.  vs.  Meier,  163  111.  424. 

—  Deed  as  Mortgage :  Proof  that  a  deed  was  intended  as  a  mort- 
gage cannot  be  shown  in  defense  in  action  of  ejectment. 

Ladd  vs.  Ladd,  252  lU.  43;  Finlon  vs.  Clark,  118  111.  32. 
But  after  a  deed  has  been  declared,  by  a  court  of  eqaity,  to  be  a 
mortgage,  the  records  of  the  chancery  suit  may  be  introduced  to 
prove  that  fact,  in  defense. 

Ladd  vs.  Ladd,  252  111.  43. 

—  Location  ly  Parol:  The  location  of  a  town  lot  or  other  tract 
of  land  may  be  fixed  by  the  witness  from  hearsay  or  common  re- 
pute, independent  of  any  plat. 

Smith  vs.  Stevens,  82  111.  554;  Holbrook  vs.  Debo,  99  111.  372;  Judson 
vs.  Glos,  249  111.  82;  Wettig  vs.  Bownian,  39  111.  416. 

—  Legal  Title  hy  Parol:    The  want  of  title  in  a  person  cannot  be 

proven  by  verbal  testimony. 

Kirkpatrick  vs.  Clark,  132  111.  342. 
Parol  testimony  is  not  admissible  as  to  what  records  of  another 
county  show  concerning  ownership  of  laud. 
Hardin  vs.  Forsythe,  99  111.  312. 

—  Fraud:  Defendant  may  defeat  a  recovery  by  showing  that 
plaintiff's  deed  was  made  to  him  for  purpose  of  hindering,  delay- 
ing or  defrauding  the  creditors  of  defendant,  or  for  any  other  illegal 

purpose. 

Kirkpatrick  vs.  Clark,  132  111.  342. 

Deed  may  be  impeached  for  fraud.     Fraud  vitiates  all  acts  as 
between  the  parties  to  it.     Nor  can  there  be  a  doubt  that  fraud  is 
cognizable  in  a  court  of  law  as  well  as  equity. 
Phelps  vs.  Nazworthy,  226  HI.  254. 


EJECTMENT  475 

And  deed  may  be  shown  to  be  a  forgery. 
Montage  vs.  Lynn,  23  111.  551. 

—  Reputed  Ownership:  Where  heirs  claim  title  in  ancestor  by 
adverse  possession,  proof  that  premises  were  generally  reputed  to 
be  the  property  of  the  ancestor  is  competent,  as  tending  to  estab- 
lish the  notoriety  of  possession,  that  defendant  was  aware  of  same 
and  that  possession  was  under  claim  of  title,  but  facts  may  be 
elicited  on  which  the  witnesses  base  their  answers. 

Knight  vs.  Knight,  178  111.  553;  Eiggs  vs.  Cook,  9  111.  336. 

—  Contract  of  Purchase  and  Performance:  ^Yheve  plaintiff 
relies  upon  and  proves  a  legal  title,  proof  that  defendant  has 
entered  into  possession  under  a  written  contract  of  purchase,  and 
that  he  has  performed  his  part  of  the  contract,  presents  a  complete 
defense. 

Daniels  vs.  Smith,  252  111.  222. 

—  Suhseqiientlij  Acquired  Title:  Title  acquired  subsequent  to 
commencement  of  suit  may  be  shown  to  defeat  recovery. 

North  vs.  Graham,  235  111.  178;  Hardin  vs.  Forsythe,  99  111.  312. 

—  Plats:     Plats  are  admissible  to  identify  premises. 

Black  vs.  C.  B.  &  Q.  Ey.  Co.,  237  111.  500;  Allmendinger  vs.  McHie, 
189  111.  308. 

—  Sheriff's  Deed:  Judgment,  execution  and  levy  must  be  pro- 
duced before  deed  can  be  read  as  evidence  of  paramount  title. 

Stribling  vs.   Prettyman,   57   111.   371. 

Return  of  execution  need  not  be  proven. 

Holman  vs.  Gill,  107  111.  467;  Kinney  vs.  Knoebel,  47  111.  417. 
A  sheriff's  deed  or  certified  copy  thereof  is  prima  facie  evidence 
of  existence,  issuing  and  contents  of  execution  under  which  land 
has  been  sold. 

Keith  vs.  Keith,  104  111.  397. 

But  when  it  becomes  necessary  to  rely  upon  a  sheriff's  deed  as  a 
link  in  a  chain  of  title,  party  is  only  required  to  produce  judgment, 
and  execution  thereon,  and  sheriff's  deed  for  the  premises. 
Livingston  vs.  Moore,  252  111.  447. 

—  Tax  Deed:  A  tax  deed  cannot  be  received  as  evidence  of  a 
paramount  title  unless  the  proceedings  anterior  to  execution  of  tax 
deed,  required  by  statute, — that  is,  a  judgment,  precept,  notice, 
etc.,  have  been  had. 

Glanz  vs.  Ziabek,  233  111.  22;  Kepley  vs.  Foulke,  187  m.  162;  Ander- 
son vs.  McCormiek,   129  111.  308.      (See  Tax  Deeds.) 

—  Entry  Book:  Entry  book  certified  by  state  auditor  to  county 
clerk  is  inadmissible  to  show  entry  of  land. 

Neiderer  vs.  Bell,  174  111.  325;  Hiils  vs.  Buntin,  47  Dl.  396. 

—  Unrecorded  Deed:  A  deed  may  be  offered  in  evidence  though 
unrecorded,  and  then  the  fact  of  the  knowledge  of  its  existence 
brought  home  to  sulisequent  purchasers  as  touching  their  good 
faith. 

Boss  vs.  Hole,  27  HI.   104. 

■ — Official  Certificate  of  Register  of  Land  Office:  The  official 
certificate  of  a  register  or  receiver  of  a  land  office  of  the  United 
States,  to  any  matter  of  fact  on  record  in  his  office,  is  competent 
to  prove  the  fact  so  certified. 

The  exemplification  of  the  books  and  records  of  the  general  land 


476  EJECTMENT 

office,  certified  by  the  recorder,  is  competent  evidence  of  the  truth 

of  its  TGCltslS 

Wyman  vs.  City  of  Chicago,  254  111.  202;  Black  vs.  C.  B.  &  Q. 
R.  R.  Co.,  237  111.  500;  Wilcox  vs.  Jackson,  109  111.  261;  Seeley  vs. 
Wells,  53  111.  120;  Gormley  vs.  Uthe,  116  111.  643. 

—  Unacknowledged  Deed:  Deeds  and  other  instruments  relat- 
ing to  titles  to  real  estate,  if  properly  acknowledged  and  recorded, 
may  be  read  in  evidence  without  proof  of  their  execution,  but  when 
unacknowledged,  are  inadmissible  except  to  show  notice,  and  their 

execution  must  be  proven. 

Reed  vs.  Kemp,  16  111.  445;  Winter  vs.  Dibble,  251  111.  200. 

But  the  rule  is  otherwise  as  to  ancient  deeds. 
Bradley  vs.  Lightcap,  201  111.  511. 

—  Date  of  Filing  Deed:     Parol  evidence  is  competent  as  to  time 

of  filing  deed. 

Tucker  vs.  Shaw,  158  111.  326;  Cook  vs.  Hall,  6  111.  575. 

But  is  not  best  evidence,  and  should  not  be  allowed  unless  proper 
foundation  is  laid  for  secondary  evidence. 
Harpham  vs.  Little,  59  111.  509. 

—  Record  of  Former  Suit:  The  transcript  of  a  suit  between 
same  parties,  to  remove  cloud  on  title,  wherein  defendant's  claim 
of  title  by  adverse  possession  was  decided  against  him,  is  admissible 
in  subsequent  ejectment  suit  concerning  the  same  premises. 

Chi.  Terra.  R.  R.  Co.  vs.  Barrett,  252  111.  86. 

—  Payment  of  Taxes  without  Color  of  Title:  Where  plaintiff  has 
proven  legal  title,  proof  by  defendant  that  the  person  under  whom 
he  claims  paid  the  taxes  on  the  land  for  a  certain  number  of  years 
is  inadmissible  where  there  is  no  color  of  title,  claim  under  the 
limitation  law,  or  proof  of  contract  under  which  he  was  to  pay  the 

Daniels  vs.  Smith,  252  111.  222. 

—  Outstanding  Title:  A  defendant  may  protect  his  possession 
by  showing  an  outstanding  title.  And  so,  if  plaintiff  introduces 
proof  of  a  title  in  a  third  person,  with  which  he  fails  to  connect 
himself,  such  proof  will  be  fatal  to  a  recovery. 

Balance  vs.  Flood,  52  111.  49. 
But  a  trespasser  will  not  be  permitted  to  prove  an  outstanding 
title  in  another  to  defeat  plaintiff. 

Anderson  vs.  Gray,  134  111.  550. 

—  Possession  Before  Acquirement  of  Title:  Possession  by  de- 
fendant before  acquirement  of  title  by  plaintiff  is  not  a  defense. 

Mapes   vs.    Vandalia    R.    R.    Co.,   238    111.    142;    Postal    Tel.    Co.    vs. 
Eaton,  170  111.  513. 

Weight  and  Sufficiency  of  Evidence : 

—  Strength  of  Own  Title:  A  plaintiff  must  recover  on  strength 
of  his  own  title  and  not  upon  the  weakness  of  defendant's  title. 
The  proof  of  title  in  any  one  other  than  plaintiff  will  defeat  a 

recovery. 

Phelps  vs.   Nazworthy,   226   HI.   254;    Terhune   vs.   Porter,   212   111. 
595;  P.oyer  vs.  Thornberg,  115  111.  540;   Cobb  vs.  Lavalle,  89  111. 
31;  Fisher  vs.  Eslaman,  68  111.  78;  XII  111.  Notes  259,  §  8._ 
Plaintiff  who  fails  to  show  a  prima  facie  legal  title  in  himself 
cannot  recover,  even  though  defendant  be  a  trespasser. 

Deland  vs.  Dixon  Power  Co.,  225  111.   212;    Terhune  vs.  Porter,  212 
111.  595. 


EJECTMENT  477 

—  Title  from  Common  Source:  Where  both  parties  claim  title 
through  a  common  source,  it  is  not  necessary  to  prove  title  in  the 

common  source,  but  only  from  such  common  source. 
Ladd  vs.  Ladd,  256  111.   183. 
Plaintiff  having  proven  title  in  himself  from  a  common  source 
with  that  of  defendant,  may  rest  as  against  a  plea  of  not  guilty, 
and  is  entitled  to  judgment  without  proving  when  defendant  took 

possession,  if  no  further  evidence  is  introduced. 

Dean  vs.  Gorton,  177  111.  624;  Eoosevelt  vs.  Hungate,  110  111.  595. 

AVhere  plaintiff  and  defendant  claim  through  a  common  source, 
if  plaintiff  shows  title  in  himself  from  such  common  source,  he  is 
entitled  to  recover  unless  defendant  overcomes  the  prima  facie  case 
of  plaintiff. 

Birge  vs.  City  of  Centralia,  218  111.  503;  Burns  vs.  Edwards,  163  111. 
494;  Slalford  vs.  Goldring,  197  111.  156;  Chi.  K.  E.  Co.  vs.  Hardt, 
138  111.  120. 
Where  both  parties  claim  from  a  common  source  of  title,  plaint- 
iff will  only  be  required  to  show  a  good  and  connected  chain  of 
title  from  the  common  source  down  to  himself,  to  entitle  him  to 
recover.     If  plaintiff  shows  the  better  title,  though  not  altogether 
free  from  objection,  he  will  be  entitled  to  recover,  unless  a  para- 
mount outstanding  title  is  shown  in  another. 
Smith  vs.  Laatseh,  114  111.  271. 
Where  plaintiff'  states,  under  oath,  that  he  claims  title  through  a 
common  source  with  defendant,  it  will  be  sufficient  for  him  to  show 
title  from  such  common  source,  unless  defendant  denies  on  oath 
that  he  claims  title  from  such  source.     This  rule  applies  where  the 
action  is  to  settle  a  disputed  boundary  line  between  the  two  adjoin- 
ing lots,  each  party  deriving  title  to  his  lot  from  same  source. 
Clark  vs.  Day,  93  111.  480. 

—  On  Denial  of  Common  Source:  Denial  by  defendant  of  title 
from  common  source  requires  plaintiff  to  prove  both  claims  back 
to  the  common  source  and  if  he  shows  the  better  title  from  such 
source,  he  is  entitled  to  recover. 

Bradley  vs.  Lighteap,  201  111.  511. 
The  effect  of  the  defendant's  denial  of  plaintiff's  affidavit  of  com- 
mon source  of  title  is  merely  to  neutralize  the  affidavit  and  require 
plaintiff  to  make  such  proof  as  would  have  been  required  had  no 
affidavit  of  common  source  of  title  been  filed. 

Whitman  vs.  Ellsworth,  259  111.  243. 

—  Mesne  Conveyances  and.  Possession:  Proof  of  a  chain  of  con- 
veyances ending  with  a  deed  to  plaintiff'  does  not  show  a  prima  facie 
title  in  plaintiff  where  the  claim  is  not  connected  with  any  source 
of  title  and  none  of  the  persons  making  conveyances  are  shown  to 
have  ever  been  in  possession. 

Terhune  vs.  Porter,  212  111.  595. 
Plaintiff's  title  is  shown  by  proof  of  direct  grant  from  govern- 
ment or  by  a  connected  claim  of  title  back  to  the  government  or 
some  grantor  in  possession. 

Kraus  vs.  Nolte,  217  111.  298. 
Plaintiff  establishes  a  pritna  facie  title  in  himself  by  introducing 
a  deed  to  himself,  and  proving  title  and  possession  in  his  grantor. 
Stowell  vs.  Spencer,  190  111.  453. 


478  EJECTMENT 

—  Prior  Possession :  Prior  possession  alone  is  evidence  of  a  fee 
and  although  the  lowest,  until  rebutted  ])v  higher,  must  prevail. 

Whitham  vs.  Ellsworth,  259  111.  243;  Tucker  vs.  Duncan,  224  111. 
4.53;  Casey  vs.  Kinunell,  181  111.  154;  Anderson  vs.  McCorniick, 
129  111.  308. 

—  Actual  Possession  under  Deed:  Proof  of  actual  possession 
under  a  deed  or  other  claim  of  ownership,  is  prima  facie  evidence 
of  title  and  is  sufficient  unless  defendant  shows  a  better  title. 

Glanz  vs.  Ziabek,  233  111.  22;  Casey  vs.  Kimmell,  181  111.  154;  Har- 
land  vs.  Eastman,  119  111.  22;  Barger  vs.  Hobbs,  67  111.  592. 

—  Prior  Possession  of  Grantor:  Proof  of  prior  possession  by 
plaintiff,  claiming  to  be  the  owner  in  fee,  is  j^rinia  facie  evidence 
of  ownership,  and  seizin,  and  is  sufficient  to  authorize  a  recovery 

unless  defendant  shows  a  better  title. 

Harrell  vs.  Enterprise  Bank,  183  111.  538;  Casey  vs.  Kinunel,  181 
111.  154;  Keith  vs.  Keith,  104  111.  397;  Davis  vs.  Easley,  13  111.  193. 
Where  there  is  proof  of  prior  possession  by  grantor  or  others 
under  whom  he  claims,  and  to  whose  title  he  is  privy,  and  he  or 
those  under  whom  he  holds  claim  to  be  the  owner  of  the  fee,  such 
proof  of  prior  possession  is  jyrinia  facie  evidence  of  ownership  and 
seizin  sufficient  to  authorize  a  recovery,  unless  the  defendant  shows 

a  better  title. 

Chi    Term.  E.  R.  Co.  vs.  Winslow,  216  111.  166;   Stowell  vs.  Spencer, 
190  111.  4.53 ;  Harrell  vs.  Enterprise  Bank,  183  111.  541 ;  Barger  vs. 
Hobbs,  67  111.  592. 
Proof  of  possession  of  land  by  a  party  claiming  as  owner  of  the 
fee,  is  prima  facie  evidence  of  his  ownership  and  seizin  of  the  in- 
heritance.    Therefore,  it  is  sufficient  for  plaintiff,  in  order  to  make 
a  prima  facie  proof  of  title,  to  trace  his  title  back  to  an  immediate 
or  remote  grantor,  who,  at  time  of  his  conveyance,  was  in  posses- 
sion of  the  land,  claiming  it  in  fee. 

Anderson  vs.  McCormick,  129  111.  308. 

Where  Fee  Simple  Claimed:     Plaintiff  claiming  title  in  fee 

simple  must  show  a  fee  simple  title  at  law,  as  distinguished  from  an 

equitable  title. 

Krause  vs.  Nolte,  217  111.  298. 
Neither  the   mortgagee  nor   his  grantees  can  recover  under  a 
declaration  claiming  title  in  fee  simple. 
Schumann  vs.  Sprague,  189  111.  425. 

When  Possession  of  Plaintiff  of  Grantor  not  Shown:    Where 

plaintiff  does  not  show  that  he  was  ever  in  possession  and  does  not 
connect  himself  with  any  prior  grantor  wdio  was  in  possession,  it 
is  incumbent  on  him  to  deraign  title  from  the  government  to  him- 
self. 

Krause  vs.  Nolte,  217  111.  298. 

—  Adverse  Possession:  To  constitute  title  by  adverse  possession, 
the  proof  must  show  the  actual,  notorious  and  continuous  posses- 
sion accompanied  by  a  claim  of  ownership  for  the  length  of  time 

required  by  any  given  statute. 

Kepley  vs.  Scully,  185  111.  52;  Ealloon  vs.  Simshauser,  130  111.  649; 
Eddy  vs.  Gage,  147  111.  162. 

lieqal  Title-     A  le^al  title  will  prevail  over  an  equitable  one. 

Wright  vs.  Stice,  173  111.  571;  Taylor  vs.  Adams,  115  111.  570;  Hay- 
den  vs.  McClosky,  161  111.  351;  XII  111.  Notes  260,  §  11. 

—  Trustee:    Trustee  in  deed  of  trust,  as  against  the  grantee  and 


EJECTMENT  479 

his  tenants,  need  make  no  further  proof  of  title  than  the  grantor's 
deed  "conveying-  and  warranting"  the  premises. 
Brown  vs.  Schiutz,  203  111.  136. 

—  As  Against  Intruder:  Proof  of  a  deed  to  a  prior  grantor  in 
possession  of  the  land,  and  of  a  series  of  conveyances  from  him  to 
plaintiff,  is  sufficient  evidence  of  title  as  against  a  mere  intruder, 
although  plaintiff  attempts  to  prove  a  complete  chain  of  title  from 
the  government  and  fails  to  do  so. 

A  plaintiff'  in  ejectment  against  a  mere  intruder  who  sets  up  no 
title  in  himself,  or  fails  to  show  any  title,  need  only  prove  prima 
facie  title  sufficient  to  raise  a  presumption  of  ownership. 

Combs  vs.  Hertig,  162  111.  171;  Zilch  vs.  Young,  184  111.  333;  Eiver- 
side  vs.  Townshen,  120  111.  9. 

—  Limitation:  Plaintiff  who  proves  twenty  years'  adverse  pos- 
session is  entitled  to  recover  though  he  fails  in  his  attenipt  to  prove 
a  connected  chain  of  title  from  the  state ;  nor  are  the  deeds  offered 
for  such  purposes  improperly  admitted,  as  they  show  character  of 
possession  and  intent  with  which  it  is  held. 

Kepley  vs.  Scully,  185  111.  52. 
Plaintiff'  relying  for  his  right  of  recovery  upon  section   7   of 
Limitation  act,  must  prove  not  only  that  he  had  color  of  title  and 
paid  taxes  for  seven  successive  years  while  the  premises  were  vacant, 
but  that  he  took  possession  after  the  seven  years  had  elapsed. 

Travel's  vs.  McElvain,  200  111.  377;  White  vs.  Harris,  206  111.  584. 

—  Where   Defendant   Holds    Contract   for   Possession:    Where 

plaintiff'  proves  a  clear  legal  title,  and  defendant  offers  proof  which 

merely  raises  an  inference  that  there  was  some  sort  of  a  contract 

under  which  possession  was  taken,  plaintiff'  is  not  required  to  prove 

there  was  such  contract,  and  then  show  its  terms  and  a  breach 

thereof. 

Daniels  vs.  Smith,  252  111.  222. 

—  Guardian's  Deed:  Where  the  record  fails  to  show  that  the 
guardian  had  reported  the  sale  or  that  it  was  confirmed,  such  deed 
is  not  sufficient  to  show  divesting  of  title  of  minors. 

Phelps  vs.  Nazworthy,  226  111.  254;    Musgrave  vs.  Conover,  85  111. 
374;   Young   vs.   Keough,   11   lU.   642. 

—  As  to  Time  of  Bringing  Suit:  It  is  sufficient  for  plaintiff  to 
show  he  was  entitled  to  recover  at  time  suit  was  begun.  Convey- 
ances pending  suit  will  not  defeat  a  recovery. 

Glanz'^vs.  Ziabek,  233  111.  22. 

—  Heirship  of  Plaintiff's  Grantors:  Plaintiff  relying  for  title 
on  a  deed  purporting  to  be  from  the  widow  and  heirs  of  a  former 
owner,  must  prove  that  such  former  owner  died  intestate,  and  that 
the  parties  to  the  deed  were  in  fact  the  widow  and  heirs-at-law  of 

(3.60(3  9SG(J.. 

St.  L.  I.  &  E.  E.  R.  Co.  vs.  Warfel,  163  111.  641. 

—  Bad  Faith:     Bad  faith  in  acquiring  color  of  title  must  be 

proven. 

Godfrey  vs.  Dixon  Power  Co.,  228  111.  487. 
Constructive  notice  of  better  title  is  not,  within  meaning  of  lim- 
itation law,  evidence  of  bad  faith  on  part  of  holder  of  color  of 

title. 

County  of  Piatt  vs.  Godell,  97  111.  84. 
—  Description :    The  fact  that  the  land  in  controversy  is  situ- 


480  EI\IBEZZLE:\rENT 

ated  in  the  county  where  suit  was  broiight  may  be  sufficiently  proved 
by  the  number  of  the  section,  township,  range  and  meridian,  with- 
out specific  proof  of  the  county  in  which  it  is  situated. 

Dart  vs.  Hercules,  34  111.  395. 
—  Declarations:  Declarations  made  by  the  possessor  of  land, 
after  more  than  twenty  years  continuous  possession  thereof,  to  the 
effect  that  he  did  not  claim  to  own  the  land  until  after  twenty  years 
period  of  possession  had  elapsed,  will  not  operate  to  divest  him  of 
the  title  acquired  by  such  possession. 

Lyons  vs.  Stroud,  257  111.  350. 
But  if  made  before  the  expiration  of  the  twenty  years  of  adverse 

possession,  they  are  competent. 

Carroll  vs.  Eabbermau,  240  111.  450;   I.  C.  E.  R.  Co.  vs.   Wakefield, 
173  111.  564. 


EMBEZZLEMENT 

See  Larceny,  Separate  and  Similar  Offenses 
In  General: 

—  Failure  to  Account  for  Money  Received:  The  failure  of  a 
party  to  properly  account  for  money  received  from  another  who 
has  relied  upon  the  honesty  of  former  to  return  the  amount  with 
stipulated  interest,  does  not  subject  him  to  criminal  prosecution 

for  embezzlement. 

Eauguth  vs.  People,  186  111.  93. 

But  if  money  is  placed  in  the  hands  of  a  person,  to  be  loaned  for 

specified  time,  upon  a  certain  specified  character  of  security,  and 

at  a  stipulated  rate  of  interest,  and  the  person  so  intrusted  with 

the  money  fraudulently  converts  it  to  his  own  use,  he  will  be  guilty 

of   GlXll}GZZlG11161lt. 

Kribs  vs.  People,  82  111.  425;  George  vs.  People,  167  111.  447. 
Retaining  a  deposit  made  by  an  employe  with  employer  for  faith- 
ful discharge  of  duty,  is  not  an  embezzlement  when  employe  quits 
without  cause,  and  the  fund,  with  his  knowledge,  had  not  been 
kept  separate.     Relation  of  debtor  and  creditor  was  created. 
Mulford   vs.   People,   139   111.   586. 

—  Deposit  of  Money:     A  deposit  of  money  wath  bankers,  at  their 

banking  house,  is  presumed  to  be  general,  unless  it  appears  that 

the  depositor  makes  it  special,  or  deposits  it  in  some  particular 

capacity. 

Meadoweroft  vs.   People,   163  111.  56. 

—  Liability  of  Defrauded  Party:  On  the  trial  of  an  express 
agent  for  embezzling  the  proceeds  of  sale  of  money  orders,  it  is 
not  necessary  to  prove  that  the  company  has  paid  the  orders,  if  the 
facts  proven  establish  the  liability  of  the  company  to  honor  the 

orders. 

Kossakowski  vs.  People,  177  HI.  563, 

Ownership : 

—  In  General:  In  order  to  constitute  the  crime  of  embezzle- 
ment, the  fraudulent  conversion  must  be  of  property  belonging 
exclu'sivelv  to  a  person  other  than  the  one  charged. 

People  vs.  O'Farrell,  247  111.  44;   McElroy  vs.  People,  202  111.  473. 


EMBEZZLEMENT  481 

The  ownership  of  property  embezzled  must  be  alleged  and  proven 
with  the  same  accuracy  as  is  required  in  indictment  for  larceny. 
Peoijle  vs.  Brander,  244  111.  26. 

So  where  money  or  property  is  alleged  to  belong  to  one  person, 
and  proof  shows  it  belongs  to  that  person  and  another  jointly,  the 
variance  is  fatal. 

Eauguth  vs.  People,   186  111.  93. 

—  Unincorporated  Body :  Property  vested  in  a  body  of  persons 
ought  not  to  be  laid  as  the  property  of  that  body,  unless  such  body 
is  incorporated,  but  should  be  described  as  belonging  to  the  indi- 
viduals composing  the  company. 

Wallace  vs.  People,  63  111.  451. 
Where  indictment  describes  company  as  an  association,  and  does 
not  aver  that  it  is  a  corporation,  it  is  insufficient. 

People  vs.  Brander,  244  TU.  26. 
But  an  allegation  of  corporate  existence  does  not  require  proof 
of  legal  organization.  And  an  allegation  in  an  indictment  of  an 
express  company  agent  for  embezzlement,  that  the  company  is  a 
.ioint  stock  association,  and  a  coqjoration  under  the  laws  of  New 
York,  is  prima  facie  established  by  proof  that  it  had  a  known  and 
recognized  de^  facto  existence  in  Illinois  as  a  corporation. 

Kossakowski  vs.  People,  177  111.  563, 

Character  of  Property: 

A   town   supervisor   cannot   legally  be   convicted   of  embezzling 
town   money,  if  the  evidence   shows  that  what  he  received  and 
receipted  for  as  money,  Avas,  in  fact,  town  orders. 
Weimer  vs.  People,  186  111.  503. 

On  indictment  charging  embezzlement  of  money,  only,  the  admis- 
sion of  evidence  showing  larceny  or  embezzlement  of  county  orders 
is  error. 

Goodhue  vs.  People,  94  111.  37. 

Demand: 

—  By  Bank  Depositor:  Proof  of  a  demand  for  the  deposit  is  not 
essential  to  conviction  of  a  banker,  where  it  is  shown  such  banker 
suspended  payment  and  closed  his  doors  against  depositors  and 
creditors,  and  discontinued  banking  operations. 

Meadowcroft  vs.  People,  163  111.  56 ;  Arnold  vs.  Hart,  75  App.  165. 

—  By  Express  Company:  Where  the  disappearance  of  an  ex- 
press company's  agent  from  his  place  of  business  makes  it  impos- 
sible for  the  company  to  demand  settlement  of  him  for  the 
proceeds  of  the  sale  of  express  money  orders,  which  he  has  appro- 
priated, the  prosecution  may  prove  the  conversion  otherwise  than 

by  demand  and  refusal. 

Kossakowski  vs.  People,  177  111.  563. 

Intent : 

—  Public  Officer:  The  word  "embezzle"  and  the  words  "fraud- 
ulently convert  to  his  OAvn  use,"  mean  the  same  thing,  and  in  both 
a  criminal  intent  is  necessary,  but  if  the  acts  relied  upon  as  con- 
stituting the   crime   are   fraudulently   done,   they  are   done  with 

criminal  intent.     ' 

Spalding  vs.  People,  172  111.  40. 

—  Intention  to  Bepay  Debt:     Immaterial. 

Spalding  vs.  People,  172  111.  40. 
Ev.— 31 


482  EMBEZZLEMENT 

—  Agent:  The  legal  presumption  of  the  innocence  of  an  em- 
ploye charged  with  emhezzlement,  does  not  mean  that,  although 
he  collected  money  for  his  employer  and  kept  it  without  account- 
ing for  it,  he  is  to  be  presumed  innocent  of  the  intent  implied  by  his 
act,  or  to  have  no  intent  to  defraud  his  employer 

Zuckerman  vs.  People,  213  111.  114. 

Illicit  relationship  between  principal  and  agent  is  immaterial. 
People  vs.  Goodrich,  251  111.  558. 

—  Ba7ik  Officer:  There  must  be  a  criminal  intent  or  that  neg- 
ligence which  is  its  equivalent,  and  same  must  appear  in  some  way 
in  order  to  justify  a  conviction. 

Statute  as  to  prima  facie  evidence  of  intent  by  suspension  or 
voluntary  liquidation  within  thirty  days  is  merely  to  establish  a 
rule  of  evidence. 

Meadowcroft  vs.  People,  163  111.  56. 

But,  by  such  statute,  same  is  prima  facie  proof  of  fraud. 
Amer.  T.  &  S.  Bank  vs.  Gueder  Mfg.  Co.,  150  111.  336. 

—  Knotvledge:  Of  insolvency,  is  not  necessary  to  constitute 
offense,  nor  fraudulent  intent,  but  fact  of  insolvency  of  banker  is 
essential  to  constitute  offense  and  must  be  alleged  and  proven. 

Murphy  vs.  People,  19  App.  125.     See  Brown  vs.  People,  173  111.  34. 

—  Various  Acts:  Upon  charge  of  embezzlement  by  fraudulent 
conversion  to  his  own  use  of  money  placed  in  his  hands  to  be 
loaned  for  owner,  it  is  not«  competent  for  prosecution  to  prove  that 
defendant  had  collected  or  secured  money  belonging  to  other  par- 
ties on  several  occasions,  which  he  had  converted  to  his  own  use. 

This  evidence  should  be  confined  to  charge  set  forth  in  indictment. 
Kribs  vs.  People,  82  111.  425. 

It  is  sufficient  for  indictment  to  allege,  generally,  an  embezzle- 
ment, fraudulent  conversion,  or  taking  with  intent  to  convert  to 
defendant's  own  use,  the  money,  funds,  or  securities  of  the  em- 
ployer, to  a  certain  amount  or  value,  without  specifying  any  par- 
ticulars of  such  embezzlement,  fraudulent  conversion  or  taking 
with  such  intent;  and  it  is  made  sufficient  to  maintain  the  indict- 
ment that  any  bullion,  money,  note,  bank  note,  check,  draft,  bill 
of  exchange,  or  other  security  for  money,  of  the  employer,  of 
whatever  value  of  amount,  was  fraudulently  converted  or  taken 
with  such  intent,  by  the  clerk  or  employe.  In  such  case,  it  is 
proper  to  allow  proof  of  any  and  all  acts  of  embezzlement  to  go 
to  the  jury. 

Ker  vs.  People,  110  111.  627. 

Value: 

—  Railroad  Tichet:    Need  not  be  alleged  or  proven. 

McDaniels  vs.  People,  118  111.  301. 

—  Bank  Deposits:  Value  of  thing  embezzled  must  be  alleged 
and  proven. 

Brown  vs.  People,  173  111.  34. 

And  proof  of  value  is  ineffectual  in  absence  of  allegation  thereof. 

Brown  vs.  People,  173  111.  34. 
It  is  not  sufficient  statement  of  value  to  allege  property  embez- 
zled was  so  many  dollars  in  money,  and  proof  that  it  was  current 
money  of  the  United  States  cannot  aid  defect  in  indictment. 
Brown  vs.  People,  173  111.  34. 


EMINENT  DOMAIN  483 

Venue: 

Of  an  indictment,  consisting  in  failure  to  account,  may  be  laid 

in  state  and  county  where  accused  was  under  obligation  to  account. 

Kossakowski  vs.  People,  177  111.  563;  Spalding  vs.  People,  172  111.  40. 


EMINENT  DOMAIN 

Time  When  Compensation  Fixed: 

Date  of  tiling  petition. 

Freiberg  vs.  S.  S.  El.  Ey.  Co.,  221  111.  508;  Tedens  vs.  Sanitary  Dis- 
trict, 149  111.  87;   XII  111.  Notes  336,  §69. 
That  land  was  subject  to  inundation  prior  to  or  after  filing  of 

petition  may  be  shown. 

Schuster  vs.  Sanitary  District,  177  111.  626. 

Where  the  petition  is  several  times  amended  in  respect  to  the 
description  of  the  property  sought  to  be  condemned,  and  not  by 
way  of  substitution  of  one  parcel  of  land  for  another,  it  will  not 
be  error  for  the  court  to  restrict  evidence  of  the  value  of  the  prop- 
erty and  damages  to  property  not  taken  to  the  date  of  tiling  of 
original  petition. 

Lieberman  vs.  Chi.  E.  T.  Ey.  Co.,  141  111.  140. 

Compensation  for  Land  Taken: 

—  Measure  of  Damages  Generally:  Measure  of  damages  is  the 
market  value  of  the  property  taken. 

J.  &  S.  E.  Ey.  Co.  vs.  Walsh,  106  111.  253;  Prather  vs.  Chi.  Sou.  E. 
E.  Co.,  221  111.  190. 

With  proper  regard  to  the  location  and  advantages  as  to  sit- 
uation and  the  purposes  for  which  it  is  designed  and  used. 

C.  B.  &  N.  E.  E.  Co.  vs.  Bowmae,  122  111.  595 ;  C.  E.  &  L.  S.  Ey.  Co.  vs. 
Catholic  Bishop,  119  111.  525;  L.  S.  &  M.  S.  Ey.  Co.  vs.  C.  &  W.  I. 
Ey.  Co.,  100  111.  21. 

Capabilities  of  the  land  may  also  be  considered. 

Haslam  vs.  Galena  S.  W.  ky.  Co.,  64  111.  353. 
The  fair  cash  market  value,  not  the  price  at  which  the  property 
would  sell  under  special  or  extraordinary  circumstances. 

Tedens  vf.  Sanitary  District,  149  111.  87. 

—  Owner's  Estate:  The  nature  of  the  estate  and  the  quantity 
of  title  taken  from  the  owner  are  admissible. 

Sexton  vs.  Union  Stock  Yards  Co.,  200  111.  244. 
And  evidence  of  damage  is  limited  to  estate  or  interest  taken. 

I.  I.  &  I.  E.  E.  Co.  vs.  Conness,  184  111.  178. 
Where   defendant   owns   fee   in   one   quarter   and  a    remainder 
estate  in  the  adjoining  quarter,  in  proceedings  to  assess  damages 
to  the  fee  estate,  damages  may  also  be  assessed  to  the  remainder 
estate,  when  same  is  in  fact  damaged. 

I.  I.  &  I.  E.  E.  Co.  vs.  Conness,  184  111.  178. 

In  condemning  railroad  right  of  way  for  erection  of  telegraph 
poles,  evidence  of  damages  to  the  easement,  and  not  the  fee,  is 
admissible. 

St.  L.  &  C.  Ey.  Co.  vs.  Postal  Telegraph  Co.,  173  111.  508. 

—  Offers  to  Sell:  Mere  oflPers  to  sell  real  estate  at  a  given  price 
are  not  competent  evidence  of  value  or  of  the  value  of  like  prop- 


484  EMINENT  DOMAIN 

erty.     The  rule  admitting  evidence  of  value  is  confined  to  actual 

sales  or  acts  done. 

Sherlock  vs.  C.  B.  &  Q.  Ey.  Co.,  130  111.  403;  Cf.  C.  &  W.  Ky.  Co.  vs. 
Maroiiey,  95  111.  179. 
—  Price  at   Whicli  Others   ^¥ould  Buy:     Evidence  offered   by 
petitioner  to  show  that  a  witness  in  its  belialf  was  financially  able 
to  buy  the  land,  and  what  he  would  be  willing  to  pay  for  same 
after  construction  of  railroad  is  inadmissible. 
C.  B.  &  D.  Ey.  Co.  vs.  Kelly,  221  111.    198. 

Bona  fide  offers  to  purchase  for  cash,  before  any  proposition  to 
take  for  public  use  are  admissible.  The  bona  fides  of  an  offer  and 
the  weight  to  be  given  are  questions  for  the  jury. 

City  of  Chicago  vs.  Lehmann,  262  111.  468;   Cf.  Crosby  vs.  Doward, 
248  111.  471. 

—  Rental  Value  of  Property  Condemned.-  Petitioner  is  not 
entitled  to  prove  price  agreed  to  be  paid  to  tenants  for  their  lease- 
hold, and  thereby  bind  the  owner,  unless  owner  has  agreed. 

C.  B.  &  q.  Ey.  Co.  vs.  Eeisch,  247  111.  350. 

Either  party  may  prove  actual  rent  upon  question  of  value  of 

leasehold. 

West  Chi.  Com.  vs.  Boal,  232  111.  248. 

In  fixing  value  of  leasehold,  proof  of  amount  of  business  trans- 
acted, or  the  profits  of  the  business  is  incompetent. 

West  Chi.  Com.  vs.  Boal,  232  111.  248.  .) 

—  Benial  Value  of  Adjacent  Property:  Proof  of  the  amount 
of  rents  derived  from  improved  property  in  the  neighborhood, 
which  had  been  recently  sold,  and  of  the  income  that  could  be 
derived  from  other  vacant  property  in  the  vicinity,  if  buildings 
were  erected  upon  them,  is  inadmissible. 

Pullman   Car  Co.  vs.  Chicago,  224   111.   248. 

—  Price  Paid  hy  Owner:    As  a  general  rule,  price  which  the  owner 

gave    for   tbe   property   may    be   put   in    evidence.      But    it    must 

appear  that  the  owner  has  purchased  the  property  within  a  time 

so  recent  that  its  cost  will  afford  a  fair  indication  of  its  present 

value. 

Liuquist  vs.  City  of  Chicago,  200  111.   69. 

The  price  paid  by  owner  is  inadmissible  when  purchase  is 
remote,  and  lots  were  bought  in  block  of  three,  but  two  of  which 
were  condemned :  and  when  tlie  sale  at  which  same  was  bought 
was  not  a  voluntary  sale,  in  free  open  market,  and  was,  in  part, 
a  compromise  for  a  pre-existing  debt. 

Linquist  vs.  City  of  Chicago,  200  111.   69. 

Witness  may,  on  cross  examination,  state  what  he  paid  for  the 

land,  as  tending  to  test  the  correctness  of  the  opinion  which  he 

had  previously  expressed  as  to  the  present  value  of  the  land. 
Brown  vs.  Calumet  Eiver  Ey.  Co.,  125  111.  600. 

—  Price  Paid  hy  Others:  Testimony  as  to  price  paid  to  defend- 
ant by  another  railroad  company  for  a  strip  of  land  through  the 
same  tract  as  that  in  suit,  is  not  admissible  on  question  of  dam- 
ages. 

Lyon  vs.  H.  &  B.  I.  E.  B.  Co.,  167  111.  527. 

—  Price  Paid  for  Other  Property:  Proof  of  what  petitioner  paid 
for  other  property  for  same  enterprises  is  incompetent. 

South  ParkComrs.  vs.  Ayer,,  237  111.  211. 


EMINENT  DOMAIN  485 

In  condemnation  of  an  nnsubdivided  tract  of  land,  evidence 
as  to  what  certain  lots  in  a  subdivided  tract  in  the  same  vicinity 
had  sold  for  is  not  material. 

Martin  vs.  C.  &  M.  Elec.  Ey.  Co.,  220  111.  97. 
Proof  of  amount  paid  by  petitioner  for  adjoining  property  is 
not  admissible  on  question  of  damages. 

Schuster  vs.  Sanitary  District,  177  111.  626. 
Evidence  of  prices  paid  by  petitioner  to  other  property  owners 
for  right  of  way  along  its  line  is  incompetent. 

Peoria  G.  L.  &  C.  Co.  vs.  Term.  Ry.  Co.,  146  111.  372. 
And  amount  paid  for  right  of  way  over  other  land  half  a  mile 
from  tract  condemned  is  incompetent. 

E.  M.  &  S.  W.  Ey.  Co.  vs.  Everett,  225  111.  529. 
Where  a  railroad  company  has  located  its  road  across  prop- 
erty, it  is  not  proper  for  one  owner  to  show  what  it  has  paid  as 
compensation  for  other  property,  because  it  must  have  the  par- 
ticular property,  even  if  it  costs  more  than  its  real  value.  Nor  can 
the  company  prove  what  it  has  paid. 

C.  &  N.  W.  Ry.  Co.  vs.  Heidenreich,  254  111.  231 :  E.  M.  &  S.  W.  Ey.  Co. 
vs.  Everett,  225  111.  529. 

—  Prospective  Use  of  Property:  What  probable  use  the  owner 
of  vacant  property  sought  to  be  condemned  may  make  of  the  same 
in  the  near  future  is  not  sub.ject  of  expert  testimony. 

West  Chi.  Ey.  Co.  vs.  City  of  Chicago,  172  111.  198. 
AVhere  it  is  claimed  the  land  had  a  special  value  to  defendant 
for  the  future  erection  of  buildings  for  the  expansion  of  its  man- 
ufacturing plant,  and  it  is  proved  that  plans  for  new  buildings 
had  been  prepared,  it  is  not  improper,  on  cross  examination,  to 
show  that  the  plans  were  delayed  owing  to  the  financial  embar- 
rassment of  the  companv. 

Bradley  Mfg.  Co.  vs.  C.  &  S.  Trac.  Co.,  229  111.  170. 
The  value  of  right  of  way,  other  than  the  portion  used  for  tracks, 
for  purpose  of  erecting  buildings,  etc.,  for  railroad  purposes,  is 
admissible. 

I.  C.  Ey.  Co.  vs.  City  of  Chicago,  156  111.  98. 

—  Sale  of  Similar  Property:  To  justify  admitting  proof  of  vol- 
untary sales  of  other  lands  in  the  vicinity  of  the  land  condemned, 
the  party  ofit'ering  such  proof  must  show  that  the  lands  so  sold 
were  similar  in  localitv  and  character  to  the  land  condemned. 

C.  &  S.  L.  Ey.  Co.  vs.  Mines,  221  111.  448. 
One  method  of  showing  the  value  of  land  involved  in  a  con- 
demnation proceeding  is  to  prove  sales  of  similar  property  in  the 
immediate  vicinity. 

W.  S.  Drain.  Dist.  vs.  Davt-son,  243  111.  175;  Crosby  vs.  Dorvrard,  248 
111.  471. 

Evidence  of  voluntary  sales  of  other  lands  in  the  vicinity  and 

similarly  situated,  is  admissible  in  evidence  in  estimatiiig  the  value 

of  land  to  be  condemned ;  but  it  is  incumbent  upon  the  party 

offering  such  proof  to  show  that  the  lands  so  sold  were  similar  in 

locality  and  character  to  the  land  in  question. 
O'Hara  vs.  C.  M.  &  S.  Ey.  Co.,  139  111.  151. 

Proof  of  sales  of  similar  property  must  show  same  to  have 
been  in  the  open  market  and  not  compulsory,  and  the  price  paid 
at  a  foreclosure  sale  is  not  admissible. 

West  Skokie  Drain.  Dist.  vs.  Dawson,  243  111.  175. 


486  EMINENT  DOMAIN 

•  Evidence  of  sales  of  similar  property  is  proper  for  the  pur- 
pose of  fixing  value  of  property  condemned,  but  no  positive  rule 
can  be  laid  down  as  to  the  degree  of  similarity  to  justify  proof 
of  such  sales.  The  limits  of  the  evidence  necessarily  rest  largely  in 
the  discretion  of  the  trial  judge. 

C.  &  W.  I.  K.  K.  Co.  vs.  Heidenreich,  254  111.  231. 

Where  proof  of  sales  of  similar  property  is  offered,  defendant 
is  entitled  to  prove  the  differences  between  his  property,  with  its 
present  and  probable  prospective  uses,  and  the  property  concern- 
ing which  the  sales  were  proven. 

C.  &  W.  I.  E.  E.  Co.  vs.  Heidenreich,  254  111.  231. 

Where  property  was  in  reality  purchased  by  a  railroad  com- 
pany but  the  negotiations  were  conducted  by  an  individual  with 
the  owner  who  was  not  aware  of  the  fact,  proof  of  such  sale  by  a 
defendant  is  competent  on  question  of  value. 

C.  &  W.  I.  E.  E.  Co.  vs.  Heidenreich,  254  111.  231. 

Evidence  of  sales  of  land  in  small  tracts,  some  of  them  within 
a  mile  of  the  farm  sought  to  be  condemned,  for  fancy  farming 
and  country  residences,  induced  by  the  establishment  of  a  coun- 
try club  in  the  vicinity,  is  not  admissible,  where  such  sales  have 

not  extended  to  defendant's  or  adjacent  lands. 

C.  &  S.  L.  By.  Co.  vs.  Kline,  220  111.  334. 
Proof  that  farms  in  the  same  neighborhood  adjoining  or  cut  in 
two  by  another  railroad  in  the  same  manner,  sold  for  more  than 
farms  that  were  remote  from  railroad  is  not  admissible. 

I.  &  M.  Ey.  Co.  vs.  Freeman,  210  111.  270. 
Court  has  reasonable  discretion  in  admitting  evidence  of  recent 
voluntary  sales  of  land  in  vicinity  of  that  condemned,  and  sim- 
ilarly situated. 

Alodo  Term.  Ey.  Co.  vs.  Butler,  246  111.  406. 

Where  the  right  of  way  condemned  cuts  off  a  triangular  strip 
of  small  area  from  the  remainder  of  the  farm,  it  is  not  competent, 
on  question  of  damages  to  land  not  taken,  for  the  petitioner  to 
prove  what  it  has  paid  for  other  three  cornered  pieces  of  land 
along  the  right  of  way,  or  for  damages  to  the  same. 
I.  I."&  M.  Ey,  Co.  vs.  Humiston,  208  111.  100. 

Price  paid  for  three  lots  is  not  admissible  where  there  is  a  dif- 
ference in  the  testimony  as  to  the  value  of  the  lots  and  there  is 
no  way  of  estimating,  except  by  guess  work,  how  much  of  the 
purchase  price  was  given  for  the  two  lots  sought  to  be  condemned. 
Linquist  vs.  City  of  Chicago,  200  111.  69. 

In  proceeding  by  railroad  company  to  condemn  an  entire  lot 
in  a  city  for  the  use  of  its  road,  evidence  of  the  price  per  foot  the 
adjoining  tract  had  been  sold  for,  and  the  price  per  foot  at  which 
other  lots  had  been  offered  for  sale,  is  doubtless  competent  if 
offered  by  the  company  as  evidence  in  chief,  but  not  after  defend- 
ant has  closed. 

Where  the  petitioner  closes  his  case,  and  the  land  owner  gives 
evidence  of  the  value  of  tlie  property  sought  to  be  taken,  there  is 
no  error  in  refusing  to  allow  petitioner  to  prove  the  price  at  which 


EMINENT  DOMAIN  487 

an  adjoining  tract  was  sold,  or  at  which  other  lots  in  the  vicinity 
are  offered  for  sale.  Such  evidence  is  in  chief  and  not  in  rebut- 
tal, and  it  is  a  matter  of  discretion  to  opeii  the  case  and  let  in  proof 
which  ought  to  have  been  given  in  chief. 

C.  &  A.  Ey.  Co.  vs.  Maroney,  95  111.  179. 
Evidence  of  recent  sales  of  property  in  vicinity  of  that  con- 
demned is  admissible  upon  the  cpiestion  of  value  of  the  land  taken, 
but  the  question  of  the  degree  of  similarity  between  the  properties 
and  of  the  nearness  in  point  of  time  and  distance  necessary  to  ren- 
der such  evidence  admissible  in  a  particular  case,  must  be  deter- 
mined largely  by  the  trial  court. 

St.  L.  &  I.  B.  Ey.  Co.  vs.  GusweUe,  236  111.  214. 
—  Opinion  Evidence  as  to  Value:     Opinion  evidence  is  admis- 
sible on  issue  of  value. 

P.  B.  &  C.  Trae.  Co.  vs.  Vance,  251  111.  263 ;  C.  P.  &  M.  Ey.  Co.  vs. 
Mitchell,  159  111.  406;  C.  P.  &  St.  L.  Ey.  Co.  vs.  Nix,  137  111.  141; 
E.  E.  I.  &  St.  L.  Ey.  Co.  vs.  Coppinger,  66  111.  510 ;  Hayes  vs.  O.  O. 
&  F.  E.  V.  Ey.  Co.,  54  111.  373 ;  XII  111.  Notes  357,  §  163. 

Where  subject  is  one  upon  which  the  jury  is  not  as  well  able  to 
judge  for  themselves  as  a  witness,  opinion  may  be  received. 
L.  S.  &  M.  S.  Ey.  Co.  vs.  B.  &  O.  Ey.  Co.,  149  111.  273. 

So  where  a  railroad  company  sought  to  condemn  city  lots  with 
buildings  thereon,  for  the  use  of  their  road,  as  the  lands  and  city 
lots  have  no  standard  value,  it  was  right  and  necessary  to  take  the 
opinions  of  witnesses,  and  to  hear  the  facts  upon  which  such  opin- 
ions were  founded,  to  enable  the  jury  to  fix  the  compensation  to  be 
awarded  the  owners. 

L.  B.  &  M.  Ey.  Co.  vs.  Winslow,  68  111.  219. 

Jury  are  not  bound  by  opinions  of  witnesses. 
Green  vs.  City  of  Chicago,  97  111.  370. 

But  such  opinions  are  to  be  weighed  by  the  jury  and  judged  in 
view  of  all  the  testimony  of  the  case,  and  the  jury's  own  general 
knowledge  of  affairs,  and  have  only  such  consideration  given  them 
as  the  jury  believe  they  are  entitled  to  receive. 

MeEeynolds  vs.  B.  &  O.  S.  W.  Ey.  Co.,  106  111.  152;  K.  &  E.  Ey.  Co. 
vs.  Henry,  79  111.  290. 

The  opinion  should  not  be  based  simply  on  theory  or  conjecture. 

P.  &  P.  U.  Ey.  Co.  vs.  P.  &  F.  Ey.  Co.,  105  111.  110. 
Nor  statement  of  mere  conclusion  without  facts  upon  which  same 
is  based. 

W.  S.  Drain.  Dist.  vs.  Dawson,  243  111.  175. 
And,  although  evidence  of  profits  which  could  be  realized  by 
operating  the  quarries  upon  land  condemned,  is  inadmissible  to 
show  its  value,  the  witness  who  gives  his  opinion  as  to  the  value  of 
such  land  may  state  such  profits  as  the  ground  upon  which  he  bases 
his  opinion. 

Sanitary  Dist.  vs.  Loughran,  160  111.  362. 
Witnesses  who  have  testified  that  remainder  of  tract  of  farm  land 
would  be  greatly  depreciated  in  value,  may  properly  be  asked  if 
they  knew  of  any  farm  which  was  depreciated  in  value  by  reason 
of  a  railroad  going  across  it,  or  any  farm  that  sold,  or  would  sell  for 
less  on  that  account. 

E.  M.  &  S.  W.  Ey.  Co.  vs.  Everett,  225  111.  529. 


488  EMINENT  DOMAIN 

All  persons  who  are  acquainted  with  property  and  have  opinions 

of  its  value  may  give  their  opinions,  together  with  their  knowledge 

of  the  property,  and  the  facts  upon  which  the  opinions  were  based. 

C.  &  W.  I.  E.  E.  Co.  vs.  Heidenreich,  254  111.  231;  Johnson  vs.  F.  & 

M.  E.  By.  Co.,  Ill  111.  413;   K.  &  E.  E.  E.  Co.  vs.  Henry,  79  111. 

290 ;  Green  vs.  City  of  Chicago,  97  111.  370. 

Although  they  are  not  familiar  with  the  market  price  per  square 
foot  of  land  in  the  locality  and  have  never  dealt  in  real  estate  in 
that  way. 

Sanitary  Dist.  vs.  P=  F.  W.  &  C.  Ey.  Co.,  216  111.  575. 

Real  estate  brokers  in  a  city,  who  testify  that  they  are  acquainted 
with  the  value  of  real  estate  in  the  neighborhood  of  the  property 
sought  to  be  condemned,  are  competent  to  give  their  opinions  as 
to  value  of  same,  even  though  their  knowledge  of  values  in  the  local- 
ity is  not  satisfactorily  shown  to  be  based  upon  actual  sales.  Such 
objection  goes  to  the  value  of  their  testimony  rather  than  its  com- 
petency. 

C.  &  E.  E.  E.  Co.  vs.  Blake,  116  111.  163. 

The  testimony  of  a  witness  as  to  the  value  of  property  sought 
to  be  condemned  is  properly  denied  admission  where  he  testifies  that 
he  had  never  seen  or  been  on  the  property  and  knew  nothing  of  its 
value,  and  the  parties  have  exhausted  the  number  of  expert  wit- 
nesses limited  by  the  court  under  their  stipulation. 
Chi.  Term.  Co.  vs.  Bugbee,  184  111.  353. 

In  proceeding  by  city  to  extend  street  across  railroad  tracks,  wit- 
nesses who  testify  that  they  are  thoroughly  familiar  with  the  use 
of  property  by  defendant  may  testify  upon  question  of  damages 
to  such  use,  even  though  they  are  not  familiar  with  the  general 
methods  of  conducting  railroads. 

City  of  Paris  vs.  C.  V.  &  C.  Ey.  Co.,  248  111.  213. 

Opinions  of  witnesses  as  to  value  are  not  in  a  proper  sense  expert 
testimony,  and  their  estimate  of  value  may  be  determined  from 
knowledge  and  experience  but  not  upon  hypothetical  conditions. 

C.  &  W.  I.  E.  E.  Co.  vs.  Heidenreich,  254  111.  231 ;  City  of  Chicago  vs. 
Lehniann,  262  111.  472. 

In  estimating  damages  occasioned  by  granting  a  right  of  way 
across  a  farm,  where  there  is  conflicting  evidence  as  to  the  amount 
of  damages  sustained,  the  jury  will  be  justified  in  giving  greater 
weight  to  the  testimony  of  farmers  than  to  that  of  persons  engaged 
in  other  pursuits. 

J.  A.  &  St.  L.  Ey.  Co.  vs.  Colwell,  21  111.  75. 

Witnesses  who  are  familiar  with  the  value  of  land  in  the  vicin- 
ity, and  with  the  general  management  and  use  of  farms,  and  who 
are  acquainted  with  the  effects  of  railroads  upon  such  property, 
may  give  their  opinions  as  to  the  extent  of  damage  to  land  not 

actually  taken. 

Sewell  vs.  Chi.  Term.  Ey.  Co.,  177  111.  93. 
Witness  may  give  opinion  as  to  value  from  sales  of  other  prop- 
erty with  which  he  is  acquainted,  where  he  knows  advantages  and 
disadvantages,  character  of  improvements  and  other  matters  affect- 
ing the  value,  but  it  is  not  proper  to  give  witness  a  list  of  sales  and 
ask  him  to  form  his  judgment  therefrom. 

C.  &  W.  I.  E.  E.  Co.  vs.  Heidenreich,  254  111.  231. 


EMINENT  DOMAIN  489 

A  witness  testifying  in  a  proceeding  to  condemn  laud  for  rail- 
way purposes,  may  base  his  opinion  as  to  damages  partly  upon  the 
element  of  danger  from  tire  caused  by  locomotive. 
I.  I.  &  M.  Ey.  Go.  vs.  Bing,  219 'ill.  91. 
But  loss  or  damage  arising  from  possible  negligence  cannot  be 
considered. 

Chi.  S,  Ey.  Co.  vs.  Nolin,  221  111.  367. 

—  Special  Value  to  Owner:  Special  value  of  land  to  owner  and 
of  which  he  is  deprived,  must  be  made  good  to  him,  based  upon 
actual  value  taken  from  the  owner. 

Hercules  Iron  Works  vs.  E.  J.  &  E.  Ey.  Co.,  141  HI.  491. 

—  Special  Value  to  Petitioner:    When  property  is  in  possession 

of,  and  used  for  railroad  purposes,  evidence  as  to  what  it  is  worth 

for  such  purposes  alone  is  inadmissible. 

Ligare  vs.  C.  M.  &  N.  Ey.  Co.,   166  HI.  249. 

—  Value  for  Particular  Purposes:  Particular  value  for  particu- 
lar purposes,  to  which  lands  were,  in  fact,  devoted,  may  be  recov- 
ered. 

' .      Dupuis  vs.  C.  &  N.  W.  Ey.  Co.,  115  111.  97.  ^ 

—  Profits  From  Land:  All  evidence  of  the  amount  of  busi- 
ness that  could  be  done  or  the  probable  profits  arising  from  the 
operation  of  the  land  is  inadmissible. 

Sanitary  Hist.  vs.  Loughran,  160  111.  362. 

—  Advancement  of  Property:  As  bearing  on  the  question  of 
the  value  of  railroad  terminal  property  sought  to  be  condemned, 
it  is  proper  to  prove  the  amount  of  business  transacted,  the  capac- 
ity of  such  property  for  such  business  and  its  capacity  for  expan- 
sion to  meet  the  increasing  demands  of  business. 

Sanitary  Dist.  vs.  P.  F.  W.  &  C.  Ey.  Co.,  216  111.  575. 
Question  as  to  whether  or  not  village  was  improving  is  too  indef- 
inite and  properly  disallowed. 

Martin  vs.  C.  &  M.  Elec.  Ey.  Co.,  220  111.  97. 

—  Value  When  Subdivided:  Admitting  evidence  of  acre 
value,  for  agricultural  purposes,  of  land  described  in  petition  by 
metes  and  bounds,  as  containing  a  certain  number  of  acres,  in 
connection  with  evidence  of  its  value  as  subdivided  town  prop- 
erty, is  not  error,  where  the  subdivision  was  made  after  the  peti- 
tion was  filed  and  the  .jury  viewed  the  premises. 

Schuster  vs.  San.  Dist.  177  111.  626. 

—  Mineral  Value:  In  proceeding  to  condemn,  for  railroad 
right  of  way,  a  strip  of  land  upon  which  no  mine  exists,  and  no 
boriugs  for  coal  have  ever  been  made,  so  that  the  existence  of 
coal  underlying  the  land  is  wholly  a  matter  of  conjecture,  evi- 
dence that  coal  has  been  found  underlying  land  several  miles  from 
that  condemned  is  incompetent. 

E.  M.  &  S.  W.  Ey.  Co.  vs.  Sims,  228  111.  9. 

—  Actual  Sales:  To  prove  the  value  of  city  lots,  actual  sales 
of  similar  property  in  the  vicinity  and  near  the  time  of  the  in- 
quiry are  competent.  But  while  such  sales  may  be  the  most  sat- 
isfactory evidence  of  value,  yet  they  are  only  one  of  the  modes 
and  not  the  only  one. 

Elmore  vs.  Johnson,  143  HI.  513. 
In  arriving  at  the  value  of  a  house  and  lot  in  a  city  at  a  par- 


490  EMINENT  DOMAIN 

ticular  time,  what  similar  property  in  the  neighborhood  sold  for 
in  the  market  about  the  same  date,  is  competent  evidence.  There- 
fore it  is  competent  to  show  by  a  witness,  fixing  the  valuation, 
that  his  estimate  is  based  upon  what  he  had  been  paying  for  sim- 
ilar property  in  the  neighborhood. 

C.  &  G.  W.  E.  E.  Co.  vs.  Wedel,  144  111.  9. 

Defendant  offered  in  evidence  a  deed  for  purpose  of  showing 
the  sale  of  property  in  the  locality  of  that  sought  to  be  taken,  but 
no  evidence  was  cliered  to  show  whether  the  sale  was  voluntary, 
or  in  good  faith,  or  whether  the  premises  were  improved  or  not, 
or  if  improved,  the  nature  and  character  of  the  improvements, 
which  the  court  refused  to  admit.    The  deed  was  properly  excluded. 

The  recital  of  consideration  in  a  deed,  as  between  the  parties 

thereto,  may  be  admissible  in   evidence  as  tending  to  show  the 

amount  paid,  but  even  as  between  them,  it  is  not  conclusive.     As 

to  strangers,  or  those  not  parties  to  it  or  in  privity  with  the  title, 

such  recitals  are  but  ex  parte  statements  of  the  parties  to  the  deed, 

and  hearsay,  and  are  not  competent  evidence. 
O'Hara  vs.  C.  M.  &  N.  Ey.  Co.,  139  111.  151. 

"Where  the  landowner  introduced  his  deeds  for  the  land,  it  was 
competent  to  instruct  the  jury,  on  the  part  of  the  petitioner,  that 
they  could  take  into  account  the  consideration  recited  in  the  deeds, 
in  determining  the  value  of  the  land  taken.  If  the  lands  had  been 
recently  purchased,  the  price  might  tend  to  enlighten  the  jury 
upon  that  issue. 

Jones  vs.  C.  I.  E.  E.  Co.,  68  111,  380. 

Evidence  of  sales  of  similar  property  in  the  neighborhood,  at 
or  about  the  same  time,  tends  to  show  the  fair  market  value  of 
the  property  sought  to  be  condemned;  and  such  sales,  when  made 
in  a  free  and  open  market,  wdiere  a  fair  opportunity  for  compe- 
tition existed,  become  material  and  important  factoi  ^  in  deter- 
mining the  value  of  the  particular  property.  But  to  have  that 
tendency,  they  must  have  been  made  under  circumstances  where 
they  are  not  compulsory,  and  where  the  vendor  is  not  compelled 
to  sell,  at  all  events,  but  is  at  liberty  to  invite  competition  among 
those  desiring  to  purchase. 

Peoria  G.  &  L.  Co.  vs.  Term.  Ey.  Co.,  346  111.  372. 

If  defendant  offers  evidence  in  support  of  his  cross  petition, 
for  damages  to  land  not  taken,  including  underlying  coal,  after 
petitioner  has  offered  proof  of  the  value  of  the  strip  of  land 
taken  for  its  right  of  way,  with  the  coal  rights  reserved  to  defend- 
ant, in  accordance  with  its  stipulation,  it  is  proper  for  the  peti- 
tioner, in  rebuttal,  to  make  proof  of  prices  realized  at  recent  vol- 
untary sales  of  lands  in  the  vicinity,  similarly  situated,  includ- 
ing the  underlying  coal  or  the  coal  as  separated  from  the  surface. 
E.  M.  &  S.  M.  Ey.  Co.  vs.  Everett,  225  111.  529. 

—  Title  to  Property:  Evidence  relating  to  the  title  is  not 
competent  upon  the  issue  to  be  tried  by  the  jury,  but  where  the 
conflict  of  interest  among  the  defendants  is  disclosed,  the  court 
should  order  the  compensation  awarded  to  be  paid  to  the  county 


EMINENT  DOMAIN  491 

treasurer  and  require  defendants  to  present  their  respective  claims 
thereto  to  the  court. 

M.  W.  S.  E.  By.  Co.  vs.  Eschner,  232  111.  210. 
The   petitioner   in   a   condemnation   proceeding  is   required,   at 
its  peril,   to  ascertain  and  name   in  the  petition  the  true  owner 
and  the  person  named  as  owner  is  not  required  to  prove  title. 
C.  &  M.  Ey.  Co.  vs.  Diver,  213  111.  26. 

—  As  to  Land  Being  Subject  to  Overfloiv:  That  land  was  sub- 
ject to  overflow  may  be  shown. 

Schuster  vs.  Sanitary  District,   177  111.  626. 

—  Repairs'  to  Property:  The  fact  that  a  building  has  recently 
been  repaired  is  competent,   if  before  petition  was  filed. 

West  Chi.  Com.  vs.  Boal,  232  111.  248. 

Evidence  of  the  cost  of  a  sidewalk  built  in  front  of  the  prop- 
erty condemned  is  admissible. 

West  Chi.  Com.  vs.  Boal,  232  111.  248. 
Testimony  of  employe  of  petitioner  that  they  expect  to  keep  the 
improvements  in  repair  is  inadmissible. 

C.  &  A.  Ky.  Co.  vs.  S.  &  N.  W.  Ey.  Co.,  67  111.  142. 

—  Adaptability  of  Land:  Adaptability  of  land  taken,  for  use 
in  connection  with  cutting  ice,  may  be  considered  in  estimating 
damages  awarded. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Leisy  Brew.  Co.,  174  111.  547. 
And  of  land  taken  for  dock  purposes,   may  be  considered  in 
estimating  damages. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Leisy  Brew.  Co.,  174  111.  547. 
And  of  land  taken  for  other  uses  than  the  one  employed  should 
be  considered. 

G.  &  G.  E.  Ey.  Co.  vs.  Milroy,  181  111.  242. 
In  awarding  compensation   for  land  taken,   reference   may  be 
had,  not  only  to  the  uses  to  which  the  land  is  actually  applied, 
but  its  capacity  for  other  uses,  as  may  be  shown  by  the  evidence. 
C.  E.  &  L.  S.  E.  E.  Co.  vs.  Catholic  Bishop,  119  111.  525. 
Where  the  owner  is  restricted  in  any  binding  way  to  a  par- 
ticular use  of  his  property,  his  compensation  will  be  only  its  value 
to  him  for  the  special  use  to  which  he  is  restricted. 
C.  E.  &  L.  S.  Ey.  Co.  vs.  Cath.  Bishop,  119  lU.  525, 

The  owner  is  entitled  to  the  highest  price  for  land  taken  for 
which  it  could  be  sold  for  any  purpose.  If  the  land  of  a  ceme- 
tery association  which  cannot  be  legally  used  for  cemetery  pur- 
poses is  taken,  the  owner  cannot  recover  its  value  for  such  pur- 
pose. 

Concordia  Assn.  vs.  M.  &  N.  Ey.  Co.,  121  111.  199. 

In  proving  value,  defendant  may  show  the  highest  and  best  use, 
in  fact,  all  uses  for  which  the  property  is  adapted,  and  its  value 
for  such  uses. 

West  Chi.  St.  Ey.  Co.  vs.  Chicago,  172  111.  198. 

Where  witness  for  petitioner  is  interrogated  as  to  the  suitable- 
ness of  land  for  agricultural  purposes,  his  answer  that  land  is 
poor  is  a  mere  conclusion  and  he  should  be  required  to  state  in 
what  respects  the  land  is  or  is  not  suitable  for  agricultural  pur- 
poses. 

West  Skokie  Drain.  Dist.  vs.  Dawson,  243  111.  175. 


492  EMINENT  DOMAIN 

The  compensation  is  to  be  estimated  with  reference  to  the  use 
for  which  the  property  is  suitable  in  its  tlien  condition,  having 
regard  to  its  location,  situation  and  quality,  and  to  the  business 
wants  in  that  locality,   or  such  as  may  reasonably   be  expected 

in  the  near  future. 

Calumet  Elver  Co.  vs.  Moore,  124  111.  329. 
Oral  evidence  uuiy  be  received  in  a  condemnation  proceeding 
to  show  the  adaptability  of  the  land,  in  the  near  future,  for  a 
warehouse  and  railroad  yards;  but  a  plat  prepared  by  defend- 
ant, of  a  possible  but  largely  imaginary  development  of  the  land 
for  such  purposes,  and  not  on  any  improvement  the  defendants 

contemplated  making,   is  not  admissible. 

Sexton  vs.  Union  Stock  Yards  Co.,  200  111.  244. 
Value   of  the   property   for  any   and  all   purposes  to   which  it 
could  be  put  and  what  was  the  highest  and  most  valuable  use 

to  which  it  could  be  devoted  may  be  shown. 
Ligare  vs.  C.  M.  &  N.  Ey.  Co.,  166  111.  249. 

—  Assessor's  Book:  The  assessor's  book,  showing  assessed  value 
of  the  property  in  question,  is  not  admissible  in  evidence  upon 
question  of  compensation. 

County  of  Mercer  vs.  Wolff,  237  111.  74. 

—  Deeds  and  Leases:  Recitals  in  deed  as  to  consideration  are 
inadmissible  on  question  of  value  and  compensation. 

Spohr  vs.  City  of  Chicago,  206  111.  441;  O 'Hare  vs.  C.  M.  &  N.  Ey. 
Co.,  ]39  111.  151. 
A  trust  deed,  given  to  secure  purchase  price  of  a  majority  of 
the  lots,  having  been  received  in  evidence  by  the  court,  upon  a 
hearing   to   determine   the    question   of   title    and   interest   of   the 
various  parties  before   submitting   the   case   to   the   jury,   is   not 
competent  to  go  to  the  jury  on  the  question  of  damages. 
Schuster  vs.  Sanitary  District,  177  111.  626. 
Lease  of  property  held  by  petitioning  railroad  company  is  inad- 
missible. 

Ligare  vs.  C.  M.  &  N.  Ey.  Co.,  166  111.  249. 

—  Value  of  Improvements:  The  compensation  for  land  taken 
for  right  of  way  across  a  farm,  is  properly  based  upon  the  value 
of  the  land  as  a  part  of  the  entire  farm,  including  the  improve- 
ments, and  not  upon  its  value  as  unimproved  land. 

I.  I.  &  M.  Ey.  Co.  vs.  Humiston,  208  111.  100. 

—  Flats:     A   plat   representing   a   contemplated   subdivision   of 

land  into  blocks  and  lots  is  properly  admitted  in  evidence,  if  its 

effect   is   expressly   limited   to  illustrating  the   adaptable   use   of 

the  property,  and  not  for  the  iiurj^ose  of  enhancing  the  owner's 

damages  by  showing  an  actual  platting  of  the  land  as  indicated 

therein. 

aij  E.  I.  &  E.  E.  E.  Co.  vs.  Gordon,  184  111.  456. 

—  Ingress  and  Egress:  An  owner  whose  land  is  sought  to  be 
condemned  may  prove  its  situation,  and  the  facilities  for  ingress 
and  egress  from  it,  as  affecting  its  value,  although  no  cross  peti- 
tion is  filed,  as  is  necessary  where  recovery  of  damages  to  other 

lands  is  sought. 

•  ...  Sanitary  District  vs.  Loughran,  160  111.  362. 

—  Yalue  of  Building:  The  value  of  a  building  whose  destruc- 
tion is  necessary  is  recoverable.     But  not  the  value  of  the  mate- 


EMINENT  DOMAIN  493 

rials.     The  value  of  debris,  if  salable  or  if  used  by  the  owner, 
should  be  deducted  from  the  value  of  the  building. 
L.  B.  &  M.  E.  E.  Co.  vs.  Winslow,  6G  111.  219. 

—  Purpose  for  Which  Land  is  Used:     May  be  shown. 

Dupuis  vs.  C.  &  N.  W.  Ey.  Co.,  115  111.  97. 
Purposes  for  which  property  has  been  used  and  advantages  of 
location  are  proper  matters  for  consideration,  but  not  profits  on 
possible  business  or  conjectural  future  profits. 

J.  &  S.  E.  Ey.  Co.  vs.  Walsh,  106  111.  253;  DeBoul  vs.  F.  &  M.  Ey. 
Co.,  Ill  111.  499. 

—  Removal  of  Business:  Removal  of  business,  in  exceptional 
cases,  is  proper  element  of  damages  where  property  is  taken. 

Braum  vs.  Met.  W.  S.  El.  Ey.  Co.,  166  111.  434;  Met.  W.  S.  El.  Ey. 
Co.  vs.  Siegel,  161  111.  638. 

—  Trespass:     Evidence  of  trespass  is  not  admissible. 

L.  B.  &  M.  R.  E.  Co.  vs.  Winslow,  66  111.  219. 

—  Loss  of  Profits:  Loss  of  profits  occasioned  to  the  business 
of  plaintiff  by  taking  of  property,  claimed  to  have  been  injured 
by  the  making  of  public  improvements,  is  not  a  proper  element  of 
damages. 

Sanitai-y  District  vs.  McGnirl,  86  App.  392 ;  Hohmann  vs.  City  of 
Chicago,  140  111.  226;  Braun  vs.  W.  S.  El.  Ey.  Co.,  166  111.  434; 
J.  &  S.  E.  Ey.  Co.  vs.  Walsh,  106  111.  253;  XII  111.  Notes  339,  §  82. 

Damages  for  Injuries  to  Property  Not  Taken: 

—  In  General:  The  measure  of  damages  to  property  not  taken 
is  the  difference  in  value  of  the  land  before  proposed  construction 
and  what  it  will  be  afterwards. 

W.  S.  El.  Ey.  Co.  vs.  Stickney,  150  111.  362 ;  Lyon  vs.  H.  B.  &  I.  Ey. 
Co.,  167  111.  527;  C.  M.  &  St.  P.  Ey.  Co.  vs.  Hall,  90  111.  42. 
All  injuries  which  are  appreciable,  resulting  from  the  construc- 
tion and  tending  to  affect  the  value,  may  properly  be  allowed  for 

in  assessing  damages. 
•'  Springer  vs.  City  of  Chicago,  135  111.  552 ;   C.  B.  &  K  Ey.  Co.  vs. 

Bowman,   122  111.  595;   St.  V.  &  T.  H.  Ey.  Co.  vs.  MoUett,  59  111; 

235;  Alton  S.  E.  E.  Co.  vs.  Carpenter,  14  111.  189. 

iv.To  warrant  the  recovery  it  must  appear  there  has  been  some 

direct  physical  disturbance  of  a  right,  either  public  or  private, 

which   the  plaintiff  enjoys  in   connection   with  his  property  and 

which  give  to  it  an  additional  value,  and  that  by  reason  of  such 

disturbance,  he  has  sustained  a  special  damage  in  excess  of  that 

by  the  public  generallv. 

C.  &  W.  I.  E.  E.  Co.  vs.  Cogswell,  44  App.  388. 

—  Diminution  of  Income:  Where,  by  construction  of  a  via- 
duct, a  leaseholder's  volume  of  business  was  alleged  to  have  been 
diminished,  evidence  of  profits  at  his  new  location,  to  compare  with 

his  .profits  at  his  former  location,  is  incompetent. 
Hohmann  vs.  City  of  Chicago,  140  111.  226. 

—  Liability  to  Fires:  Danger  of  fire  after  construction  of 
proposed  road  is  an  element  of  damage  to  land  not  taken. 

Chi.  Sonthern  Ev.  Co.  vs.  Nolin,  221  111.  367;  E.  I.  &  E.  I.  Ey.  Co. 
vs  Gordon,  184  111.  456;  C.  P.  &  St.  L.  Ev.  Co.  vs.  Blume,  137  111. 
448 ;  C.  P.  &  St.  L.  Ev.  Co.  vs.  Greiney,  137  111.  628 ;  C.  &  C.  Ey.  Cb. 
vs.  Brake,  125  111.  393;  Jones  vs.  C.  &  E.  I.  Ey.  Co.,  68  HI.  380; 
XII  111.  Notes  340,  §  88. 
■^—Diversion  of  Traffic:     Is  inadmissible.  -         -i 

City  of  Chicago  vs.  Spoor,  190  111.  340,  Hohmann  vs.  City  of  Chi- 
cago, 41  App.  41. 


494  EMINENT  DOMAIN 

—  Difficulty  of  Access:    May  be  shown. 

E  I  ic  E.  I.  Ry.  Co.  vs.  Gordon,  184  111.  456;  Chi.  Term.  Co.  vs.  Bug- 
bee,  184  111.  353. 
Injury  to  farm,  caused  by  physical  obstruction  placed  in  high- 
way, lessening  the  accessibility  and  ease  of  entrance  to  the  prop- 
erty by  the  construction  and  operation  of  a  railway  in  the  high- 
way, is  ground  for  recovery  by  the  proprietor. 
L.  E.  &  W.  Ry.  Co.  vs.  Scott,  32  App.  292. 

—  Interference  with  Use  and  Enjayment:  Interference  with 
the  use  of  a  farm  or  other  real  estate,  by  reason  of  the  location 
of  a  railway  along  side  the  farm,  though  not  making  any  physical 

'invasion  or  actual  encroachment  on  the   farm,  is  a  damage  for 

which  compensation  must  be  made. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Blume,  137  111.  448 ;  C.  P.  &  St.  L.  Ey.  Co. 
vs.  Greiney,   137  111.  628;   L.  E.  &  W.  Ey.  Co.  vs  Scott,  132   111. 
429;  C.  &  W.  I.  E.  E.  Co.  vs.  Ayers,  106  111.  511. 
Special  disadvantages  and  annoyances  which  interfere  with  the 
enjoyment  of  the  property  are  proper  to  be  considered  as  a  result 
of  building  a  railroad  in  the  street  near  the  property. 
C.  P.  &  St.  L.  Ey.  Co.  vs.  Leah,  152  111.  249. 
Where  one  floor  of  a  building,  which  stands  on  the  land  con- 
demned,  and  wliich  must   be  torn   down,   is  used  in   connection 
with  another  building  as  a  hall,  it  is  not  proper  to  ask  witnesses 
what  effect,   in  their  opinion,   "the   tearing  away  of  the   annex 
that  is  attached  to  the  hall  will  have  upon  it,"  since  the  question 
should  relate  to  the  effect  upon  the  fair  cash  value  of  the  real 
estate. 

Freiberg  vs.  S.  E.  R.  E.  Co.,  221  111.  508. 

—  As  a  Nuisance:     Future  injury  to  result  from,  if  of  perma- 
nent character,  should  be  included  in  recovery, 

L.  E.  &  W.  Ey.  Co.  vs.  Pureell,  75  App.  573. 

—  Increase  of  Insurance  Rates:  Is  element  of  damage,  in  deter- 
mining injury  to  property  not  taken. 

I.  I.  &  I.  Ey.  Co.  vs.  Stauber,  185  111.  9. 

—  Depreciation  in  Rental  Value:  Is  element  to  be  considered 
in  assessing  damages  to  land  not  taken. 

E.  I.  &  E.  I.  Ey.  Co.  vs.  Gordon,  184  111.  456. 
Loss  of  rent  by  reason  of  obstruction  to   accessibility  to  and 
egress  from  a  building,  during  the  progress  of  a  work  on  a  pub- 
lic  improvement,   is  not   a   damage   to   property  not   taken,    but 
merely  a  burden  incidentally  imposed  on  private  property. 
Osgood  vs.  City  of  Chicago,  154  111.  194. 

—  Inconvenience  to  Owner:  Unsightliness  of  telegraph  poles, 
nearness  to  residence,  and  expense  in  cutting  weeds  from  around 
them  are  proper  elements  of  damage  to  land  not  taken,  for  con- 
structing a  line  of  telegraph  poles  through  a  farm. 

B.  T.  Tel.  Co.  vs.  Darst,  192  111.  47. 
Method  of  dividing  land,  effect  on  farm  pasturage  and  improve- 
ments,  danger  and   inconvenience  in   general,   and  to  stock,   are 
elements  of  damage  to  land  not  taken. 

E.  E.  I.  &  St.  L.  Ey.  Co.  vs.  McKinley,  64  111.  338. 

Future    Use:     Where,    on    assessment   of   damages   to   lots 

abutting  on  a  street  sought  to  be  taken  for  side-track  of  a  rail- 
road   the  owner  gave  evidence  that  the  proposed  location  would 


EMINENT  DOMAIN  495 

render  his  lots  useless  for  business  purposes,   it  was   competent 

for  the  railroad  company  to  show  that  the  property  could  be  used 

beneficially   for   warehouse   purposes,   or   for  any  other   purpose. 
Mix  vs.  L.  B.  &  M.  W.  Ey.  Co.,  67  111.  319. 

—  Possible  Injury  to  Persons  or  A)iinials:  Inconvenience  from 
division  of  farm  by  railroad  track  is  element  of  damage,  but  pos- 
sible injury  to  persons  or  animals  in  crossing  from  part  to  part 
is  not. 

McReynolcls  vs.  B.  &  O.  Ey.  Co.,   106  111.   152. 
Separation  of  different  parts  of  land,  and  inconvenience  and 
danger  in  use  of  land,  caused  therel)y,  are  elements  of  damage. 
C.  &  E.  I.  E.  E.  Co.  vs.  Hopkins,  90'lll.  316. 

Danger  of  injury  to  stock  a  proper  element  of  damage. 

St.  L.  &  S.  W.  Ev.  Co.  vs.  Tieters,  68  111.  144 ;  C.  P.  &  St.  L.  Ey.  Co. 
vs.  Greiney,  137  111.  628. 

Damages  are  recoverable  for  such  incidental  injuries  as  would 
result  from  the  perpetual  use  of  a  track  for  moving  trains,  or 
danger  of  killing  stock,  or  injury  to  pasturing  stock,  or  escape 
of  fire  and  generally  such  damages  as  are  reasonably  probable 
to  ensue  from  the  construction  and  operation  of  the  proposed 
road. 

C.  &  C.  E.  E.  Co.  vs.  Brake,  125  111.  393 ;  E.  I.  &  E.  I.  Ey.  Co.  vs.  Gor- 
don, 184  111.  456. 

—  Amount  of  Land  Taken:    Evidence  of  amount  of  land  taken 

is  admissible. 

E.  E.  I.  &  St.  L.  Ey.  Co.  vs.  McKinley,  64  111.  338. 

—  Effect  of  Improvement  on  Remaining  Property:  Evidence 
to  show  to  what  extent  property  not  taken  will  be  damaged  or 
benefited  by  particular  conditions  to  be  performed  by  petitioner, 
in  reference  to  land  taken,  is  admissible. 

Lyon  vs.  H.  &  B.  I.  Ey.  Co.,  167  111.  527. 

—  Expense  of  Maintaining  Improvements:  Where  one  rail- 
road company  condemns  right  of  way  of  another,  for  purpose  of 
making  a  crossing,  evidence  of  expense  necessary  to  maintain 
same  is  inadmissible  on  behalf  of  defendant,  when  parties  make 
stipulation  whereby  first  road  agrees  to  maintain  such  crossing. 

C.  &  A.  E.  E.  Oo.  vs.  J.  L.  &  A.  E.  E.  Co.,  105  111.  388. 

—  Stipulation  of  Counsel:  The  refusal  to  admit  in  condemna- 
tion proceeding  a  stipulation  made  during  the  trial  by  counsel  for 
petitioner,  relating  to  maner  in  which  company  would  use  the 
condemned  property  in  constructing  its  road-bed,  is  not  error, 
where  it  does  not  appear  that  counsel  had  any  authority  to  bind 

the  company  in  that  regard. 

Chi.  Gen.  Ey.  Co.  vs.  Murray,  174  111.  259. 

—  Plans  and  Specificaiions:    Plans  and  estimates  of  petitioner 

are  admissible. 

J.  &  S.  Ey.  Co.  vs.  Kidder,  21  111.  131;  C.  &  N.  W.  Ey.  Co.  vs.  C.  &  E. 
Ey.  Co.,  112  111.  589;  I.  &  St.  L.  Ey.  Co.  vs.  Switzer,  117  111.  399; 
XII  111.  Notes  361,  §  187. 

—  Ordinances:  An  ordinance  requiring  railway  tracks,  upon 
streets  to  be  raised  is  competent  in  proceeding  to  condemn  by  rail- 
way company,  where  there  is  a  cross  petition  for  damages  to  land 
not  taken. 

P.  Ft.  W.  &  C.  Ey.  Co.  vs.  Lyons,  159  111.  576. 


496  EMINENT  DOMAIN 

—  Smoke  and  Cinders:    Smoke  and  cinders  thrown  upon  prop- 
erty constitute  a  direct  physical  injury. 

Stone  vs.  F.  P.  &  N.  W,  Ey.  Co.,  68  111.  394;  Stack  vs.  City  of  E.  St. 
Louis,  85  111.  377. 
Dust,  smoke  and  sparks  are  elements  of  damage  as  rendering 
property  a  less  desirable  place  of  residence. 

C.  P.  &  St.  L.  Ry.  Co.  vs.  Leah,  41  App.  584. 
AAliere  a  railroad  company  receives  a  grant  of  right  of  way 
through  a  street  by  a  city,  damages  do  not  include  detriment  in 
market  value  of  property  shared  by  others,  but  are  physical  in- 
juries peculiar  to  his  property,  cutting  off  access,  vibration,  smoke, 

cinders   etc. 

'  C.  &  W.  I.  Ey.  Co.  vs.  Berg,  10  App.  607. 
Impossibility  of  constructing  necessary  farm  crossings,  because 
liable  to  increase  danger,  should  be  considered. 
Chalcraft  vs.  L.  E.  &  St.  L.  Ey.  Co.,  113  111.  86. 

—  Noise:  Special  disadvantages  and  annoyances  which  inter- 
fere with  the  enjoyment  of  property  are  proper  to  be  proven  as  a 
result  of  building  a  railroad  in  the  street  near  the  property. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Leah,  152  111.  249. 
Noise  is  element  for  which  damage  may  be  awarded  to  owner 

of  lands  injured. 

C.  M.  &  St.  P.  Ey.  Co.  vs.  Dark,  148  111.  226. 

—  Damage  Common  to  Entire  Puhlic:  Inconvenience  or  damage 
common  to  entire  public  is  not  ground  for  damages. 

C.  &  W.  I.  E.  E.  Co.  vs.  Ayers,  106  111.  511. 

—  ^Yages  of  Employees:  Wages  of  employees  working  elsewhere 
than  at  factory  on  conditional  terms,  whose  services  were  tem- 
porarily interrupted  are  not  proper  to  be  considered  as  an  element 

in  determining  damages. 

Met.  W.  S.  El.  Ey.  Co.  vs.  Siegel,  161  111.  638. 

—  Speculative  Damages:  Damages  must  be  direct  and  proxi- 
mate, and  not  remote  and  possilile  only. 

C.  P.  &  St,  L.  Ey.  Co.  vs.  Blume,  137  111.  448. 
Speculative  damages  cannot  be  recovered  for  injury  to  land  not 

taken. 

Board  of  Trade  Tel.   Co.  vs.   Darst,   192   111.   47;    Cook  vs.   Sanitary 
District,  177  111.  599. 

The  increased  risk  of  loss  from  fire  and  the  increased  danger 
to  live  stock  may  be  considered  if,  and  in  so  far  as,  the  market 
value  of  land  not  taken  is  thereby  depreciated;  but  it  is  not 
proper  for  the  jury  to  anticipate  damages  of  any  character  which 
may,  but  certainly  will  not  result  from  the  operation  of  the  rail- 
road, or  allow  anything  by  their  verdict  for  such  anticipated 
damages.  Damages  which  may  in  the  future  follow  upon  the 
happening  of  some  possible  but  uncertain  event,  are  not  for  their 
consideration.  Whether  the  market  value  of  land  not  taken  will 
be  depreciated  in  the  market  by  increased  danger  from  fire  or 
by  increased  danger  to  live  stock  is  for  their  consideration. 
Chi.  &  Sou.  Ey.  Co.  vs.  Noliu,  221  111.  367.  ^ 

Where  only  a  part  of  the  property  is  taken  by  condemnation, 
proof  of  damages  which  would  result  to  the  owner's  goods  from 
moving,  loss  by  interruption  and  re-establishment  of  business, 
loss  on  catalogues  on  hand,  etc.,  is  properly  excluded,  in  absence 


EMINENT  DOMAIN  497 

of  evidence  showing  that  a  removal  from  the  property  will  be 
necessary. 

Braim  vs.  Met.  W.  S.  El.  Ry.  Co.,  166  111.  434. 

—  Removal  of  Business:  Cost  of  removal  of  business  to  an 
equally  eligible  location,  of  the  adapting  of  business  thereto,  and 
damage  to  business  during  such  interruption  is  recoverable. 

St.  L.  V.  &  T.  H.  Ry.  Oo.  vs.  Capps,  67  111.  607. 

—  Failure  to  Fence  Right  of  Warj:  In  estimating  damages 
jury  may  include  damage  to  value  from  right  of  way  remaining 
unfenced  for  six  months  after  completion. 

C.  &  C.  R.  R.  Co.  vs.  Rixman,  121  111.  214;  St.  L.  J.  &  S.  Ry.  Co.  vs. 
Kirby,  104  111.  345;  C.  P.  &  St.  L.  Ry.  Co.  vs.  Eaton,  136  111.  9. 

—  Damages  to  Residences:  If  change  in  grade  of  street  is  made 
by  city  for  public  convenience,  and  thereby  private  property  is 
rendered  unfit  for  occupancy,  or  its  legitimate  use  impaired,  the 
city  must  make  compensation  therefor. 

Nevin  vs.  City  of  Peoria,  41  111.  502;  Stack  vs.  E.  St.  Louis,  85  111. 

377;    City  of   Aurora   vs.   Gillett,    56   111.    132;    City   of   Alton    vs. 

Hope,  68  111.  167. 

But  city  owning  fee  in  street  may  appropriate  it  for  public 

uses,  and  in  the  absence  of  direct  physical  injury,  will  not  be 

liable  for  consequential  damages  caused  by  such  appropriation. 

Moses  vs.  P.  Ft.  W.  &  C.  Ry.  Co.,  21  111.  516;  City  of  Chicago  vs. 
Rumsey,  87  HI.  348. 

—  Removal  and  Damages   to  Personal  Property:     Ordinarily, 

just  compensation  to  an,  owner  of  private   property  condemned 

to  pu])lic  use,  is  its  fair  cash  market  value,  and  in  estimating  the 

compensation,    damages   to    personal    property,    and   the    expense 

of  its  removal,  etc.,  will  not  be  considered. 

Braun  vs.  Met.  W.  S.  El.  Ry.  Co.,  166  111.  434. 

—  Value   ^Vhen  Subdivided:     Evidence  of  price  at  which  land 

would  sell  as  separate  fields  when  divided  by  proposed  railroad 

is  inadmissible. 

C.  B.  &  D.  Ry.  Co.  vs.  Kelly,  221  111.  498. 

—  Loss  of  Water  Supply:  That  proposed  improvement  will 
deprive  defendant  of  use  of  sprinsi:  on  the  land  may  be  shown. 

P.  &  R.  I.  Ry.  Co.  vs.  Bryant,  57  111.  473. 

—  Plans  of  Proposed  Consiruction:  It  is  competent,  on  ques- 
tion of  damages,  for  railroad  company  to  show  plan  of  construct- 
ing its  road  over  the  premises  sought  to  be  taken.  But  when 
such  plan  will  materially  affect  the  question  of  damages,  the 
plan  should  be  presented  and  preserved  in  the  records  of  the 
court,  so  that  if  there  should  be  a  departure  from  such  plan,  to 
defendant's  damage,  he  may  have  his  remedy  for  any  increased 
damage  resulting  from  such  departure. 

I.  &  St.  L.  R.  R.  Co.  vs.  Switzer,  117  111.  399. 
Competent  to  show  extent  of  damage  to  land  not  taken. 

T.  M.  &  N.  W.  Ry.  Co.  vs.  Haws,  194  111.  92. 
And  may  be  introduced  by  petitioner  to  show  what  he  proposes 

to  do. 

P.  &  P.  U.  Ry.  Co.  vs.  P.  &  F.  Ry.  Co.,  105  111.  110 ;  C.  &  A.  Ry.  Co. 
vs.  J.  L.  &  A.  Ry.  Co.,  105  111.  388 ;  P.  &  R.  I.  Ry.  Co.  vs.  Birkett, 
62  111.  332 ;  St.  L.  J.  &  C.  Ey.  Co.  vs.  Mitchell,  47  111.  165. 

Any  marked  departure  from  plans  shown  or  stipulations  filed 

Ev. — 32 


498  EMINENT  DOMAIN 

would  subject  petitioner  to  action  by  land  owner  or  those  claim- 

inff  under  him,  for  damages. 

C.  &  A.  By.  Co.  vs.  J.  L,  &  A.  Ry.  Co.,  105  111.  388. 
And  have  construction  enjoined  until  additional  damages  are 

assessed  and  paid. 

Jacksonville  Ry.  Co.  vs.  Kidder,  21  111.  131. 

—  Burden  of  Proof:   In  condemnation   proceeding,   burden   of 
proof  is  upon  land  owners  to  show  damage  to  parts  of  property 

not  taken. 

Hyde   Park   Corns,   vs.    Dunham,   85   111.    569;    Stockton  vs.   City   of 
Chicago,  136  111.  434. 
The  petitioner  is  not  bound  to  assume  that  land  not  taken  will 
be  damaged,  and  go  on  and  make  proof  in  respect  to  it.    Nor  in  the 
absence  of  proof  by  the  land  o^vner  tending  to  show  such  damage, 
is  it  bound  to  assume  tlie  burden  of  proving  a  negative. 
C.  S.  F.  &  C.  Rj.  Co.  vs.  Phelps,  125  111.  282. 

Benefits : 

—  In  General:     Evidence  of  benefits  accruing  to  property  may 

be  shown. 

Mix  vs.  L.  B.  &  M.  Ey.  Co.,  67  111.  319;  St.  L.  &  P.  Ey.  Co.  vs.  Me- 
Dougal,  126  111.  Ill;  W.  S.  El.  Ry.  Co.  vs.  Stickney,  150  111.  362; 
Met.  W.  S.  El.  Ry.  Co.  vs.  White,  166  111.  375. 

—  Nature  and  Extent:     Benefits  must  be  proximate  and  spe- 
cific and  not  general  or  speculative. 

W.  S.  El.  Ry.  Co.  vs.  Stickney,  150  111.  362;  Oil  Belt  Ry.  Co.  vs.  Lewis, 
259  111.  109 

Burden  of  Proof: 

Burden  is  on  petitioner  to  show  value  of  premises. 

C.  B.  &  Q.  Ry.  Co.  vs.  Reisch,  247  111.  350 ;  McReynolds  vs.  B.  &  O. 
Ry.  Co.,  106  111.  152;  South  Park  Conirs.  vs.  Trustees,  107  111. 
489 ;   XII  111.  Notes  355,  §  154. 

Where  a  railway  company  presented  a  petition  for  the  con- 
demnation of  a  right  of  way  over  the  land  of  a  certain  person, 
alleging  the^-ein  that  such  person  was  the  owner  of  such  land,  and 
the  report  of  the  commissioners,  chosen  at  the  suggestion  of  the 
company,  also  showed  that  he  was  the  owner,  and  it  further  ap- 
peared at  the  commencement  of  the  proceedings  that  the  person 
so  alleged  to  be  the  owner  of  the  land  was  in  possession,  he  was 
not  required  to  establish  his  title  by  proof,  in  order  that  he  might 
contest  the  matter  of  compensation.  The  relations  of  the  par- 
ties in  respect  to  burden  of  proof  in  that  regard,  is  different 
where  the  company  institutes  the  proceedings  and  acknowledges 
title,  from  what  it  is  wdiere  the  alleged  o\^^ler  applies  for  the 
assessment  of  damages  against  the  corporation. 
P.  &  R.  I.  Ry.  Co.  vs.  Bryant,  57  111.  473. 

Where  a  petition  to  condemn  land  and  a  leasehold  estate  makes 
the  holder  of  a  tax  deed  to  the  leasehold  estate  and  improvements 
a  party,  without  stating  the  nature  of  interest  or  admitting  the 
existence  of  any  title,  it  is  for  him  to  establish  his  claim  by  proof 
that  there  was  a  leasehold  estate  and  improvements  covered  by 

the  tax  deed. 

C.  &  X.  W.  Ry.  Co.  vs.  Glos,  239  111.  24. 

View  by  Jury: 

—  Eight  to  Mal-e  View:  In  fixing  the  compensation  for  pri- 
vate property  for  public  use,  it  is  competent  for  the  jury  to  con- 


EMINENT  DOMAIN  499 

sider  what  may  be  presented  to  their  minds  through  and  by  their 
personal  view  and  inspection  of  the  premises,  as  the  facts  and  cir- 
cumstances brought   to   their  knowledge   through   the   medium  of 

witnesses  who  testify  in  the  case. 

Sanitary  District  vs.  CuUerton,   147   111.   385. 

—  Ti7ne  of  Taking:  At  what  stage  of  the  trial  the  jury  may 
view  the  premises  is  within  the  discretion  of  the  court. 

G.  &  S.  W.  Ky.  Co.  vs.  Haslam,  73  111.  494. 
It  is  error  to  refuse  a  motion  to  have  the  jury  view  the  land 
even  after  the  evidence  is  closed  and  argument  heard,  but  before 

instructions  are  given. 

K.  &  S.  By.  Co.  vs.  Straut,  102  111.  666. 
But   the    company    taking   a    change    of   venue    from    the    only 
court  authorized  to  order  a  view  by  jury,  waives  right  to  such 

order. 

E.  E.  I.  &  St.  L.  E.  E.  Co.  vs.  Coppinger,  66  111.  510. 

—  Property  to  be  Included:  Need  not  include  every  part  of 
the  land  sought  to  be  taken  or  damaged. 

St.  L.  &  C.  Ey.  Co.  vs.  Postal  Tel.  Co.,  173  111.  508. 
The  proceeding  to  view  the  premises  by  the  jury,  being  under 
the  statute,  must  conform   to  the  statute,   and  the  jury  has  no 
authority  to   go   upon   and  view   other  premises   than   those   em- 
braced in  the  petition. 

Dady  vs.  Condit,  188  111.  234;  Tedens  vs.  San.  District,  149  111.  87. 

—  Nature  of  Facts  Obtained:  Is  real  evidence  and  presumed 
to  have  justified  the  damages  awarded,  notwithstanding  a  clear 
preponderance  of  the  evidence  is  preserved  in  the  record  as  against 

the  amount. 

I.  C.  E.  E.  Co.  vs.  Davenport,  75  App.  579;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs. 
Trimmell,  75  App.  585. 

—  Use  of  Facts  Obteiined:  Jury  have  a  right  to  take  into 
account  facts  and  conditions  observed  by  them  in  viewing  the 
premises,  together  with  all  the  testimony  in  the  case. 

C.  O.  &  P.  Ey.  Co.  vs.  Eausch,  245  111.  477. 
Jury  may  base  their  verdict  on  their  personal  observation  of 
premises,  as  well  as  upon  the  testimony  of  witnesses  who  testify 

in  the  case. 

Sanitary  District  vs.  Cullertou,  147  111.  385. 

But  should  not  be  instructed  to  go  alone  upon  the  evidence 

furnished  by  their  personal  view. 

Peoria  Gas  Co.  vs.  Term.  E.  E.  Co.,  146  111.  372. 
The  information  derived  by  jury  from  their  personal  view  and 
inspection  of  the  premises  is  to  be  considered  in  connection  with 

the  other  evidence  in  the  case. 

Vane  vs.  City  of  Evanston,  150  111.  616. 
What  a  jury  may  learn  from  a  personal  inspection  of  the  prem- 
ises is  in  the  "nature  of  evidence,  and  may  be  considered  by  them 
when  passing  upon  the  testimony  of  witnesses,  and  may  also  be 
resorted  to  in  determining  the  w^eight  to  be  given  to  the  conflict- 
ing estimates  of  value. 

E.  I.  &  P.  Ey.  Co.  vs.  Leisy  Brew.  Co.,  174  111.  547. 
—  Weight   of  Facts  as  Evidence:     The  verdict  must   be   sup- 
ported by  the  evidence  and  can,  in  no  case,  rest  solely  upon  the 
personal  examination  of  the  premises  by  the  jury,  however  well 


500  EMPLOYE  AS  WITNESS 

convinced  they  may  be  that  their  examination  furnishes  a  more 

reliable  basis  for  an  assessment  of  damages  than  the  testimony  of 

witnesses. 

E.  St.  Louis  vs.  Trust  Co..  248  111.  559;  Cf.  Guyer  vs.  D.  E.  I.  &  N.  Ey. 
Co.,  196  111.  370;  Mitchell  vs.  I.  E.  &  L.  E.  E.  Co.,  85  111.  566. 

—  Effect:     The  view  by   jury  does   not   cure   the   exclusion   of 
evidence  which  tends  to  show  that  the  tracks  have  been  laid  for 
such  improvement  as  will  reduce  the  damage  to  adjoining  lots. 
City  of  Joliet  vs.  Blower,  155  111.  414.     (See  View  by  Jury.) 


EMPLOYE  AS  WITNESS 

See  Bias  and  Hostility,  Parties  and  Persons  Interested  as 
Witnesses,  Witnesses'  Credibility. 


ERASURE 

See  Alterations  and  Erasures. 

ESCAPE 

Weight  and  SufRciency: 

An  indictment  for  an  attempt  to  set  at  liberty  one  held  in  jail 
on  the  charge  of  murder,  is  not  sustained  by  proof  that  the  defend- 
ant procured  some  saw^s,  tiles  and  knives  and  employed  another 
person  to  deliver  them  to  tlie  partj^  in  jail. 
Patrick  vs.  People,  132  111.  529." 
Officer  may  excuse  the  escape  by  showing  that  process,  though 
regular  on  its  face,  rests  on  affidavit  which  does  not  confer  juris- 
diction on  court  issuing  it. 

Housh  vs.  People,  75  111.  487 ;  Tuttle  vs.  Wilson,  24  111.  553 ;  People 
vs.  Whitehead,  90  App.  614. 

ESCROW 

See  Delivery,  Parol,  Deeds. 
Deed: 

Deed  cannot  be  delivered  to  grantee  himself  as  an  escrow. 

Benner  vs.  Bailey,  234  111.  82. 
The  question  of  delivery  in  escrow  is  one  of  both  law  and  fact, 
and  to  be  determined  from  the  facts  and  circumstajices  of  the 

transaction. 

Shults  vs.  Shults,  159  111.  654;  Creighton  vs.  Eoe,  218  111.  619. 
If  there  was  a  delivery  in  escrow  upon  conditions  which  were 
subsequently  performed,  the  burden  is  upon  the  grantee  to  show 
what  the  conditions  were,  and  their  performance. 

Kavanaugh  vs.  Kavanaugh,  260  111.  179. 

Contracts : 

A  simple  contract  in  writing  may  be  delivered  in  escrow   as 

well  as  a  deed. 

Baiim  vs.  Parkhurst,  26  App.   128. 


EVIDENCE  DEFINED  501 


ESTOPPEL 


See    Dedication,    Admissions    and    Declarations,    Quo   War- 
ranto. 


EVIDENCE  DEFINED 

Testimony  and  Evidence: 

There  is  a  technical  difference  between  testimony  and  evidence; 
strictly  speaking,  the  former  relates  only  to  the  statement  made 
by  a  witness  under  oath  or  affirmation,  while  the  latter  includes 
all  that  may  be  submitted  to  a  jury,  whether  it  be  the  statement 
of  witness  or  contents  of  papers,  documents'  or  records,  or  the 
inspection  of  whatever  the  jury  may  be  permitted  to  examine  and 
consider  during  the  trial.  However,  in  the  ordinary  use  of  these 
terms  they  are  often,  if  not  usually,  treated  as  synonymous,  and 
properly  so,  according  to  standard  lexicographers. 
Jones  vs.  Gregory,  48  App.  228. 

Real  Evidence: 

Is  either  immediate  or  reported.  Immediate  real  evidence  is 
where  the  thing  which  is  the  source  of  the  evidence  is  present  to 
the  senses  of  the  tribunal ;  reported  evidence  is  where  the  thing 
which  is  the  source  of  the  evidence  is  not  presient  to  the  senses 
of  the  tribunal,  but  the  existence  of  it  is  conveyed  to  them  through 
the  medium  of  witnesses  or  documents. 

Spring'er  vs.  City  of  Chicago,  135  111.  552. 

Circumstantial  Evidence : 

Circumstantial  evidence  is  evidence  of  facts  from  which  the 
existence  of  other  facts  may  be  inferred.  And  is  of  two  kinds, 
viz:  Certain,  or  that  from  which  the  conclusion  in  question  neces- 
sarily follows;  and  uncertain,  or  that  from  which  the  conclusion 
does  not  necessarily  follow,  but  is  probable  only,  and  is  obtained 

by  a  process  of  reasoning. 

Gannon  vs.  People,   127  111.  507;   P.  &  P.  V.  Ey.  Co.  vs.  Clayberg, 
107  HI.  644. 

Res  Gestae: 

—  In  General:  Those  circumstances  which  are  the  undesigned 
incidents  of  a  particular  litigated  act  and  which  are  admissible 

when  illustrative  of  such  act. 

McMalion  vs.  Chi.  City  Ey.  Co.,  239  111.  334;   Chi.  City  Ey.  Co.  vs. 
Uhter,  212  111.  174. 

—  Declorations:  Declarations  to  become  part  of  the  res  gestae 
must  be  made  at  the  time  an  act  is  done  which  they  are  supposed 
to  characterize  or  illustrate,  and  must  be  calculated  to  unfold  the 
nature  and  quality  of  the  facts  which  they  are  intended  to  ex- 
plain, and  to  harmonize  with  them  so  obviously  as  to  constitute 
one  transaction.  What  occurs  before  or  after  an  act  is  done  does 
not  constitute  a  part  of  the  res  gestae,  although  the  interval  of 
separation  may  be  very  brief. 

Montag"^  vs.  People,  141  111.  75. 

—  Narraiive:  The  true  inquiry  is  whether  the  declaration  is 
a  verbal  act  illustrating,  explaining  or  interpreting  other  parts 


502  EVIDENCE  DEFINED 

of  a  transaction  of  which  it  is  itself  a  part,  or  merely  a  history 
of  a  completed  past  affair. 

MeMabon  vs.  Chi.  City  Ry.  Co.,  239  111.  334;  Penn.  Co.  vs.  McCafferty, 
173  111.  169 ;  Chi.  West.  Div.  Ey.  Co.  vs.  Becker,  128  111.  545 ;  Boyd 
vs.  West.  Chi.  St.  Ry.  Co.,  112  App.  50;  XII  111.  Notes  484,  §  76. 

To  be  part  of  res  gestae,  the  evidence  must  not  be  narrative. 

Continuousness,   however,   is   not  always   measured   by   time.      A 

transaction  in  which  parties  are  absorbed  may  last  for  weeks,  so 

as  to  make  what  is  said  and  done  in  connection  with  it  a  part  of 

the  res  gestae. 

Swanson  vs.  Chi.  City  Ry.  Co.,  242  111.  388. 

Presumptions : 

—  Of  Fact:  Presumptions  of  fact  are  conclusions  drawn  from 
particular  circumstances.  They  are  such  as  are  found  by  experi- 
ence to  be  usually  consequent  upon  or  coincident  with  the  facts 
presumed,  and  either  do  not  arise,  or  are  rebutted,  if  they  do  not 
correspond  with,  or  are  not  adequate  to  account  for  the  circum- 
stances actually  proven. 

Sutphen  vs.  Cushman,  35  111.  186. 
Presumptions  are  inferences  which  common  sense  draws  from 
the  known  course  of  events,  or  from  circumstances  usually  occur- 
ring in  such  cases. 

Sears  vs.  Vaughan,  230  111.  572;   Merchants  Bank  vs.  Nichols,   123 
App.  430. 
Presumptions  are  inferences  as  to  the  existence  of  facts  drawn 

from  the  existence  of  some  other  fact. 

Garner  vs.  Chi.  Trac.  Co.,  150  App.  149. 

—  Of  Laiv:  Legal  presumptions  are  rules  established  by  the 
common  law,  or  by  statute  and  are  founded  upon  the  first  princi- 
ples of  justice  or.  the  laws  of  nature,  or  the  experienced  course  of 
human  conduct  and  affairs,  and  the  connection  usually  found  to 
exist  between  certain  things. 

MeCagg  vs.  Heacock,  34  111.  476. 
The  only  effect  of  legal  presumption  is  to  create  the  necessity 
of  evidence  to  meet  the  prima  facie  case  created  by  such  pre- 
sumptions, which,  if  no  evidence  to  contrary  is  offered,  will  jus- 
tify a  verdict. 

Helbig  vs.  Citizens  Ins.  Co.,  234  111.  251. 

Prima  Facie: 

Prima  facie  evidence  of  a  fact  is  such  evidence  as  in  judgment 
of  law  is  sufficient  to  establish  the  fact  and,  if  not  rebutted,  it 

remains  sufficient  for  that  purpose. 

S.  I.  Drain.  Dist.  vs.  Shaw,  252  111.  142;   Lovell  vs.  Drainage  Dist., 
159  111.   i88;   Viseher  vs.   N.  E.  E.   E.  Co.,   256   111.  572;    Mueller 
Bros.  vs.  Fulton  St.  Co.,  181  App.  685. 
A  prima  facie  case  must  prevail  unless  it  be  rebutted,  or  the 

contrarv  proven. 

'Sny.  Is.,  Drain.  Dist.   vs.  Shaw,  252  111.   142. 
Prima    facie    evidence    means    evidence    which    is    sufficient    to 
establish  the  fact  unless  rebutted. 

Waltham  vs.  Drain.  Dist.,  213  111.   138. 
A  prima  facie  case  cannot  prevail  if  rebutted  or  the  contrary 

shown  by  competent  proof. 

Waltham  vs.  Drain.  Dist.  213  111.  138;  Lovell  vs.  Drain.  Dist.,  159 
111.  188. 


EVIDENCE  DEFINED  503 

Burden  of  Proof: 

The  term  burden  of  proof  has  two  distinct  meanings.  By  one 
is  meant  tlie  duty  of  establishing  the  truth  of  a  given  proposi- 
tion, or  issue,  by  such  a  quantum  of  evidence  as  the  law  demands 
in  the  case  in  which  the  issue  arises.  By  the  other  is  meant  the 
duty  of  producing  evidence  at  the  beginning  or  at  any  subsequent 
stage  of  the  trial  in  order  to  make  out  or  meet  a  lyrima  facie  case. 
Chi.  U.  Trac.  Co.  vs.  Mee,  218  111.  9;  Supreme  Tent  vs.  Stensland, 
206  Til.  124;   Stephens  vs.  St.  L.  V.  T.  Co.,  260  111.  364. 

Preponderance : 

The  word  "preponderance,"  relating  to  the  quantum,  of  evi- 
dence, means  to  "outweigh."  There  may  be  evideiice  standing 
alone  sufficient  to  establish  a  fact,  but  it  must  outweigli  all  counter 
evidence  before  it  can  be  said  to  prove  a  fact  by  a  preponderance 

of  the  evidence. 

North  Chi.  St.  Ey.  Co.  vs.  Louis,  138  111.  9;  F.  &  C.  Co.  vs.  Weise,  182 
111.  496;   Wilkerson  vs.  Aetnae  Ins.  Co.,  144  App.  38. 
It  may  arise  from  party  having  more  or  better  evidence  than  his 
adversary,  but  he  is  not  required  to  have  both  more  and  better 

evidence. 

C.  B.  &  Q.  Ey.  Co.  vs.  Pollock,  195  111.  156. 

And  to  recover,  evidence  need  preponderate  but  slightly. 

Donley  vs.  Dougherty,  174  111.  582;  Taylor  vs.  Felsing,  164  111.  331. 
And  is  not  necessarily  determined  by  the  number  of  witnesses. 

Gage  vs.  Eddy,  179  111.  492. 

But  number  should  be  considered. 

Hanley  vs.  Chi.  City  Ey.  Co.,  180  App.  403. 

Relevant : 

Relevant  evidence  is  evidence  which,  if  admitted,  has  a  natural 
tendency  to  prove  the  fact  in  controversy. 
People  vs.  Gray,  251  111.  431. 

It  is  not  required  that  it  shall,  of  itself,  absolutely  prove  a  case, 
but  whether  it  tends  to  prove  the  fact  or  facts  for  which  it  is 
offered. 

City  of  Chicago  vs.  Dalle,  115  111.  386;  Central  Ey.  Co.  vs.  Allmon, 
147  111.  471;  Hough  vs.  Cook,  69  111.  581;  Slack  vs.  McLaglan,  15 
111  242;   Sogers  vs.  Brent,   10  111.  573;   XII   111.   Notes  481,   §52. 

Rebuttal : 

Rebuttal  evidence  is  that  which  is  produced  by  plaintiff,  to  ex- 
plain, repel,  contradict  or  disprove  the  evidence  given  by  defend- 
ant. 

City  of  Sandwich  vs.  Dolan,  141  111.  430. 

To  rebut   means  to  contradict  by  counter  proof  or  repel  by 

opposing  testimony. 

Kelly  vs.  People,  229  111.  81. 

Confession : 

A  confession  is  a  voluntary  admission  or  acknowledgment  of 
guilt  and  not  merely  of  facts  criminating  in  their  nature. 
Johnson  vs.  People,   197  111.  48. 

An  admission  or  confession  may  be  implied  from  the  conduct  of 
the  party  in  remaining  silent  when  charged  with  crime  or  com- 
plicity therein,  or  when  statements  are  made  by  third  persons, 
affecting  him,  when  the  circumstances  afford  an  opportunity  to 
act  or  speak  in  reply,  and  men  similarly  situated  Avould  naturally 


504  EXAMINED  COPY 

deny  the  imputed  guilt  or  make  some  explanation  of  the  state- 
ments. 

Ackerson  vs.  People,  124  111.  563;   People   vs.  Tielke,   259   111.   88. 

Cumulative : 

Cumulative  evidence  is  additional  evidence  of  the  sraiie  kind  to 

the  same  point. 

Schlencher  vs.  Kisley,  4  111.   483;   Fletcher  vs.  People,   117  111.   184; 

Protection  Ins.  Co.  vs.  Dill,  91  111.  174. 

But  evidence  is  not  necessarily  cumulative  because  it  tends  to 

support  a  point  to  which  some  sort  of  evidence  was  given  on  former 

trial ;  as  where  it  is  of  an  entirely  different  character  and  species 

from  that  given  on  former  trial  and  tending  to  support  the  same 

point  in  a  separate  and  distinct  way. 

Schleucher  vs.  Kisley,  4  111.  483;  WUder  vs.  Greenlee,  49  111.  253. 

Estoppel : 

Is  an  admission  of  a  nature  so  high  and  conclusive  that  party 

whom  it  affects  is  not  permitted  to  aver  against  it  or  offer  evidence 

to  controvert  it. 

Otto  vs.  Jackson,   35  111.   349. 

EXAMINED  COPY 

See  Copies. 

EXCLUSION  AND  SEPARATION  OF 
WITNESSES 

Right  to  Order: 

The  separation  of  witnesses  during  their  examination  is  a  mat- 
ter of  discretion  with  the  court,  and  its  exercise  will  not  be  re- 
viewed, 

Errissman  vs.  Errissman,  25  111.  135;  Stever  &  Abbott  Co.  vs.  Coe,  49 
App.  426;  XIV  111.  Notes  847,  §  71. 

Parties  to  suit  cannot  be  excluded. 

Orlum  vs.   Com.   Pro.   Ref.   Co.,   173   App.  348. 

But  plaintiff' 's  family  should  be  excluded  where  presence  calcu- 
lated to  excite  sympathy. 

Barnett  vs.  Noble,  155  App.  129. 

Violation  of  Order: 

—  Diserclioii  of  Court:  A  witness  who  has  been  in  the  court 
room  contrary  to  an  order  excluding  witnesses,  though  punish- 
able for  contempt,  may  be  permitted,  in  the  discretion  of  the  court, 
to  be  examined,  notwithstanding  his  violation  of  the  order. 

Bow  vs.  People,  160  111.  438 ;  EAviug  vs.  Cox,  158  App.  25 ;  Palmer  vs. 
People,  112  App.  527;  Cf.  Kota  vs.  People,  136  111.  655;  Quait© 
vs.  Swift  &  Co.,  173  App.  197;   People  vs.  Scott,  261  111.   165. 

Where  a  Avitness,  after  an  order  of  separation,  converses  with 
other  witnesses,  after  they  have  testified,  and  with  counsel  calling 
him,  in  violation  of  an  order  of  the  court,  it  is  a  matter  of  discre- 
tion of  the  court  to  allow  him  to  testify.  The  disregard  for  such 
a  rule  is  good  ground  for  the  punishment  of  the  parties  for  a  con- 
tempt, but  does  not  necessarily  disqualify  the  witness  from  testi- 
fying. 

Bullincr  vs.  People,  95  111.  394. 


EXHIBITION  OF  INJURY  505 

A  party  should  not  be  deprived  of  the  testimony  of  a  witness 
who,  without  his  knowledge,  has  disobeyed  a  rule  entered  by  the 
court,  excluding  witnesses  from  the  court  room  until  they  should 
by  severally  called. 

Ewiug  vs.  Cox,  158  App.  25. 

There  miglit  probably  be  such  an  interference  with  witnesses, 
in  disregard  of  an  order  of  court,  as  would  justify  the  setting  aside 
of  a  verdict  based  on  their  testimony,  where  the  opposite  party 
has  been  free  from  fault,  and  the  fact  has  come  to  liis  knowledge 
for  the  first  time  after  the  examination  of  all  the  witnesses  has  con- 
cluded; but  where  it  is  not  shown  that  the  party  complaining  had 
no  knowledge  of  the  fact  at  the  time  of  the  examination  of  the 
witnesses,  and  it  does  not  appear  that  any  hai-m  has  resulted  from 
the  disregard  of  the  rule,  it  will  afford  no  ground  for  reversal  of 

the  judgment. 

Bulliner  vs.  People,  95  111.  394. 

A  sound  judicial  discretion  should  in  all  cases  of  doubt,  lean 
toward  the  admission  of  the  testimony  of  such  witness.  And  where 
the  objection  is  made  to  a  witness,  upon  the  ground  of  violation 
of  such  an  order,  such  objection  should  be  supported  by  proof, 
and  the  party  urging  the  same  loses  the  right  so  to  object  if  he, 
knowing  that  such  order  was  being  violated,  permits  same  to  con- 
tinue without  calling  tlie  attention  of  the  court  thereto. 
Palmer  vs.  People,  112  App.  527. 

So  an  attorney  in  the  cause,  may  in  the  discretion  of  the  court 
be  permitted  to  testify  though  order  of  exclusion  had  been  made. 

Smith  vs.  Young,  179  App.  364. 

—  Impeachment  of  Other  Witnesses:  After  an  order  of  court 
for  the  separation  of  witnesses  in  a  criminal  case,  defendant's 
counsel  stated  that  they  wanted  certain  witness  present,  who  had 
been  sworn,  to  assist  them,  stating  that  they  would  not  call  him  as 
a  witness,  whereupon  the  witness  returned  into  court  and  heard 
all  the  other  witnesses  testify.  He  was  offered  as  a  witness  to 
impeach  the  character  of  two  of  the  principal  ^vitnesses  for  the 
prosecution,  and  rejected  by  the  court.  It  w^as  discretionary  with 
the  court  to  allow  him  to  testify,  and  there  was  no  abuse  of  discre- 
tion under  the  circumstances. 

Bulliner  vs.  People,  95  111.  394;  Wilson  vs.  Genseal,  113  111.  403. 

—  Materiality  of  Testimony:  Where  the  court  has  improperly 
disqualified  a  witness,  it  is  not  necessary,  in  order  to  sustain  an 
assignment  of  error  based  upon  such  disqualification,  to  show  the 
materiality  of  the  evidence  which  such  witness  would  have  given, 
where  such  materiality  appears  from  the  record  as  a  whole. 

Palmer  vs.  People,  112  App.  527. 

EXHIBITION  OF  INJURY 

See  Physical  Examination. 

Voluntary  Exhibition  of  Injury: 

—  Discretion  of  Court:  Permitting  a  personal  injury  to  be  ex- 
hibited to  jury,  in  action  for  damages,  is  primarily  within  discre- 
tion of  trial  court,  and  the  exercise  of  its  discretion  in  that  regard, 


506  EXHIBITS 

although  it  may  be  questionable,  is  not  ground  for  reversal  unless 

there  has  been  clear  al)use. 

Chi.  Term.  Co.  vs.  Kotoski,  199  111.  383 ;  Swift  Co.  vs.  Eutkowski,  182 

111.  18;  C.  &  A.  E.  E.  Co.  vs.  Clausen,  173  111.  100;  Turon  vs.  Chi. 

City  Ey.  Co.,  152  App.  351;  Allison  vs.  Elec.  Coal  Co.,  151  App.  55; 

W.   Chi.   St.   Ey.    Co.  vs.  Gienneli,   90   App.    30;    Swift   &    Co.   vs. 

O'Neill,  88  App.  162;  XIV  111.  Notes  843,  §40. 

Where  the  extent  of  plaintiff's  injuries  is  not  controverted,  and 

both  he  and  his  physician  have  testified  in  that  regard,  there  is 

no  abuse  of  discretion  in  refusing  to  permit  injured  limb  to  be 

exhibited  to  the  jurv. 

Ewald  vs.  Mich.  Cent.  Ey.  Co.,  107  App.  294. 

—  Particular  Instances  Held  Not  Error:     Rupture. 
C.  &  A.  E.  E.  Co.  vs.  Clausen,  173  111.  100. 

Hand. 

Vance  vs.  Monroe  Drug  Co.,  149  App.  499. 

Injured  skull. 

Chi.  Term.  Co.  vs.  Kotoski,  199  111.  383;  Affg.,  101  App.  300. 

Injured  leg. 

Swift  &  Co.  vs.  O'Neill,  88  App.  162;   Affd.,  187  111.  337;   City  of 
Lunark  vs.  Dougherty,  45  App.  266;  Affd.,  153  111,  163;  Jefferson 
lee  Co.  vs.  Zwicowski,  78  App.  646. 
Where  directed  by  counsel  not  to  move  or  manipulate. 
Johnson  vs.  Wasson  Coal  Co.,  173  App.  414. 

Injured  arm. 

Swift  &  Co.  vs.  Eutkowski,   182   111.   162;    W.  Chi.   St.  Ey.   Co.  vs. 
Grennell,  90  App.  30. 

Eye. 

Parker  vs.  Enslow,   102  111.   272. 
Similar  injury  of  witness  for  defendant  incompetent. 

Grand  Lodge  vs.  Eandolph,  186  111.  89. 

In  action  for  malpractice,  held  not  error  for  plaintiff,  while  on 

witness  stand,  to  shov/  jury  to  what  extent  he  could  move  his  arm. 

Pritchart  vs.   Moore,  75  App.   553. 

It  is  proper  to  permit  jury  to  see  injured  hand  of  plaintiff,  but 

improper   to    allow   juror  to   manipulate   same    to   determine    its 

mobilitv. 

'  Vance  vs.  Monroe  Drug  Co.,  149  App.  499. 

It  is  improper  to  permit  plaintiff'  to  indicate  with  limb  his  abil- 
ity to  manipulate  same. 

Wenger  vs.  Strobel  Cons.  Co.,  170  App.  383. 

EXHIBITS 

See  Exhibition  of  Injury,  Demonstrative  Evidence. 

EXPECTANCY  OF  LIFE 

See  Life  Tables,  Dower. 

EXPERIMENTS 

Civil  Actions: 

—  In  General:  If  the  conditions  are  similar  when  the  experi- 
ment is  made  with  those  existing  at  the  time  the  fact  sought  to  be 
illustrated  occurred  the  result  of  the  experiment  could  have  a  bear- 
ing on  the  issue  and  be  admissible. 

Upthegrove  vs.  C.  G.  W.  Ey.  Co.,  154  App.  460;  E.  A.  &  S.  Trac.  Co.  vs. 
Wilson,  217  111.  47. 


EXPERIMENTS  .  507 

A  fact  whicli  illustrates  by  experiment  the  condition  of  the  sub- 
ject matter  of  the  issue  is  admissible  as  direct  evidence. 
C.  &  N.  W.  Ey.  vs.  Hart,  22  App.  207. 

But  experiments  are  not  competent  unless  they  are  conducted 
under  circumstances  very  similar  to  those  connected  with  the  act 
to  be  illustrated. 

E.  A.  &  S.  Trac.  Co.  vs.  Wilson,  217  111.  47;  Fein  vs.  Gov.  Mut.  Ben. 
Assoc,  60  App.  274;  C.  &  E.  I.  R.  R.  Co.  vs.  Crose,  113  App.  547. 

Experiments  or  evidence  of  the  results  of  experiments  are  in- 
competent unless  it  is  shown  that,  the  article  experimented  with 
was  identical  with  that  in  issue  in  the  case. 

West.  Elec.  Co.  vs.  Prochaska,  129  App.  589. 

—  Vision  and  Distance:  Evidence  by  witnesses  as  to  experi- 
ments made  by  them  to  determine  how  far  a  train  would  be  seen 
coming  to  a  crossing  from  the  highway  and  whether  they  could 
have  heard  the  whistle  or  bell  if  they  had  been  sounded  or  rung 
is  competent. 

E.  J.  &  E.  Ey.  Co.  vs.  Eeese,  70  App.  463. 

Testimony  of  persons  who  placed  an  inanimate  object  upon  rail- 
road track,  as  to  the  distance  at  which  it  could  be  seen  and  its 
character  distinguished,  the  circumstances  and  surroundings 
being  different  from  those  existing  at  time  of  injury  to  child  is  in- 
admissible. 

C.  &  A.  E.  E.  Co.  vs.  Logue,  47  App.  292. 

Where  the  question  was  whether  an  engineer  could  have  seen 
animals  in  time  to  have  avoided  accident,  proof  of  experiments 
made  to  determine  the  distance  from  which  he  could  have  seen  them 
is  admissible,  although  the  conditions  of  experiments  were  not  pre- 
cisely those  existing  at  time  of  accident. 
I.  C,  E.  E.  Co.  vs.  Burns,  32  App.  196. 

Tests  to  determine  distances  from  which  witness  could  see  on 
stretch  of  track  are  admissible.  For  a  witness  to  state  by  actual 
trial  that  he  could  stand  at  one  point  and  see  another  is  not  express- 
ing an  opinion  but  is  a  statement  of  fact  that  there  was  no  obstruc- 
tion to  the  sight  between  such  points. 

C.  &  A.  E.  E.  Co.  vs.  Legg,  32  App.  218. 

—  Stopping  Train :  Experiments  may  not  be  shown  Avhere  evi- 
dence discloses  not  made  with  same  engine,  same  number  of  loaded 

and  empty  cars  nor  the  same  equipment  of  air. 

Upthegrove  vs.  C.  G.  W.  Ey.  Co.,  154  App.  460. 

—  3Iechanical  Tests:  Permitting  an  experiment  in  presence  of 
jury  with  a  correct  model  of  a  coal  hoist,  for  the  purpose  of  show- 
ing how  same  was  operated  simply  permitted  as  an  illustration  of 
how  accident  could  have  happened  is  not  erroneous. 

Penn.  Coal  Co.  vs.  Kelly,  156  111.  9. 

But  it  is  improper  to  permit  a  mechanical  demonstration  in  action 

for  breach  of  contract  in  relation  to  machine. 
Moon  vs.  Roberts,  170  App.  367. 

Proof  of  experiments  by  experts  in  operation  of  elevator  after 
accident  is  competent. 

Woelfel  Leather  Co.  vs.  Thomas,  68  App.  394. 

Experiments  with  piles  of  barrels  as  to  taking  out  one,  or  remov- 
ing contents,   or  knocking  out  the   head  of  one  without   causing 


508         .  EXPERIMENTS 

remainder  to  fall  or  give  way  or  affecting  stability  of  pile  are  in- 
competent. 

Libby  McNeill  and  Libby  vs.  Seherman,  146  111.  540. 

—  Firing  Pistol:  Experiments  showing  effect  of  powder  burns 
from  pistol  fired  at  close  range  are  competent.  Particulars  of  ex- 
periment should  be  permitted  to  be  given. 

Fein  vs.  Oon.  Mut.  Ben.  Assoc,  60  App.  274. 

Experiments  were  made  during  the  trial,  by  firing,  cartridges 
of  the  same  size  and  make  out  of  the  same  gun,  at  a  heavy  card- 
board paper ;  one,  where  the  muzzle  of  the  rifle  was  held  close  to  and 
almost  in  contact  with  the  card-board  and  others  at  six,  twelve, 
twenty-four  and  thirty  inches  therefrom.  These  papers  were  iden- 
tified and  put  in  evidence  and  were  competent. 
Knight  Templars  vs.  Crayton,  209  111.  550. 

—  Bodily  Defects:  Jury  may  be  permitted  to  see  injured  hand 
but  it  is  improper  to  allow  juror  to  manipulate  same  to  determine 

its  mobility : 

Vance  vs.   Monroe  Drug  Co.,   149   App.   499. 
Nor  is  it  proper  to  permit  party  to  indicate  with  limb  his  ability 

to  manipulate  same. 

Weiiger  vs.  Stroebel  Cons.  Co.,  170  App.  384;  Cf.  Pritchart  vs.  Moore, 
75  App.  553. 
A  watch  ticking  test  by  attending  physician  is  competent  on  ques- 
tion of  hearing. 

Wilson  vs.  Chi.  City  Ey.  Co.,  144  App.  604. 
So  testimony  as  to  strength  of  partv  is  admissible. 
Eichar.lson  vs.  Chi.  City  Ey.  Co.,  170  App.  336. 

Criminal  Trials: 

— ■Suicide    hy   Hanging:     An   experiment   for  the   purpose   of 
illustrating   whether   deceased   could   have   committed   suicide   by 
hanging  and   leaving  equipment   to  be   exhibited  to  jury  during 
recess  of  court  should  be  permitted  with  great  caution. 
Jnmpertz  vs.  People,  21  111.  375. 

—  Firing  of  Pistol:  Testimony  by  physicians  that  before  rigor 
mortis  set  in  that  they  had  made  an  actual  test  with  the  body  of 
the  victim  by  putting  the  revolver  in  her  hand  and  bending  her 
arm  to  see  whether  it  would  have  been  possible  for  her  to  have 
fired  the  shot  and  that  they  considered  it  impossible  for  her  to  have 
done  so,  is  not  admissible  as  expert  testimony  but  competent  as 
proof  of  an  actual  test  which  might  have  been  made  by  any  one. 

People   vs.   Cutright,   258   111.   430. 

But  allowing  jury  without  knowledge  of  accused,  his  counsel  or 
court  to  take  with  them  to  the  jury  room,  a  pistol  not  proven  to 
have  been  the  one  with  which  fatal  shot  was  fired  and  there  to 
experiment  with  such  pistol,  as  a  means  of  determining  whether 
deceased  could  with  that  pistol  have  fired  the  shot  is  error. 
Yates  vs.  People,  38  111.  527. 

"Where  defense  is  that  accused  was  helplessly  drunk,  it  is  proper 

to  permit  witnesses  to  testify  that  they  had  made  a  test  with  the 

revolver  offered  in  evidence  as  the  one  with  which  the  shot  was  fired, 

as  to  the  number  of  pounds  pressure  on  the  trigger  it  would  require 

to  discharge  it. 

Collins-  vs.  People,  194  111.  506. 

—  Effect  of  Reel  Pepper  in  Eyes:     The  result  of  experiment  in 


EXPERT  AND  OPINION  509 

placing  red  pepper  in  eyes  is  admissible  in  action  for  malicious  mis- 
chief for  throwing  red  pepper  in  person's  eyes. 
Dahlberg  vs.  People,  225  111.  485. 

—  As  to  Ability  of  Witness  to  Identify  Accused:  Evidence  is 
admissible  of  actual  tests  made  by  witnesses  under  practically  the 
same  conditions  as  detailed  b}^  witnesses,  the  discrepancies  in  con- 
ditions, affecting  the  weight  of  the  testimony  and  not  competency. 

Hauser  vs.  People,   210  111.   253. 

Proof  of  experiments  made  to  test  the  fact  that  witnesses  could 
or  could  not  have  seen  what  they  testified  they  did  see,  if  compe- 
tent at  all,  is  entitled  to  but  little  weight,  owing  to  the  dif^culty  in 
knowing  whether  the  experiments  were  made  under  substantially 
the  same  conditions  which  were  present  at  the  time  the  witnesses 
claim  to  have  seen. 

Painter  vs.  People,  147  111,  444;  People  vs.  Pfanscbmidt,  262  111.  411. 

—  Lapse  of  Time:  Error  for  court  to  permit  test  of  capacity 
of  witnesses  in  open  court  to  estimate. 

Burke  vs.  People,  148  lU.  70. 

EXPERT  AND  OPINION 

See  Mental  and  Physical  States,  Sanity  and  Insanity,  Hand- 
writing, Value,  WiLiiS,  Legal  Conclusions,  Intoxication,  Em- 
inent Domain,  Market  Price,  Speed,  Hypothetical  Questions, 
Conclusions  of  Witnesses. 

OPINION  EVIDENCE. 
In  General: 

Opinion  evidence  is  admissible  only  upon  subjects  not  within  the 
knowledge  of  men  of  ordinary  experience,  and  upon  the  ground 
that  the  facts  are  of  such  a  nature  that  they  cannot  be  presented 
in  such  a  manner  that  jurors  of  ordinary  intelligence  and  experi- 
ence in  the  affairs  of  life  can  appreciate  them  in  their  relations  and 
comprehend  them  sufficiently  to  form  accurate  opinions  and  draw 
correct  inferences  from  them  on  which  to  base  intelligeiit  judgment. 
The  opinions  of  witnesses  should  not  be  received  as  evidence  where 
all  the  facts  on  which  such  opinions  are  founded  can  be  ascertained 

and  made  intelligible  to  the  jurv. 

Hoffman  vs.  Tossetti  Brew."  Co.,  257  111.  185;  Yarber  vs.  C.  &  A.  Ry. 

Co.,   235  111.   589;    Penn.   Co.  vs.  Conlin,   101   111.   93;   Perkins  vs. 

San.  Dist.,  171  App.  582. 

Whenever  the  subject  matter  of  inquiry  is  of  such  character 

that  it  may  be  presumed  to  be  within  the  common  experience  of 

all  men  of  common  education,  moving  in  the  ordinary  walks  of  life, 

the  rule  is  that  the  opinions  of  experts  are  inadmissible,  as  the  jury 

is  supposed  in  all  matters  to  be  competent  to  draw  the  necessary 

inferences  from  the  facts  testified  to  bv  the  witnesses. 

I.  C.  E.  E.  Co.  vs.  Smith,  208  111.  608;  C.  &  A.  Ey.  Co.  vs.  Lewan 
dovs'ski,  190  111.  301;  Hellyer  vs.  People,  186  111.  550;  Hughes  vs. 
Eictor,  161  111.  409;  O.  &  M.  Ey.  Co.  vs.  Webb,  142  111.  404;  Eeilly 
vs.  Amer.  S.  W.  Co.,  129  App.  123. 

NON  EXPERTS. 
Opinions  in  General: 

Witnesses,  not  experts,  may  be  allowed  to  express  opinions  when 
the  subject  matter  to  which  the  testimony  relates  is  such  as  in  its 


510  EXPERT  AND  OPINION 

nature  cannot  be  reproduced  and  described  to  the  jury  precisely 
as  it  appeared  at  the  time,  including  opinions  as  to  the  state  of 
health  of  another,  hearing  or  eyesight,  his  ability  to  work  and  walk 
or  use  his  limbs  naturally,  whether  he  is  apparently  in  pain  or  is 
unconscious,  in  possession  of  his  mental  faculties,  intoxicated,  'ex- 
cited, calm,  and  the  like. 

City  of  Chicafro  vs.  McNally,  227  111.  14;  West  Chi.  St.  Ey.  Co.  vs. 
Fishman,  169  111.  196;  Carter  vs.  Carter,  152  111.  434. 

The  opinions  of  non-professional  witnesses  abovit  the  ordinary 
affairs  of  life  are  admissible  in  evidence  in  all  cases  where,  from 
the  nature  of  the  question  involved,  its  answer  necessarily  depends 
upon  mere  opinion.  This  is  peculiarly  so  with  respect  to  questions 
of  value,  time,  distance,  weight,  etc. 

Spear  vs.  Drainage  Comrs.,  113  111.  632, 

Opinions  of  witnesses  may  be  received  when  facts  upon  which 
opinions  are  based  cannot  be  ascertained  and  made  intelligible  to 

the  court  and  jury. 

Savage  vs.  Hays  Trust  Co.,  142  App.  316. 
A  witness  who  is  not  an  expert  may  give  his  conclusion  and  the 
result  of  his  observation  when  the  matter  cannot  be  reproduced  or 
described  to  the  jurv  precisely  as  it  appeared  to  the  witness. 
Carter  vs.  Carter,  152  111!  434. 
"Witnesses  not  experts  are  allowed  to  give  opinions  when  the  sub- 
ject matter  to  which  the  testimony  relates  is  such  as  in  its  nature 
cannot  be  reproduced  and  described  to  the  jury  precisely  as  it 

happened  at  the  time. 

Chicago  vs.  McNally,  227  111.  14. 
Non-experts  who  have  had  opportunity  to  observe  a  person  may 
give  opinions  as  to  his  mental  condition  or  capacity,  at  the  same 
time  stating  their  reasons  and  the  facts  observed,  on  which  they 
base  their  opinions,  including  conversations  as  a  part  of  the 
observed  facts,  but  to  render  such  opinions  admissible,  they  must 
be  limited  to  conclusions  drawn  from  the  specified  facts  thus  dis- 
closed. 

Mayville  vs.  French,  246  111.  434;  Union  Trac.  Co.  vs.  Lawrence,  211 
ill.   373;    Ring  vs.  Lawless,   190  111.   520;    Austin  vs.   Austin,   260 
111.  299. 
And  the  rule  is  the  same  in  criminal  cases. 

Jamieson  vs.  People,  145  111.  357. 
But  the  competency  of  non-experts  to  give  opinions  as  to  a  per- 
son's metal  condition  is  for  the  court. 

Martin  vs.  Beatty,  254  111.  615 ;  Graham  vs.  Deuterman,  244  111.  124 ; 
Grand  Lodge  vs.  Wieting,  168  111.  408;  People  vs.  Payne,  161 
App.  640. 

EXPERTS. 

Opinions  in  General: 

Evidence  which  is  clearly  speculative  is  not  competent.  The 
general  rule  is  that  witnesses  should  testify  as  to  facts  and  not  to 
opinions.  The  opinions  of  witnesses  are,  in  general,  irrelevant.  If 
witnesses  might  be  allowed  to  state,  not  only  those  matters  of  fact, 
about  which  they  are  supposed  to  have  knowledge,  but  also  the 
opinions  they  might  entertain,  about  the  facts  in  issue,  the  admin- 
istration of  justice  would  become  little  less  than  a  farce.  To  this 
general  rule  there  are,  however,  important  exceptions.  One  of  the 
most  important  is  found  in  cases  in  which  the  opinions  of  experts 
are  received  in  evidence.    Evidence  of  this  character  is  usually  held 


EXPERT  AND  OPINION  511 

admissible  upon  subjects  that  are  not  within  the  knowledge  of  all 
men  of  common  education  and  experience.  Opinion  evidence  is 
said  to  be  admissible  from  necessity,  as  the  best  evidence,  under 
certain  circumstances,  possible  to  be  obtained.  In  many  cases  where 
the  subjects  under  investigation  are  wholly  unfamiliar  to  the  jury, 
if  expert  testimony  were  rejected,  there  could  be  no  adequate  way 
of  arriving  at  a  satisfactory  conclusion.  Because  of  this,  courts 
have  adopted  the  rule  of  admitting  the  opinions  of  witnesses  when- 
ever the  subject  matter  of  inquiry  is  such  that  inexperienced  per- 
sons are  unlikely  to  prove  capable  of  forming  correct  judgment 
upon  it  without  such  assistance.  While  it  is  often  difficult  to  draw 
the  line  between  legitimate  inference  and  bare  conjecture,  only 
such  inferences  may  be  drawn  as  are  rational  and  natural.  Mere 
surmise  or  conjecture  is  never  regarded  as  proof  of  a  fact  and  the 
jury  will  not  be  allowed  to  base  a  verdict  thereon.  No  one  is  per- 
mitted to  testify  what  he  has  never  learned,  whether  it  be  ordinary 
or  scientific  facts.  If  a  witness  has  not  sufficient  and  adequate 
means  of  knowledge,  his  evidence  should  not  be  considered.  A 
surgeon  may  testify  as  to  the  nature  of  a  wound  and  as  to  the  effects 
and  consequences  which  may  be  reasonably  expected  to  happen, — 
not  merely  speculative  or  possible.  It  is  necessary  that  the  con- 
sequences must  be  reasonably  certain  to  result. 

Lyons  vs.  Chi.  City  Ey.  Co.,  258  111.  75;  People  vs.  Shiiltz,  260  111.  35. 

Usurping  Province  of  Jury : 

An  expert  will  not  be  permitted  to  give  an  opinion  upon  a  ques- 
tion which  it  is  the  duty  and  province  of  the  jury  to  determine. 
The  opinions  of  witnesses  should  not  be  asked  in  such  a  way  as  to 
cover  the  very  question  and  ultimate  fact  to  be  found  by  a  court 

or  jury. 

Keefe  vs.  Armour  &  Co.,  258  111.  28 ;  I.  C.  E.  E.  Co.  vs.  Smith,  208  111. 
608-  Springfield  Cons.  Co.  vs.  Puntennv,  200  111.  9;  Hoener  vs. 
Koch,  84  111.  408;  C.  &  A.  Ey.  Co.  vs.  S.  &  N.  W.  Ey.  Co.,  67  111. 
142;  Pagan  vs.  Highland,  152  App.  607;  XII  111.  Notes  526,  §  399. 

Conjectures  and  Impressions: 

A  witness  cannot  testify  as  to  his  conjectures  and  suppositions. 

Menifee  vs.  Higgins,  57  111.  50. 
Or  to  impressions  unless  result  of  recollection. 

Bounds  vs.  McGormiek,  11  App.  220. 
Opinions  based  in  part  on  knowledge  gained  from  hearsay  are 

incompetent. 

E.  J.  &  E.  Ey.  Co.  vs.  Lawlor,  229  111.  621. 

Time  of  Opinion: 

The  witness'  opinion  at  time  of  trial  is  the  only  opinion  evidence 
which  he  may  properly  give  on  direct  examination.  The  witness 
should  state  the  opinion  he  then  has  and  not  what  opinion  he 
formed  long  previous. 

Lyons  vs.  Chi.  City  Ey.  Co.,  258  111.  75. 

Classes  of  Experts : 

Expert  evidence  is  not  confined  to  classed  and  specified  profes- 
sions, but  is  applicable  wherever  peculiar  skill  and  judgment 
applied  to  a  particular  object  are  required  to  explain  results  or  to 
trace  them  to  their  causes.  Expert  evidence  is  admissible  when 
the  witnesses  offered  as  experts  have  peculiar  knowledge  or  exper- 


512  EXPERT  AND  OPINION 

ience   not   common   to   tlie  world,   which   renders   their   opinions, 
founded  on  such  knowledge  or  experience,  an  aid  to  the  court  or 
jury  in  determining  the  questions  at  issue. 
People  vs.  Jennings,  252  111.  534. 

—  Sciences  and  Trades:  Experts  or  persons  instructed  by  ex- 
perience, or  "men  of  science"  may  give  opinions  on  questions  of 
science  and  skill  or  trade,  as  to  the  seaworthiness  of  ships,  their 
unskillful  navigation,  the  genuineness  of  handwriting,  the  cause  of 
disease  and  death,  the  consequences  of  wounds,  the  sanity  and  in- 
sanity of  persons,  or  others  of  like  kind. 

Linn  vs.  Sigsbee,  67  111.  75. 

—  Arts:  Upon  questions  relating  to  the  arts,  the  opinions  of 
persons  who  have  made  the  subject  matter  of  inquiry,  the  object 
of  particular  study,  are  admissible. 

0.  &  M.  Ey,  Co.  vs.  Webb,  142  111.  404. 

• — Matters  Not  of  Common  Knoivledge:  Where  the  subject  mat- 
ter of  the  proposed  inciuiry  is  a  matter  of  common  observation 
upon  which  the  lay  or  uneducated  mind  is  capable  of  forming  a 
correct  judgment,  experts  are  not  permitted  to  state  their  conclu- 
sions. In  questions  of  science,  their  opinions  are  received,  for  in 
such  questions  scientific  men  have  superior  knowledge  and  generally 

think  alike. 

Hellyer  vs.  People,  186  111.  550. 
Opinion  of  expert  is  admissible  when  the  fact  to  be  proven  is 
one  not  within  the  common  knowledge  of  laymen,  but  is  a  matter 
peculiarly  within  the  knowledge  of  persons  having  special  training 

or  skill  therein. 

City  of  Chicago  vs.  Didier,  227  111.  571. 

—  Matters  of  Skill  and  Experience:  Experts  are  competent  to 
give  opinions  upon  assumed  state  of  facts  which  the  evidence  tends 
to  prove,  and  which  calls  for  special  skill  or  knowledge  to  reach 
the  proper  conclusion. 

Goddar.i  vs.  Enzler,  222  111.  462. 

Expert  testimony  is  admissible  when  the  subject  matter  of  the 
inquiry  is  of  such  a  character  that  only  men  of  skill  and  experience 
in  it  are  capable  of  forming  a  correct  judgment  as  to  any  facts 
connected  therewith. 

People  vs.  Jennings,  252  111.  534. 

Expert  opinions  are  competent  as  to  matters  which  do  not  he 
within  the  range  of  common  knowledge  and  experience. 
E.  J.  &  E.  Ky.  Co.  vs.  Myers,  129  App.  12. 

The  opinions  of  witnesses  are  not  to  be  received  merely  because 
such  witnesses  may  have  had  some  experience  or  greater  oppor- 
tunities of  observation  than  others,  unless  such  opinions  relate  to 
matters  of  skill  and  science.  Where  the  matter  inquired  about  re- 
quires no  special  knowledge  and  may  be  determined  by  a  jury 
upon  a  sufficient  description  of  the  facts  in  regard  to  it,  it  is  not 
proper  to  receive  testimony  of  experts. 

1.  C.  E.  E.  Co.  vs.  Smith,  208  111.  608;  Penn.  Co.  vs.  Conlan,  101  111. 
9.3;   Chicago  vs.  MoGiven,  78  111.  347. 

Admissibility  from  Necessity: 

The  opinion  of  an  expert  is  admissible  in  any  ease  only  from 


EXPERT  AND  OPINION  513 

necessity,  when  some  special  knowledge  not  possessed  by  persons 
in  general,  is  required  in  reaching  a  proper  conclusion  from  a  given 
state  of  facts. 

Goddard  vs.  Enzler,  222  III.  462. 
AVhere  a  court  or  jury  can  make  their  own  deductions,  they 
shall  not  be  made  by  those  testifying,  but  opinions,  so  far  as  they 
consist  of  statements  of  an  effect  produced  on  the  mind,  become 
primary  evidence,  and  hence,  admissible  whenever  a  condition  of 
tilings  is  such  as  it  cainiot  be  reproduced  and  made  palpable  in 
the  concrete  to  the  jury. 

People  vs.  Jennings,  252  111.  534. 
The  functions  of  the  jury  are  not  usurped  by  an  expert  witness 
who  gives  his  opinion  upon  an  assumed  state  of  facts  which  the 
evidence  tends  to  prove,  and  which  calls  for  some  special  skill  or 
knowledge  to  reach  the  proper  conclusions,  since  the  opinion  of  the 
witness  has  no  bearing  upon  the  question  whether  the  facts  assumed 
in  the  question  have  been  proven. 

Goddard  vs.  Enzler,  222  111.  462. 

Qualification  of  Experts: 

—  Quesiion  for  Court:  The  question  of  the  qualification  of  an 
expert  rests  largely  in  the  discretion  of  the  trial  court.  There  can 
be  no  arbitrary  or  fixed  test  but  necessarily  only  a  relative  one, 
dependent  somewhat  upon  the  subject  and  the  particular  witness. 

People  vs.  Jennings,  252  111.  534. 

And  the  exercise  of  such  discretion  can  only  be  reviewed  where 
there  is  a  clear  abuse  of  it. 

Bonato  vs.  Peabodj  Coal  Co.,  248  111.  422. 

—  Necessity  For:  An  expert  is  one  instructed  by  experience, 
and  to  become  such  requires  a  previous  course  of  habit  or  practice^ 
or  of  study,  so  as  to  be  familiar  with  the  subject  under  consider- 
ation. 

N.  K.  St.  Ry.  Co.  vs.  Blatcliford,  81  App.  609. 
Before  a  witness  can  be  permitted  to  give  an  opinion  as  an  expert, 
he  must  be  shown  to  be  competent  as  such  to  give  it. 

C.  &  A.  By.  Co.  vs.  S.  &  N.  W.  Ry.  Co.,  67  111.  142;  N.  K.  St.  Ry.  Co 
vs.  Blatehford,  81  App.  609;  C.  &  N.  W.  Ry.  Co.  vs.  Mawman,  2(t6 
111.  182;   XII  111.  Notes  529,  §424. 

A  witness  must  state  his  knowledge  of  the  subject  under  con- 
sideration before  he  may  usually  be  asked  his  opinion. 
Cooper  vs.  Randall,  59  111.  317. 
Opinion  evidence  is  properly  excluded  where  the  witness  has  not 
qualified  as  an  expert  with  respect  to  the  matter  as  to  which  his 
opinion  is  asked. 

O'Rourke  vs.  Sproiil,  147  App.   609. 
Witness  must  be  competent,  from  knowledge  and  experience,  to 
express  an  opinion. 

Grand  Lodge  vs.  Randolph,  186  111.  89. 
Fact  that  witness  has  large  experience  regarding  matter  concern- 
ing which  he  is  called  does  not  permit  of  his  testifying  if  subject 
matter  is  not  one  for  opinion  evidence. 

City  of  Bunker  Hill  vs.  Rearson,  46  App.  47. 

—  Study:  A  witness  is  not  incompetent  to  testify  as  an  expert 
by  reason  of  the  fact  that  his  special  knowledge  of  that  particular 

Ev. — 33 


514  EXPERT  AND  OPINION 

subject  of  inquiry  has  not  been  derived  from  experience  or  actual 
observation,  but  from  reading  and  the  study  of  standard  authorities. 
Citizens  G.  &  H.  Co.  vs.  O'Brien,  19  App.  231. 
Where  special  study  is  essential,  only  such  persons  are  competent 
as  have  special  learning  or  training. 
Chicago  vs.  McNally,  227  111,  14. 
A  medical  expert,  in  giving  his  opinion  as  expert,  is  not  con- 
fined to  opinions  derived  from  his  own  observation  and  experience, 
but  may  give  an  opinion  l)ased  upon  information  derived  from 
medical  books. 

Siebert  vs.  People,  143  111.  571. 
Where  a  previous  habit  or  study  is  essential  to  the  formation  of 
an  opinion  sought  to  be  put  in  evidence,  only  such  persons  are 
competent  to  express  an  opinion  as  have,  by  experience,  special 
learning  or  training,  gained  a  knowledge  of  the  subject  matter 
upon  which  an  opinion  is  to  be  given,  superior  to  that  of  an  ordin- 
ary person. 

W.  Chi.  St.  Ey.  Oo.  vs.  Fishman,  169  111.  196. 
An  expert  may  testify  on  subject  which  he  has  studied,  though 
he  has  had  no  practical  experience  therein. 
Siebert  vs.  People,  143  111.  571. 

Or  subject  concerning  which  he  has  had  experience  but  no  study. 
Emerick  vs.  Merriman,  23  App.  24. 

—  Experience  and  Observation:  An  expert  may  be  questioned 
as  to  experience  and  knowledge. 

C.  G.  L.  &  H.  Co.  vs.  O'Brien,  118  111.  174. 

And  as  to  treatises  written  by  him  upon  subject  of  inquiry. 

Prouty  vs.  Martin,  160  App.   11. 
A  non-expert  should  have  had  sufficient  opportunities  for  obser- 
vation, to  be  competent  to  testify  as  to  a  person's  health. 
Jamieson  vs.  People,  145  111.  357. 
People  who  have  practical  knowledge,  skill  or  experience,  may  be 
qualified  to  give  testimony  as  experts,  notwithstanding  the  subject 
of  inquiry  may  not  be  a  specialty  with  the  witness. 

Webster  Mfg.  Co.  vs.  Mnlvanny,  168  111.  311;  Siebert  vs.  People,  143 
111.  571;  Pearson  vs.  Zebn,  138  111.  48. 

—  Tests:  Witness  may  testify  as  to  tests  made,  in  order  to 
qualify  as  expert. 

Chi.  City  Ry.  Co.  vs.  Greinke,  136  App.  77. 

—  Reasons:     Experts  should  be  permitted  to  give  reasons. 

Q.  G.  E.  Co.  vs.   Schmitt,  123  App.  647;  Dunham  vs.  Chi.  City  Ry. 
Co.,  178  App.  186. 

Cross  Examination. 

—  Latitude:  AVhile,  in  the  examination  in  chief,  the  expert  can 
only  be  questioned  in  a  general  manner  as  to  the  reasons  of  his 
opinions,  the  cross  examiner  is  entitled,  in  every  instance,  to  de- 
mand a  free  disclosure,  minutely  and  in  detail,  of  all  the  facts  and 
circumstances  upon  which  the  expert's  opinion  has  been  grounded. 
Upon  cross  examination,  great  latitude  is  allowed,  so  as  to  enable 
the  jury  to  see  what  facts  have  induced  him  to  form  the  opinion 
he  has  expressed.  A  large  discretion  is  necessarily  left  to  the  trial 
judge  in  determining  the  range  proper  to  be  allowed  in  cross  ex- 
amining witness.     But  the  discretion  should  be  reasonable  discre- 


EXPERT  AND  OPINION  515 

tion,  and  cross  examination  should  not  be  excluded  on  subjects 
embraced  or  included  in  the  examination  in  chief. 

Spohr  vs.  City  of  Chicago,  206  111.  441. 
As  processes  or  analysis  by  which  conclusions  were  reached. 

People  vs.  Zito,  141  App.  534. 

—  Scope:  A  question,  although  it  goes  beyond  the  scope  of  the 
evidence,  may  be  propounded  on  cross  examination,  if  its  office 
and  purpose  is  to  elicit  the  reason  upon  which  the  expert  based  his 
opinion  expressed  upon  his  examination  in  chief,  or  to  ascertain 
the  extent  of  his  learning  and  knowledge  of  the  particular  subject 
upon  which  he  assumed  to  be  an  expert. 

W.  Chi.  St.  Ey.  Co.  vs.  Fishman,  169  111.  196. 
Expert  witnesses  may  be  cross  examined  by  hypothetical  ques- 
tions based  upon  facts  differing  from  those  shown  in  evidence. 

People  vs.  Dietmeyer,  164  App.  405. 
But  matters  assumed  must  be  pertinent  to  the  inquiry. 

San.  Dist,  vs.  Coineau,  257  111.  93. 

—  Interest  and  Remuneration:  A  witness  may  be  asked  how 
many  times  he  has  been  employed  and  testified  for  party  by  whom 

he  is  called. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334. 
It  is  proper  to  inquire  by  whom  the  witness  is  employed,  and  the 
extent  of  compensation,  if  other  than  ordinary  witness  fees. 

Drainage  Dist.  vs.  Dawson,  243  111.  176;  Wrisley  vs.  Burke,  203  111. 
250;  Kerfoot  vs.  City  of  Chicago,  195  111.  229. 
The  extent  of  the  examination  along  this  line  is  largely  in  the 
discretion  of  the  trial  court. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334. 
The  fact  that  an  expert  witness  is  entitled  to  a  professional  fee 
as  such,  contingent  upon  the  result  of  the  suit,  affects  only  his 
credibility  and  not  his  competency. 

Provident  Ins.  Co.  vs.  King,  216  III.  416. 
It  is  always  competent  to  ask  a  witness  on  cross  examination  by 
whom  he  is  paid,  and  if  he  is  in  the  employ  of  a  party,  or  if  at  the 
time  he  rendered  the  particular  service  he  was  in  the  employ  of 
the  party  for  the  purpose  of  affecting  his  credibility  and  the 
weight  of  his  evidence. 

Chi.  City  Ev.  Co.  vs.  Carroll,  206  111.  318;  Cf.  C.  &  E.  I.  E.  E.  Co.  vs. 
Schmitz,  "211  111.  446. 
But  the  acts  and  declarations  either  of  strangers  or  of  one  of 
the  parties  to  the  action  in  his  dealings  with  strangers  are  irrele- 
vant, so  employment  of  expert  by  surety  company  is -not  subject 

of  inquiry. 

C.  &  E.  I.  E.  E.  Co.  vs.  Schmitz,  211  111.  446;  Wiersema  vs.  Lockwood, 
147  App.  33. 

—  Medical  Boolxs:    See  Books. 
Weight  and  Sufficiency: 

The  opinions  of  experts  are  not  conclusive. 
C.  B.  &  Q.  Ey.  Co.  vs.  Gregory,  58  111.  272. 
The  M'eight  to  be  given  to  expert  evidence  depends  largely  on 

the  grounds  on  which  the  opinions  are  based. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334;   Cram  vs.  Chicago,  94 
App.   199. 


516  EXPERT  AND  OPINION 

The  extent  of  knowledge  is  to  be  considered  as  affecting  the 
weight  of  expert  evidence. 

Frankliu  vs.  Krum,  171  111.   378. 

MISCELLANEOUS  ILLUSTRATIONS. 

Abortion : 

See  Abortion. 
Accident : 

Opinion  is  incompetent  as  to  possibility  of  accident  occurring 
in  a  certain  way. 

Wyckoff  vs.  Chi.  City  Ey.  Co.,  234  111.  613. 
Nor  may  an  expert  witness  give  opinion  upon  question  as  to 
whether  a  person  committed  suicide  or  died  by  accident. 
Treat  vs.  Merchants  Life  Ins.  Co.,  198  111.  431. 

Opinion  as  to  whether  a  man  can  be  knocked  forty  feet  and 
live,  incompetent. 

C.  &  A.  Ey.  Co.  vs.  Lewandowski,  190  111.  301. 

Adultery : 

Wliere  subject  of  inquiry  is  of  such  nature  that  same  cannot  be 
described  to  jury  precisely  as  they  appeared  to  the  witness,  and 
facts  are  such  as  men  in  general  are  capable  of  comprehending, 
the  witness  may,  after  detailing  facts,  give  his  opinion  thereon. 

Thus  on  question  of  adultery,  person  occupying  adjoining  room 
to  the  one  in  which  act  is  alleged  to  have  been  committed,  who, 
after  stating  conversations  and  noises  heard  in  room,  may  state 
his  opinion  as  to  whether  or  not  occupants  thereof  committed  the 
act. 

Carter  vs.  Carter,  152  111.  434. 

Age: 

A  witness  cannot,  in  the  first  instance,  give  his  opinion  as  to 

the  age  from  appearance,  but  should  first  describe  appearance  and 

may  then  state  his  opinion   as   to   age,   based   upon   appearance 

described. 

People  vs.  Davidson,  240  111.  191. 

Agriculture : 

The  testimony  of  experienced  farmers,  upon  questions  relating 

to  agriculture,  is  admissible. 

J.  &  St.  L.  Ey.  Co.  vs.  Colwell,  21  111.  75. 

Alteration  of  Instruments: 

Testimony  of  handwriting  expert  is  admissible  to  show  alteration 

of  instruments. 

Eass  vs.  Sebastian,  160  111.  602. 

Animals : 

Whether  or  not  a  horse  has  become  frightened  or  shows  fright 
is  a  fact,  not  the  statement  of  a  conclusion. 
Ward  vs.  Merideth,  220  111.  66. 
Proper  to  show  how  much  hogs  would  gain  in  weight  under  cer- 
tain conditions. 

Frambers  vs.  Eisk,  2  App.  447. 
Farmer  may  give  opinion  as  to  disease  of  horse. 
Pearson  vs.  Zehr,  138  111.  48. 

Opinion  as  to  effect  of  slapping  a  horse  is  competent. 

Casey  vs.  Sawyer  Co.,  163  App.  145. 
Question  as  to  whether  car  containing  animals  for  transportation 


EXPERT  AND  OPINION  517 

was  overloaded  is  not  question  for  expert  evidence.  It  is  proof  of 
a  fact  that  could  be  testified  to  by  any  one  who  knew  it. 
Wabash  Ey.  Co.  vs.  Pratt,  15  App.  177. 
It  is  competent  to  show  by  a  witness  having  special  knowledge 
of  the  natural  disposition  of  boars  in  the  same  enclosure  to  fight 
each  other,  and  whether  wounds  and  cuts  on  a  boar  might  have 
been  so  caused. 

Walters  vs.  Stacy,  122  App.  658. 

"Witnesses  who  have  driven  a  horse  a  number  of  times  or  seen  it 
driven  are  competent  to  testify  as  to  its  disposition. 

Pioneer  Construction  Co.  vs.  Sunderland,  188  111.  341.     '-i^J^  'i  i' 
Person  who  has  had  experience  in  buying  and  selling  and  hand- 
ling horses  is  competent  to  testify  as  to  value. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Patton,  203  111.  376;  C.  &  N.  W.  Ey.  Co. 
vs.  Cal.  Stock  Farm,  194  111.  9. 

Witnesses  may  state  as  to  tendency  of  animals  to  cross  breeding 
in  later  offspring. 

People  vs.  Jones,  241  111.  482. 

Ordinary  witnesses  may  testify  that  it  is  possible  for  a  man  to 
recognize  sheep  by  their  comitenances. 
Welch  vs.  Miller,  32  App.  110. 
Value  of  race  horses  before  and  after  injury  may  be  proved  by 
expert  evidence. 

C.  &  N.  W.  Ey.  Co.  vs.  Stock  Farm,  194  111.  9. 

Attempts  and  Efforts: 

Opinion  is  incompetent  as  to  whether  driver  of  wagon  could  have 
stopped  horse  in  time  to  avoid  accident. 

Brinks   Express   Co.   vs.   Kinnare,   168  111.   643. 
Improper  to  ask  motorman  if  he  knew  of  anything  he  could 
have  done  which  he  did  not  do,  to  avoid  collision. 

Springfield  Con.  Ey.  Co.  vs.  Puntenny,  200  111.  9;  Springfield  Ey.  Co. 
vs.  Welsch,  155  111.  511. 

Opinion  is  incompetent  as  to  what  witness  would  have  done. 

Carpenter  vs.  Natl.  Bank,  119  111.  352. 
Or  as  to  ability  or  non-ability  of  deceased  to  save  himself  from 
injury. 

I.  C.  E.  E.  Co.  vs.  Whiteaker,  122  App.  333. 

Attorney's  Fees: 

Expert  opinion  is  inadmissible,  when  legal  services  are  of  such  a 
character  that  a  certain  chal'ge  has  become  customary,  to  show 
what  the  customary  charge  is  for  the  particular  service. 
L.  N.  A.  &  C.  Ey.  Co.  vs.  Wallace,  136  App.  87. 
Testimony  of  attorneys  as  to  reasonableness  of  another  attor- 
ney's charge  is  in  the  nature  of  opinion  and  not  binding  on  the 
court. 

Lee  vs.  Loniax,  219  111.  218. 

In  action  by  attorney  to  recover  for  professional  services,  the 
same  resulting  in  a  favorable  compromise,  opinions  of  other  at- 
torneys are  admissible  as  to  value  of  such  services,  but  not  as  to 
benefit  of  compromise  to  defendant. 
Haish  vs.  Payson,  107  111.  365. 

Automobiles : 

Persons  experienced  in  operating  automobiles  may  be  permitted 


518  EXPERT  AND  OPINION 

to  testify  that  an  auto  of  a  certain  make,  running  at  a  certain 
speed,  could  be  stopped  in  a  certain  distance. 
Crandall  vs.  Krouse,  1G5  App.  15. 

Bastardy : 

See  Bastardy. 

Bucket  Shops : 

In  prosecution  for  running  a  bucket  shop,  witness  may  testify 

that  place  was  a  bucket  shop. 

People  vs.  Wirsching,  145  App.  121. 

Business  Transactions: 

Opinions  are  incompetent  as  to  probable  profits  uuder  a  con- 
tract. 

Keith  vs.  Bliss,  10  App.  424. 

Testimony  of  persons  engaged  in  clothing  business,  as  to  what 
would  be  a  reasonable  time  in  which  to  open,  inspect  and  return  a 

bill  of  goods,  is  incompetent. 

Guggenheim  vs.  Hoffmann,  151  App.  457. 
Evidence  that  money  was  used  in  firm  business  is  a  fact,  not  a 

conclusion. 

Funk  vs.  Babbitt,  156  111.  408. 
A  statement  that  a  party  is  indebted  to  a  certain  amount 'is  a 
mere  conclusion. 

Hollts  vs.  Bruce,  69  App.  47. 
And  so  is  a  statement  as  to  whether  a  firm  is  solvent  or  not. 

Swan  vs.  Gilbert,  67  App.  236. 
Opinion  is  incompetent  as  to  whether  delivery  or  non-delivery  of 
a  part  of  articles  contracted  for  was  of  importance  to  party. 
Tailor  vs.  Beck,  13  111.  376. 
Proof  of  papers,  entries  and  records  of  a  private  corporation,  in 
its  possession,  cannot  be  made  by  opinion  or  conclusions  of  wit- 

Mandel  vs.  Swan  Land  Co.,  154  111.  177. 
Where  books  of  corporation  have  never  been  "closed"  so  as  to 
show  amount  of  profits,  testimony  of  bookkeeper,  based  upon  ex- 
amination of  books,  that  profits  were  so  much  is  a  conclusion  and 

inadmissible. 

Estate  of  Smythe  vs.  Evans,  209  111.  376. 
Whether  a  buyer  had  a  reasonal)le  opportunity,  when  accepting 
an  offer,  to  inspect  the  property  is  not  a  question  for  expert  testi- 
mony. 

Barker  vs.  Turnball,  51  App.  226. 

Opinions  are  incompetent  as  to  effect  of  plaintiff's  management 

on  profits  and  losses  in  defendant's  business,  in  action  for  work  and 

services. 

Schmidt  vs.  Pfau,  114  111.  494. 

Opinion  is  incompetent   as  to  whether  an   unusual   amount   of 
goods  had  been  purchased  by  a  certain  firm. 
Gilbert   vs.   Kuppenheimer,   67   App.   251, 

Cause  of  Death: 

Expert  may  testify  whether  death  was  caused  by  strangulation. 
Supreme  Tent 'vs.   Stensland,   206  111.   124. 

Cause  and  Effect  of  Injury: 

Where  there  is  a  conflict  in  the  evidence  as  to  whether  plaintiff 
was  injured  in  the  manner  claimed,  it  is  not  competent  for  wit- 


EXPERT  AND  OPINION  519 

nesses  to  give  their  opinions  as  to  whether  the  physical  conditions 
of  the  injured  party  are  the  result  of  the  injuries  complained  of, 
but  where  there  is  no  dispute  as  to  the  manner  of  the  injury,  the 
question  is  as  to  whether  certain  physical  conditions  were  caused 
by  the  injury  complained  of,  and  the  determination  of  the  ques- 
tion involves  a  special  skill  or  trade,  or  the  knowledge  of  a  science 
that  does  not  come  within  the  experience  of  laymen  possessing  the 
education  or  knowledge  common  to  those  moving  in  the  ordinary 
walks  of  life,  then  persons  possessing  the  special  knowledge,  skill 
or  science  may  give  their  opinions  on  the  subject. 

City  of  Chicago  vs.  Didier,  227  111.  571;   McCullough  vs.  A.  E.  &  C. 
Ey.  Co.,  154  App.  208;  XII  111.  Notes  528,  §  423. 

Where  the  defendant   disputes  ti^e  fact  that  plaintiff  was  in- 
jured, it  is  error  to  permit  a  physician  to  testify  that  in  his  opinion 
plaintiff  was  permanently  injured  as  a  result  of  that  accident. 
Schaluder  vs.  C.  &  S.  Ey.  Co.,  253  111.  154. 

It  is  entirely  immaterial  whether  witness  testifies  the  injury 
was  the  cause  of  the  condition,  or  that  the  injury  was  sufficient  to 
cause  the  condition  or  might  have  caused  it.  In  any  event,  the 
testimony  is  merely  the  opinion  of  the  witness,  given  as  such,  upon 
a  state  of  facts  assumed  to  be  true.  It  still  remains  for  the  jury 
to  determine  the  facts,  and  the  opinion  is,  nevertheless,  an  opinion 
only,  whether  it  states  what  did  cause  the  condition  or  what  might 
cause  it. 

Lauth  vs.  Chi.  U.  Trac.  Co.,  146  App.  584;  S.  C.  Lauth  vs.  Chi.  U.  Trac 
Co.,   244  111.   244.  .,„i,:    .,„; 

An  expert  may  state  what  effects  may  have  resulted  from  a  fall. 
I.  C.  E.  E.  Co.  vs.  Treat,  179  111.  576;  Chi.  City  Ey.  Co.  vs.  Sozynski, 
134  App.   149. 

Witness  may  testify  that  plaintiff  had  suffered  violence. 
Chi.  City  Ey.  Co.  vs.  Donnelly,  136  App.  204. 

It  may  be  shown  what  might  have  caused  a  condition  such  as 
was  shown  by  the  evidence,  and  claimed  to  have  resulted  from  the 
accident  in  question. 

Chi.  City  Ey.  Co.  vs.  Foster,  128  App.  571;  City  of  Chicago  vs.  Sald- 
nian,  129  App.  282. 

It  is  for  the  jury  to  say  whether  an  injury  was  caused  by  the 
accident  in  question ;  it  is  only  competent  for  medical  experts  to 
testify  that  the  injury  in  question  might  have  resulted  from  such 
accident. 

I.   C.   E.   E.   Co.   vs.   McCulliim,   122   App.   531;    City  of   Chicago   vs. 
France,  128  App.  648. 

Expert  may  testify  that  such  an  accident  as  happened  to  plain- 
tiff could  cause  condition  found  upon  examination  of  plaintiff. 
Shanghnessy  vs.   Holt,   140   App.   572, 

A  physician  may  give  his  opinion  that  injury  to  plaintiff  might 
have  been  caused  bv  the  accident. 

Schlauder  vs.  Chi.  Trac.  Co.,  253  111.  154;  West  Chi.  St.  Ey.  Co.  vs. 
Dougherty,  209  111.  241. 

But  not  if  there  is  dispute  as  to  whether  plaintiff  was  injured 
in  manner  claimed. 

West.  Chi.  Trac.  Co.  vs.  Didier,  227  111.  571.  ' 

Whether  injury  could,  would,  or  did  result  from  injuries  re- 
ceived is  subject  for  opinion  evidence. 

Fuhry  vs.  Chi.  City  Ey.  Co.,  239  111.  548. 


520  EXPERT  AND  OPINION 

Plaintiff  may  give  opinion  as  to  whether  or  not  plaintiff's  eyes 
were  injured  by  electric  shock  where  evidence  as  to  such  shock 

is  not  contradicted. 

Hoxsey  vs.  St.  L.  &  S.  Ry.  Co.,  171  App.  76. 
Medical  expert  may  testify  that  condition  of  body  two  years 
after  accident  was  due  more  or  less  directly  to  the  accident. 
Czerniak  vs.  City  of  Chicago,   161  App.   360. 
Opinion  as  to  effect  of  injurv  on  a  person's  health  is  competent. 
,:  C.  &  E,  I.  R.  R.  Co.  vs.  Eamlolph,  199  111.  126. 

'statement  of  expert  that  injury  would  cause  pain  in  future  is 

competent. 

Diamond  Glue  Co.  vs.  Wietzychowski,  125  App.  277. 

Opinions  of  physicians  and  surgeons  may  be  admitted  to  show 
the  probable  future  consequences  of  the  injury  when  the  conse- 
quences anticipated  are  such  as  in  the  ordinary  course  of  events 
may  reasonably  be  expected  to  happen  and  are  not  nn^rely  specu- 
lative or  possible. 

Lauth  vs.  C.  V.  T.  Co.,  146  App.  584;   P.  Ft.  W.  &  C.  Ey.  Co.  vs. 
Moore,  110  App.  304. 
"Physicians  may  not  testify  as  to  "tendency"  of  disease  or  that 

certain  results  were  "liable"  to  happen. 

Junget  vs.  A.  E.  &  C.  Ry.  Co.,  177  App.  435.  '     ^• 

Where  eye  is  injured,  it  is  incompetent  for  expert  to  testify  a's' 
to  effect  of  inflammation  in  other  eye,  after  three  years. 
West.  Elec.  Co.  vs.  Prochaska,  129  App.  589. 
Expert  is  competent  on  question  of  possible  effect  from  breath- 
ing obnoxious  drain  odors. 

Fox  vs.  City  of  Joliet,  150  App.  491. 
Whether  injury  is  permanent  is  subject  of  expert  evidence. 

Hirsch  'vs.  CM.  Con.  Trac.  Co.,  146  App.  501. 
In  prosecution  for  mayhem  for  throwing  red  pepper,  a  physician 
may  state  that  in  his  opinion  red  pepper  in  the  eye  would  destroy 

sight. 

Dahlberg  vs.  People,  225  111.  485. 
Expert  may  testify  as  to  present  condition  of  injured  person, 
its  causes  and  permanence,  not  as  to  mere  possible  future  condi- 
tions. There  must  be  such  a  degree  of  probability  of  apprehended 
future  consequences  as  amounts  to  a  reasonable  certainty  they 
will  result  from  original  injury. 

City  of  Chicago  vs.  Lamb,  105  App.  204. 
Attending   physician    may   state   injuries   received   in   accident 

caused  physical   condition  of  plaintiff. 

Fuhry  vs.  Chi.  City  Ey.  Co.,  239  111.  548. 
Expert  may  give  opinion  as  to  how  an  injury  occurred  where 
no  one  could  testify  to  the  facts  so  that  the  jury  could  see  how  it 

occurred. 

Goddard  vs.  Enzler,  123  App.  108. 
Evidence  that  dislocation  of  shoulder  produced  predisposition 

to  second  dislocation  is  competent. 

Donnelly  vs.  Chi.  City  Ry.  Co.,  235  111.  35. 
Expert  should  not  be  allowed  to  testify  as  to  cause  of  plain- 
tiff's physical  impairment. 

Chicago  vs.  France,   124  App.  648. 
Expert  competent  to  testify  as  to  whether  injury  might  have 
been  caused  by  fall  of  elevator. 

Shaughnessy  vs.  Holt,  236  HI.  485. 


EXPERT  AND  OPINION  521 

Expert  may  give  opinion  as  to  diseased  condition  being  due  to 
physical  injury. 

City  of  Chicago  vs.  Berk,  227  111.  60. 
And  as  to  whether  wound  could  have  been  produced  with  cer- 
tain instrument. 

Cannon  vs.  People,  141  111.  270. 
Expert  should  not  be  allowed  to  express  opinion  that  conditions 
found  were  result  of  the  act  of  which  complaint  is  made. 
Centralia  vs.  Ayers,  133  App.  290. 

Where  there  is  a  conflict  in  the  evidence  as  to  whether  plaintiff 
was  injured  in  manner  charged,  it  is  not  competent  for  witnesses 

to  give  their  opinions  on  the  subject. 

I.  C.  E.  E.  Co.  vs.  Smith,  208  111.  608. 
Opinion  of  medical  expert  that  contusions  and  abrasions  found 
on  body  of  plaintiff  might  aggravate  his  condition  of  partial  paral- 
ysis is  competent. 

Auiann  vs.  Chi.  Con.  Co.,  148  App.  151. 
On  question  of  accident  or  suicide,  in  action  on  life  insurance 
policy,  it  is  incompetent  for  physicians  to  express  opinions  that 
the  wound  was  accidentally  or  purposely  inflicted. 
Treat  vs.  Merchants  Life  Ins.  Co.,  198  111.  431. 
In  prosecution  for  murder,  when  defense  is  that  deceased  was 
struck  by  passenger  train,  question  whether  bruises  found  on  body 
could  have  been  so  produced  is  not  subject  of  expert  testimony. 
Hellyer  vs.  People,  186  111.  550. 
Whether  wounds  were  or  were  not  inflicted  in  the  manner  al- 
leged is  not  a  subject  of  opinion  evidence. 
Cannon   vs.   People,   141   111.   270. 
Opinion   of    physician   as   to   probable    result   of   strangulated 
hernia  not  shown  to  be  peculiar  to  plaintiff  is  inadmissible. 
Lauth  vs.  Chi.  Con.  Trac.  Co.,  244  111.  244. 

Chiirch  Doctrine: 

Non-expert   may   testify   upon   question   whether   preacher   has 
departed  from  faith  of  the  church. 
Happy  vs.  Morton,  33  111.  398. 

Condition  of  Merchandise: 

A  witness  may  state  that  the  condition  of  vegetables  delayed  in 
shipment  was  bad.  Such  statement  is  not  a  conclusion,  but  a  state- 
ment of  fact. 

I.  C.  E.  E.  Co.  vs.  Foulks,  191  111.  57. 

Opinion  to  show  proof  of  condition  of  freight  when  received 

by  carrier  is  competent. 

Mich.  Cent.  Ey.  Co.  vs.  Harville,  136  App.  243. 

Conduct,  Demeanor  and  Character : 

Opinion  of  witness  as  to  appearance  of  defendant  in  a  mali- 
cious prosecution  case,  while  testifying  in  former  action,  that  he 

was  vindictive,  is  incompetent. 

Ammon  vs.  Snyder,  69   111.   376. 
Opinion  of  witness  as  to  character  of  girl,  in  action  for  seduc- 
tion, is  inadmissible. 

White  vs.  Murtland,  71  111.  250. 
Witness  should  not  be  permitted  to  state  that  he  thinks  defend- 
ant's treatment  of  another  was  indecent,  brutal  and  unbecoming. 
Kendall  vs.  Limberg,  69  111.  355;  Beasley  vs.  People,  89  111.  371. 


522  EXPERT  AND  OPINION 

Damages : 

—  Replevin:  In  replevin,  testimony  may  sometimes  properly 
include  both  matters  of  fact  and  opinion  npon  question  of  dam- 
ages. 

Butler  vs.  Mehrling,  15  111.  488. 

—  Breach  of  Contract:  Expert  is  incompetent  to  express  opin- 
ion as  to  amount  of  damages  occasioned  by  breach  of  contract. 

Linn  vs.  Sigsbee,  67  111.  75. 

—  Eminent  Domain:  In  condemnation,  witnesses  may  give  opin- 
ions as  to  benefits  and  damages. 

C.  &  N.  W.  Ey.  Co.  vs.  Cicero,  154  111.  656;  Hayes  vs.  O.  O.  &  K. 
V.  E.  Co.,  54  111.  373;  C.  P.  &  St.  L.  E.  Co.  vs.  Nix,  137  111.  141. 

And  as  to  amount  of  damage  to  owner  of  land  from  construc- 
tion of  railroad. 

K.  &  E.  E.  Co.  vs.  Henry,  79  111.  290;  G.  &  I.  W.  E.  E.  Co.  vs.  Has- 
1am,  73  111.  494;  C.  &  St.  L.  Ey.  Co.  vs.  Woosley,  85  111.  370. 

Opinions  of  witnesses  in  condemnation  as  to  damages  to  lease- 
hold and  to  land  not  taken  are  competent. 

P.  B.  &  C.  Trac.  Co.  vs.  Vance,  234  111.  36. 

—  Local  Improvement :  Opinion  evidence  is  competent  on  ques- 
tion of  damages  by  proposed  improvement. 

Lovel  vs.  Drain.  Dist.,  159  111.  188. 

One  who  has  examined  premises  may  give  opinion  as  to  damage 

done. 

Ottawa  G.  L.  Co.  vs.  Graham,  35  111.  346. 

Any  person  who  has  knowledge  of  effect  of  construction  of  pub- 
lic improvement  on  the  value  of  the  property,  is  competent  to  give 

opinion  as  to  same. 

Pike  vs.  City  of  Chicago,  155  111.  656 ;  Peyton  vs.  Morgan  Park,  172 
111.  102;  I.  C.  E.  E^  Co.  vs.  Chicago,  169  111.  329;  Fox  vs.  C.  & 
S.  S.  E.  Co.,  68  App.  417.      . 

Danger: 

Opinions  as  to  danger  from  proximity  of  mail  catcher  to  track 
are  competent  but  not  conclusive. 

C.  B.  &  Q.  Ey.  Co.  vs.  Gregory,  58  111.  272. 
If  the  circumstances  surrounding  the  doing  of  work  are  beyond 
the   experience   of  an   ordinary  jury,   it   is   competent   to   inquire 
of  one  experienced  in  such  work  whether  it  was  dangerous  for 
an  inexperienced  man  to  do  such  work. 

Wardowsky  vs.  111.  Steel  Co.,  160  App.  390. 

Due  Care : 

As  to  due  care  of  deceased,  opinions  of  people  engaged  in  same 
business  are  incompetent. 

Hopkinson  vs.  Ind.  &  St.  L.  E.  Co.,  78  111.  32;  City  of  Springfield  vs. 
Coe,  166  111.  22. 

Or  as  to  what  deceased  might  or  could  have  observed. 
C.  M.  &  St.  L.  Ey.  Co.  vs.  O  'Sullivan,  143  111.  48. 

Opinions  are  incompetent  as  to  what  was  reasonable  care. 

Ashley  Wire  Co.  vs.  Mercier,  61  App.  485. 
A  witness  cannot  give  his  opinion  as  to  whether  a  party  was 
going  along  carefully  or  not. 

Litchfield  vs.  Anglin,   83   App.  55. 

Duties  of  Servant: 

Witness  need  not  be  an  expert  to  testify  as  to  what  his  duties 


EXPERT  AND  OPINION  523 

were  and  in  what  his  labor  consisted.  Though  inexperienced,  such 
fact  goes  only  to  the  weight  of  his  testimony  and  not  his  compet- 
ency. 

Leighton  Steel  Co.  vs.  Snell,  217  111.  152, 

Explosions : 

See  Explosives. 
Finger  Prints: 

Finger  print  evidence  is  admissi])le  with  other  evidence  as  a 
means  of  identification.  Persons  experienced  in  the  matter  of 
finger-print  identification  may  give  their  opinions  as  to  whether 
finger  prints  found  at  the  scene  of  the  crime  correspond  with 
those  of  the  accused,  basing  their  conclusions  upon  comparison  of 
photographs  of  such  prints  with  impressions  made  by  the  accused. 
People  vs.  Jennings,  252  111.  534. 

Fraud: 

Opinions  or  conclusions  of  witnesses  that  misrepresentations 
were  made  are  incompetent. 

German   Ins.   Co.   vs.   Greiner,    112   111.   68. 

Genuineness  of  Bank  Note : 

Opinion  of  banker  as  to  genuineness  of  bank  note  is  admissible. 
Keating  vs.  People,  160  111.  480. 

Handwriting: 

See  Handwriting. 
Health  and  Physical  Condition: 

Witnesses  who  are  not  experts  may  express  their  opinions  as 
to  the  physical  conditions  of  persons  whom  they  have  observed, — 
that  is,  they  may  state  whether,  in  their  opinion,  such  persons  are 
in  good  health,  have  the  ability  to  perform  work,  whether  they  are 
suffering  pain,  are  conscious  or  unconscious,  in  possession  of  their 
mental  faculties.  Nor  will  the  party  whose  condition  is  subject 
of  inquiry,  be  presumed  to  feign  disease,  pain  or  distress,  under 
the  condition  in  which  he  is  ordinarily  observed  by  strangers  or 

his  friends  and  neighbors. 

Lauth  vs.  Chi.  U.   Trac.  Co.,  244  111.  244;   City  of  Chicago  vs.   Mc- 
Nally,   227   111.   14. 
Non-expert  may  state  that  plaintiff  was  sick  or  in  a  nervous  con- 
dition.' 

Chi.  City  Ey.  Co.  vs.  Bimdy,  210  111.  39. 
"Witnesses  may  testify  as  to  whether  a  person  appeared  sick  or 
well,  and  may  compare  appearances  at  different  times,  and  state 
whether  assistance  was  necessary  under  certain  conditions. 
Salem  vs.  Webster,  192   111.  369. 
Relatives,   neighbors   and   acquaintances  are   competent  to   tes- 
tify as  to  physical  condition. 

Chi.  City  Ey.  Co.  vs.  VanVleck,  143  111.  480;  Gallagher  vs.  People, 
120  111.  179. 
The  fact  of  sickness  may  be  proven  by  any  one  who  knows  it, 

whether  a  physician  or  not. 

Shawneetown  vs.  Mason,  82  111.  337. 
A  non-expert  is  competent  to  give  opinion  as  to  state  of  health, 

hearing  or  eye-sight  of  another. 

Berner  vs.  Brotherhood,  154  App.  27;  Chicago  vs.  McNally,  227  111. 
14;  I.  C.  E.  E.  Co.  vs.  Prickett,  210  111.  140;  XII  111.  Notes  522, 
§368. 


524  EXPERT  AND  OPINION 

A  person  need  not  be  an  expert  in  matters  relating  to  human 
anatomy  in  order  to  testify  to  person's  state  of  healtli. 
L.  E.  &  W.  R.  Co.  vs.  DeLong,  109  App.  241. 
A  non-expert  may  testify  as  to  appearance  of  a  person  in  ref- 
erence to  pain  and  suffering.  ■i^olaxlK 
Cicero  St.  Ry.  Co.  vs.  Priest,  190  111.  592.  ,    ,  /^ 
A  person  not  a  physician  may  testify  as  to  necessity  of  medical 

aid. 

C.  B.  &  Q.  Ry.  Co.  vs.  George,  19  111.  510. 
Opinion  as  to  whether  the  removal  of  clothes  from  a  thirteen 
year  old  girl,  for  examination  by  strange  physicians,  would  tend 
to  produce  nervousness  is  incompetent. 

Casey  vs.  Chi.  City  Ry.  Co.,  237  111.  140. 

Highways : 

Opinions  of  highway  commissioners  as  to  existence  of  highway 

are  inadmissible. 

Road  Dist.  vs.  Beebe,  231  111.  147;  Drain.  Dist.  vs.  Comrs.  of  Highways. 
199  111.  132. 

Historical  Facts: 

Opinions  of  witnesses  not  admissible  as  evidence  of  historical 

facts. 

Happy  vs.  Morton,  33  111.  398. 

Identity: 

See  Identity, 
Insurance: 

In  action   on   insurance   policy,    opinion   is   incompetent   as   to 
whether  fire  could  have  been  extinguished  with  appliances  at  hand. 
Phoenix  Ins.  Co.  vs.  Mills,  89  App.  58. 

Opinions  of  experts  as  to  increase  of  insurance  risk  are  com- 
petent where  same  calls  for  a  degree  of  knowledge  not  likely  to  be 
possessed  by  an  ordinary  jury. 

Trader's  Ins.  Co.  vs.  Catlin,  163  111.  256. 

Unless  they  have   special  knowledge,   insurance   agents   cannot 

testify  as  to  increase  of  risk. 

Schmidt  vs.  Peoria  Ins,  Co.,  41  111.  295, 

Intelligence  of  Child: 

Witnesses  acciuainted  with  the  facts  may  give  opinions  as  to 

whether  a  child  who  had  been  injured  had  grown  in  intelligence 

W'ith  his  vears. 

Chi.  U.  Trac.  Co.  vs.  Scanlon,  136  App.  212. 

Intention : 

Witness  cannot  give  opinion  or  testify  to  another's  intention. 

Walker  vs.  People,  133  111.  110;  Cihak  vs.  Klekr,  117  111.  643;   Odin 
Coal  Co.  vs.  Denman,  84  App.  190. 
But  one  may  testify  that  he  knew  where  another  was  going. 

N.  Y.  C.  R.  Co.  vs.  Luebek,  157  111.  595. 
An  agent  cannot  testify  as  to  intention  of  owner  in  making  sub- 
division of  land. 

Cihak  vs.  Klekr,   117  111.   643. 

Intoxication : 

See  Intoxication. 
Larceny : 

Opinion  evidence  upon  the  question  of  larceny  is  inadmissible. 
Sahlinger  vs.  People,  102  111.  241. 

Law: 

See  liEGAL  Conclusions,  Foreign  Law. 


EXPERT  AND  OPINION  525 

Libel  and  Slander: 

Testimony  by  hearers  of  defamatory  utterances,  as  to  the  sense 
in  which  they  understood  the  words  is  competent. 

Ball  vs.  Even.  Anier.  Co.,  237  111.  592;   Nelson  vs.  Borchenius,  52  111. 
236;  Merrill  vs.  Marshall,  113  App.  447.  f,.,^ 

And  this  rule  applies  to  statement  of  witness  to  the  fact  that 
he  understood  alleged  slanderous  words  were  spoken  with  refer- 
ence to  plaintiff,  where  plaintiff's  iname  was  not  used. 

Dexter  vs.  Harrison,  146  111.  169;   Seott  vs.  Snyder,  116  App.  393.,, j 

Malpractice : 

Expert  may  express  opinion,  in  malpractice  suit,  that  treat- 
ment plaintiff  received  was  proper,  but  not  that  defendant  was 

guilty  of  malpractice. 

Hoener  vs.  Koch,  84  111.  408. 

In  prosecution  for  malpractice  of  dentistry,   a  duly  qualified 
expert  may  testify  as  to  whether  or  not  bridge  work  done  was  a 
suitable  appliance  to  be  applied  to  plaintiff's  mouth  for  purpose 
of  supplying  false  teeth,  attached  thereto. 
Prout  vs.  Martin,  160  App.  11. 

And  as  to  whether  filing  and  grinding  of  plaintiff's  teeth  was 
proper. 

Prout  vs.  Martin,  160  App.  11. 

And  as  to  practicability  of  supplying  any  bridge  work  which 
would  support  false  teeth  for  the  barren  spaces  in  plaintiff's  mouth. 
Prout  vs.  Martin,  160  App.  11. 

Mechanics,  Machinery  and  Building-  Trades: 

That  a  wagon  wheel  M'ould  bind  if  the  boxing  was  too  long,  or 

if  the  wood  of  the  hub  projected  over  the  boxing  so  as  to   rul) 

against  the  nut,  or  if  the  spindle  was  too  big  for  the  boxing,  and 

that  friction  would  heat  metal  and  cause  it  to  expand,  are  matters 

of  common  knowledge  which  are   not   proper  subject   of   expert 

evidence. 

Hoffman  vs.  Tosetti  Brew.  Co.,  257  HI.  185. 

Testimony  of  witness,  skilled  by  long  experience  in  blasting 
rock,  that  method  could  have  been  adopted  whereby  an  inspection 
of  broken  rock,  after  a  blast,  would  have  revealed  existence  of  any 
charge  of  dynamite  which  had  missed  fire,  is  proper. 
Stephen  vs.  Duffy,  237  HI.  549. 
Persons  experienced  in  excavating  and  protecting  against  cav- 
ing in  may  be  experts. 

Degnhart  vs.  Gent,  97  App.  145. 

Opinion  is  competent  to  show  effect  of  constant  wear  on  hard 

wood  surface  is  to  render  it  smooth. 

Acme  Harvester  Co.  vs.  Chittick,  230  HI.  558. 

But  not  as  to  consequences  of  use  of  shovel  upon  floor. 
Riley  vs.  Amer.  Wiring  Co.,  129  App.  123. 

Expert  opinion  is  competent  as  to  construction  of  elevator. 

Shaughnessy  vs.  Holt,   236   111.   485;    Slack   vs.   Harris,   200   111.   9(3; 
Union  Show  Case  Co.  vs.  Blindauer,  175  111.  325. 
But  evidence  as  to  customary  method  of  constructing  elevator 
is  not  competent  to  determine  whether  defendant  was  negligent 
in  maintaining  elevator  shaft  in  particular  manner. 

Siegel  Cooper  Co.  vs.  Treka,  218  111.  559;  Biedler  vs.  Bradshaw,  200 
111.    425. 


526  EXPERT  AND  OPINION 

Opinion  that  manner  in  which  floor  of  ice  chamber  was  being 
raised  was  unsafe  and  negligent  is  competent. 

Williams  vs.  Morris,  237  111.  254. 

Opinion  is  incompetent  as  to  effect  of  railing,  several  feet  high, 
on  the  running  of  machinery. 

McCormiek  Mach.  Co.  vs.  Buraudt,  136  111.   170. 
A  carpenter  duly  qualified  as  to  his  acquaintance  with  materials 
and  building  is  competent  to  testify  what  it  was  reasonably  worth 
to  put  certain  lumber  into  a  building. 
Hough  vs.  Cook,  69  111.  581. 
Civil  engineers  are  competent  to  testify  as  to  meaning  of  tech- 
nical engineering  terms. 

Reed  vs.   Hobbs,  3   111.  297. 

Expert  testimony  as  to  what  constitutes  full  equipment  of  a 
machine  is  proper. 

Morris  vs.  O 'Gara  Coal  Co.,  181  App.  309. 
Machinist  duly  qualilied,  may  testify  as  to  why  an  emery  stone 
burst. 

Camp  Point  Mfg.  Co.  vs.  Ballou,  71  111.  417. 
Whether  chain  was  reasonably  safe  not  proper  subject  of  expert 
testimony,  where  ultimate  fact  in  case. 

Pagan  vs.  City  of  Highland,  152  App.  607. 
Persons  experienced  in  running  of  working  machine  known  as 
scraper  are  competent  to  express  opinion  as  to  whether  a  hard 
wood  floor  in  front  of  a  machine  becomes  slippery  by  use  and  a 
soft  wood  floor  does  not. 

Weber  Wagon  Co.  vs.  Kehl,   139  111.  651. 
Experts  may  testify  that  the  bearing  down  weight  on  a  fulcrum, 
where  a  plank  is  used  as  a  pry,  is  so  many  pounds. 
Devin  vs.  Mathis  Brothers  Co.,  160  App.  122. 
Opinion  as  to  proper  method  of  doing  work  and  as  to  tools  and 
appliances  necessary,  where  it  could  not  have  been  readily  made 
intelligible  to  the  jury,  is  competent. 
Williams  vs.  Morris,  237  111.  254. 
Opinion  as  to  whether  construction  of  cement  house  was  reason- 
ably safe  for  storing  quantities  of  cement  is  proper. 
Savage  vs.  Hayes  Bros.,  142  App.  316. 

Opinion  as  to  proper  construction  of  sewer,  by  one  engaged  in 
such  work  for  a  long  term  of  years,  is  competent. 
City  of  Chicago  vs.   Sieben,    165  111.  371. 
Opinion  is  competent  as  to  effect  of  automatic  stop. 

Shaughnessy  vs.  Holt,  140  App.  572. 
On  question  whether  or  not  a  belt  had  been  negligently  repaired, 
expert  testimony  by  those  who  have  duly  qualified  from  experience 
shown  is  competent  as  to  proper  method  of  repairing  belt. 
Lee  vs.  R.  I.  &  S.  Co.,  148  App.  583. 

Opinion  is  competent  as  to  danger  of  operating  machinery  by  a 

twisted  belt. 

Gundlack  vs.  Sehott,  192  111.  509.  -/    /.• 

Opinion  as  to  cause  of  crookedness  of  belt  and  whether  same  was 
a  defect,  is  competent. 

Jewel  Co.  vs.  Hamilton  Co.,  121  App.  13. 
And  as  to  effect  which  certain  changes  and  alterations  would 
have  upon  operation  of  machinery. 
Slack  vs.  Harris,  200  111.  96. 


EXPERT  AND  OPINION  527 

Where  defendant  offered  evidence  by  experts  as  to  making  con- 
crete slabs,  it  is  proper  to  allow  testimony  of  experts  in  rebuttal. 
Grace  Co.  vs.  Larsen,  227  111.   101. 
Persons  having  experience  in  contracting  and  building  are  com- 
petent to  give  opinioiis  in  reference  to  custom  and  usage  existing 
in  building  trade,  that  employment  of  architect  to  prepare  plans 
carries  with   it  his  employment   to  superintend  the  construction. 
Wilson  vs.  Baviman,  80  111.  493. 

A  witness  may  testify  as  to  the  probable  effect  of  wind  upon  a 
certain  gate. 

C.  &  A.  Ey.  Co.  vs.  Truitt,  68  App.  76. 
Expert  opinion  as  to  condition  of  bridge  at  time  of  accident  and 
whether  such  condition  was  cause  of  accident  is  incompetent  where 
condition  of  bridge  is  shown. 

T.  P.  &  W.  Ry.  Co.  vs.  Conroy,  68  111.  560. 

Opinion  as  to  whether  or  not  certain  boards  placed  by  defendant 
upon  its  messenger  wires  would,  in  the  condition  in  which  the 
witness  had  observed  them,  afford  any  protection  to  the  electric 
light  wires  at  point  in  question,  is  competent. 
Byer  vs.  Peoria  Trac.  Co.,  156  App.  47. 

An  expert  may  testify  to  the  effect  that  when  metal  is  properly 
welded,  it  is  so  completely  fused  together  as  to  leave  no  separation 
and  may  give  his  opinion  from  the  appearance  of  a  broken  chisel 
that  the  break  was  caused  bv  improper  forging. 

Pfeifer  vs.  East.  Met.  Works,  258  111.  427. 

Evidence  of  engineer  as  to  capacitv  of  culvert  is  admissible. 
C.  &  A.  R.  Co.  vs.  Calkins,  17  App".  55. 

Mines  and  Mining: 

—  Construction:  An  expert  miner  is  competent  to  give  opinion 
as  to  number  of  props  that  should  be  used  to  prevent  the  falling  of 
slate. 

Donk  Bros.  Coal  Co.  vs.  Stroff,  200  111.  483. 

Whether  certain  conditions  as  to  road-bed  of  mine  render  it  safe 
or  otherwise  is  subject  upon  which  it  is  proper  to  take  the  opin- 
ions of  expert  miners. 

Henrietta  Coal  Co.  vs.  Campbell,  211  111.  216. 

Expert  may  testify  that  there  is  no  method  by  which  the  dan- 
ger from  falling  stones  in  a  mine  can  be  obviated. 
Acme  Coal  Co.  vs.  Kusnir,  71  App.  448. 

A  mining  expert  is  competent  as  to  whether  cracks  in  roof  of 

entry  necessarily  indicate  dangerous  conditions"  of  roof. 
McCarthy  vs.  S.  V,  Coal  Co.,  232  111.  473. 

Expert  competent  on  question  of  proper  placing  of  timbers  and 
safe  condition  of  entry. 

Jacobs  vs.  Madison  Coal  Co.,  165  App.  444. 

Principal  doorway  of  mine  is  not  question  for  opinion. 

Korkonski  vs.  LaSalle  Coal  Co.,  248  111.  195;    Madison  Coal  Co.  vs. 
Hayes,  215  111.  625. 

Opinion  is  proper  as  to  probable  cost  of  restoring  a  mine  to 

its  condition  prior  to  being  flooded. 

Carter  vs.  C.  V.  Coal  Co.,  240  111.  152. 

Experts  in  mine  construction  may  give  opinions  that  ice  would 

accumulate  in  air  shafts. 

Bonato  vs.  Peabody  Coal  Co.,  148  111.  422. 


528  EXPERT  AND  OPINION 

Experienced  miner  may  give  opinion  as  to  whether  bent  and 
broken  timbers  should  be  used  to  prop  roof. 
Kellyville  Coal  Co.  vs.  Strine,  217  111.  51fi. 

—  Safety  of  Rooms:  Whether  a  room  in  a  mine  is  a  dangerous 
place  is  not  subject  of  expert  testimony. 

Hart  vs.  Peniwell  Coal  Co.,  146  App.  155. 

Conclusions  of  expert  witness  as  to  whether  particular  place  of 

work  is  dangerous  are  incompetent. 

Kolp  vs.  Decatur  Ry.  &  Light  Co.  145  App.  645 ;  Wullner  vs.  Smith  Co., 
145  App.  486;  Hart  vs.  Peniwell  Co.,  146  App.  155;  Contra  Hamil- 
ton vs.  Spring  Valley  Coal  Co.,  149  App.  10. 

—  Competency  of  Employe:  The  general  character  of  com- 
petency of  mule  driver  is  not  subject  for  expert  opinion. 

Lamb  vs.  Karens  Coal  Co.,  140  App.  195. 

Noise,  Odors  and  Smells : 

To  prove  that  a  heavy  load  driven  over  a  paved  street  at  a  rapid 
gait  would  make  a  loud  noise,  opinion  is  incompetent. 
;uij:»'.       Star  Brew.  Co.  vs.  Honck,  126  App.  608. 

"Where  on  issue  as  to  whether  or  not  illness  was  caused  by  sewer 
gas,  evidence  is  given  describing  symptoms  of  illness  of  certain 
parties  claimed  to  be  affected  thereby,  the  testimony  of  an  expert 
physician  as  to  effect  of  sewer  gas  on  the  human  system,  should  not 
be  excluded. 

Sloss  vs.  Brockman,  171  App.  465. 
Non-expert  may   testify   as   to  possible  effect  upon   breathing 
noxious  odors  from  drain. 

Fox  vs.  City  of  Joliet,  150  App.  491. 
Non-expert  may  testify  as  to  smell  of  liquors. 
Marshall  vs.  Laughran,  47  App.  29. 

Observation  and  Exercise  of  Senses  by  Witnesses: 

Question  to  witness  as  to  whether  certain  parties  could  have 
been  gone  from  home  a  certain  length  of  time  without  her  know- 
ing it,  is  improper,  the  answer  being  a  mere  matter  of  opinion. 
Sahlinger  vs.   People,   102  111.   241. 
Where  witness  testified  that  he  did  not  notice  a  certain  thing, 
inadmissible  to  ask  wdiether,  in  his  opinion,  he  would  have  noticed 

it  had  certain  conditions  existed. 
Caffin  vs.  Lang,  67  App.  359. 
A  witness  may  testify  that  if  there  had  been  any  such  conver- 
sation as  had  been  detailed  by  another  witness,  he  would  have 

heard  it. 

Mayuard  vs.  People,  135  III.  416. 

But  question  as  to  whether  another  could  have  heard  noise  of 
train  or  seen  engine  approaching  is  improper. 

C.  M.  &  S.  V.  Ey.  Co.  vs.  O  'Sullivan,  143  111.  48. 
Whether  witness  could  see  place  of  accident  as  well  as  engineer 
is  not  proper  subject  for  expert  evidence. 

C.  R.  I.  &  P.  Ey.  Co.  vs.  Stechman,  224  111.  500. 
Question   which  inquires  of  a  witness  concerning  the   distance 
he  could,  at  time  of  accident,  see  objects  of  size  and  color  of  a 
wagon,  calls  for  evidence  of  facts  and  not  opinions. 
Chi.  City  Ry.  Co.  vs.  Eohe,  118  App.  322. 


EXPERT  AND  OPINION  529 

Opinion  as  to  whether  it  was  physically  impossible,  in  the  night 
time,  for  a  motorman  on  front  of  closed  car,  to  see  any  one  get-, 
ting  off  rear  platform  of  car  is  incompetent. 
Chi.  City  Ey.  Co.  vs.  Lowitz,  218  111.  24. 
Question   as  to   whether  a  man   of  ordinary   intelligence   could 
have  stepped  over  an  object  without  knowing  it  was  there,  is  inad- 
missible. 

Amer.  Express  Co.  vs.  Risley,  77  App.  476. 

Pain  and  Suffering : 

Appearance  of  another  as  to  pain  and  suffering  may  be  stated 
by  non-expert. 

C.  P.  &  St.  Ey.  Co.  vs.  Priest,  190  111.  592;  Gardner  vs.  Paulson, 
177  App.  17;   Girard  Coal  Co.  vs.  Wiggins,  52  App.  69. 

Paternity: 

Opinions  are  incompetent  to  prove  paternity  of  child. 
Metheny  vs.  Bohn,  160  111.  263. 

Railroads : 

An  eye  witness  may  testify  as  to  speed  of  train  and  if  it  was 
under  control. 

Eckels  vs.  Mntehall,  230  111.  462 ;  C.  B.  &  Q.  Ey.  Co.  vs.  Johnson,  103 
111.  512;  Chi.  City  Ev.  Co.  vs.  Bundy,  109  App.  637;  Mnrphy  vs. 
E.  Elec.  Ey.  Co.,  23-5  III.  275;  Chi.  U.  Trae.  Co.  vs.  Scanlon,  136 
App.  212;  Chi.  City  Ey.  Co.  vs.  McDonough,  125  App.  223;  XII 
111.  Notes  523,  §  374. 

Opinion  as  to  whether  train  could  be  operated  with  safety  at 
a  certain  point  is  incompetent. 

C.  &  W.  I.  E.  E.  Co.  vs.  Newell,  212  111.  332.  ''^ 

Expert  testimony  is  admissible  to  show  that  the  degree  of  vio- 
lence or  suddenness  Avith  which  a  train  is  stopped,  when  a  hose 
bursts,  depends  upon  the  amount  of  air  in  the  train. 

Gory  vs.  I.  C.  E.  E.  Co.,  153  App.  17.  ''^ 

A  question  as  to  whether  a  rail  was  displaced  by  a  third  per- 
son or  not  is  inadmissible. 

Eoberts  vs.  C.  &  G.  T.  Co.,  78  App.  526. 
Whether  method  of  raising  box  cars  was  reasonably  safe  is  not 
subject  of  opinion  evidence. 

Yarber  vs.  C.  &  A.  Ey.  Co.,  235  111.  593.  ur 

Opinion  evidence  as  to  probable  effect  of  taking  out  all  the  stakes 

from  one  side  of  a  ear  loaded  with  lumber,  being  a  matter  of  the 

operation  of  natural  laws,  within  the  observation  of  everybody,  is 

not  a  matter  for  expert  testimony. 

Hughes  vs.  Eiehter,  161  111.  "409. 

Expert  evidence  is  admissible  to  show  that  if  a  locomotive  was 
in  good  order,  and  if  left  as  stated,  it  Avould  not  have  started 
without  intervention  of  human  agencv. 
Berkowitz  vs.  C.  T.  Ey.  Co.,  234  111.  450. 
Witness  may  testify  concerning  effect  of  application  of  brakes 
to  a  car,  and  effect  of  reversal  of  power  and  proper  manner  of 
operating  car  approaching  a   curve. 

McGrew  vs.  Met.  Elec.  Ey.  Co.,  142  App.  210. 
Opinion  of  witness  is  incompetent  as  to  safe  distance  to  retire 
from  track  of  passing  train.  ^ 

C.  &  N.  W.  Ey.  Co.  vs.  Moranda,  108  111.  576. 
Expert  cannot  be  asked  whether  the  time  during  which  a  rail- 


530  EXPERT  AND  OPINION 

road  train  stopped  was  sufficient  to  enable  the  passengers  to  get 

off. 

Hellyer  vs.  People,  186  111.  550. 
An  expert  cainiot  be  asked  as  to  whether  it  was  prudent  to  blow 
a  whistle  at  a  particular  time. 

Hellyer  vs.  People,  186  111.  550. 
As  to  reasonable  running  time  of  railroad  train  as  i)etweeu  cer- 
tain designated  points,  opinion  should  not  be  received. 
C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  McNutt,  138  App.  66. 
Expert  evidence  inadmissible  as  to  whether  it  was  necessary  for 
switchman  to  stand  in  a  particular  place. 
Penn.  Co.  vs.  CJonnelly,  101  111.  93. 
Opinion   as  to  whether  certain  train   was  a  regular  passenger 
train  within  meaning  of  statute  is  incompetent. 
I.  C.  E.  R.  Co.  vs.  People,  143  111.  434. 
And  the  question  whether  a  particular  train  is  an  "accommoda- 
tion train,"  within  meaning  of  a  right  of  way  conveyance  may 
as  well  be  determined  bv  other  people  as  by  railroad  experts. 
Gray  vs.  M.  &  St.  P.  Ry.  Co.,  189  111.  400. 
Opinion  upon  question  of  reasonable  time  for  transportation  is 

incompetent. 

Sincebaugli  vs.  C.  &  St.  L.  Ey.  Co.,  149  App.  430. 

In  suit  to  assess  damages  for  right  of  way  of  one  railroad  through 
the  right  of  way  of  another,  question  as  follows  held   improper: 
"Whose  duty  would  it  be  to  keep  the  crossing  and  bridge  in  re- 
pair, after  the  work  you  have  described  is  put  in?" 
C.  &  A.  Ey.  Co.  vs.  S.  &  N.  W.  Ry.  Co.,  67  111.  142. 

Rape : 

A  medical  witness  should  not  be  allowed  to  testify  from  an  exam- 
ination of  prosecutrix  that  in  his  opinion  a  rape  was  committed. 

People  vs.  Sehultz,  260  111.  35. 

Sanity  and  Insanity: 

A  medical  witness  who  has  heard  all  the  evidence  bearing  on 

question  of  sanity  of  a  person  may  be  asked  whether  or  not,  upon 

that  evidence,  he  is  of  the  opinion  such  person  was  of  sound  or 

unsound  mind. 

Schneider  vs.  Manning,  121  111.  376. 

A  medical  expert  may  give  his  opinion,  in  answer  to  an  hypo- 
thetical question,  that  the  person  described  is  sane  or  insane. 
Garrus  vs.  Davis,  234  111.  326. 
Non-expert  witnesses  who  have  had   opportunity   to   observe   a 
person  may  give  opinions  as  to  his  mental  condition  or  capacity. 
Mayfield  vs.  French,  246  111.  435;  Ring  vs.  Lawless,  190  111.  520;  Craig 
vs.  Southard,  148  111.  37 ;  Austin  vs.  Austin,  260  111.  299. 

Rule  is  same  in  criminal  cases. 

Jamieson  vs.  People,  145  111.  357. 
Whether  a  non-expert  witness  has  sufficient  knowledge  of  another 
to  express  an  opinion  on  subject  of  his  mental  condition  is  to  be 

determined  by  court. 

Martin  vs.  Beatty,  254  111.  615;  Graham  vs.  Deuterman,  244  111.  124. 

Sidewalks : 

Opinion  is  incompetent  as  to  increased  difficulty  in  passing  over 

thin  coating  of  ice  on  sidewalk. 

City  of  Rockford  vs.  Hildebrand,  61  111.  155. 


EXPERT  AND  OPINION  531 

A  witness  may  express  an  opinion  as  to  whether  sidewalk  was 
properly  constructed. 

Alexander  vs.  Mt.  Sterling,  71  111.  366. 
Opinion  evidence  is  incompetent  as  to  whether  a  glass  placed 
in  sidewalk  to  afford  light  to  area  below  is  of  too  great  a  smooth- 
ness or  slipperiness  to  be  safe. 

City  of  Chicago  vs.  McGiven,  78  111.  347. 
Whether   a   pine   plank   of   the   character   described   would   be 
likely  to  spring  fourteen  inches  is  not  a  subject  of  opinion  evidence. 
Bunker  Hill  vs.  Pearson,  46  App.  47. 

Opinion  is  incompetent  as  to  comparative  safety  of  two  differ- 
ent kinds  of  walk. 

City  of  Aurora  vs.  Brown,  12  App.  122. 
As  to  whether  person  was  walking  along  carefully  or  not  is  not 
subject  for  opinion. 

Litchfield  vs.  Anglin,  83  App.  55. 
A  non-expert  witness  is  incompetent  as  to  safety  of  sidewalk 
across  a  ditch. 

Fairbury  vs.  Eogers,  98  111.  554. 

Opinion  is  incompetent  as  to  whether  side  filling  is  part  of 
sidewalk. 

People  vs.  Klehm,  238  111.  89. 

Question,  "How  could  it  be  possible  to  discover  a  defect  in  that 
plank  previous  to  the  accident?"  is  improper  as  calling  for  con- 
clusion. 

Village  vs.  Greene,  112  App.  439.     (See  Sidewalks.) 

Space  and  Distance: 

Opinion  as  to  distance  witness  could  see  is  competent,  al- 
though no  tests  were  made. 

Chi.  City  Ky.  Co.  vs.  Hagenbach,  228  111.  290. 

A  witness  may  testify  as  to  distance  between  objects  or  the  dis- 
tance from  which  a  given  object  could  be  seen  without  having 
actually  measured  or  made  an  estimate  of  it  with  his  eye.  Such 
is  not  expert  testimony. 

I.  C.  E.  R.  Co.  vs.  Swisher,  53  App.  411;  C.  C.  C.  &  St.  L.  Co.  vs. 
Maas,  89  App.  1;  C.  &  A.  Ry.  Co.  vs.  Bock,  17  App.  17. 

Witness  may  testify  as  to  whether  a  train  could  be  seen  from 
a  given  point. 

C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Moss,  89  App.  1. 

Witnesses  familiar  with  the  place  at  time  of  accident  may  state 
how  far  the  track  coidd  be  seen  by  one  standing  where  plaintiff 
stood,  under  like  conditions  existing  at  time  of  accident. 
C.  &  E.  I.  R.  R.  Co.  vs.  Crose,  214  111.  602. 

Witnesses  who  were  present  at  time  of  collision,  and  who  have 
testified  as  to  darkness  of  night  and  condition  of  weather,  and  dis- 
tance at  which  they  saw  the  car  and  wagon,  are  competent  to 
express  opinion  as  to  how  far  they  could  see  at  the  time,  though  no 
tests  were  made. 

Chi.  City  Ry.  Co,  vs.  Hagenbach,  228  111.  290. 

Street  Railways: 

Expert  may  testify  as  to  distance  within  which  a  street  ear  could 
be  stopped. 

Chi.  St.  Ry.  Co.  vs.  McLaughlin,  146  111.  353. 
A  witness  experienced  in  running  cars  may  give  opinions  as 


532  EXPERT  AND  OPINION 

to  time  in  which  a  motorman  may  reasonably  be  expected  to  stop 

a  car. 

Eckels  vs.  Donahue,  137  App.  106.  See  Speed. 

Temperature : 

A  witness  may  testify  that  a  house  was  cold.     It  is  not  neces- 
sary that  degree  be  shown  by  thermometer. 
Uahins  vs.  Mooie,  110  App.  223. 

Testamentary  Capacity : 

See  Wills. 
Title : 

Opinions  of  witnesses  are  incompetent  to  prove  a  person  is  not 
a  land  owner. 

Osborue   vs.   People,    103  111.   224. 
But  a  witness  may  express  an  opinion  as  to  who  was  in  pos- 
session or  control  of  premises. 

Knight  vs.  Knight,  178  111.  553. 
That  title  is  defective  cannot  be  proven  by  opinions  of  title 
examiners. 

Evans  vs.   Gary,   174  111.   595. 
Title  cannot  be  proven  by  opinions  of  lawyers. 

Leahy  vs.  Hair,  33  App    461;  Mead  vs.  Altgelt,  33  App.  373. 

Opinions  are  incompetent  lo  prove  title  or  want  of  it. 

Osborne  vs.  Lewis,  103  111.  224. 

Undue  Influence: 

See  Wills. 

Unlawfulness  of  Business: 

Incompetent  for  witness  to  express  opinion  as  to. 
Kelly  vs.  Williams,  162  App.  571. 

Value : 

Expert  may  give  opinion  as  to  value. 

Harnies  vs.   Harmes,   10  App.  543. 
A  witness,  to  testify  as  to  value,  must  show  knowledge. 

C.  &  N.  W.  Ey.  Co.  vs.  Ingersoll,  65  111.  399;  Cooper  vs.  Randall,  59  111. 
317. 
Extent   of  knowledge  of  subject  of  inquiry   affects   weight  of 
testimony. 

Franklin   vs.  Krum,   171  111.  378. 

The  value  of  articles  in  universal  use  need  not  be  proven  by  an 

expert. 

Hay  vs.  Hawkins,  120  App.  483;  O.  &  M.  Ey.  Co.  vs.  Arvin,  27  111.  178. 

"f'ifOpinion  of  witnesses  to  value  forms  an  exception  to  the  general 
rule  that  facts  alone  are  admissi])le. 

O.  &  M.  Ey,  Co.  vs.  Long,  52  App.  670. 

Opinion  as  to  the  value  of  a  trotting  horse  should  not  be  merely 

what  witness  thinks  it  is  worth,  but  what  he  thinks  because  of  what 

he  knows  concerning  the  horse,  and  what  his  acquaintance  with 

the  value  of  such  horse  is  and  such  opinion  should  always  be  the 

salable  and  purchasable  value  of  such  horse. 

C.  &  N.  W.  Hy.  Co.  vs.  Stock  Farm,  96  App.  337. 

Opinions  given  by  experts  in  regard  to  value  should  be  based 
upon  facts  within  their  actual  knowledge. 
Spohr  vs.  City  of  Chicago,  206  111.  441. 

AVitnesses  may  give  opinions  as  to  value  of  services. 
y.j-    ,_,        I.  &  T.  Oil  Co.  vs.  Boyer,  137  App.  518. 


EXPERT  AND  OPINION  533 

Value  of  wife's  service  to  husband  and  children  are  not  subject 
for  expert  evidence. 

C,  &  E.  I.  Ey.  Co.  vs.  Roberts,  35  App.  137. 
It  must  appear  that  a  witness  knows  the  value  of  services  before 
he  can  be  heard  to  testify. 

L.  N.  A.  &  C.  Ey.  Co.  vs.  Cox,  30  App.  383. 
Any  one  acquainted  witli  property  may  testify  as  to  the  value. 
Lyeomiug  Ins.  vs.  Jackson,  b3  111.  '602 ;  Meeker  vs.  Chi.  Steel  Co.,  84  111. 
276. 

Witnesses  as  to  value  of  projierty  need  not  be  experts. 
Pike  vs.  City  of  Chicago,  155  lU.  65(3. 

An  ordinary  witness  cannot  testify  as  to  value  of  property  in 
action  against  sheriff  for  making  insufficient  levy. 

French  vs.  Snyder,  30  111.  339;  Gilbert  vs.  Gallup,  76  App.  526. 
Where    through   action    of   party   it   is   impossible   to   ascertain 

value,  amounts,  or  weights,  estimates  are  admissible. 
Laswell  vs.  Bobbins,  39  111.  210. 

Opinion  evidence  is  admissi])le  to  show  value  of  orchard  crops. 
Bradshaw  vs.  Adkins,  110  111.  323. 

Testimony  as  to  value  of  real  estate  is  opinion  evidence. 

Fox  vs.  C.  &  S.  E.  T.  E.  Co.,  68  App.  417. 
Conclusion  of  witness  based  in  part  upon  hearsay  is  inadmissi- 
ble to  prove  value. 

Haldenian  vs.  Schuh,  109  App.  259. 
The  value  of  farm  machinery  may  be  shown  by  non-expert  evi- 
dence. 

C.  &  A.  Ey.  Co.  vs.  Glenny,  175  111.  238. 

The  value  of  advertising  space  may  be  proved  by  opinions  of 
persons  of  experience  and  observation. 

W.  C.   Exp.  vs.  P.  C.  Filter  Co.,  82  App.  94. 
In   condemnation   proceedings,   the   opinions  of  witnesses  as  to 

market  value  is  admissible. 

C.  P.  &  M.  Ey.  Co.  vs.  Mitchell,  159  111.  406. 
It  is  not  necessary  to  prove  the  value  of  conmion  articles  by  the 
testimony  of  a  dealer.     A  man  may  testify  as  to  the  value  of  his 

own  property. 

Hebard  vs.  Eegel,  67  App.  584. 
The  owner  of  household  goods  is  competent  witness  as  to  value 

thereof, 

Sinamaker   vs.   Eose,   62   App.   118. 

A  witness  need  not  be  an  expert  to  give  opinion  as  to  value  of 

household  goods. 

Eeebe  vs.  Brackett,  109  App.  631;  Hey  vs.  Hawkins,  120  App.  483. 

An  expert  may  testify  as  to  value  of  rug. 

Grant  vs.  Cudney,  173  App.  61. 
Opinion  evidence  is  admissible  to  show  effect  of  railroad  upon 

value  of  property. 

Sewell  vs.  Chi.  Term.  Co.,  177  111.  93. 

The  usual  or  reasonable  value  of  professional  services  is  a  ques- 
tion of  fact,  and  not  a  question  of  science,  calling  for  expert  opin- 
ion. 

Walker  vs.  Cook,  33  App.  561. 

Plaintiff  in  personal  injury  case  may  testify  as  to  value  of  his 
time  as  bartender  in  his  own  saloon. 

Schlumbrecht   vs.   Chi.    City   Ey.   Co.,    153    App.    254. 
A  witness  called  to  prove  that  certain  bonds  traded  in  a  con- 


534  EXPLOSIVES 

fidence  game  prosecution  were  worthless,  is  not  competent  to  give 
an  opinion  to  tliat  ett'eet,  where  he  is  not  sliovvn  to  have  any  knowl- 
edge whatever  of  the  particular  bonds. 

People    vs.     Turpin,    233     111.    452.       (See    Cross    Examination.) 

(Eminent  Domain.) 

Waters  and  Navigation: 

E^s^perts  are  competent  as  to  laws  of  alluvial  streams  and  the 
cause  of  their  growth  by  deposit  of  sediment  and  the  effect  such 
deposits  upon  such  streams  in  a  long  course  of  years. 
O.  &  M.  Ey.  Co.  vs.  Neutzel,  143  111.  46. 

Opinion  is  competent  as  to  whetlier  overflow  was  result  of  nat- 
ural causes  or  of  construction  of  embankment. 

0.  &  M.  Ej.  Co.  vs.  Webb,  142  111.  404. 

Non-expert  may  testify  that  bridge  constituted  material  obstruc- 
tion to  navigation. 

1.  E.  P.  Co.  vs.  Bridge  Assn.,  38  111.  467. 

Opinions  of  experts  are  admissible  as  to  whether  depreciation  of 
land  was  caused  by  construction  of  watercourse  over  the  land. 

K.  &  S.  E.  Co.  vs.  Ilorau,  131  111.  288.      (See  Water  and  Water- 
courses.) 

X-Ray : 

See  Photographs. 

EXPLOSIVES 

Judicial  Notice: 

Court  will  take  judicial  notice  that  explosions  of  dynamite  are 

dangerous. 

City  of  Chicago  vs.  Murdock,  2 12  111.  9;  Fitzimmons  vs.  Braun,  199 
111.  300. 

Expert  and  Opinion: 

Opinions  are  competent  as  to  cause  of  explosion. 

MeCabe  vs.  Swift  &  Co.,  143  App.  404. 
Steam  fitters  who  were  present  when  pipes  burst  are  competent 
to  give  opinions  as  to  cause  of  explosion. 

Webster  Mfg.  Co.  vs.  Mulvanny,  168  111.  311. 
Non-expert  witness  may  testify  as  to  whether  break  in  boiler 

appeared  new  or  old. 

I.  C.  E.  E.  Co.  vs.  Prickett,  210  111.  140, 
Expert  testimony  as  to  appearance  of  stone  after  blasting  and 
to  discovery  of  unexploded  charges  is  competent. 

Stephen  vs.  Duffy,  142  App.  219;  S.  C,  237  111.  549. 
Experts  may   testify   as  to  whether  a  shot   was  practical   and 

workmanlike. 

Stephenson  vs.  Avery  Coal  Co.,  152  App.  565, 

Experiment : 

Chemical  experiments  to  determine  explosive  character  of  dust 

are  admissible. 

,  Schufeldt  vs.  Searing,  59  App.  341. 
But   chemist   without   experience   with   the   same   kind   of   dust 
except  in  laboratory  cannot  give  his  conclusion  that  if  fire  came 
in  contact  with  it  explosion  would  occur. 
Schufeldt  vs.  Searing,  59  App.  341. 
Experiments  showing  effect  of  powder  burns  from  pistol  fired 
at  close  range  are  competent  and  particulars  of  experiment  should 

be  permitted  t9  be  given. 

Fein  vs.  Cov.  Mut.  Ben.  Assoc,  60  App.  274. 


EXTRADITION  535 

Conditions : 

Proof  of  what  happened  several  hundred  feet  from  explosion 
proper  to  show  its  force. 

Elvis  vs.  Lumaghi  Coal  Co.,  140  App.  112. 


EXTORTION 

By  Threats: 

—  Admissibility  of  Evidence:  Proof  that  the  accused  upon  a 
former  occasion  threatened  to  kill  the  same  party  unless  he  paid 
liim  money  is  competent  to  cliaracterize  the  conduct  and  language 

of  the  accused  at  the  time  the  money  was  extorted.  ' 
Glover  vs.  People,  204  111.  170. 

—  Weight  and  Sufficioicij:     A  threat  is  a  menace,  and  while 

it  must  be  directly  made,  it  need  not  be  in  any  particular  form  or 

phrase.    It  is  not  necessary  to  prove  a  threat  couched  in  so  many 

words  as  "I  will  accuse  you  if  you  do  not  pay  me  to  desist." 
Moore  vs.  People,  69  A^jp.  398. 

Substantial  proof  of  the  language  averred  is  sufficient. 
Glover  vs.  People,  204  111.  170. 

A  conviction  under  an  indictment  for  extorting  mouv^v  by  threat>- 
ening  to  kill  is  sustained  by  proof  that  the  language  and  conduct 
of  the  accused  caused  his  victim  to  believe  his  life  would  be  taken 
unless  he  paid  the  money,  and  it  is  not  necessary  to  prove  that 
accused  was  armed,  or  that  he  used  the  word  "kill"  in  his  threats. 
Glover  vs.  People,  204  111.   170. 

By  Officer — Taking-  Illegal  Fees: 

Authority  to  charge  fees  nnist  be  averred  and  proven. 

Feriiel  vs.  People,  16  App.  310. 
The  officer  must  have  the  process  or  summons,  or  whatever  legal 
writ  it  is,  and  must  charge,  claim,  take  or  demand  a  greater  fee 
than  is  allowed  by  law. 

Ferkel  vs.  People,  16  App.  310. 

It  must  be  proven  that  the  fee  was  paid  unwillingly,  for  no  mat- 
ter how  improper  or  unjust  it  may  be  for  an  officer  to  take  greater 
or  other  fees  than  he  is  allowed  by  law,  if  voluntarily  given  it  is 

not  extortion. 

People  vs.  Eainey,  89  111.  34. 

Where  it  was  proven  that  the  money  was  paid  for  the  purpose 

of  disposing  of  a  suit  then  claimed  to  be  pending,  but  which,  in 

fact,  was  not  pending,  it  was  held  not  sufficient  to  convict  officer 

of  offense  under  statute. 

Ferkel  vs.  People,  16  App.  310. 


EXTRADITION 

Illegal  Arrest: 

—  Foreign  Country:  A  fugitive  from  justice  has  no  asylum  in 
a  foreign  country  when  he  is  guilty  of  an  offense  for  Avhich  he  is 
liable  or  subject  to  extradition,  by  treaty  between  this  and  the 


536  FABRICATION  OF  EVIDENCE 

foreign  government.  If  he  is  illegally  and  forcibly  removed  from 
such  foreign  country,  that  country  alone  has  cause  of  complaint 
and  he  cannot  complain  for  it. 

The  rule  at  common  law  is  that  the  court  trying  a  party  for 
crime  committed  within  ils  jurisdiction  will  not  investigate  the 
manner  of  his  capture  in  a  foreign  state  or  country,  though  his 
capture  and  return  may  have  plainly  been  without  authority  of 

law. 

Ker  vs.  People,  110  111.  627.  '  "*-'^'^~ 

—  Sister  State:  Where  legal  steps  have  been  taken  for  the 
apprehension  and  return  to  this  country  of  a  fugitive  from  jus- 
tice, and  he  is  brought  to  the  United  States,  where  he  is  arrested 
on  a  requisition  of  the  executive  of  this  state  and  brought  here 
for  trial,  the  fact  that  he  may  have  been  illegally  arrested  in  such 
foreign  country  and  brought  to  a  sister  state  does  not  affect  the 
jurisdiction  of  the  court  of  this  state  to  try  him,  the  state  not 
being  a  party  to  such  illegal  arrest  and  abduction,  and  no  inquiry 
into  regularity  of  his  arrest  and  surrender  in  such  state  may  be 

made. 

Ker  vs.  People,  110  lU.  627. 


FABRICATION  OF  EVIDENCE 

See  Destruction  and  Suppression  of  Evidence. 

FALSE  IMPRISONMENT 

See  Malicious  Prosecution,  Malice,  Intent. 
Arrests  by  Private  Persons : 

—  In  General:  A  person  not  an  officer,  armed  with  process, 
who  arrests  and  detains  another  against  his  will,  when  no  crim- 
inal offense  has  been  committed  or  attempted  in  his  presence,  is 

-guilty  of  false  imprisonment. 

Hight  vs.  Naylor,  86  App.  508;  Smith  vs.  Donnelly,  66  111.  464. 

In  order  to  constitute  a  false  imprisonment,  it  is  not  necessary 
that  defendants  use  violence,  or  lay  hands  on  plaiiitiff  or  con- 
fine him  in  any  jail  or  prison,  but  it  will  suffice  if  defendants  at 
any  place  or  time,  in  any  manner,  restrain  plaintiff  of  his  lib- 
erty, or  detain  him  in  any  manner  from  going  where  he  wishes, 
or  prevent  him  from  doing  what  he  desires. 

Hawk    vs.    Eidgley,    33    111.    473;    Greathouse    vs.    Summerfield,    25 
App.  206. 

—  Justification:  It  must  be  first  shown  that  a  felony  has  actu- 
ally been  committed  and  that  there  were  reasonable  grounds  to 
believe  that  the  person  arrested  was  the  felon.  Wliere  no  crime 
was  committed,  information  of  defendant,  to  show  good  faith,  is 
not  admissible  in  bar  of  action. 

Eyan  vs.  Donnelly,  71  111.  100;  Pinkerton  vs.  Martin,  82  App.  589. 


FALSE  IMPRISONMENT  537 

A  person  cannot  justify  an  arrest  upon  the  suspicion  of  ^ilt 
only,  guilt  must   be  shown.     If  established,  guilt  is  justification. 
Enright  vs.  Gibson.  219  111.  550;   Dodds  vs.  Board,  43  111.  95;   Kiu- 
dred  vs.  Stitt,  51  111.  401;  Siegel  vs.  Conuor,  70  App.  IIG. 

Where  an  officer,  who  is  present  at  commission  of  an  offense, 
is  not  able  to  make  an  arrest,  and  calls  in  other  officers  on  the  posse, 
or  on  the  hue  and  cry,  those  who  aid  have  a  justification  as  broad 
as  his  own. 

Main  vs.  MeCarty,  15  111.  442. 

Want  of  reasonable  or  probable  cause  is  not  an  essential  ele- 
ment of  false  imprisonment. 

Enright   vs.   Gibson,   219   111.   550;   Hight  vs.   Naylor,   86  App.   508; 
Sundmacher  vs.  Blooh,  39  App.  553. 

Admissibility  of  Evidence: 

—  I'll  a  of  General  Issue:  Not  only  puts  in  issue  the  fact  of 
the  imprisonment  alleged,  but  also  the  participation  of  the  defend- 
ants therein. 

Feld  vs.  Loftus,  140  App.  530. 

Matters  in  discharge  or  justification  must  be  specially  pleaded. 
Blancbard  vs.  Burbaiik,  16  App.  375. 

—  Intent  and  Malice:  The  intent  or  object  of  the  prosecutor 
in  causing  the  arrest  may  be  proven  for  the  purpose  of  showing 
malice,  but  not  for  purpose  of  showing  want  of  probable  cause. 
Malice  may  be  inferred  from  want  of  probable  cause,  but  want  of 
probable  cause  is  never  inferred  from  malice. 

Bay  vs.  Goings,  6  App.   140. 

Where  circumstances  of  arrest  indicate  a  wanton  disregard  of 
rights  of  person  arrested,  there  need  be  no  evidence  of  hatred  or 
ill-will  in  order  to  authorize  the  submission  of  the  question  of 
exemplary  damages  to  the,  jury. 

Pearce  vs.  Needliain,  37  App.  90;   Hight  vs.  Naylor,  86  App.  508. 
Evidence  of  absence  of  evil  intent  and  presence  of  reasonable 
care  and  prudence  only  prevent  punitory,  not  actual,  damages. 
Little  vs.  Munson,  54  App.  437;   Hawk  vs.  Eidgeway,  33  111.  473. 

Matters  tending  to  show  bad  motive  are  admissible. 
Davis  vs.  Wilson,  65  111.  525. 

A  defendant  in  action  of  trespass  vi  et  armis  VL\a.j  show  that 
he  was  persuaded  by  others  to  make  an  affidavit  upon  which  an 
illegal  arrest  was  made,  to  show  the  animus  with  which  he  acted, 
and  to  avoid  vindictive  damages.  Evidence  may  be  admissible  for 
such  a  purpose,  when  it  does  not  tend  to  establish  a  bar  to  the 
action ;  and  plaintiff'  may,  when  it  is  admitted,  have  the  jury  so 
instructed  that  it  shall  be  limited  to  its  legitimate  purpose. 
Eoth  vs.  Smith,  41  111.  314. 

Facts  and  circumstances  which  led  to  the  procuring  of  the  arrest, 
showing  misconduct  and  fraud  on  part  of  plaintiff,  are  admissible 
in  evidence  on  part  of  defendant,  not  in  bar  of  the  action,  but  as 
proper  to  be  considered  by  the  jury  in  mitigation  of  vindictive  or 
exemplary  damages. 

Johnson  vs.  Von  Kettler,  66  111.  63. 

—  Manner  of  Treatment:  In  trespass  for  false  imprisonment, 
under  color  of  process,  it  is  error  to  admit  in  evidence  tlie  con- 
dition of  the  jail  in  which  plaintiff  was  confined,  to  aggi-avate  the 


538  FALSE  IMPRISONMENT 

damages,  where  there  is  no  allegation  of  special  damages  in  the 
declaration. 

JohTison   vs.  Von   Kettler,   84  111.   315. 

Or  kind  of  food  furnished  or  character  of  prison. 
Miles  vs.  Weston,  60  111.  361, 

May  detail  mode  of  detention. 

Pinkerton  vs.  Snyder,  87  App.  76;  Pearce  vs.  Needham,  37  App.  90. 

—  To  Show  Responsible  Parties:  The  fact  that  the  employees 
of  a  mercantile  estal^lishraent  act  in  behalf  of  their  employer,  and 
in  the  line  of  their  employment,  and  arrest  a  person  in  front  of 
the  establishment,  charge  her  with  theft  and  take  her  inside,  where 
a  search  is  directed  and  carried  on  by  persons  employed  therein, 
may  be  shown  and  makes  a  prima  facie  case  of  false  imprisonment 
against  the  proprietor. 

Vrchotka  vs.  Eothsehild,  100  App.  268;  Feild  vs.  Kane,  99  App.  1; 
Seigel  vs.   Connor,   70  App.   116. 

A  proprietor  of  a  detective  agency  ordering  an  illegal  arrest, 

and  confinement  in  his  own  otfice,  by  his  employees,  may  be  shown 

to  be  responsible. 

Pinkerton  vs.  Martin,  82  App.  589. 

Arrests  by  Officers: 

—  Distinguished  from  Malicious  Prosecution:  False  imprison- 
ment is  a  trespass  committed  by  an  unlawful  arrest  and  imprison- 
ment. If  the  imprisonment  is  under  legal  process,  but  the  action 
has  been  begun  and  carried  on  maliciously  and  without  probable 

cause,  it  is  malicious  prosecution. 

Mexican  Cent.  Ey.  Oo.  vs.  Gehr,  66  App.   173. 

It  is  false  imprisonment  where  a  person  is  improperly  arrested 
without  warrant,  and  as  far  as  the  action  of  false  imprisonment  is 
concerned,  it  makes  no  difference  whether  the  person  is  subse- 
quently prosecuted  or  not ;  the  action  is  complete  when  the  deten- 
tion results  from  the  improper  arrest. 

Conkling  vs.  Whitmore,  132  App.  574. 

Where  an  officer  has  not  seen  the  crime  committed,  for  which 
he  makes  the  arrest,  without  a  warrant,  such  arrest  is  illegal,  if 
the  crime  was  not  actually  committed,  notwithstanding  he  may 
have  reasonable  and  probable  cause  for  believing  it  had  been  com- 
mitted bv  the  person  so  arrested. 

Wood  vs.  Oleson,  117  App.   128. 

—  Burden  of  Proof  and  Presumptions:  In  actions  for  false 
imprisonment  and  malicious  prosecution,  where  an  arrest  and  im- 
prisonment are  shown,  it  devolves  upon  defendant  to  show  justi- 
fication. 

Mexican  Cent.  Ey.  Co.  vs.  Gehr,  66  App.  173. 
As  a  general  proposition  of  law,  it  is  only  necessary  for  plain- 
tiff, in  actions  of  false  imprisonment,  to  show  that  he  had  been 
restrained  of  his  liberty.  The  presumption  then  arises  that  his 
restraint  was  unlawful,  and  the  burden  of  proving  a  justification, 
if  any  exist,  is  upon  defendant.  But  when  the  plaintiff  goes 
further  than  this  and  shows  that  such  imprisonment  was  caused 
by  a  complaint,  and  a  trial  and  examination  under  it,  the  burden 
of  proof  is  upon  plaintiff  to  show  the  proceedings  v/ere  invalid 
or  irregular,  the  presumption  of  law  being  in  favor  of  the  regu- 


FALSE  IMPRISONMENT  539 

larity  of  judicial  proceedings  even  iu  courts  of  limited  jurisdic- 
tion. 

Hermanson  vs.  Goodyear,  139  App.  374. 

Where  a  policeman  arrests  without  a  warrant,  under  a  city 
ordinance,  it  is  incumbent  upon  him,  when  sued  in  trespass  there- 
for, to  show  that  the  offense  ^^■as  in  fact  committed  in  his  pres- 
ence. The  burden  of  proof  will  be  upon  him  to  establish  that  fact 
by  satisfactory  evidence,  to  exonerate  himself  from  lial)ility. 
Shanley  vs.  Wells,  71  111.  78;  Maikey  vs.  Griffin,  109  App.  212. 

Admissibility  of  Evidence: 

—  Legality  of  Apijointntcnt  of  Officer:  Defendant  an  officer  suf- 
ficiently shown,  where  it,  appears  he  is  an  officer  de  jure;  the  legal- 
ity of  his  appointment  cannot  be  inquired  into. 

Marsh  vs.  Smith,  49  111.  396;  Field  vs.  Loftus,  140  App.  530;  Schlen- 
ker  vs.  Eisley,  4  111.  483. 

—  Of  Warrant:  Warrant  admissible  to  justify,  where  it  shows 
on  its  face  that  court  had  jurisdiction  of  subject  matter. 

Eessler  vs.  Peats,  86  111.  275;   Johnson  vs.  Von  Kettler,  66  111.  63; 
Slomer  vs.  People,   25  111.  58;    Morrell   vs.   Martin,   17   App.   336; 
Davis  vs.  Wilson,  65  111.  525. 
And  he  need  not  show  the  sufficiency  of  the  affidavit  upon  which 

same  was  issued. 

Eessler  vs.  Peats,  86  111.  275. 

But  if  there  is  want  of  jurisdiction,  writ  is  no  defense. 

Johnson  vs.   Von  Kettler,   66  111.   63. 
And  writ  must  be  regularly  returned  by  officer. 

Slomer  vs.  People,  25  111.  58. 
Being  part  of  the  res  gestae,  is  evidence  of  the  facts  therein 

stated. 

Haskins  vs.  Haskins,  67  111.  446. 

—  Justice's  Docket:  Where  one  justifies  under  a  warrant,  the 
affidavit  on  which  the  warrant  issued,  the  warrant  and  the  tran- 
script of  the  justice's  docket,  showing  trial  and  conviction  for  the 
offense  charged,  are  competent  and  material. 

Gay  vs.  DeWerff,  17  App.  417. 
And  it  makes  no  difference  that  the  affidavit  was  defective,  the 

justice  having  jurisdiction. 

Bassett  vs.  Brattor,  86  111.  159. 
Parol  is  competent  to  prove  fact  of  execution  of  writing  and 
fact  of  affidavit  being  made  on  which  warrant  was  issued.     And 
it  may  be  so  shown  when  lost,  and  its  contents  may  be  proven  by 

parol.  '■■<? 

Ashley  vs.   Johnson,   74  111.   392. 

—  Belief  and  Information:  Where  arrest  is  without  warrant, 
evidence  of  information  received  which  led  the  officer  to  make  the 
arrest  in  good  faith  is  incompetent. 

Shanley  vs.  Wells,  71  111.  78;  Markey  vs.  Griffin,  109  App.  212. 
A  want  of  probable  cause  is  not  established  in  action  for  false 
imprisonment  where  it  appears  that  officer  making  arrest  acted 
without  apparent  malice  and  upon  advice  of  reputable  and  com- 
petent counsel,  to  whom  full  disclosure  of  the  facts  in  his  posses- 
sion was  made. 

Conkling  vs.  Whitmore,  132  App.  574. 

—  Verdict  of  Jury:  AVhere  it  is  charged  the  arrest  was  illegally 
made  without  a  warrant,  the  verdict  of  jury  rendered  upon  trial 


540  FALSE  PRETENSES 

of  criminal  charge  is  immaterial,  and  does  not  establish  conclu- 
sively that  the  arrest  was  improperly  made  without  a  warrant. 
Conkling  vs.   Whitinore,   132   App.   574. 
—  Habeas  Corpus:     Record  of  proceedings  immaterial. 

Feld  vs.  Loftus,  140  App.  530;  Lowry  vs.  Hate]y,  30  App.  297. 

Damages : 

Proof  of  actual  damages  unnecessary  to  recover  punitive  dam- 
ages. 

McNay  vs.   Stratton,  9  App.  215. 

Proof  of  false  imprisonment  is  proof  of  actual  damages. 

Enright  vs.  Gibson,  119  App.  411. 
Evidence  of  bad  motive  may  be  considered  in  aggravation  of 

damages. 

Davis  vs.  Wilson,  65  111.  525. 

That  plaintiff's  actions  were  such  as  to  arouse  suspicion  may 
be  proven  in  mitigation. 

Miles  vs.  Weston,  60  111.  361. 
"Words   spoken    cannot    be    considered    in   mitigation    of    actual 
damages,    but   may,     together   with   all    the    surrounding   circum- 
stances, in  mitigating  exemplary  damages. 
Donnelly  vs.  Harris,  41  111.  126. 


FALSE  PRETENSES 

See  Intent,  Separate  and  Similar  Offenses,  Ownership,  Ad- 
missions. 
Fraudulent  Intent: 

—  Presumption  as  to  Knoivledge:  A  person  who  publicly 
advertises  a  thing  as  possessing  certain  qualities,  where  such  rep- 
resentations are  false,  will  be  presumed  to  speak  from  knowledge. 
Advertisement  is  properly  admitted  in  evidence. 

Jackson  vs.  People,  126  111.  139. 

—  Other  Similar  Acts:  Evidence  tending  to  show  that  defend- 
ant was  in  the  habit  of  making  false  representations  or  resorting 
to  fraudulent  practices  in  the  making  of  other  sales,  is  inadmissible. 

Jackson  vs.  People,  126  111.  139. 
But  in   the  prosecution    for  obtaining  money   by   means  of  a 
worthless   draft,   other   drafts   similar   to   that  mentioned   in   the 
indictment,  found  in  defendant's  possession,  are  competent  as  tend- 
ing to  show  guilty  knowledge  and  intent. 
Whiteman  vs.  People,  83  App.  369. 

—  Chech  Without  Funds:  It  is  obtaining  under  false  pre- 
tenses fraudulently  to  obtain,  as  upon  a  purchase  for  cash,  by 
giving  in  payment  a  check  which  is  not  against  funds  and  which 
the  drawer  knows  will  not  be  paid.  It  makes  no  difference  that 
the  check  is  post-dated,  nor  that  there  is  a  colorable  deposit  of 
funds;  the  giving  of  the  check  is  a  representation  that  it  is  good 
for  its  amount,  and  that  there  is  an  existing  state  of  facts  such 
that  the  check  will  be  met  in  due  course  of  business. 

Barton  vs.  People,  135  111.  405. 


FALSE  PRETENSES  541 

—  Promise:  A  promise  is  not  a  pretense.  The  representation 
must  be  of  a  present,  material,  past  or  existing  fact  which  the 
party  making  knows  or  has  good  reason  to  know  is  false. 

People  VB.  Jacobs,  72  App.  286;   Austin  vs.  People,  63  App.   303. 

—  Conspirators:  Acts  and  declarations  of  a  co-partner,  even 
thougli  in  the  absence  of  other,  when  made  in  furtherance  of  a 
common  design,  are  admissible,  the  fact  of  combination  being  first 
established. 

People  vs.  Nail,  .242  111.  284;  Thomas  vs.  People,  113  111.  .531. 
Evidence  tending  to  show  the  relation  of  the  parties,  the  pur- 
pose of  the  combination  and  the  preliminary  steps  taken  to  effect 
that  purpose,  is  within  the  scope  of  the  investigation.    Knowledge, 
motive  and  intent  may  thus  be  shown. 

People  vs.  Nail,  242  111.  284;  People  vs.  Bush,  150  App.  48. 

Reliance  Upon  Representations: 

Prosecuting  witness  may  testify  to  the  fact  that  he  believed  in 
and  relied  upon  the  false  statements  made  by  defendant  at  time 
of  transaction. 

People  vs.  ^Weil,  244  lU.  176. 
And  the  ability  of  the  person  to  whom  they  were  made  to  detect 
their   falsity   should   be   considered.      His   want  of  knowledge   of 
property  of  the  kind  which  is  imposed  upon  him  may  be  consid- 
ered in  determining  the  quo  animo  of  the  accused. 
Coweu  vs.  People,  14  111.  348. 

Ownership  of  Goods: 

Proof  of  possession  of  the  goods  by  agent  of  party  defrauded, 
when  his  title  is  not  disputed,  is  sufficient  to  prove  ownership  of 
the  goods. 

Barton  vs.  People,  135  111.  405. 

Defenses : 

—  Intention:    Accused  may  state  what  his  intention  was. 

Lane  vs.  People,  142  App.  571. 
Presumption  of  fraudulent  intent  may  be  repelled  by  the  defend- 
ant by  exhibiting  in  evidence  such  a  state  of  facts  as  would  show 
that  fraud  was  not  designed  and  could  not  have  resulted. 
Eainforth  vs.  Peopfe,  61  111.  365. 

—  Ncgligoicc  of  Furchaser:  The  neglect  or  failure  of  a  pur- 
chaser of  personal  property  to  examine  the  records  for  liens  and 
encumbrances  is  no  defense  to  the  prosecution  of  the  seller  for 
obtaining  money  under  the  false  pretense  that  the  property  was 

unencumbered. 

Keyes  vs.  People,  197  111.  638. 

—  Contract  Legally  Binding:  Is  no  defense  if  it  was  designed 
to  perpetrate  a  fraud. 

People  vs.  Depew,  237  111.  574. 

Warranty : 

AVarranty  takes  the  case  out  of  the  statute  as  to  false  pre- 
tenses only  when  the  warranty  and  not  the  false  representations 

is  relied  upon. 

Jackson  vs.  People,  126  111.  139;  S.  C,  18  App.  508. 


542  FIDUCIARY  RELATIONS 

FIDUCIARY  RELATIONS 

Defined: 

Courts  of  equity  have  carefully  refrained  from  defining  the 
particular  instances  of  fiduciary  relations  in  such  a  manner  that 
other  and  perhaps  new  cases  might  be  excluded.  It  is  settled  by 
an  overwhelming  weight  of  authority  that  the  principle  extends 
to  every  possible  case  in  which  a  fiduciary  relation  exists  as  a  fact, 
in  which  there  is  confidence  reposed  on  one  side  and  the  result- 
ing superiority  and  influence  on  the  other.  The  relations  and 
duties  involved  in  it  need  not  be  legal.  It  may  be  moral,  social, 
domestic  or  merely  personal.  The  fiduciary  relation  exists  between 
parties  where  there  is  a  relation  of  trust  and  confidence  between  them 
— that  is,  where  confidence  is  reposed  by  the  one  party,  and  the 
trust  accepted  by  the  other.  The  term  fiduciary  or  confidential 
relation  is  a  very  broad  one.  It  exists  and  relief  is  granted  in  all 
cases  in  which  influence  has  been  acquired  and  abused,  and  in 
which  confidence  has  been  reposed  and  betrayed.  The  origin  of 
the  confidence  and  the  source  of  the  influence  are  immaterial. 
The  rule  embraces  both  technical  fiduciary  relations  and  those 
informal  relations  which  exist  whenever  one  man  trusts  in  and 
relies  upon  another.     The  only  question  is,  that  such  relation  in 

f&ct  GXlStS 

Beech  vs.  Wilton,  244  111.  413;   Walker  vs.   Shepard,   210  111.    100; 
Mayrand  vs.  Mayrand,  194  111.  45;  Thomas  vs.  Whitney,  ISO  111.  225. 

—  Undue  Influence  Not  a  Part:  "No  mental  weakness,  old  age, 
pecuniary  distress,  ignorance,  and  the  like,  is  assumed  as  an  ele- 
ment of  the  transaction.  If  any  such  fact  be  present,  it  is  inci- 
dental, not  necessary, — immaterial,  not  essential.  Nor  does  undue 
influence  form  a  necessary  part  of  the  circumstances,  except  so 
far  as  undue  influence,  or  rather,  the  ability  to  exercise  undue 
influence,  is  implied  in  the  very  conception  of  a  fiduciary  rela- 
tion, in  the  position  of  superiority  occupied  by  one  of  the  parties 
over  the  other,  contained  in  the  very  definition  of  that  relation. 
This  is  a  most  important  statement, — not  a  mere  verbal  criticism. 
Nothing  can  tend  more  to  produce  confusion  and  inaccuracy  in 
the  discussion  of  the  subject  than  the  treatment  of  actual  undue 
influence  and  fiduciary  relations  as  though  they  constituted  one 

and  the  same  doctrine." 

Beach  vs.  Wilton,  244  111.  413, 

—  Question  of  Fact:  AVhether  any  fiduciary  relation  exists 
outside  of  the  legal  relation  is  a  question  of  fact  to  be  determined 
from  the  evidence.  Such  relation  depends  not  upon  the  technical 
relation  of  the  trustee  and  cestui  que  trust,  but  upon  the  confi- 
dence reposed  upon  the  one  side  and  the  influence  and  superiority 
on  the  other. 

Ehrick  vs.  Bnms\\iler.  241  111.  592. 

Presmnptions  and  Burden  of  Proof: 

When  such  fiduciary  relation  is  proven,  the  presumption  is 
raised  against  the  validity  of  the  contract,  and  casts  upon  the 
party  desiring  to  uphold  it  the  burden  of  proving  affirmatively 


FINGER  PRINTS  543 

that   such    contract  is   not   against   equity   and   good   conscience, 
thereby  overcoming  the  presumption. 

The  transactions  of  parties  between  whom  the  fiduciary  rela- 
tion exists,  are  prima  facie  voidable  upon  the  ground  of  public 
policy.  They  will  be  closely  scrutinized  by  a  court  of  equity  and 
relief  will  be  granted  unless  the  party  claiming  the  benefit  of  the 
contract  shows  by  clear  and  convincing  proof  that  he  acted  with 
perfect  good  faith,  and  did  not  betray  the  confidence  reposed  in 

him. 

Zeigler  vs.  111.  T.  &  S.  Bank,  245  111.  180 ;  Beech  vs.  Wilton,  244  111, 
413;  Fish  vs.  Fish,  235  111.  396;  Walker  vs.  Shepard,  210  111.  100 
Dowie  vs.  DriseoU,  203  111.  480 ;  Mayrand  vs.  ^Nlayrand,  194  111.  45 
Thomas  vs.  Whitney,  186  111.  225;  Woods  vs.  Koberts,  185  111.  489 
Lehman  vs.  Eothbart,  159  111.  270;   Jones  vs.   Lloyd,  117  111.  597 
But  the  rule  is  not  applied  where  the  parent  makes  a  will  or  other 
provision  for  his  child.     To  hold  that  such  transactions  are  pre- 
sumptively fraudulent  would  be  to  reverse  the  legal  basis  of  all 
presumptions  and  thus  cast  upon  the  child  the  burden  of  proving 
by  clear  and  convincing  evidence  good  faith  and  the  absence  of 

undue  influence. 

Huffmann  vs.  Graves,  245  111.  440;  Sears  vs.  Vaughan,  230  111.  572; 
Bishop  vs.  Hilliard,  227  111.  382. 

Proof  of  existence  of  a  confidential  relation  between  parties  to 
a  transaction  of  benefit  to  the  dominant  party  raises  a  presum- 
tion  of  influence,  which  the  latter  will  be  required  to  overcome  by 
proof  that  the  parties  dealt  at  arm's  length,  that  no  unfairness 
was  used,  and  that  the  facts  within  his  knowledge  with  reference 
to  the  transactions  were  communicated  to  the  other. 

Hensan  vs.  Cooksey,  237  111.  620;  Fish  vs.  Fish,  235  111.  396;  Seaman 
vs.  Cook,  14  111.  500;  Huddleston  vs.  Henderson,  181  App.  176. 

Even  though  a  fiduciary  relation  might  exist,  transactions  be- 
tween the  parties  are  deemed  to  be  valid  if  it  is  made  to  appear 
that  they  were  entered  into  wdth  full  knowledge  of  their  nature 
and  effect,  and  they  were  the  result  of  the  deliberate,  voluntary 
and  intelligent  desire  of  the  parties,  and  were  not  consummated 
by  the  exercise  of  the  influence  engendered  as  a  result  of  the  re- 
lations existing  between  the  parties. 

Bishop  vs.  Hilliard,  227  111.  382;  Kellogg  vs.  Peddicord,  181  111.  22. 

To  render  such  a  transaction  valid,  it  is  only  necessary  to  show 
that  the  other  party  had  competent  and  disinterested  advice,  or 
that  he  performed  the  act  or  entered  into  the  transaction  volun- 
tarily, deliberately  and  advisedly,  knowing  its  nature  and  effect, 
and  that  his  consent  was  not  obtained  by  reason  of  the  power 
and  influence  to  which  the  relations  might  be  supposed  to  give 

rise. 

Zeigler  vs.  T.  &  S.  Bank,  245  111.  180. 

FINGER  PRINTS 

See  Expert  and  Opinion. 


544  FIRES 

FIRE  ARMS 

Presumption  and  Burden  of  Proof : 

If  a  person  is  injured  by  the  discharge  of  a  gun  in  the  hands  of 
one  who  has  entire  control  of  it,  the  burden  is  cast  upon  the 
latter  to  prove  that  the  gun  was  not  fired  at  the  person  injured 
either  intentionally  or  negligently,  but  the  result  was  inevitable 
and  without  the  least  fault  upon  his  part. 

Zoeller  vs.  Sehmitz,  172  App.  1U7;  Ateliinson  vs.  Dullain,  1(5  App.  42. 

As  fire-arms  are  extraordinarily  dangerous,  a  person  who  handles 
such  a  weapon  is  bound  to  use  extraordinary  care  to  prevent  injury 
to  others,  and  is  held  to  a  strict  accountability  for  want  of  such  care. 

When  an  injury  occurs  from  the  discharge  of  a  gun  or  other 
firearm,  he,  by  whom  it  was  discharged,  in  order  to  excuse  himself 
from  liability  for  the  injury,  must  show  that  the  discharge  was  ab- 
solutely without  his  fault,  and  that  it  happened  by  inevitable  ac- 
cident. 

Harrison  vs.  Allen,  179  App.  520. 

FIRES 

See  Ownership. 

Questions  for  Jury: 

It  is  for  the  jury  to  say  whether  the  fire  was  communicated 
from  the  engine,  and  if  so,  whether  the  company  had  observed 
proper  precautions  for  its  prevention,  or  was  guilty  of  negli- 
gence. 

I.  C.  E.  R.  Co.  vs.  Bailey,  222  111.  480 ;  C.  C.  C  &  St.  L.  Ey.  Co.  vs. 

Hornsby,  202  111.  138 ;  C.  &  A.  Ry.  Co.  vs.  Esten,  178  111.  192 ;  B.  & 

O.  S.  W.  Ry.  Co.  vs.  Tripp,  175  111.  251;   T.  P.  &  W.  Ry.  Co.  vs. 

Finder,  53  111.  447. 

And  whether  it  is  negligence  to  stack  a  large  quantity  of  straw 

within  thirty  feet  of  the  track  on  which  engines  pass  to  and  fro 

in  switching,  is  a  question  of  fact  for  the  jury. 

Amer.  S.  B.  Co.  vs   C.  &  A.  Ry.  Co.,  75  App.  420. 
And  whether  slipping  of  wheels  of  an  engine  in  starting  con- 
sisted  of  negligence   in  handling,   as  respects   causing   sparks  to 
escape,  is  proper  question  for  jury. 

I.  C.  R.  R.  Co.  vs.  Bailey,  222  111.  480. 

Presumptions : 

The  act  on  fires  by  locomotives,  which  makes  proof  of  the  fact 
of  communication  of  the  fire  prima  facie  proof  of  negligence,  is  a 
rule  of  evidence,  and  plaintiff,  after  establishing  that  fact,  may 
rest  without  proving  ]>articular   acts  of  negligence. 

C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Hornsby,  202  HI.  138 ;  C.  &  A.  Ry.  Co. 
vs.  Glenny,  175  111.  238;  Louisville  Ry.  Co.  vs.  Spencer,  149  111.  97; 
Wabash  Ry.  Co.  vs.  Smith,  42  App.  527;  C.  C.  C.  &  St.  L.  Ey.  Co. 
vs.  Tate,  104  App.  615;  T.  St.  L.  &  W.  Ry.  Co.  vs.  Needham,  105 
111.  25 ;  T.  St.  L.  &  W.  Ry.  Co.  vs.  Valodin,  109  App.  132 ;  XIV  111. 
Notes  291,  §  919. 
Proof  that  damages  have  been  caused  by  fire  from  a  locomotive 
on  a  railroad,  raises  a  prima  facie  inference  of  negligence  on  the 

part  of  the  railroad  company. 

Adkins  vs.  I.  S.  Ry.  Co.,  165  App.  300. 


FIRES  545 

A  prima  facie  case  is  established  by  showing  that  sparks  from 
a  locomotive  set  the  fire. 

St.  L.  &  T.  H.  Ky.  Co.  vs.  Strotz,  47  App.  342. 

Proof  that  fire  was  communicated  by  passing  locomotive  of  de- 
fendant is  prima  facie  sufficiimt  to  charge  defendant. 
Calloway  vs.  Sturgeon,  58  App.  159. 

Burden  of  Proof: 

—  Want  of  Negligence:  liurden  is  upon  company  to  establish 
such  facts  as  will  excuse  it  from  consequences  of  fire  communi- 
cated by  its  locomotives. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Stephens,  173  111.  430;  Amer.  S.  B.  Co. 
vs.  C.  &  A.  Ey.  Co.,  177  111.  513;  C.  &  A.  Ey.  Co.  vs.  Amer.  S.  B. 
Co.,  190  111.  2(38;  XIV  111.  Notes  291,  §  919. 

—  Proper  Eejidpment:  If  it  is  proven  that  the  fire  which 
destroyed  plaintiff's  property  was  set  by  sparks  from  defendant's 
locomotive,  burden  is  upon  defendant  to  show  its  locomotive  had 
the  best  and  most  approved  spark  arrester,  was  in  good  repair  and 
handled  bv  competent  engineer. 

C."C.  C.  &  St.  L.  Ey.  Co.  vs.  Hornsby,  202  111.  138;  B.  &  O.  S.  W. 
Ey.  Co.  vs.  Tripp.  175  111.  251;  First  Natl.  Bank  vs.  L.  E.  & 
W.  Ey.  Co.,  174  111.  30. 

But  if  there  is  evidence  fairly  tending  to  show  the  fire  which 

destroyed  plaintiff's  building  was  caused  by  sparks  which  escaped 

from  defendant's  locomotive,  the  fact  the  uncontradicted  evidence 

shows  the  locomotive  was  equipped  with  the  best  appliances  for 

preventing  escape  of  sparks,  and  was  in  charge  of  an  experienced 

and  careful  engineer,   who  carefully  handled  and  operated  same 

at  the  time,  does  not  justify  the  court  in  directing  a  verdict  for 

defendant. 

I.  C.  E.  E.  Co.  vs.  Bailey,  222  111.  480. 

Admissibility  of  Evidence: 

—  Circu))is(a}itiaJ   Evidence:     As   to   smoke   arising   along   the 

line  of  a  railroad  sometime  after  passage  of  a  train,  is  competent 

in  action  alleging  loss  by  fire  through  negligence  of  the  company. 
L.  E.  &  W.  Ey.  Co!  vs.  Helmeiich,  29  App.  270. 

It  is  admissible  to  show  distance  to  which  cinders  were  thrown 

from  the  track. 

L.  E.  &  W.  Ey.  Co.  vs.  Kirts,  29  App.  175;  I.  C.  E.  E.  Co.  vs.  Mc- 
Clelland, 42  'ill.  355. 

And  to  show  that  on  day  of  fire  in  question,  other  fires  were  set 

by  same  locomotive. 

L.  E.  &  W.  Ey.  Co.  vs.  Middleeoff,  150  111.  27 ;  L.  E.  &  W.  Ey.  Co.  vs. 
Kirts,  29  App.  175. 

PlaintiflP  is  not  confined  to  proof  of  precise  place  where  fire 
is  alleged  to  have  been  set. 

I.  C.  E.  E.  Co.  vs.  McClelland,  42  111.  355. 

It  is  not  necessary  to  prove  by  direct  evidence  that  the  fire  was 
communicated  from  the  engine  to  the  building. 
C.  &  A.  Ey.  Co.  vs.  Esten,  178  111.  192. 

The  fact  that  fire  was  communicated  by  defendant's  engine  may 
be  established  by  proof  of  circumstances  giving  rise  to  inference 
of  the  fact,  provided  such  circumstances  constitute  a  preponder- 
ance of  the  evidence. 

I.  C.  E.  E.  Co.  vs.  Bailey,  222  111.  480. 

Ev— 35 


546  FIRES 

Where  plaintiff's  farm  laid  north  of  track  and  fire  was  dis- 
covered after  passing  of  passengei-  and  freight  train,  which  were 
about  a  mile  apart,  on  day  of  strong  south  wind,  and  after  the 
fire,  a  small  cinder  was  found  at  place  the  fire  appeared  to  have 
started,  such  facts  were  held  to  warrant  a  finding  that  the  fire 
was  communicated  by  one  of  the  engines. 

L.  E.  &  W.  e/e.  Co.  vs.  Eriekson,  80  App.  G25. 

Where  the  evidence  shows  the  fire  to  have  started  on  defend- 
ant's right  of  way,  from  which  it  spread  to  plaintiff's  farm,  it 
is  sufficient  to  sustain  verdict  for  plaintiff. 

L.  E.  &  W.  E.  E.  Co.  vs.  Murray,  86  App.  461. 

To  prove  that  an  elevator  adjoining  the  railroad  caught  fire 
from  a  passing  locomotive,  it  was  shown  that  two  freights  passed 
a  few  minutes  before  the  fire,  one  of  the  locomotives  emitting 
sparks,  and  that  there  was  a  high  wind  which  would  carry  sparks 
from  the  track  to  the  elevator.  The  elevator  was  locked  and  had 
no  fire  in  it  and  there  was  no  way  for  fire  to  originate  within  it. 
The  fire  caught  in  the  ' '  dog  house ' '  on  top  of  the  elevator,  appar- 
ently from  the  outside.  The  only  other  source  from  which  the 
fire  might  have  slarted  was  a  house  across  the  street,  but  this 
was  not  shown  to  have  had  a  fire  in  it.  Held,  that  peremptory 
instruction  was  properly  refused. 

C.  &  A.  Ey.  Go.  vs.  Esten,  178  lU.  192;  S.  C,  78  App.  326. 

There  is  evidence  upon  which  a  verdict  may  be  sustained  in 
action  for  burning  of  an  elevator,  where  it  is  shown  that  the 
building  had  had  no  fire  in  it  for  a  month,  and  was  locked  at 
the  time  of  Imrning,  that  the  weather  had  long  been  hot  and  dry, 
that  the  right  of  way  was  covered  with  dry  grass,  etc.,  that  an 
engine  passed  within  a  few  feet,  throwing  a  quantity  of  sparks 
only  an  hour  or  so  before  the  fire  broke  out. 

T.  St.  L.  &  K.  C.  E.  E.  Co.  vs.  Oswald,  41  App.  590. 

—  Siinilar  Facts:  Where  the  engine  alleged  to  have  caused  the 
fire  is  not  satisfactorily  identified,  it  is  competent  for  plaintiff 
to  sustain  or  strengthen  the  inference  that  the  fire  originated  from 
the  engine  claimed  by  proving  that  the  locomotives  of  defendant 
generally,  or  many  of  them,  at  or  about  the  time  in  question, 
threw  sparks  or  kindled  fires  upon  the  portion  of  its  road  in  ques- 
tion. 

Lake  St.  El.  Ey.  Co.  vs.  Peterson,  93  App.  118, 

Where  particular  locomotive  alleged  to  have  caused  the  fire 
is  identified,  evidence  of  other  fires  set  by  different  locomotives 
of  the  company,  before  and  after  the  fire  complained  of  is  inadmis- 
sible. 

Where  particular  locomotive  alleged  to  have  caused  the  fire 
is  identified,  the  fact  that  defendant's  witness,  in  testifying  that 
such  locomotive  was  provided  with  a  spark  arrester,  stated  that  all 
of  the  company's  locomotives  were  likewise  equipped,  does  not 
render  competent,  as  rebuttal  evidence,  proof  of  other  fires  set 
by  different  locomotives  of  defendant. 

F.  N.  Bank  vs.  L.  E.  &  W.  E.  E.  Co.,  174  111.  36. 

Evidence  that  same  engine  as  caused  the  fire,  less  than  ten 
days  after  the  fire  in  question,  was  seen  going  up  the  same  grade 


FIRES  547 

near  the  location  of  the  fire,  ''throwing  cinders  from  its  smoke- 
stack," is  admissible  without  proof  that  the  engine  was  in  the 
same  contlition  it  was  at  the  time  of  the  fire,  but  defendant  has 
right  to  disprove  that  fact  or  to  show  that  the  engine  had  since 
gotten  out  of  repair. 

B.  &  O.  S.  W.  R.  E.  Co.  vs.  Tripp,  175  111.  251. 
—  Ordinances:  An  ordinance  limiting  the  speed  of  passenger 
trains  within  the  city  to  ten  miles  an  hour  is  properly  admissible 
in  action  for  injury  in  city,  caused  by  escape  of  fire  fi'om  locomo- 
tive, where  one  count  sets  out  such  ordinance,  and  that  by  rea- 
son of  the  excessive  rate  of  speed  the  sparks  were  thrown  from 
the  engine  and  set  fire  to  plaintiff's  property,  especially  where 
there  is  evidence  tending  to  show  that  a  high  rate  of  speed  is  more 
likely  to  result  in  the  emission  of  sparks  or  coals  from  the  engine. 
L.  E.  &  W.  R.  E.  Co.  vs.  Middleeoff,  150  111.  27. 

Weight  and  Sufficiency  of  Evidence: 

Negligence  is  rebutted  by  proof  that  the  engine  was  furnished 
with  appliances  as  good  as  any  known,  and  inspected  three  days 
before  and  two  or  three  days  after  the  fire,  and  found  on  both 
occasions  to  be  in  first  rate  condition  throughout,  and  was  handled 
in  a  manner  which,  upon  testimony  of  the  driver,  competent  ex- 
perts approved. 

Natl.  Bank  vs.  L.  E.  &  W.  E.  E.  Co.,  174  111.  36. 

But  it  is  not  necessarily  overcome  by  evidence  tending  to  show 

the  engine  was  equipped  with  an  approved  spark  arrester,  and  was 

in  good  repair  and  operated  by  a  competent  engineer,  where  the 

engineer  testifies  the  engine,  if  properly  equipped,  would  not  set 

fire  as  fire  was  set. 

Calloway  vs.  Sturgeon,  58  App.  159. 

If  a  prima  facie  case  is  rebutted  by  proof  that  a  spark  arrester 
was  used,  it  is  evident  that  this  was  out  of  order  where  sparks 
set  fire  to  grass  seventy  feet  away. 

Louisville  Ry.  Co.  vs.  Spencer,  47  App.  503. 

Nor  is  it  conclusive  of  due  care  on  part  of  company  that  the 
engine  was  furnished  with  approved  appliances,  that  it  was  duly 
examined  and  appeared  to  be  in  good  condition,  there  being  proof, 
also,  that  the  fire  was  set  with  sparks  tlirown  to  a  distance  to 
which  competent  witnesses  say  they  should  not  have  been  thrown 
if  engine  was  properlv  ecjuipped  and  handled. 
L.  E.  &  St.  L.  R.  Co.  vs.  Black,  54  App.  82. 

A  prima  facie  case  made  is  not  rebutted  hy  proof  th^it  the  engine 
was  equipped  with  the  best  appliances  for  arresting  sparks. 
Chi.  &  Erie  R.  R.  Co.  vs.  Nielson,  118  Ajip.  343. 
It  must  appear  that  the   engine  was  not   only  furnished  with 
the  best  appliances,  but  that  it  was  properly  managed. 

C.  &  A.  E.  E.  Co.  vs.  Clampitt,  63  111.  95,-   St.  L.  V.  &  T.  H.  R.  E. 
Co.  vs.  Funk,  85  111.  460. 

It  is  not  enough  to  show  the  engine,  as  originally  constructed, 

was  properly  equipped.    It  must  also  show  same  was  in  good  repair. 

C.  &"  A.  E.  E.  Co.  vs.  Qnaintance,  58  111.  389. 

And  on  direct  examination,  a  witness  who  testified  that  he  knew 

from  the  uniform  course  of  business  what  appliances  were  in  good 

order,  cannot  be  asked,  "What  was  the  uniform  course  of  busi- 


548  FIRES 

ness  in  the  shop?"     Question  might  be  properly  asked  on  cross 
examination. 

G.  W.  R.  R.  Co.  vs.  Haworth,  39  111,  347. 

Upon  the  question  whether  a  spark  arrester  was  in  repair,  it  is 
admissible  to  prove  by  the  master  mechanic  that  the  engine  was 
not  reported  by  the  inspector  as  it  should  have  been  had  it  been 
out  of  repair;  though  of  little  probative  force,  is  admissible.  The 
inference  of  negligence  is  rebutted  l)y  proof  that  the  engine,  spark 
arrester,  etc.,  were  in  good  order  and  that  the  engineer  was  com- 
petent. 

I.  B.  &  W.  R.  R.  Co.  vs.  Craig,  14  App.  407. 

Evidence  that  an  unused,  closed  and  locked  elevator  adjoining 
a  side-track,  was  seen  to  be  on  fire  in  its  cupola  just  after  an 
engine  had  passed  emitting  sparks,  tends  to  show  the  fire  was 
communicated  by  tht  engine,  where  there  had  been  no  fire  in  the 
elevator,  the  wind  was  blowing  from  the  engine  towards  the 
building,  and  defendant  advances  no  other  reasonable  theory  as 

to  the  origin  of  the  fire. 

C.  &  A.  R.  R.  Co.  vs.  Esten,  178  111.  192. 
Equipment  of  locomotive  with  approved  spark  arrestors,  their 
good  repair  and  skillful  handling  of  locomotive,  are  not  material 
where  proximate  cause  of  fire  is  presence  of  dry  grass  and  combus- 
tible material  on  right  of  way  of  railway  company. 
B.  &  O.  S.  W.  R.  R.  Co.  vs.  Penyman,  95  App.  202. 
Evidence  as  to  subsequent  emission  of  cinders  by  engine  al- 
leged to  have  caused  fire  is  competent  without  regard  to  proof  of 

its  condition  at  such  subsequent  time. 

B.  &  O.  R.  R.  Co.  vs.  Tripp,  175  111.  251. 

Evidence  of  other  fires  communicated  by  different  locomotives 

is  inadmissible  where  particular  engine  has  been  identified. 
First  Natl.  Bank  vs.  L.  E.  &  W.  R.  R.  Co.,  174  111.  36. 

Fire  communicated  by  passing  locomotive  engine  is  prima  facie 

evidence  of  negligence  to  charge  railroad  company. 

C.  &  A.  Ry.  Co.  vs.  Glenny,  70  App.  511. 

Instruction  is  erroneous  which  casts  burden  of  proving  defend- 
ant's negligence  upon  plaintiff. 

Amer.  Strawboard  Co.  vs.  Ry.  Co.,  177  111.  523. 
Proof  of  existence  of  dead  grass,  dry  weeds  or  other  danger- 
ous combustible  material  is  not  essential  to  establishment  of  lia- 
bility. 

B.  &  O.  S.  W.  Ry.  Co.  vs.  Hawkins,  84  App.  40. 

Ownership : 

Ownership  of  land  upon  which  straw  owned  by  the  plaintiff  is 

burned,  is  immaterial. 

Amer.  S.  B.  Co.  vs.  C.  &  A.  R.  R.  Co.,  177  111.  517. 
Ownership   of  land  is  sufficiently  proven   in  action   where   the 
damages  to  real  property  are  claimed,  by  long  and  continued  pos- 

session 

'  B.  &■  O.  S.  W.  Ry.  Co.  vs.  Higgins,  69  App.  412. 

And  proof  of  undivided  one-half  interest  in  land  is  sufficient. 
B.  &  O.  S.  W.  Ry.  Co.  vs.  Higgins,  69  App.  412. 

Elements  and  Measure  of  Damages: 

The  measure  of  damages  for  meadow  and  grass  land  destroyed 
is  the  difference  in  the  land  before  and  after  the  fire,  and  that  of 


FIXTURES  549 

hay  and  straw  is  the  fair  cash  value  ot  it  when  destroyed  as  shown 
by  the  proofs. 

B.  &  O.  S.  W.  Ey.  Co.  vs.  Irwin.  97  App.  .137. 

Where  the  lire  is  set  by  a  railroad,  and  orchard  and  meadow 
are  destroyed,  the  damage  is  tlie  depreciation  in  the  value  of  the 
realty  caused  by  the  tire. 

I.  C.  E.  E.  Co.  vs.  Almon,  100  App.  530. 

In  action  for  destruction  of  crop  by  fire,  defendant  cannot  raise 
the  question  of  title  in  tenant  where  tenant  has  testified  and  made 
no  claim  thereto. 

T.  St.  L.  &  W.  Ey.  Co.  vs.  Farris,  117  App.  108. 

Where  plaintiff  declares  for  damage  to  land,  he  may  testify  as 

to  yield  of  grass  in  the  following  year  on  part  burned  over  as 

compared  with  the  other  part. 

L.  E.  &  W,  Ey.  Co.  vs.  Holderman,  56  App.  144. 

Evidence   that   meadow   lands   would   produce   more   profitable 

crops  of  corn  than  hay  is  incompetent  in  action  for  injury  to  hay 

by  fire. 

S.  St.  L.  &  K.  C.  Ey.  Co.  vs.  Kingman,  49  App.  43. 
Value   of   property   destroyed   may   be   shown   by   expert   testi- 
mony and  may   be  shown  by  evidence  based  upon  hypothetical 
question. 

C.  &  A.  Ey.  Co.  vs.  Glenny.  175  Til.  23R. 

Measure  of  damages  applying  where  fire  is  to  real  estate  is  dif- 
ference between  value  of  land  before  and  after  fire  complained  of. 
C.  &  A.  E.  E.  Co.  vs.  Davis,  74  App.  595. 

W^here  straw  in  stack  is  destroyed  by  fire  from  a  locomotive, 
the  measure  of  damages  is  the  market  value  of  like  straw  at  the 
nearest  market,  plus  the  cost  of  getting  it  from  the  market  to  the 
place  where  the  other  straw  is  destroved. 

C.  G.  W.  Ey.  Co.  vs.  Gitcliell,   95  App.   1. 

The  measure  of  damages  in  case  of  fire  on  farms  is  the  difference 
between  the  value  of  farm  before  the  fire,  and  its  value  after  the 

fire. 

B,  &  O.  S.  W.  Ey.  Co.  ys.  Ferryman,  95  App.  202. 


FIXTURES 

Intention: 

—  In  General:  The  intention  with  wdiieh  the  fixtures  were  put 
in  place  is  the  chief  test  as  to  whether  they  are  removable  by 
a  tenant.  The  fact  that  in  order  to  remove  it,  a  fixture  must  be 
taken  to  pieces,  i"s  not  conclusive  against  the  tenant's  right;  neither 
is  that  right  destroyed  by  the  mere  fact  that  the  removal  of  the 
fixture  may  cause  some  injury  to  the  thing  itself.  If,  however, 
the  removal  causes  a  serious  injury  to  the  freehold,  by  reason  of 
the  manner  in  which  the  fixtures  have  been  attached,  that  fact 
is  to  be  taken  into  consideration  in  determining  what  was  the  in- 
tention of  the  parties  with  reference  to  its  becoming  part  of  the 

freehold  when  it  was  erected. 

Baker  vs.  McClnrg,  198  111.  28 ;  Kelley  vs.  Austin,  46  111.  156 ;  Dooly 
vs.  Crest,  25  Ilf.  551;  Gnnderson  vs.  Kennedy,  104  App.  117;  XII 
111.  Notes  680,  §  19. 


550  FLIGHT 

The  intention  sought  is  not  the  undisclosed  purpose  of  the  actor 
but  the  intentioi^  implied  and  manifested  by  his  act.  It  is  an 
intention  which  settles  not  merely  his  own  rights,  but  the  rights 
of  others  who  have  or  may  acquire  interest  in  the  property.  They 
cannot  know  his  secret  purpose  but  the  inferences  to  be  drawn 
from  what  is  external  and  visible. 

Fifield  vs.  Farmers  Bank,  47  App.  118;  Aft'd.,  148  111,  163;  Kloess  vs. 
Katt,  40  App.  99. 

—  Evidence  of  Intention:  The  rule  for  determining  wdiat  are 
to  be  regarded  as  fixtures  is  as  follows:  First,  real  or  construc- 
tive annexation  of  the  thing  in  question  to  the  realty;  second, 
appropriation  or  adaptation  to  the  use  or  purpose  of  that  part  of 
the  realty  to  which  it  is  connected;  and  third,  the  intention  of 
the  party  making  the  annexation  to  make  it  a  permanent  accession 
to  the  freehold,  this  intention  being  inferred  from  the  nature  of 
the  article  affixed,  the  relation  and  situation  of  the  party  making 
the  annexation  and  the  policy  of  the  law  in  relation  thereto,  the 
structure  and  mode  of  the  annexation,  and  the  purpose  of  use  for 
which  the  annexation  has  been  made. 

Baker  vs.  MeClurg,  198  111.  28;  Fifield  vs.  Farmers  Bank,  148  111. 
163;  Sword  vs.  Low,  122  111.  487;  Schnuling  vs.  Eoekford  Co.,  154 
App.  308;  Fifield  vs.  Farmers  Bank,  47  App.  118. 

—  Reservation  jjy  Parol:  Parol  proof  to  show  w^hat  fixtures  on 
the  estate  at  the  time  of  its  conveyance,  passed  with  the  deed  is 
inadmissible.     The  deed  must  settle  that  question. 

McLaughlin  vs.  Johnson,  46  111.  163;  Smith  vs.  Price,  39  111.  29; 
Damery  vs.  Ferguson,  48  App.  224. 

FLIGHT 

Admissibility : 

Flight  or  an  attempt  to  escape  after  indictment  found,  or  before, 
on  a  criminal  charge  being  preferred  against  one,  is  a  circum- 
stance against  the  prisoner  if  unexplained.  Evidence  is  admis- 
sible to  show  that  the  accused  gave  "straw  bail"  and  forfeited  his 
recognizance  by  voluntary  absence,  and  passed  under  various 
aliases. 

Barron  vs.  People,  73  111.  256;  People  vs.  Warfield,  172  App.  1;  Peo- 
ple vs.  Scott,  261  111.  165. 

But  it  is  error  to  instruct  jury  that  flight  is  evidence  of  guilt. 
It  is  only  evidence  tending  to  prove  guilt.  Nor  should  court  tell 
jury  that  if  flight  be  proved,  it  must  be  satisfactorily  explained, 
consistent  with  innocence  of  accused.  This  might  be  understood  as 
requiring  him  to  prove  an  innocent  purpose  beyongl  doubt. 
Fox  vs.  People,  95  111.  71. 

Proof  that  accused  traveled  under  an  assumed  name  is  inad- 
missible where  not  in  connection  with  offense  charged. 
People  vs.  Warfield,  261  111.  293. 

FORCIBLE  ENTRY  AND  DETAINER 

Nature  of  Action : 

The  action  of  forcible  detainer,  Avhile  not  a  common  law  action, 
is  an  action  at  law  relating  to  real  property. 

Ruttei   vs.  Maher,   147  App.  622. 


FORCIBLE  ENTRY  AND  DETAINER  551 

Possession : 

—  Material  Question:  The  material  qnestion  for  tlie  jury  in 
forcible  detainer  is  to  determine  whether  at  the  time  alleged, 
plaintiff  was  in  actual,  peaceable  possession  of  the  premises,  and 
whether  defendant  entered  against  plaintiff's  will  and  retained 
the  possession.    Only  the  innnediate  right  of  possession  is  involved, 

Ilamniond  vs.  Doty,   184  111.  246;  Woodbmy  vs.  Eeyel,  12S  Ai)p.  459. 

Two  questions  must  arise,  first,   as   to  exclusive  possession   of 
plaintiff,  and  second,  the  invasion  of  his  possession  by  defendant. 
Jamieson  vs.  Graham,  .57  111.  94. 

—  Exercise  of  Dominion:  Where  it  is  shown  plaintiff  has  sub- 
jected premises  to  exclusive  control  by  open  and  notorious  acts 
of  dominion,  such  acts  will  be  held  to  constitute  actual  possession. 

Allen  vs.  Tobias,   77  111.   169. 

—  Eight  of  Possession:  One  suing  under  forcible  entry  and 
detainer  act  must  show  a  right  of  possession  in  himself  and  he 
cannot  rely  upon  the  lack  of  right  in  those  whom  he  seeks  to  dis- 
possess. 

FitzGerald  vs.  Quinn,   165  111.  384;   Mollwain  vs.  Karstens,  152   111. 
135;   Coleman  vs.  Connelly,   139  App.   383. 
Forcible  entry  and  detainer  cannot  be  maintained  v^here  plain- 
tiff has  never  been  in  possession  of  land  or  entitled  to  possession 
prior  to  institution  of  action. 

Knox  vs.  Hunter,  150  App.  392;  Aurner  vs.  Pierce,  106  App.  206. 

Constructive  possession  is  not  a  possession  which  may  be  re- 
stored by  forcible  detainer. 

mitehill  vs.  Cooke,  140  App.  520. 

Burden  of  Proof: 

The  person  who  is  in  actual  and  peaceable  possession  of  land 
will  be  presumed  to  be  rightfully  in  possession,  and  the  burden 
of  proof  is  upon  him  who  would  dispute  that  possessory  right. 

Hammond  vs.  Doty,  184  111.  246;  FitzGerald  vs.  Quinn,  165  111.  354; 
Gosseliu   vs.   Smith,   154  111.   74. 

But  where  plaintiff  in  a  forcible  detainer  case  has  proven  that 
he  has  the  right  of  possession  at  time  of  suit  brought,  he  has  made 
out  a  prima  facie  case  entitling  him  to  recover,  and  thereby  casts 
upon  defendant  the  burden  of  disproving  it. 
Floersheim  vs.  Baude,  110  App.  536. 

Title: 

—  In  General:     In  actions  of  forcible  detainer,  the  title  to  the 

premises  cannot  be  inquired  into  for  any  purpose. 

Thomas  vs.  Olenidi,  237  111.  167;  Moore  vs.  Eichardson,  197  111.  437; 

McDoll  vs.  Shepardson,   156  111.  383 ;   Eenusczaitis  vs.  Eadawiezus, 

172  App.  259;  XII  111.  Notes  689,  §  67. 

Even  though  it  is  admitted  in  a  forcible  detainer  suit  that  the 

title  to  the  premises  is  in  plaintiff,  it  does  not  necessarily  follow 

from  such  admission  and  from  the  fact  that  the  title  cannot  be 

adjudicated  in  such  action,  that  plaintiff  is  entitled  to  possession 

of  the  premises. 

Pietsch  vs.  Pietseh,  245  HI.  454. 

—  Deeds:  Where  actual  possession  of  a  part  of  the  premises 
is  shown  to  be  in  plaintiff,  plaintiff's  deed  for  premises  is  proper 
evidence  for  purpose  of  showing  extent  of  his  possession. 

Thomasson  vs.  Wilson,  146  til.  384;  Huftalin  vs.  Misner,  70  111.  205; 
Pearson  vs.  Herr,  53  111.  144. 


552  FORCIBLE  ENTRY  AND  DETAINER 

But  defendant  has  no  right  to  introduce  deeds  to  show  adverse 

title  in  himself. 

Slate  vs.  Eisenuieyer,  94  111.  90. 

Title  deeds  may  be  introduced  to  show  character  and  extent 
of  possession  claimed,  although  validity  of  titles  cannot  be  in- 
quired into. 

Eagor  vs.  McKay,  44  App.  79 ;  Bloomington  vs.  Bropby,  32  App.  400 ; 
Bloomington  vs.  Graves,  28  App.  614. 

Deeds  under  which  a  party  claims  may  be  read  in  evidence  for 
purpose  of  showing  the  boundaries. 

Griffin  vs.  Kirk,  47  App.  258  _;  Brooks  vs.  Bruyn,  18  111.  539. 

—  Judicial  Sales:  While  it  is  true  that  the  question  of  title 
cannot  arise,  nevertheless,  a  purchaser  at  a  judicial  sale  of  land 
cannot  recover  against  a  judgment  debtor,  or  one  succeeding  to  his 
rights  and  possession,  unless  he  offers  in  evidence  a  valid  judgment, 
execution  and  sheriff's  deed.  Those  are  indispensable  requisites  to 
a  recovery,  for  the  reason  that  a  sale  of  land  under  judgment,  and 
a  failure  to  redeem  must  be  shown.  In  such  case,  the  judgment, 
execution  and  sheriff's  deed  are  evidence  that  the  land  has  been 
sold  and  that  there  has  been  no  redemption. 

Peters  vs.  Balke,  170  111.  304;   Kratz  vs.  Buck,  111  111.  40;  Johnson 
vs.  Baker,  38  111.  98. 
Where  right  of  possession  is  predicated  upon  a  sheriff's  deed, 
not   sufficient  alone  to  introduce   deed,   but  proof  of  validity   of 
proceedings  upon  which  it  is  predicated  is  essential. 

Antognolie  vs.  O 'HaveZedk,  139  App.  142;   Nocholson  vs.  Walker,  4 
App.  404. 

—  Homestead:  In  action  against  a  married  woman,  where 
record  of  a  judgment  in  ejectment  against  her  husband  and 
her  expulsion  from  the  premises  thereunder  was  admitted  in 
evidence  against  her  objection,  it  was  held  erroneous  to  exclude 
testimony  tending  to  show  that  she  was  in  possession  under  a 
homestead  right  in  herself  and  children,  as  wadow  of  a  former 
husband,  and  independent  of  any  right  of  the  husband  who  was 
the  defendant  in  the  ejectment  suit  in  the  premises. 

Morrissey  vs.  Stephenson,  86  111.  344. 

—  Conveyance:  Though  questions  of  title  cannot  be  tried,  yet 
the  plaintiff's  deeds  are  admissible  in  evidence  to  show  that  the 
property  was  conveyed  to  him  by  a  grantor  in  possession. 

'Muller  vs.  Ba^lke,  167  ni.  150. 

Force: 

—  Actual  Violence  not  Necessary:  An  entry  against  the  will 
of  the  occupant  is  forcible  whether  actual  violence,  amounting  to 
a  breach  of  the  peace,  is  used  or  not. 

Hammond  vs.  Doty,  184  111.  246;  Phelps  vs.  Eandolph,  147  HI.  335; 
XII  111.  Notes  684,   §  5. 
Any  entry  which  is  against  the  will  of  the  occupant  is  a  for- 
cible entrv  within  the  meaning  of  the  statute. 

Eoberts  vs.  McErven,  81  App.  413;  Coverdale  vs.  Curry,  48  App.  213. 

Trespass:     But  action  does  not  lie  to  recover  possession  of 

land  where  it  does  not  appear  plaintiff  was  dispossessed  by  de- 
fendant,  but  that  plaintiff  was  guilty  of  trespass. 
Preiss  vs.  Naliborski,   133  App.  205. 


FORCIBLE  ENTRY  AND  DETAINER  553 

Notice  and  Demand: 

—  llhgal  Euirij:  Where  a  party  makes  an  ille^'al  and  forcible 
entry  upon  land  in  the  possession  of  another,  no  notice  or  demand 
for  possession  before  bringing  action  is  necessary. 

Stillinan  vs.  Palis,  134  111.  532;  Naiinian  vs.  Buroli,  91  App.  48. 

But  where  force  and  injury  are  not  involved,  demand  must  be 
shown. 

Thomasson  vs.  Wilson,  146  111.  384. 

—  Tenant  Tlolding  Over:  No  demand  is  necessary  before  bring- 
ing forcible  entry  and  detainer  against  a  tenant  holding  over. 

Henion  vs.  Vavrick,  126  App.  292 ;  Webb  vs.  Heyuian,  40  App.  335 ; 
Frank  vs.  Taubnian,  31  App.  592. 

—  Waiver  of  Notice:  Where  by  the  terms  of  the  lease,  notice 
and  demand  are  waived,  the  lessor  may,  without  notiee  or  de- 
mand, declare  the  term  ended  and  by  such  declaration,  notice 
thereof  and  notice  to  quit  to  the  lessee,  the  term  of  the  lease  is 
ended  and  lessee  cannot  thereafter,  by  tendering  the  rent,  avoid 
the  forfeiture. 

MeKennnn   vs.    Mnlvey,    157   App.    339;    Strauss   vs.   Fornaciari,    147 
App.  18;  Kenyon  vs.  Manley,  125  App.  615. 

—  Proof  of  Service:  The  fact  of  the  delivery  of  a  copy  of  the 
"demand  in  writing  for  possession,"  to  the  party  against  whom 
it  is  proposed  to  bring  such  action,  cannot  be  proven  by  an  indorse- 
ment on  the  original  paper,  either  by  an  officer  or  a  private  per- 
son, whether  sworn  to  or  not.  Service  must  be  proven  by  a  wit- 
ness. 

Venninn  vs.  Vennum,  56  111.  430. 

What  Not  Material: 

—  Date  of  Entry:  The  precise  day  of  the  entry  is  immaterial 
and  it  is  not  necessary  to  prove  entry  to  have  been  made  on  day 
named  in  complaint. 

Spurek  vs.  Forsythe,  40  111.  438. 

—  Conveyance  After  Suit:  The  fact  that  plaintiff  may  have 
conveyed  all  his  interest  in  the  premises  after  suit  brought,  does 
not  preclude  his  right  of  recovery. 

Golden  vs.  Menker,   132  App.   25. 

—  Ejectment:  The  pendency  of  an  action  of  ejectment  is  not  a 
bar  to  the  maintenance  of  an  action  of  forcible  detainer  with 
respect  to  the  same  premises,  as  the  former  involves  question  of 
title,  and  latter  the  right  to  possession. 

Merki  vs.  Merki,  113  App.  518. 

—  Suit  For  Rent:  Beginning  a  suit  in  assumpsit  for  rent  pay- 
able in  advance  on  the  first  day  of  the  moiith  does  not  preclude 
the  bringing  of  a  forcible  detainer  proceeding  before  the  expira- 
tion of  such  month,  if  the  rent  due  is  still  unpaid. 

Schumann  Piano  Co.  vs.  Mark,  208  111.  282. 
.     — Immoral  Purpose:  Defendant  cannot  show  that  premises  were 
leased  to  him  for  immoral  purposes. 

Tobey  vs.  Schiiltz,  51  App.  487. 

—  After  Acejuired  Title:  One  who  has  entered  upon  vacant  or 
unoccupied  lands  without  right  or  title,  cannot  show  in  defense 
to  forcible  entry  and  detainer  proceedings  that  he  acquired  a  tax 
deed  to  the  property  after  taking  possession. 

Palmer  vs.  Frank,   169  111.  90. 


554  FOREIGN  JUDGMENTS 

FOREIGN  JUDGMENTS 

See  Records,  Copies. 

OF  SISTER  STATES 

Jurisdiction: 

—  Necessity  For:  A  judgment  rendered  in  a  sister  state,  when 
defendant  has  not  been  served  with  process,  or  entered  any  ap- 
pearance by  attorney  or  otherwise,  is  a  nullity  and  will  not  be 

enforced  in  this  state. 

Sim  vs.  Frank,  25  111.  125;  Ellinger  vs.  Caspary,  76  App.  523. 

—  Presumptions:     A  presumption  of  jurisdiction  obtains  where 

a   court   of  general  jurisdiction   proceeds   to   adjudicate   a   cause; 

but  this  presumption  applies  only  when  the  record  is  silent  upon 

the  question,  and  if  there  is  an  affirmative  showing  in  the  record 

that  there  was  no  jurisdiction,  the  decree  is  void  and  open  to  direct 

or  collateral  attack. 

Forrest  vs.  Fey,  218  111.  165;  XIII  111.  Notes  145,  §  670. 

The  jurisdiction  of  the  supremo  court  of  another  state  is  pre- 
sumed. 

VanMatre  vs.  Sankey,  148  111.  536;  Dunbar  vs.  Hallowell,  34  111.  168. 

Where,  in  action  on  a  judgment  rendered  by  supreme  court  of 
another  state,  the  record  did  not  show  affirmatively  that  there 
was  service  of  process  upon  the  defendant,  nor  that  there  was  not, 
but  simply  was  silent,  the  judgment  itself  was  prima  facie  evidence 

of  jurisdiction. 

Dunbar  v8.  Hallowell,  34  111.  168;  Lawrence  vs.  Jarvis,  32  111.  304. 
Upon  a  judgment  rendered  by  a  superior  court  of  ajiother  state, 
it  will  be  presumed,  in  absence  of  proof,  that  the  court  rendering 
the  judgment  had  jurisdiction. 

Dunbar  vs.  Hallowell,  34  111.  168. 

Service  of  Process: 

Return  of  officer  is  only  prima  facie  evidence  of  service  as  re- 
quired by  statute,  and  parol  is  competent  to  show  service  void. 

Newman  vs.  Greely  State  Bank,  92  App.  638;  Bimelar  vs.  Dawson, 
5  111.  536. 

Conclusiveness : 

If  the  record  of  a  judgment  rendered  in  a  sister  state  shows 
that  defendant  was  personally  served  with  process,  or  recites 
any  other  facts  showing  jurisdiction  over  his  person,  parol  evi- 
dence is  inadmissible  to  contradict  the  same  in  suit  on  transcript 

of  record  properly  certified. 

Zepp  vs.  Hager,  70  111.  223. 

A  judgment  rendered  in  a  sister  state  is  not  regarded  as  for- 
eign, but  domestic,  and  the  only  question  that  can  be  inquired 
into  in  suit  on  same,  is  A\hether  the  court  had  jurisdiction  of  the 

subject  matter,  and  of  the  persons  of  the  parties. 
Zepp  vs.  Hager,  70  111.  223. 
If  it  appears  from  tlie  record  that  the  court  which  pronounced 
judgment  had  jurisdiction  of  the  person  of  defendant,  it  will  be 
conclusive  of  the  rights  of  the  parties,  and  no  evidence  can  be 
heard  to  impeach  it.  But  where  the  record  fails  to  show  a  proper 
service  or  an  appearance,  the  defendant  may  show  he  was  not 


FOREIGN  JUDGMENTS  555 

within  the  territorial  jurisdiction  of  the  court,  and  in  no  manner 
submitted  himself  to  its  jurisdiction. 
Zepp  vs.  Hager,  70  111.  223. 

The  record  of  a  judgment  rendered  in  another  state  may  be  con- 
tradicted as  to  facts  necessary  to  give  the  court  jurisdiction,  and 
if  it  be  shown  that  such  facts  did  not  exist,  the  record  will  be  a 
nullity,  notwithstanding-  it  may  recite  they  did  exist. 

Want  (if  jurisdiction  may  be  shown  either  as  to  the  subject 
matter  or  person,  or,  in  a  proceeding  in  rem,  of  the  thing. 

Oleson  vs.  Maekolite  Co.,   116  App.  573;   Contra,  Newman  vs.  State 
Bank,  92  App.  638;  McMillan  vs.  Lovejoy,  115  111.  498. 

(Note:  Barnett  vs.  Wolf,  70  111.  76;  Harris  vs.  Lester,  80  111. 
307;  Hunter  vs.  Stoneburner,  92  111.  75;  Waterbury  Natl.  Bank 
vs.  Reed,  231  111.  246;  Harrison  vs.  Hart,  21  App.  348,  "that  rec- 
ord cannot  be  impeached  by  evidence  de  hors  the  record,  when  rec- 
ord recites  actual  service  of  process  and  there  is  nothing  in  the 
record  to  contradict  such  finding  or  return,  'are  cases  involving 
judgments  of  this  and  not  of  sister  state.'  ") 
Admissibility  in  Evidence: 

—  Ill  General:  A  transcript -of  a  judgment  of  a  sister  state, 
when  properly  certified  under  the  act  of  Congress,  is  admissible 
in  evidence  in  action  upon  such  judgment,  although  it  shows  no 
placita.    And  no  questions  are  open  to  inquiry  except  jurisdiction. 

McMillan  vs.  Lovejoy,  115  111.  498. 
In  action  to  recover  moneys  lost  Vvhile  in  the  custody  of  a  safety 
deposit   company,   it   is   proper   to   admit  in   evidence   a   foreign 
decree  of  distribution  in  favor  of  plaintiff,  for  purpose  of  confirm- 
ing his  testimony  that  he  had  the  amount  of  money  claimed  to 
have  been  lost,  and  in  such  case  it  is  not  necessary  to  introduce 
entire  record  of  probate  proceedings. 
Mayer  vs.  Brensinger,   180  111.  110. 
The  record  of  a  judg-ment  of  a  court  not  of  record  and  of  lim- 
ited territorial  jurisdiction  is  not  admissible  in  evidence  without 
affirmative  evidence  that  the  parties  resided  within  the  jurisdic- 
tion of  the  court. 

Kopperl  vs.  Nagy,  37  App.  23;  Shufeldt  vs.  Buckley,  45  111.  233. 
Where  declaration  describes  a  judgment  against  one,  judgment 
against  that  one  and  another,  or  others  is  inadmissible. 

Schertz  vs.  First  Nat.  Bank,  47  App.  124;   Mann  vs.   Edwards,  138 
111.  92. 

—  Justice  of  Peace  Judgments:  In  order  to  entitle  a  transcript 
of  a  judgment  of  a  justice  of  peace  of  another  state  to  be  received 
in  evidence  in  this  state,  it  must  be  shown  that  by  the  laws  of 
the  state  where  the  judgment  was  rendered,  the  justice  had  jur- 
isdiction  over   the   subject   matter   upon   which   he    attempted    to 

adjudicate. 

Trader  vs.  McKee,  2  111.  557;   Cavanaugh  vs.  Morris,  160  App.  55. 

Weight  and  SuiRciency  as  Evidence: 

A  judgirient  of  a  court  of  foreign  state  having  jurisdiction  of 
the  subject  matter  and  of  the  parties,  is  conclusive  evidence  in  the 
courts  of  this  state,  and  can  be  impeached  only  for  fraud.     Evi- 


556  FOREIGN  JUDGMENTS 

denee  to  show  that  plaintiff  had  no  cause  of  action  in  a  suit  on 
such  judgment  is  inadmissible. 

Smith  vs.  Smith,  17  111.  482;  Bimelar  vs.  Dawson,  5  111.  536. 
A   judgment   of   a   sister   state   which,   by   the   laws   thereof,   is 
conclusive  upon  tlie  parties,  is  equally  so  when  sued  on  in  this 

Belton  vs.  Fisher,  44  111.  32;  Cook  vs.  Reilly,  119  App.  347. 
The  force  and  effect  of  a  decree  of  a  sister  state,  when  set  up 
as  an  estoppel,  to  deny  the  fact  necessarily  found  by  it  cannot 
be  avoided  by  showing  the  defendant  in  such  former  suit,  and 
against  whom  the  finding  is  offered,  was  insane  at  time  such  pro- 
ceedings were  had  therein.  The  effect  of  such  decree  can  be  obvi- 
ated only  by  a  direct  proceeding  in  the  courts  of  such  state  to 

impeach  it  or  set  it  aside. 

Hannah  vs.  Eeed,  102  111.  596. 

A  judgment  against  an  administrator  in  one  state  is  no  evi- 
dence of  indebtedness  against  a  different  administrator  of  the  same 
decedent  in  another  state,  for  the  purpose  of  affecting  assets  re- 
ceived by  the  latter  under  his  trust. 

Eos^eothal  vs.  Eenick,  44  111.  202;  Elting  vs.  First  Natl.  Bank,  173  111. 
368. 

The  ''public"  acts  of  this  state  are  of  as  much  dignity  as  the 

judicial  proceedings  of  any  other  state,  and  if  the  laws  of  this 

state  create  obligations  between  its  own  citizens,  such  obligations 

are  supreme  and  will  not  in  effect  be  nullified  unless  they  are  in 

contravention  of  the  organic  law.     A  judgment  of  a  sister  state 

will  be  disregarded  if  to   enforce  and   recognize  sucli   judgment 

would  in  effect  nullify  the  obligations  imposed  by  law  in  this  state 

between  citizens  thereof. 

Baker  vs.  I.  C.  E.  E.  Co.,  158  App.  520. 

Authentication : 

The  record  of  a  judgment  in  a  foreigii  court  is  properly  au- 
thenticated where  it  is  certified  by  the  clerk,  under  seal,  to_  be  a 
true  and  complete  copy  of  the  proceedings;  bears  the  certificate 
of  the  presiding  judge,  under  seal,  that  the  clerk's  certificate  is 
in  due  form,  and  that  the  clerk  signing  it  was  at  that  time  the 
clerk  of  said  court,  and  a  certificate  of  the  clerk,  under  seal,  that 
the  judge  who  signed  the  certificate  was  at  that  time  duly  quali- 
fied and  commissioned  presiding  judge  of  said  court,  according 
to  the  laws  of  the  foreign  state. 
Light  vs.  Eeed,  234  111.  626. 

The  certificates  of  the  clerk  of  a  foreign  court,  under  seal  of 
such  court,  certifying  that  the  record  is  complete,  must  be  pre- 
sumed to  be  correct,  and  cannot  be  impeached  by  the  mere  infer- 
ence that  some  portion  of  the  transcript,  not  shown  to  be  a  neces- 
sary part  of  the  record,  is  absent. 
Light  vs.  Eeed,  234  111.  626. 

A  properly  certified  copy  of  the  record  of  a  foreign  judgment 
showing  that  defendant  appeared  in  the  foreign  court  and  there 
was  a  trial  by  jury  and  a  verdict  against  him  for  a  certain  sum, 
followed  by  recital  of  a  formal  judgment  for  the  amount  of  the 
verdict  and  costs,  show^s  a  valid  judgment,  and  as  the  record  shows 


FOREIGN  JUDGMENTS  557 

a  personal  appearance  ])y  the  defendant,  jurisdiction  of  the  for- 
eign court  will  be  presumed. 

Light  vs.  Reed,  234  111.  62G. 

Act  of  Congress  providing  method  for  authenticating  judgments 
of  sister  states  is  not  exclusive.  By  statute,  records  of  courts  may 
be  proved  by  a  copy  thereof,  certified  under  the  hand  of  the  clerk 
of  the  court  having  custody  thereof,  and  the  seal  of  the  court,  and 
applies  to  foreign  judgments  as  well  as  domestic,  and  is  a  proper 

method. 

People    vs.  MiUer,  195  111.  621;  Garden  City  Sand  Co.  vs.  Miller,  157 
111.  225. 
The  autlientication  of  a  copy  of  the  records,  made  by  ^deputy 
register  of  deeds,  signed  as  deputy,  is  sufficient  where  the  deputy 
is  authorized  to  act  in  case  there  is  no  register  who  can  act. 

Garden  City  Sand  Co.  vs.  MiUer,  157  111.  225;  People  vs.  Miller,  195 
111.  621. 

A  certificate  by  a  deputy  register  of  deeds,  signed  as  such  deputy, 
will  be  presumed  to  have  been  made  by  reason  of  the  vacancy  of 
the  register's  office,  or  of  the  register's  absence  or  inability  to  act, 
where  the  deputy's  power  to  act,  under  the  statute,  depends  upon 
such  vacancy,  absence  or  disability. 

Garden  City  Sand  Co.  vs.  Miller,  157  111.  225;  People  vs.  MiUer,  195 
111.  625. 

COURTS  OF  FOREIGN  COUNTRIES 

Conclusiveness  as  Evidence: 

—  In  General:  A  judgment  of  a  foreign  court  having  jurisdic- 
tion of  the  subject  matter  and  of  the  parties  is  conclusive  evidence 
in  the  courts  of  this  state  and  can  be  impeached  only  for  fraud. 
Evidence  to  show  that  plaintiff  had  no  cause  of  action  in  suit  on 

such  judgment  is  inadmissible. 

Baker  vs.  Palmer,  83  111.  568;  Calhoun  vs.  Ross,  60  App.  309. 

—  Status  of  Person:     And  this  is  particularly  true  with  respect 

to  judgments  or  decrees  affecting  the  status  of  a  person,  for  they 

are  in  the  nature  of  judgments  in  rem  which  are  binding  on  the 

whole  world.     (Decree  of  divorce.) 

Roth  vs.  Roth,  104  111.  35;  Dunham  vs.  Dunham,  162  111.  589. 

—  Limitation  of  Ride:  The  limitation  to  this  rule  is  that  it  may 
be  shown  such  judgment  or  decree  was  obtained  by  means  of  fraud, 
or  gross  abuse  of  the  process  of  the  court,  or  flagrant  departure 
from  the  ordinary  course  of  judicial  procedure,  as,  for  instance, 
that  a  party  in  interest  sat  as  judge  in  the  cause. 

Rotii  vs.  Roth,  104  III.  35;  Field  vs.  Field,  117  App.  307. 

How  Authenticated: 

Foreign    judgments    may    be    proven    by    copies    thereof,    duly 

authenticated  by  the  duly  authenticated  certificate  of  the  officer 

properly  authorized  by  law  to  give  such  copies. 

Calhoun  vs.  Ross,  60  App.  309.     (See  Records — Judicial — Authenti- 
cation.) 

A  judgment  of  a  court  of  general  jurisdiction  must  be  held  to 
have  been  rendered  in  the  due  exercise  of  that  jurisdiction  over  the 
subject  matter  and  person,  unless  the  contrary  is  shown. 
Calhoun  vs.  Ross,  60  App.  309. 


558  FOREIGN  LANGUAGE 

FOREiaN  LANGUAGE 

See  Depositions,  Interpreter. 

FOREIGN  LAW 

Pleading- : 

Where  the  statute  of  another  state  is  relied  upon  as  a  defense 
it  must  be  pleaded,  at  least  in  snl)stance,  and  if  not  pleaded,  it  is 

error  to  permit  it  to  be  proven. 

Palmer  vs.  Marshall,  60  111.  289. 
But  where  declaration  on  common  counts,  Quasre  ? 

Donovan  vs.  Purtell,  216  111.  629. 
An  action  on  the  case  is  an  exception  to  the  general  rule,  and 

proof  of  foreign  law  may  be  made  under  general  issue. 

Christiansen  vs.  Graver  Tank  Works,  223  111.  142;  Coates  vs.  C.  K.  I. 
&  P.  Ey.  Co.,  134  App.  217. 

Judicial  Notice : 

Judicial  notice  will  not  be  taken  of  statutes  of  another  state. 

Coates  vs.  C.  E.  I.  &  P.  Ey.  Co.  239  111.  154;  Leathe  vs.  Thomas, 
218  111.  246;  Close  vs.  Stuyvesant,  182  111.  607;  Bonnell  vs.  Holt, 
89  111.  71;  Hyman  vs.  Bayne,  83  111.  256;  Crouch  vs.  Hall,  15  111. 
263";  XII  111.  Notes  473,  §  7. 

Laws  of  foreign  state  are  matters  of  fact  which  the  court  cannot 

judicially  notice. 

Eoyal  League  vs.  Kavanaugh,  233  111.  175;  Forsythe  vs.  Barnes,  228 
in.   326;   Shannon  vs.   Wolfe,   173  111.  253. 
And  whether  as  ground  for  action  or  defense,  must  be  proven 

like  any  other  fact. 

Dearlove  vs.  Edwards,  166  111.  619;  Hakes  vs.  Bank  of  Terre  Haute, 
164  111.  273;  Miller  vs.  Wilson,  146  111.  523;  .Mason  vs.  Dorsey,  35 
111.  424;  Chumasero  vc.  Gilbert,  24  111.  293;  Smith  vs.  Whittaker, 
23  111.  367;  C.  &  N.  W.  Ey.  Co.  vs.  Johnson,  27  App.  351;  Howitz 
vs.  Fredson,  178  App.  303. 

Presumptions : 

—  Existence  of  Common  Lmv:  In  absence  of  proof  to  contrary, 
the  common  law  will  be  presumed  to  prevail  in  the  states  of  the 
Union.  On  a  common  law  question  therefore,  the  courts  of  one 
state  will  assume  the  common  law  is  in  force  in  a  sister  state  unless 
proof  to  contrary  is  made. 

Forsythe  vs.  Barnes,  228  111.  326;   Scholton  vs.  Barber,  217  111.  148; 

Hogue  vs.   Steele,   207   111.   340;    Beid  vs.   Northern  Lbr.   Co.,   146 

App.  371. 

In  absence  of  any  allegations  or  proof  of  the  statutes  of  another 

state,  it  must  be  presumed  that  the  common  law  obtains  there,  or 

else  that  the  laws  of  such  state  are  similar  to  the  laws  of  this  state. 

Julliard  Co.  vs.  May,  130  111.  87. 

—  Construction  of  Similar  Statutes:    Courts  of  sister  state  will 

be  presumed  to  construe  substantially  similar  statutes  the  same  as 

courts  of  Illinois. 

Clark  vs.  Jackson,  222  HI.  13. 

—  Adoption  of  Statutes:     The  presumption  is  that  a  statute  of 

another  state,  when  adopted,  is  adopted  with  the  construction  given 

it  by  the  courts  of  that  state. 

EeQua  vs.  Graham,  187  111.  67;  Martin  vs.  Judd,  81  111.  488;  Jackson 
vs.  Sec.  Life  Ins.  Co.,  135  App.  86;  Hudson  vs.  King  Bros.,  23  App. 
118;  XIV  111.  Notes  641,  §216. 


FOREIGN  LAW  559 

In  adopting  Euglisli  statutes,  the  legislature  must  be  presumed 
to  have  intended  to  adopt  it  with  the  construction  already  given  it 
by  the  English  courts. 

Hoiikins  vs.  Medley,  97  111.  -102. 

—  Similarili)  of  Laws:  In  absence  of  proof  as  to  statute  laws 
of  a  sister  state,  tliey  will  be  presumed  to  be  the  same  as  the  lex 
fori  where  there  is  no  conniion  law  rule  applicable. 

Nehrliig  vs.  Nehriug,  l(i4  App.  527;  Htitiuss  vs.  Natl.  Bank,  72  App. 
314. 

Where  party  interested  in  clainung  benefit  of  a  foreign  law  or 
statute  fails  to  show^  what  is  the  law  of  the  place  where  contract 
was  made  or  was  to  be  performed,  the  courts  of  this  state,  in  action 
upon  the  contract,  will  presume  the  foreign  law  to  be  the  same  as 
the  law  of  this  state  and  will  apply  the  law  of  this  state  to  the 
contract. 

Shannon  vs.  Wolf,  173  111.  253. 

But  where  pleaded  and  pi'oved  the  lex  loci  may  be  invoked. 
Morris  vs.  Wibaux,  159  III.  627. 

It  will  not  lie  presumed  that  statute  of  a  foreign  state  governing 
the  organization  and  specifying  the  powers  of  a  fraternal  insur- 
ance company  contain  restrictions  limiting  the  ages  of  persons  who 

may  become  members. 

Wood  vs.  Mystic  Circle,  212  111.  532. 

Admissibility  of  Evidence: 

—  Judicial  Construction:  The  opinion  of  the  highest  court  of 
a  sister  state,  interpreting  and  declaring  the  law  of  such  state,  is 
proper  evidence  of  the  law  of  that  state. 

Coates  vs.  C.  R.  I.  &  P.  Ey.  Co.,  239  111.  154;  Simpson  vs.  So.  Pacific 
Co.,  157  App.  158. 

—  Printed  Reports  and  Statutes:  Law  of  sister  state  is  ques- 
tion of  fact  to  be  proven  like  any  other  fact,  and  construction  of 

such  law  mav  be  proven  hx  printed  reports  of  adjudged  cases. 

Coates  vs.  C.  R.  I.  &  P.  Ry.  Co.,  239  111.  154;    Hayvpard  vs.   Since- 
baugh,  141  App.  395;   Figge  vs.  Rowlen,  185  111.  234. 
Printed  copies  of  statutes  of  a  foreign  country  are  admissible 
where  shown  to  the  reasonable  satisfaction  of   the  court   to   be 

authentic. 

Dean  &  Son  vs.  Conkey,  180  App.  162. 
But  printed  statutes,  printed  by  private  enterprise,  purporting 
to  show  the  laws  of  a  sister  state  are  not  competent  where  they  do 
not  purport  to  have  been  published  by  authority,  notwithstanding 
the  same  are  accompanied  by  a  certificate  signed  by  attorney  gen- 
eral and  secretary  of  the  state  in  question,  in  which  such  officers 
certify  that  they  have  examined  and  compared  the  book  in  ques- 
tion and  were  satisfied  it  contained  all  the  laws  of  a  general  nature 

in  force  at  the  time  of  the  certificate. 
Laub  vs.  DeVault,   139  App.   398. 
The  printed  statutes  of  another  state  may  be  read  in  evidence. 
If  a  party  objects  to  portions  of  such  statutes  so  read  as  being 
irrelevant,  he  should  raise  the  question  by  copying  them  into  the 

bill  of  exceptions. 

Charlsworth  vs.  Williams,  1(3  111.  338. 
Under  section  10  of  the  Evidence  act,  providing  that  the  printed 
statute  books  of  foreign  states  purporting  to  be  printed  under  the 


560  FORGERY 

authority  of  siicli  state,  shall  be  evidence  of  the  acts  contained 
thereon,  a  statute  book  stating  on  its  title  page  that  it  is  published 
by  the  authority  of  the  state  is  admissible. 

McCraney  vs.  GIos,  222  111.  628 ;  G.  P.  Shooting  Club  vs.  Crosby,  181 
111.  266;  Eeifschneider  vs.  Reifschneider,  241  111.  92. 

A  book  purporting  on  its  title  page  to  be  the  statutes  of  Ohio, 
published  by  authority  of  the  legislature,  in  force  August  1st,  1854, 
held  admissible. 

Eagan  vs.  Conley,  107  111.  458;  McDeed  vs.  McDeed,  67  111.  545. 

—  Authenticated  Copies  of  Foreign  Legislative  Acts:  A  copy 
of  the  act  of  the  legislature  of  sister  state,  to  which  is  attached 
certificate  of  Secretary  of  State,  that  it  is  a  true  copy,  and  the 
certificate  of  the  Governor  of  the  official  character  of  the  Secretary 
of  State,  to  which  latter  certificate  the  seal  of  state  is  attached,  is 

not  a  properly  authenticated  copy  of  statute. 

Lafayette  vs.  Stone,  2  111.  424. 

Acts  of  legislature  of  another  state  must  be  authenticated  by 
seal  of  such  state.  The  seal  of  the  secretary  of  such  state  is  not 
sufficient. 

Sisk  vs.  Woodiiiff,  15  111.  15. 

—  Parol  Evidence:  Statutes  of  foreign  state  cannot  be  proven 
by  parol. 

Hoes  vs.  VanAlstyne,  20  111.  202;   MeDeed  vs.  McDeed,  67  111.  545; 
Contra,  Love  vs.   McElroy,   106  App.  294. 
The  common  law  of  a  foreign  state  may  be  proved  by  parol  evi- 
dence.    The  usual  course  is  to  make  such  proof  by  the  testimony  of 
competent  persons  instructed  in  the  law. 
McDeed  vs.  McDeed,  67  111.  545. 

—  Expert   Testiynony :     Testimony   of  witnesses  learned   in  the 

law  of  a  foreign  country,   is  admissible  to  show   construction  of 

same. 

Canale  vs.  People,  177  111.  219. 

The  construction  of  statutes  of  a  sister  state,  given  by  the  trib- 
unals of  that  state,  may  be  given  in  evidence  by  witnesses  learned 
in  such  laws. 

Hoes  vs.  VanAlstyne,  20  111.  202. 

Proof  Before  Court: 

To  prove  the  law  of  a  sister  state,  it  is  proper  to  introduce  such 
proof  before  the  court  and  out  of  the  presence  of  the  jury.  While 
the  foreign  law  must  be  proven  as  a  fact,  the  better  opinion  seems 
to  be  that  this  proof  must  l)e  made  to  the  court,  rather  than  to  the 

jury. 

Christiansen  vs.  Graver  Tank  Works,  223  111.  142. 


FORGERY 

See  Handwriting,  Weight  and  Sufficiency. 

Questions  of  Law  and  Fact: 

It  is  a  question  for  the  court  as  to  whether  or  not  the  writing  was 
such  an  instrument  as  that  the  forgery  would  constitute  a  crime. 

Wallace  vs.  People,  27  111.  44;  Waterman  vs.  Peoiile,  67  111.  91; 
Brown  vs.  People,  86  111.  2.39;  Shirk  vs.  People,  121  111.  61;  People 
vs.  Dougherty,  246  111.  458. 


FORGERY  561 

Presumptions  and  Burden  of  Proof: 

TlierL-  is  no  presiunplioii  ol'  law  of  an  intent  to  defraud  from 
proof  that  accused  has  actually  forged  a  note  on  another  person 
when  he  had  not  uttered  same,  but  this  is  a  question  of  fact  for  the 
jury,  to  find  from  the  evidence,  including  his  possession  of  the  same, 
and  surrouiuling  circumstances.  The  possession  of  the  forged 
paper,  while  evidence  tending  to  prove  a  fraudulent  intent,  is  not 
conclusive.  The  circumstances  may  clearly  repel  any  presumption 
of  guilt. 

Kotter  vs.  People,  loO  Til.  441;  Fox  vs.  People,  95  111.  71. 

Venue  is  a  jurisdictional  fact  whicli  prosecution  is  required  to 

prove,  but  not  beyond  a  reasonable  doubt. 
Peo])le  vs.  Mcintosh,  242  111.  602. 

The  delivery  of  a  forged  note  justifies  the  inference  that  it  was 
forged  at  place  of  delivery,  if  there  is  no  evidence  tending  to  show 
it  was  forged  elsewhere. 

People  vs.  Mcintosh,  242  111.  602;  Langdon  vs.  People,  133  111.  382. 

Admissibility  of  Evidence: 

—  Scc())i(lar!j  Evid(  ncc:  Only  the  note  described  and  as  set  out 
call  be  proven,  but  no  particular  hind  of  evidence  is  called  for  to 
prove  it.  Where  the  tenor  of  the  note  is  set  out,  it  is  not  necessary 
to  allege  any  excuse  for  not  setting  it  out  or  for  not  describing  it 
with  sufficient  certainty,  as,  that  it  was  lost  or  destroyed,  or  in  the 
hands  of  accused.  It  remains  for  prosecution  to  prove  the  charge 
as  particularly  as  alleged,  and  it  may  be  done  by  any  competent 
evidence.  Secondary  evidence  is  competent  when  proper  founda- 
tion is  laid.  The  same  rules  of  evidence  are  applicable  to  prove 
the  issue  as  in  other  cases. 

Cross  vs.  People,   192  111.  291. 

—  Photographs:  A  photographic  copy  of  a  forged  note  is  ad- 
missible in  evidence,  where  the  original  has  so  faded  as  to  become 
illegible,  on  proof  that  it  is  an  exact  copy  of  the  words  of  the  orig- 
inal, when  it  is  not  offered  to  prove  the  handwriting  of  the  sig- 
natures, but  merely  the  words  of  the  note.  If  material  to  show 
that  it  is  in  exact  similitude  with  the  original  in  respect  to  form, 
shading  and  coloring,  the  testimony  of  an  artist  or  expert  might  be 
required. 

Duffin  vs.   People,   107   111.   113. 
— Unanthcniicated   Transcripts  of  Foreign  Proceedings:     Files 
of  proceedings  in   justice's  court  of  another  state,   not  properly 
authenticated,  are  inadmissible  for  purpose  of  identifying  accused, 

he  being  defendant  in  such  proceedings. 
Michaels  vs.  People,  208  111.  603. 

—  Other  Forgeries:     Other  forgeries  are  admissible. 

Steele  vs.  People,  45  111.  152  {  XII  111.  Notes  697,  §  12. 

—  Possession  of  Other  Forged  Instruments:  Evidence  is  admis- 
sible to  show  that  defendant  had,  about  same  time,  in  his  possession, 
or  had  uttered  or  attempted  to  utter,  other  forged  instruments  of 

same  description,  as  tending  to  prove  guilty  knowledge. 

Anson  vs.  PeoT)le,  148  111.  494;  Fox  vs.  People,  95  111.  71;  Cross  va 
People,  47  111.  152;   Steele  vs.  People,  45  111.  152. 

—  Adniissions  and  Confessions  of  Defendant:  Evidence  of  the 
admissions   or  statements   of   defendant   in   reference   to   note   de- 

Ev.— 36 


562  FORGERY 

scribed   in  the  indictment  as  having  been   forged,   is   admissible 

against  him. 

Anson  vs.  People,  14S  111.  494;  Fox  vs.  People,  95  111.  71. 

But  what  he  said  about  another  note  not  in  evidence  is  not  ad- 
missible to  prove  charge  upon  which  he  is  being  tried. 
Anson  vs.  People,  148  111.  494. 

It  has  long  been  settled  in  our  law  that  while  a  free  and  volun- 
tary confession  of  guilt  is  of  the  highest  order  of  evidence,  one 
extorted  is  never  received.  So  where  one,  on  his  arrest  for  forgery 
of  the  signature  of  a  public  officer,  to  papers  necessary  to  procure 
a  requisition  of  the  Governor  for  the  return  of  another  charged 
with  crime,  was  told  he  was  arrested  on  that  "requisition  business," 
replied,  "I  have  done  the  whole  thing  and  am  willing  to  suffer  the 
consequences,"  such  statements  were  admissible  on  qaestion  of  his 

guilt  of  charge  of  forgery. 

Langdon  vs.  People,  133  111.  382. 

Weight  and  Sufficiency  of  Evidence: 

Evidence  of  a  stenographer  that  she  made  a  type-written  copy  of 
the  forged  note  from  the  original,  that  she  compared  it  with  the 
State's  attorney,  by  first  reading  the  original  while  he  held  the 
copy,  and  then  reading  the  copy  while  he  held  the  original,  and 
that  the- copy  was  true  and  correct,  is  prima  facie  sufficient  proof 
that  the  copy  was  correct. 

Cross  vs.  People,  192  111.  291. 

Venue  is  proven  where  there  is  evidence  from  which  it  can  be 
reasonably  inferred  that  the  crime  was  committed  within  the  juris- 
diction where  the  prosecution  takes  place. 
People  vs.  Mcintosh,  242  111.   602. 

Under  a  count  in  an  indictment  for  the  passing  of  forged  note 
as  genuine,  knowing  it  to  be  forged,  strict  proof  of  the  knowledge 
of  accused  as  to  the  genuineness  or  falsity  of  the  note,  like  all  other 
material  facts  constituting  the  offense,  is  required.  The  knowledge 
the  note  was  not  genuine  need  not  be  proven  by  direct  and  positive 
evidence,  but  may  be  inferred  from  circumstances,  but,  neverthe- 
less, it  must  be  satisfactory  to  the  minds  of  the  jury. 
Parker  vs.  People,  97  111.  32. 

Proof  that  a  note  was  forged  by  defendant,  and  that  he  attempted 
to  pass  it  in  the  county  where  suit  was  brought,  is  evidence  that 
the  forgery  was  committed  in  that  county,  in  absence  of  other  proof 

where  it  was  forged. 

Bland  vs.  People,  4  111.  364. 
Proof  that  the  signature  is  not  in  handwriting  of  defendant  is 
entitled  to  but  little  weight  or  reliance,  for  the  reason  that  a  forger 
seeks  to  disguise  his  own  handwriting  and  to  imitate  that  of  the 

one  whose  name  he  forges. 

Langdon  vs.  People,  133  111.  382. 

Variance : 

Where  the  indictment  charged  forgery  of  name  of  Charles  Little- 
more,  but  the  proof  showed  that  accused,  at  time  of  passing  note, 
represented  the  maker  as  Lidamore,  giving  his  residence,  etc.,  this 
rendered  proof  unnecessaiy  that  there  was  such  a  person  as  Little- 


FORMER  ADJUDICATION  563 

more,  as  the  person  taking  the  note  was  induced  to  take  it  as  the 

note  of  Lidamore. 

Parker  vs.  Pooplo,  97  111.  32. 

"Where,  in  an  indictment,  tlic  maker's  name  was  spelled  "Otlia 
Carr, "  while  in  the  note  oft'ered  in  evidence  it  was  "Oatha  Carr," 
the  variance  was  held  fatal. 

Brown  vs.  People,  fif)  111.  344. 
A  variance  as  to  the  middle  initial  of  a  name  is  not  fatal. 
Langdon  vs.  People,  133  111.  382. 

Witnesses : 

The  person  whose  signature  is  alleged  to  have  heen  forged,  while 
a  competent,  is  not  an  indispensable  witness  to  establish  the  forgery. 
Auson  vs.  People,  148  111.  494. 


FORMER  ADJUDICATION 

See  Physicians  and  Surgeons,  Former  Jeopardy. 

IDENTITY  OF  SUBJECT  MATTER 

When  Judgment  Estops: 

A  judginent  in  a  former  proceeding  is  an  estoppel  only  where  it 
appears  from  the  face  of  the  record  or  by  extrinsic  evidence  that 
the  precise  matter  in  controversy  in  the  suit  at  bar  was  raised  and 
determined  in  the  proceeding  which  is  urged  as  an  estoppel.  A 
judgment  in  a  former  proceeding  between  the  same  parties  only 
bars  subsequent  action  on  matters  actually  settled  by  it.^  The 
estoppel  of  a  judgment  extends  to  the  questions  involved  in  the 
issue  and  not  to  any  incidental  matter,  though  it  may  have  arisen 

and  been  passed  upon. 

Kraiise  vs.  Nolte,  217  111.  298;  Smith  vs.  Roimtree,  185  111.  219; 
Sawyer  vs.  Nelson,  160  111.  629. 
It  is  not  always  true  that  an  adjudication  in  a  former  suit  canuot 
be  made  available  as  an  estoppel,  unless  it  appear  that  the  thing 
sought  to  be  recovered  and  the  cause  of  action  in  both  suits  were 
the  same.  Where  the  second  action  is  upon  the  same  claim  or 
demand  as  the  first,  the  judgment  in  the  former  suit,  if  rendered 
upon  the  merits,  is  an  absolute  bar  or  estoppel  to  the  subsequent 
action,  and,  as  to  the  claim  in  controversy,  concludes  both  parties 
and  privies,  not  only  as  to  every  ground  of  recovery  or  defense 
actually  presented  in  the  action,  but  also  as  to  every  ground  which 
might  have  been  presented.  But  where  the  second  action  between 
the  same  parties  is  upon  a  different  claim  or  demand,  the  judg- 
ment in  the  first  action  operates  as  an  estoppel  only  as  to  those 
matters  in  issue,  or  points  controverted,  upon  the  determination 
of  which  the  finding  or  verdict  was  rendered.  In  other  words, 
where  the  former  adjudication  is  relied  upon  as  an  answer  and  bar 
to  the  whole  cause  of  action  then  it  must  appear  that  the  cause  of 
action  and  thing  sought  to  be  recovered  are  the  same  in  both 
suits,  but  "where  some  specific  fact  or  question  has  been  ad- 
judicated and  determined  in  a  former  suit,  and  the  same  fact  or 
question  is  again  put  in  issue  in  a  subsequent  suit  between  the 
same  parties,  its  determination  in   the  former  suit,   if  properly 


564  FORMER  ADJUDICATION 

presented  and  relied  upon,  will  be  held  conclusive  upon  the  parties 
in  the  latter  suit,  without  regard  to  whether  the  cause  of  action 

is  the  same  in  both  suits  or  not." 

L.  N.  A.  &  C.  Co.  vs.  Carson,  169  111.  247;  Riverside  Co.  vs.  Town- 
seud,  i20  TU.  9;  Haniia  vs.  Seed,  102  111.  596;  Wright  vs.  Griffey, 
147  111.  496;  See  also  People  vs.  Waite,  243  111.  156;  South  Park 
Com.  vs.  Ward  &  Co.,  248  111.  299;  XIII  111.  Notes  111,  §  441. 

Parol : 

—  In  General:     It  is  competent  to  show  by  extrinsic  evidence 
what  question  or  questions  were  raised  and  determined  in  a  former 

suit. 

Sawyer  vs.  Nelson,  160  111.  629;  Moody  vs.  Chi.  T.  &  T.  Co.,  138 
App.  233;  People  vs.  Wilson,  260  111.  145. 
Where  a  judorment  is  pleaded  or  offered  in  evidence  in  bar  of  a 
claim,  and  it  is  uncertain  from  the  record  what  was  adjudicated 
upon  at  the  time  the  judgment  was  entered,  parol  evidence  is  ad- 
missible to  show  what  matters  were  in  controversy,  what  testimony 
was  given  and  what  questions  were  submitted  to  the  court  for  its 
determination  at  the  time  the  judgment  was  entered. 

Heisi'hbaek  vs.  Cohen,  207  111.  517;  Eeubel  vs.  Title  Guaranty  Co.,  199 
HI.  110;   Wright  vs.  Griffey,  147  111.  496;   C.  B.  &  Q.  Ey.  Co.  vs. 
Schaefer,  124' 111.  112;  State  Bank  vs.  Wheeler,  146  App.  568. 
Where  several  distinct  items  are  declared  upon  in  action  of  debt 
and  the  judgment  is  general,  the  presumption,  in  absence  of  any- 
thing in  the  record  to  the  contrary,  is  that  each  item  was  included 
in  the  judgment ;  but  such  presumption  may  be  overcome  by  parol 
proof  shoAving  that  certain  of  the  items  were  not  offered  in  evidence 
and  not  included  in  the  judgment. 
People  vs.  Becker,  253  111.  131. 
A  judgment  of  a  court  of  competent  jurisdiction  upon  a  question 
directly  involved  in  one  suit  is  conclusive  as  to  that  ciuestion  in 
another  suit  between  the  same  parties.     But  it  must  appear  either 
upon  the  face  of  the  record  or  be  shown  by  extrinsic  evidence  that 
the  precise  question  was  raised  and  determined  in  the  former  suit. 
If  there  be  any  uncertainty  on  this  head,  in  the  record,  the  whole 
su])jeet  matter  of  the  record  will  be  open  to  a  new  contention,  unless 
this  uncertainty  be  removed  by  extrinsic  evidence  showing  the  pre- 
cise point  involved  and  decided  in  the  former  proceeding. 
Palmer  vs.  Sager,  143  111.  34. 
^\niere  it  does  not  appear  from  a  particular  order  that  there  was 
a  hearing  and  adjudication  upon  the  merits  of  a  controversy,  parol 
evidence  is  competent,  not  to  determine  what  the  adjudication  was, 
but  to  ascertain  what  was  adjudicated  upon. 
Langmuir  vs.  Landes,  113  App.  134. 
—  Where   Shonni    hjj   Record:    Where  the   cause   of  action   or 
ground  of  defense  or  other  matter  appears  upon  the  face  of  the 
record,  no  proof  is  admissible,  but  where  they  do  not,  witnesses 
may  be  called  to  identify  the  parties,  cause  of  action  or  defense  or 

other  matter  litigated. 

Heisehbach  vs.  Cohen,  207  111.  717;  Eeubel  vs.  Title  Guaranty  Co., 
199  111.  110;  Gray  vs.  Gillilan,  15  111.  454;  State  Bank  vs.  Wheeler, 
146  App.  568. 


FORMER  ADJUDICATION  565 

Such  evidence  will  never  be  received  for  the  purpose  of  impeach- 
ing or  contradicting  the  record. 

Eeubcl  vs.  Title  Giiarantoc  Co.,  109  111.  110. 
And  in  such  case,  if  the  face  of  the  record  does  not  show  the 
full  and  true  state  of  the  controversy,  and  the  matters  investigated 
in  the  prior  suit,  parol  evidence  is  proper  to  supply  what  is  not 
shown,  but  not  to  contradict  the  record. 

C.  B.  &  Q.  Ey.  Co.  vs.  Schaffer,  124  III.  112. 
But  where  a  former  recover}^  is  relied  upon,  and  it  appears  prima 
facie  from  the  record  that  the  Cjuestion  has  been  adjudicated,  it 
may  be  shown  by  parol  testimony  that  such  question  was  not,  in 
fact,  decided  in  tlie  former  suit. 

Barger  vs.  Hobbs,  67  111.   592. 
If  the  record  in  the  suit  on  a  bond  shows  that  a  recovery  was  had 
for  damages,  the  record  cannot  be  controverted,  and  a  pleading  in 
another  action,  which  alleges  the  contrary,  is  bad  on  demurrer. 

But  it  not  appearing  by  the  record  whether  the  question  of  dam- 
ages for  the  detention  was  litigated  in  that  case,  or  whether  the 
recovery  was  only  for  the  value  of  the  propery,  the  parties  can 
show  in  a  subsequent  suit,  by  parol  evidence,  what  causes  of  action 
were  in  fact  litigated. 

Shepard  vs.  Butterfield,  41  111.  76. 
If  the  pleadings  in  a  former  suit  presented  several  issues,  and 
the  record  does  not  show  upon  which  issue  the  judgment  was  in 
fact  rendered,  such  fact  may  be  shown  by  parol. 
Sawyer  vs.  Nelson,  160 "ill.  629. 
A  debtor  arrested  by  capias,  on  a  judgment  based  upon  a  declar- 
ation of  three  counts,  in  two,  only,  of  which,  malice  was  the  gist 
of    the   action,    nothing    appearing   to   show    on    which    count    or 
counts  the  judgment  was  based,  may  on  his  application  for  dis- 
charge, introduce  evidence  to  disprove  malice  in  connection  with 
the  original  transaction. 

Sawyer  vs.   Nelsou,   160   111.   629;   Kitsou  vs.   Farwell,   132   111.   327; 
Cf.  Kellar  vs.  Norton,   228  111.  3.56. 

Pleadings  and  Files  Competent: 

The  pleadings,  stenographic  notes  and  instructions  given  to  the 
jury  are  admissible  for  the  purpose  of  establishing  the  identity  of 
the  point  determined  in  the  former  action. 
Henry  Sons  Co.  vs.  Mahoney,  97  App.  313. 

Certificate  of  Evidence: 

Is  admissible  to  show  former  adjudication  and  what  issues  were 
tried. 

Chi.  Term.  Co.  vs.  Barrett,  252  111.  86. 

IDENTITY  OF  PARTIES 
Parol: 

Where  record  does  not  disclose  identity  of  parties,  parol  evi- 
dence is  admissible  to  show  who  are  the  real  parties  in  interest, 
and  that  they  conducted  the  litigation  in  the  names  of  other 
persons. 

Bennett  vs.   Star  Mining  Co.,  18  App.   17;   Henry  Sons  Co.  vs.  Ma- 
honey, 97  App.  313. 


566  FORMER  CONVICTION 

FORMER  CONVICTION 

Admissibility : 

Fact  of  former  conviction  of  infamous  crime  is  admissible  for 
purpose  of  impeaching  credibility  of  witness. 

Bailey   vs.   Beall,  251   111.  577;   McLain  vs.  Chicago,   127   App.  489; 

Strong  vs.  Lord,  8  App.  539;  Matzenbaugh  vs.  People,  194  111.  108; 

Daxaiibeckler  vs.  People,  93  App.  553;  XIV  111.  Notes  1153,  §303. 

It  is  the  fact  of  conviction  and  not  the  nature  of  the  punishment 

that  is  to  be  considered. 

McKeavitt  vs.  People,  208  111.  460. 

Such  evidence  seriously  alfects  credibility. 

Simons  vs.  People,  150  111.  66;  Gehm  vs.  People,  87  App.  158. 

But  does  not  render  Avitness  incompetent. 

Estate  of  Handlin  vs.  Law,  34  App.  84;  McLain  vs.  City  of  Chicago, 

127  App.  489. 

The  conviction  which  may  be  shown  to  affect  the  credibility  of  a 

witness  must  be  for  some  crime  which  at  common  law  would  render 

him  incompetent  to  testify  and  not  one  punishable  only  by  fine 

or  imprisonment  in  jail. 

Matzenbaugh  vs.  People,   194  111.   108;   Bartholomew  vs.  People,  104 
111.  601 ;  People  vs.  Spain,  157  Aj)p.  49 ;  Daxanbechler  vs.  People,  93 
App.  553. 
The  conviction  must  have  been  of  an  infamous  crime,  conviction 

for  misdemeanor  does  not  fall  within  rule. 

Burke  vs.  Stewart,  81  App.  506. 
Nor  does  conviction  for  conspiracy  to  cheat  and  defraud. 

Lampkin  vs.  Burnett,  7  App.  143. 
Nor  conviction  for  illegal  sale  of  liquor. 

People  vs.  Duggan,  150  App.  375;  People  vs.  Maas,  154  App.  11. 
Conviction  may  be  shown,  but  not  that  witness  has  been  indicted, 

only. 

People  vs.  Newman,  261  111.  11. 
Must  be  a  conviction,  not  simply  prosecution. 

People  vs.  Duggan,  150  App.  875. 
Nor  the  crime  of  manslaughter, 

Benson  vs.  Chi.  Ey.  Co.,  ISO  App.  235. 
Judgments  in  convictions  of  infamous  offenses  for  the  purpose 
of  discrediting  witnesses,  are  admissible  but  the  evidentiary  facts 

alone  are  not  even  admissible  in  other  suits  to  discredit  witnesses. 
Gallagher  vs.  Singer  Sew.  M.  Co.,  177  App.  198. 
And  evidence  that  witness  was  subsequently  pardoned  is  imma- 
terial and  is  properlv  denied  admission. 

Gallagher  vs.  People,  211  111.  158;  Contra,  O'Donnell  vs.  People,  110 
App.  250. 
A  conviction  and  sentence  for  an  infamous  offense  establishes  a 
bad  moral  character. 

People  vs.  George,   186  111.   122. 

Admissibility  of  Evidence  to  Show^  Former  Conviction: 

—  Criminal  Trials:     Must  be  shown  by  record  of  such  convic- 
tion. 

McKeavitt  vs.  People,  208  111.  460;   Kirby  vs.  People,   123  111.  436; 

Bartholomew  vs.    People,   104   111.   (iOl ;    O'Donnell  vs.   People,   224 

111.  218;   Simons  vs.  People,  150  111.  66. 

Or  a  properly  authenticated  copy  thereof,  and  same  must  contain 

at  least  the  caption,  entry  showing  return  of  indictment  into  open 

court  by  grand  jury,  indictment  and  record  of  arraignment,  the 


FOIWIER  CONVICTION  567 

impaneling  or  waiver  of  a  jury,  as  well  as  final  judgment  of  the 
court.     These  are  indispensable  parts  of  the  record. 

Kirby  vs.  People,  12;5   111.  43Gj   ISimous  vs.  People,  150  111.  66;  Peo- 
ple vs.  Murphy,  188  lU.  144. 
The  caption,  returning  of  indictment  into  open  court  by  grand 
jury,  indictment  and  arraignment  of  defendant  are  as  indispensable 

parts  of  record  as  judgment  of  conviction. 

Bartholomew  vs.  People,   104  111.   601;   Clifford  vs.  Pioneer  Co.,  232 
ill.  150;  People  vs.  Gray,  201  111.  140. 

Same  cannot  be  shown  by  parol. 

People  vs.  Blevin,  251  Til.  3S1 ;   O'Donnell  vs.  People,  224  111.  218; 
Simoni  vs.  People,  150  111.  66;   Kirby  vs.  People,  123  111.  436. 

Fact  that  defendant  becomes  a  witness  in  his  own  behalf  does  not 
alter  the  rule,  and  records  of  penitentiary  are  inadmissible  to  show 
former  conviction,  but  same  must  be  shown  by  record  of  conviction, 

as  in  case  of  other  witnesses. 

Bartholomew  vs.  People,  104  111.  601;  People  vs.  Blevins,  251  111.  38T. 
Cannot  be  shown  by  oral  testimony  drawn  out  on  cross  examin- 
ation, for  alleged  purpose  of  ascertaining  residence. 
McKea'\dtt  vs.  People,  208  111.  460. 
If  defendant's  objection  to  parol  evidence  is  general,  and  not 
upon  the  ground  that  the  records  should  be  produced  to  prove  the 
facts,  the  question  is  waived  and  the  admission  of  the  parol  proof 

is  not  reversible  error. 

Simons  vs.  People,  150  HI.  66;  O'Donnell  vs.  People,  224  111.  218. 

—  Civil  Actions:     The  fact  of  former  conviction  may  be  proven 
as  anv  other  fact,  not  of  record,  bv  anv  witness  cognizant  thereof. 
Baily  vs.  Beall,  251  111.  577 ;  Clifford  vs.  Pioneer  Co.,  232  111.  150 ; 
Gage  vs.  Eddy,  167  111.  102;  McLain  vs.  City  of  Chicago,  127  App. 
489;  Estate  of  Handlin  vs.  Law,  34  App.  84;  Strong  vs.  Lord,  8 
App.  539;  XIV  111.  Notes  1154,  §304. 
(The  fact  of  conviction  was  proposed  to  be  proved  by  witnesses 
in  Gage  vs.  Eddy,  167  111.  102,  cited,  and  objection  sustained.    Held 
error.     Courts  say:     "The  conviction  for  crime,  when  offered  as 
impeaching  evidence  at  common  law,  could  only  be  proven  by  offer- 
ing the  record  of  the  conviction,  and  identifying  the  witness  as  the 
convicted  person.     The  above  section  authorized  other  methods  of 
showing  such  conviction  as  impeaching  testimony.     The  ruling  of 
the  court  was  that  there  could  be  no  proof  offered  except  the  record 
of  a  conviction  for  crime.     This  was  error.") 

But  no  element  necessary  to  a  valid  conviction  can  be  omitted 
whether  proven  in  one  way  or  another.  Unless  admitted  by  the 
witness,  or  the  party  for  whom  he  testifies,  there  must  be  enough 
proven  either  by  the  record  or  parol  to  show  jurisdiction  of  court 

and  a  conviction. 

Clifford  vs.  Pioneer  Co.,  232  111.  150. 

Character  of  offense  may  be  shown  by  parol. 

Schwarzeiisehild  vs.  Pfaelzer,  133  App.  346;  Pioneer  Co.  vs.  Clifford, 

135  App.  417. 

"Wliere  it  is  sought  to  discredit  w^itness  by  proving  his  conviction 

of  an  infamous  crime  by  the  record  of  such  conviction,  if  the  name 

of  the  witness  is  the  same  as  that  of  the  person  convicted,  the  record 

is  admissible  without  first  identifying  the  witness  as  the  person 

convicted,  since  such  fact  will  be  presumed,  if  not  denied. 
Clifford  vs.  Pioneer  Co.,  232  111.  150. 


568  FORMER  JEOPARDY 

FORMER  JEOPARDY 

Admissibility  of  Evidence: 

Demurrer  may  be  sustained  to  plea  of  former  jeopardy.  May  be 
shown  under  plea  of  not  guilty, 

Dalton  vs.  People,  224  111.  333 ;  Hankey  vs.  People,  106  111,  628. 
The  plea  of  not  guilty  to  an  indictment  for  a  criminal  offense  is 
all  that  is  necessary  to  render  competent  any  evidence  that  tends 
to  prove  or  disprove  any  issue  involved. 
People  vs.  Lee,  248  111.  64. 
A  conviction  under  an  ordinance  cannot  be  shown  in  bar  of  an 
indictment  for  same  offense  under  statute. 
Kobbms  vs.  People,  95  111.  175, 
A  discharge  by  a  justice  of  peace,  of  a  defendant  in  bastardy 
proceeding  is  not  a  bar  to  further  proceedings  for  same  cause. 
Mooney  vs.  People,  96  Ajip.  622. 
Where  an  indictment  against  a  party  has  been  nol.  prossed.  and 
a  new  one  found,  it  is  competent  to  show  by  parol  that  the  crime 
charged  in  both  indictments  is  one  and  the  same,  and  thus  defeat 
the  operation  of  statute  of  limitations. 
Swalley  vs.  People,  116  111.  247. 

Pleading-  and  Practice: 

Defense  cannot  be  raised  by  motion  in  arrest  of  judgment. 

People  vs.  McGinnis,  234  111.  68;  O 'Donnell  vs.  People,  224  111.  218. 
On  demurrer  to  special  plea,  question  whether  indictments  were 
for  same  offense  must  be  determined  1)y  inspection  of  record,  noth- 
ing but  facts  appearing  from  the  same  being  pleaded. 

Durham  vs.  People,  5  111.  172;  Campbell  vs.  People,  109  111.  565. 

Felonies  and  Misdemeanors: 

Prohibition  applies  to  felonies  and  misdemeanors. 

People  vs.  Miner,  144  111.  308;  Durham  vs.  People,  5  111.  172;  Logg 
vs.  People,  8  App.  99, 

Identity: 

Substantial  as  well  as  formal  identity  may  be  shown  by  parol 
testimony.  Parol  evidence  is  always  admissible  and  sometimes 
necessary  to  establish  the  defense  of  prior  conviction  or  acquit- 
tal. In  cases  of  dispute,  parol  evidence  is  admissible  to  prove  (what 
the  record  cannot  sufficiently  show)  that  the  offenses  were  or  w^ere 
not  identical.  Any  person  present  at  the  former  trial,  as  well  as 
the  trial  judge,  or  a  juror,  may  be  called  to  establish  the  identity 
of  the  parties  or  offenses. 

People  vs.  Smith,  258  111.  502;  and  see  XI  111.  Notes  1238,  §  83. 

FORMER  PLEADINGS 

See  Answers. 
COMMON  LAW 

Admissibility : 

—  As  Admissions:  Former  pleadings  are  admissible  and  their 
weight  is  to  be  determined  from  all  the  facts  and  circumstances 
under  which  they  were  made. 

Gardner  vs.  Meeker,   169  111.  40. 

An  original  declaration,  not  sworn  to,  and  prepared  by  an  attor- 
ney under  a  misapprehension  of  the  facts,  is  not  competent  against 


FORMER  PLEADINGS  569 

the  plaintiff  to  overthrow  an  amended  declaration,  and  the  evi- 
dence in  support  thereof.  Party  wouhl  derive  no  benefit  t'roiii  his 
amendment  if  adverse  parly  were  at  liberty  to  use  the  tirst  plead- 
ing as  an  admission  to  overthrow  amended  pleadings. 
Lambert  vs.  Bell,  169  App.  500. 
The  admissions  of  a  party  to  a  fact,  no  matter  how  made,  may 
be   given   in   evidence  against   him.      Common   law   pleadings   are 

admissible  in  evidence. 

Cully  vs.  People,   73  App.  501;   Soaps  vs.  Eichberg,  42  App.  375. 
So  a  plea  in  the  record,  although  no  evidence  is  otfered  under 
it,  may  be  taken  as  an  admission  by  the  party  pleading  it. 

West  Chi.  St.  Ey.  Co.  vs.  Loewe,  58  App.  606;  Cf.,  Stuart  vs.  Harris, 

69  App.  668. 

But  a  plea  of  set-off  and  a  copy  of  account,  filed  by  defendant  to 

a  declaration  in  another  suit,  are  not  admissible  in  evidence  as 

an   admission   of   defendant,   without   introduction   of   declaration 

to  which  tiiey  were  filed. 

Gardu'er  vs.  Meeker,  169  111.  40;  Byrne  vs.  Byrne,  47  111.  507. 

—  To  Show  Former  Suit  Fending:  Files  are  inadmissible  where 
no  oft'er  is  made  to  prove  cause  of  action  was  the  same. 

Armstrong  vs.  Crilly,  152  111.  646. 

—  To  Show  Former  AdjiteUceiUon:  The  pleadings  in  a  former 
action  are  admissible  for  purpose  of  determining  identity  of  point 

determined  in  former  action. 

Henry  Sons  Co.  vs.  Mahoney,  97  App.  313. 
But  AVhere  a  trial  is  had  upon  an  objection  to-  report  of  a  com- 
mission of  surveys  to  establish  corners  and  disputed  lines,  and  a 
finding  against  the  correctness  of  such  report,  which  is  set  aside 
and  a  new  commission  appointed,  and  objections  are  filed  to  tiie 
second  report,  on  second  trial  it  is  error  to  admit  in  evidence  the 
verdict  of  the  jury  and  all  the  papers  and  proceedings  in  the  first 
trial,  even  though  both  reports  fix  the  corners  and  lines  substan- 
tially the  same. 

Atkins  vs.  Huston,   106   111.  492. 

Authentication : 

All  files  offered  must  be  authenticated. 
Micheals  vs.  People,  208  111.  603. 

Lost  Pleading: 

Parol  proof  of  contents  of  lost  pleading  is  admissible. 
Mevpr  vs.  Purcell,  214  111.  62. 

CHANCERY 

Admissibility  and  Weight: 

—  Unsworn  Origincd  Bill:  An  unsworn  bill  drawn  by  an  attor- 
ney under  a  misapprehension  of  the  facts,  which  bill  has  been  sup- 
erseded by  an  amended  bill,  is  not  admissible  to  prove  admissions 
therein  contained,  alleged  to  be  in  contradiction  of  amended  bill. 

Weniger  vs.  Bollenbaoh,  180  111.  222. 

—  Original  Bill  Where  Decree  Offered:  The  pleadings  upon 
which  a  decree,  introduced  in  evidence  by  plaintiff,  is  based,  and 
an  order  allowing  persons  to  intervene  as  plaintiffs,  with  one  allow- 
ing an  amendment,  are  admissible  in  behalf  of  defendant,  espe- 
cially as  the  pleadings  are  part  of  decree  which  plaintiff  had  of- 
fered. 

G.  W.  Tel.   Co.  vs.  Mears,  154  111.  437. 


570  FORMER  TESTIMONY 

—  Bill  Not  Filed:  Where  it  appears  that,  when  a  bill  in  chan- 
cery was  partly  drawn,  a  jurat  was  prepared  and  sworn  to  by  com- 
plainant, and  attorney  afterwards  completed  same,  but  it  was 
never  tiled,  and  complainant  testified  he  did  not  know  its  con- 
tents, it  was  held  that  it  the  bill  was  admissible  in  evidence  against 
the  complainant,  it  was  of  but  little  weight. 

Barnhani  \s.  Roberts,  70  111.  19. 

—  Answer  to  Creditor's  Bill:  The  answer  of  a  defendant  to  a 
creditor's  bill,  to  discover  property  fraudulently  concealed  and 
disposed  of  to  hinder  and  delay  creditors,  by  an  express  provision 
of  the  statute,  cannot  be  read  in  evidence  against  such  defendant 
on  indictment  for  the  fraud. 

Mitchell  vs.  Byrne,   67  111.  522. 

—  Unsworn  Answer:  An  answer  filed  by  defendants  is  legiti- 
mate evidence  to  be  considered  by  the  court,  whether  it  was  sworn 
to  or  not,  and  it  matters  not  that  it  was  withdrawal  from  the  files 
when  a  second  aji^ver  was  filed.  It  is  like  a  letter  or  other  state- 
ments in  writing  admitting  a  fact. 

'Ds^i^h  vs.  Engleback,  109  111.  267 ;  McNail  vs.  Welch,  26  App.  482. 
The  statements  in  a  bill  in  chancery,  not  sworn  to  by  complain- 
ant, but  signed  by  his  counsel,  are  not  admissible  as  evidence  of 
his  admissions,  in  another  proceeding.    They  will  rather  be  regarded 
as  the  suggestions  or  statements  of  his  counsel. 
Miller  vs.  Chrisniau,  25  111.  269. 
Unsworn  answer  is  admissible,  but  is  feeble  evidence,  in  another 

suit. 

Schmisseur  vs.  Beatrie,  147  111.  210;  Siegel  Cooper  vs.  Colby,  61 
App.  315. 

—  Sworn  A}iswers  to  Amended  Bill:  If  complainant,  after  the 
coming  in  of  sworn  answers,  dismissed  his  bill,  and  then  files  an- 
other setting  up  substantially  the  same  grounds  for  relief  as  in  the 
former  one,  but  waiving  answer  under  oath,  such  sworn  answers 
filed  in  the  former  suit  will  remain  evidence,  and  complainant  can 
have  no  decree  under  his  second  bill  until  such  sworn  answers 
are  overcome  by  a  preponderance  of  the  evidence. 

Mey  vs.  "Gulliman,  105  111.  272. 

—  Stipulations:  The  stipulation  of  facts  upon  which  a  trial 
is  had,  is  not  admissible  in  second  trial,  if  objected  to  by  either 

party. 

EigdoTi  vs.  Moore,  242  111.  256;  City  of  Alton  vs.  Foster,  207  HI. 
150 ;  Town  of  Carthage  vs.  Buckner,  8  App.  152 ;  Hardin  vs.  For- 
sytbe,  99  111.  312;  Thomas  vs.  Adams,  59  111.  223. 

FORMER  TESTIMONY 

See  Affidavits  for  Continuance,  Coroner's  Inquest,  Deposi- 
tions, Impeachment,  Stipulation. 

Deceased  Witness: 

Civil  Actions:    Testimony  given  in  evidence  on  a  former  trial 

of  the  same  action,  or  a  former  action  involving  the  same  issues 
between  the  same  parties,  is  admissible  in  a  subsequent  trial,  if  it  be 
established  that  the  witness  who  gave  such  testimony  is  dead,  but 


FORMER  TESTIMONY  571 

it  is  essential  that  the  parties  in  the  subsequent  action  be  the  same 

in  interest. 

London  Guaranty  Co.  vs.  Cereal  Co.,  L'^l  111.  lL'3;  Molnturff  vs.  Insur- 
ance Co.,  248  111.  91';  Pratt  vs.  Kondig,  128  111.  293;  Wade  vs. 
King,  19  111.  301;  Levine  vs.  Carroll,  121  App.  105;  XII  111.  Notes 
533,   §455. 

Parties  must  be  substantially  the  same,  or  privies  in  blood,  in 
law  or  in  estate. 

Mclnturff  vs.   Insurance  Co.,  248  111.   92, 
A  mere  nominal  ehange  of  parties  is  of  no  consequence,  provided 
the  parties  in  the  second  action  are  so  privy  in  interest  with  those 
on  the  former  trial  that  tlie  same  motive  and  need  for  cross  exam- 
ination existed. 

London  Guaranty  Co.  vs.  Cereal  Co.,  251  111.  123. 
The  inclusion  of  privies  in  the  rule  cannot  extend  the  rule  so 
as  to  render  admissible  in  a  sultsequent  action  between  one  of  the 
parties  in  a  former  action  and  one  in  privity  with  that  party  in  the 
former  suit,  the  testimony  of  deceased  witnesses  given  in  the  for- 
mer action. 

London  Guaranty  Co.,  vs.  Cereal  Co.,  251  111.  123. 
Testimony   in  a   criminal   prosecution  not   admissible  in   subse- 
quent civil  suit  though  witness  be  dead. 
Mclnturff  vs.  Ins.  Co.,  248  111.  92. 

As  a  general  rule  it  is  necessary  that  the  person  against  whom 
the  evidence  is  to  be  given  had  the  right  and  opportunity  to 
cross  examine  the  declarant  when  he  was  examined  as  a  witness ; 
that  the  questions  in  issue  were  substantially  the  same  in  the  first 
as  in  the  second  proceeding;  that  the  proceeding,  if  civil,  was  be- 
tween the  same  parties  or  their  representatives  in  interest. 
Mclnturff  vs.  Ins.  Co.,  248  111.  92. 

Right  of  cross  examination  on  former  trial  is  not  the  test  of  admis- 
sibility in  subsequent  suit. 

London  Guaranty  Oo.  vs.  Cereal  Co.,  251  111.  123;  Mclnturff  vs.  Ins. 
Co.,  248  111.  92. 

Evidence  of  a  witness  given  at  a  former  trial  of  a  cause  may  be 
introchiced  after  the  death  of  the  witness,  at  the  second  trial,  not- 
withstanding there  was  no  cross  examination  of  such  witness,  where 
the  direct  examination  was  erroneously  excluded  at  the  instance  of 
the  party  objecting  to  admission  of  the  evidence  at  the  second 

trial. 

U.  S.  Ins.  Co.  vs.  Burnett,  136  App.  187. 

—  Criminal  Trials:     The  former  testimony  of  a  witness  since 

deceased  is  admissible  in  criminal  case. 
Barnett  vs.  People,  54  111.  325. 

In  criminal  cases  the  same  person  must  be  accused  on  the  same 

facts. 

Mclnturff  vs.  Ins.  Co.,  248  111.  92. 

Living  Witnesses: 

—  Insane   Witnesses:     Where  a  witness  has  become  insane,  as 

between  same  parties,  it  is  competent  to  show  what  such  witness 

testified  to  on  former  examination. 
Stout  vs.  Cook,  47  111.  530. 

—  Ahsent  Witness:     (See  Absent  Witness.) 


572  FORMER  TESTIMONY 

—  Witness  Present  at  Trial:  In  no  case  may  the  former  testi- 
mony of  a  witness  who  is  present  and  testifies  in  the  case,  be  allowed 
to  be  given  in  evidence  except  for  purpose  of  contradiction.  Such 
testimony  cannot  be  ofPered  because  second  examination  is  less 
satisfactory  than  first. 

Campbell   vs.   Campbell,   138    111.    612;    Stout   vs.   Cook,   47   111.   530; 
XII  III.  Notes  533,  §  457.     (See  Depositions.) 

What  a  party  may  have  stated,  although  under  oath  as  a  wit- 
ness, is  admissible  as  an  admission,  although  compulsory. 

Miller  vs.  People,  216   111.   316;   Divine  vs.  Stei)anek,   176  App.   61; 
Wheat  vs.  Summ.ers,   13  App.  444;   Chase  vs.  Debolt,  7  111.  371. 

—  Effect  of  Subsequent  Incompetency  of  Witness:  Where  a 
party  or  witness  testifying  on  a  former  trial,  being  then  competent, 
has  been  rendered  incompetent  through  the  death  of  adverse  party, 
his  former  testimony  cannot  be  proven  in  subsequent  suit. 

Trunkey  vs.  Heclstrom,  131  111.  204. 

—  Admissions  of  Accuscel  on  a  Former  Trial:  Admissions  and 
statements  made  by  accused  when  testifying  as  a  witness  in  his  own 
behalf,  on  a  former  trial,  may  be  proven  by  the  People  on  a  sub- 
sequent trial,  although  he  does  not  testify  on  latter  trial.  Admis- 
sions and  statements  made  by  him  as  a  witness  are  competent  to 
be  received  in  evidence  against  him  to  the  same  extent  as  if  the 
statements  and  admissions  had  been  made  by  him  out  of  court. 
That  the  minds  of  the  .jury  may  be  directed  by  such  testimony  to 
the  fact  that  the  defendant  has  a  legal  right  to  testify  in  the  case 
on  hearing,  furnishes  no  reason  for  excluding  his  statements  and 
admissions. 

Miller  vs.  People,  216  111.  309. 

—  Secreted  Witness:  AVhere  a  witness  is  kept  away  by  the  ad- 
verse party,  as  between  the  same  parties,  it  is  competent  to  show 
what  such  witness  testified  to  on  the  former  hearing. 

Stout  vs.  Cook,  47  111.  530;   Letcher  vs.  Norton,  5  111.   575. 

—  Eight  of  Attorney  to  Testify:  The  practice  of  allowing  coun- 
sel to  enter  upon  the  trial  of  a  cause  knowing  that  an  important 
witness  is  ill  and  may  not  be  able  to  be  present,  and  in  the  midst 
of  the  trial,  for  the  first  time,  to  present  the  fact  of  the  absence 
of  such  witness  and  then  testify  as  to  what  such  witness  said  upon 
former  trial  reading  from  his  own  abstract  of  such  evidence,  is 

one  which  court  cannot  approve  or  sustain. 
C.  &  A.  R.  R.  Co.  vs.  Mayer,  91  App.  372. 

For  Purpose  of  Impeachment: 

—  Cross  Examinaiio)i:  On  cross  examination  witness  may  be 
questioned  as  to  certain  statements  made  by  him  in  his  deposition, 
taken  prior  to  trial,  but  not  introduced  in  evidence.  It  is  al- 
ways proper,  for  impeaching  purposes,  to  show  witness  has  made 

prior  inconsistent  or  contradictory  statements  on  material  points. 
Warth  vs.  Loweustein,  219  Ill."222;  Western  M.  &  M.  Co.  vs.  Bough- 
ton,  136  111.  317. 
Cross    examination    of   witness    as    to    statements    at   coroner's 
inquest  is  not  restricted  to  proof  of  coroner's  minutes  contain- 
ing signed  statements  of  witness. 

Briggs  vs.   People,  219  111.   330. 


FORMER  TESTIMONY  573 

Cross  examination  as  to  whether  witness  had  made  statements 
to  certain  effect  in  liis  testimony  at  coroner's  inquest,  without  first 
showing-  he  had  been  specially  interrogated  as  to  matter  at  inquest, 
or  directed  or  given  special  opportunity  to  state  all  that  was  said 

and  done  at  time  of  t)ccurrence,  is  improper. 

Larrauee  vs.  People,  222  111.  155.  (See  Contradiction  and  Sustain- 
ing Witness,  Impeachment,  Corkoboration.) 

—  Direct  Proof:  If  witness,  in  answering  question  as  to  what 
was  his  testimony  on  a  former  trial,  neither  directly  alHrras  nor 
denies  ^ving  the  declarations  spoken  of,  it  is  then  competent 
for  adversary  to  prove  the  affirmative,  providing  the  fact  or 
statement  is  relevant  to   matter  in   issue. 

Chi.  City  Ey.  Co.  vs.  Mathewson,  212  111.  292;  Kay  vs.  Bell,  24  111. 
444;  McLeroth  vs.  Magerstadt,  136  App.  3(51. 
Where  attention  of  witness  is  specially  called  to  parts  of  his 
former  testimony,  and  given  opportunity  of  explaining  same,  his 
former  statements  may  be  shown  by  the  stenographic  report  of 
his  evidence,  when  verified,  only  so  far  as  it  is  contradictory  of 
his  testimony  on  the  second  trial.  Other  parts  of  his  testimony 
to  which  his  attention  had  not  been  called,  cannot  be  shown  in 
contradiction  of  his  testimonv  on  second  trial. 

Campliell  vs.  Campbell,  138  111.  612. 

To  Show  Fabrication: 

Where,  on  second  trial,  plaintiff,  to  prove  his  title  to  prop- 
erty in  controversy,  introduced  a  bill  of  sale  purporting  to  have 
been  made  to  him  by  purchaser  of  such  property  at  mortgage 
sale  thereof,  it  was  proper  for  defendant  to  show  that  such  bill 
of  sale  was  not  introduced  on  former  trial,  and  thereby  require 
explanation  of  plaintiff  as  to  reason  for  failure  to  produce  same 

at  first  trial. 

Hanford  vs.  Obrecht,  49  111.  146. 

Whole  of: 

See  Whot.e  of  Utterance. 
Mode  of  Proof: 

—  Parol  Evidence:  The  testimony,  at  a  former  trial,  of  a  wit- 
ness since  deceased,  may  be  proven  by  any  one  who  heard  and  re- 
membered the  evidence. 

I.  C.  E.  E.  Co.  vs.  Ashline,  171  111.  313;  K.  &  S.  Ey.  Co.  vs.  Horan, 
131   111.   288;    Eoth  vs.   Smith,   54   111.   431;    Lougbry   vs.   Mail,  34 
App.    523;    Hutchinson    vs.    Corgan,    59    111.    70;    XII    111.    Notes 
534,  §459. 
Substance  is  proper  and  precise  words  need  not  be  proven. 

Luetgert  vs.  Volker,  153  111.  385;  Iglehart  vs.  Jemegan,  16  111.  513; 
Barnett  vs.  People,  54  111.  325;  C.  E.  I.  &  P.  Ey.  Co.  vs.  Harmon, 
17  App.  640;  Barnett  vs.  People,  54  111.  325. 

—  Depositions:  Depositions  are  competent  to  prove  former  tes- 
timony. 

Goodrich  vs.  Hanson,  33  111.  499. 

—  Bill  of  Exceptions:     (See  Bill  op  Exceptions.) 

—  Stenographic  Notes:     (See  Stenographers'  Notes.) 
Certificates  of  Evidence: 

A  certificate  of  evidence  in  chancery,  being  a  part  of  the  record 
for  all  purposes  of  the  litigation,  and  for  the  support  and  preser- 


574  FOOT  PRINTS 

vation  of  the  decree,  may  be  read  in  evidence  on  a  later  trial  of 
the  same  ease. 

While  there  is  some  analog  between  certificates  of  evidence  in 
chancery  and  bills  of  exceptions  at  law,  still  they  are  governed 
by  essentially  different  rules.  Bills  of  exceptions  are  prepared 
merely  for  the  purpose  of  presenting  the  proceedings  and  evidence 
at  the  trial  for  review  on  appeal  or  writ  of  error,  and  when  that 
object  is  accomplished,  they  are  functus  officio.  Not  so,  however, 
with  certificates  of  evidence  in  chancery.  They  become  a  part 
of  the  record  for  all  purposes. 

O 'Conner  vs.  Mahoney,  159  111.  69. 

Depositions : 

Depositions  taken  in  a  former  suit  between  the  same  parties, 

involving  the  same  questions,  are  admissible  in  evidence,  where 

the   questions   are   again   presented   for  judicial   decision,   if   the 

parties  had  an  opportunity  of  testing  the  truth  of  the  testimony. 

And  this  though  the  parties  are  not  identical  and  although  there 

may  not  be   complete  mutuality  in  respect  to   their  relation   to 

each  other,  or  to  the  subject  matter  litigated  if  the  same  matter 

is  in  issue  in  both  cases. 

Pratt  vs.  Kendio;,  128  111.  293;  Wade  vs.  King,   19  111.  301;  Levine 
vs.  Carroll,  121  App.  105. 


FOOT  PRINTS 

Competency  and  Weight: 

Evidence  of  foot-prints  and  their  correspondence  with  the  de- 
fendant's feet  is  competent,  and,  though  "not  by  itself  of  any 
independent  strength,  is  admissible  with  other  proof  as  tending 

to  make  a  case." 

Carlton  vs.  People,  150  111.  181 ;  Dunn  vs.  People,  158  111.  586 ;  People 
vs.  Hannibal,  259  111.  512. 

FRAUD 

See  Fraud  and  Deceit,  Fraudulent  Conveyances,  Parol, 
Weight  and  Sufficiency,  Cancellation  of  Instruments,  Re- 
lease, Good  Faith. 

PRESUMPTIONS  AND  BURDEN  OF  PROOF 
Presumptions : 

Fraud  will  not  be  presumed,  but  must  be  proven  like  any  other 
fact,  by  clear  and  convincing  evidence.  Fraud  is  never  presumed 
when  transactions  may  fairly  be  reconciled  with  honesty  and  if 
the  weight  of  the  evidence  is  in  favor  of  an  honest  motive,  that  con- 
clusion should  always  be  adopted. 

McKennan  vs.  Miekleberry,  242  111.  117;  Union  Natl.  Bank  vs.  State 

Bank,   168  111.  256;   Kennedy  vs.  Kennedy,  194  111.   346;   Mey  vs. 

Gulliman,   105  111.   272;   Wright  vs.   Grover,   27  111.   426;    Mathias 

vs.  Miller,  164  App.  113;   XII  111.  Notes  760,    §87.      (Exception: 

See  Fiduciary  Relations.) 


FRAUD  575 

Burden  of  Proof: 

—  In  General:  Fraud  must  be  proven  by  a  preponderance  of 
the  evidence  and  the  burden  of  proof  rests  upon  the  party  alleg- 
ing it. 

Dick  vs.  Albeis,  24.!  ]11.  231;  Off  vs.  Jack,  204  Til.  79;  Dexter  vs. 
McAfee,  163  111.  508;  Mortimer  vs.  McMullen,  202  111.  413;  Mc- 
Ginn is  vs.  Storrs,  152  Apj).  4r)4. 

—  Charge  in  Negative  Form:  The  effect  of  a  negative  form 
of  issue  in  cases  involving  a  charge  of  fraud  is  not  to  relieve  the 
party  making  such  charge  of  the  burden  of  introducing  any  proof, 
but  in  such  case  and  particularly  where  the  facts  lie  wholly 
within  the  knowledge  of  the  adverse  party,  evidence  which  ren- 
ders the  existence  of  the  negative  probable,  may  be  sufficient,  in 
the  absence  of  proof  to  the  contrary. 

Prentice  vs.  Crane,  234  111.  302;  People  vs.  Templeman,  169  App.  287. 

—  Between  Relatives:  The  fact  that  the  alleged  fraudulent 
transaction  occurs  between  relatives  will  not  change  the  rule  as 
to  the  burden  of  proof,  the  relationship  being  merely  a  circum- 
stance which  may  excite  suspicion,  but  will  not,  of  itself,  amount 
to  proof  of  fraud. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  Schroeder  vs.  Walsh,  120 
111.  403;   Wightman  vs.  Hart,  37  111.  123. 

—  Fiduciary  Relatiotis:  When  such  relations  are  proven,  the 
presumption  is  raised  against  the  validity  of  the  Contract,  and 
casts  upon  party  desiring  to  uphold  it  the  burden  of  proving 
affirmatively  that  such  contract  is  not  against  equity  and  good 
conscience,    thereby   overcoming   the   jiresumption   of   fraud. 

Beech  vs.  Wilton,  244  111.  "413 ;  Fish  vs.  Fish,  235  111.  396 ;  Walker 
vs.  Shepard,  210  lU.   100. 

—  Parent  and  Child:  But  the  rule  does  not  apply  when  the 
parent  makes  a  will  or  other  provision  for  his  child.  To  hold 
that  such  transactions  are  presumptively  fraudulent  would  be 
to  reverse  the  legal  basis  of  all  presumptions,  and  thus  cast  upon 
the  child  the  burden  of  proving  by  clear  and  convincing  evidence 
good  faith  and  absence  of  undue  influence. 

Sear  vs.  Vaughn,  230  111.  572 ;  Bishop  vs.  Hilliard,  227  111.  382. 

ADMISSIBILITY  OF  EVIDENCE 
Parol:    Where  Contract  in  Writing: 

Misrepresentations  made  to  induce  execution  of  contract  may 
be  proven  by  parol  evidence,  notwithstanding  the  terms  of  the 
contract  may  be  reduced  to  writing.  In  such  case,  the  action  is 
not  upon  the  contract,  but  upon  the  representations  and  deceit. 
Fraud  is  not  extinguished  by  the  covenants. 

Grubb  vs.  Milan,  249  111.  456;  Antle  vs.  Sexton,  137  111.  410;  Van- 
Buskirk  vs.  Day,  32  lU.  260. 

In  action  at  law,  fraud  in  the  execution  of  a  deed  may  be  given 
in  evidence,  as  that  through  mis-reading  or  the  substitution  of  one 
paper  for  another,  or  by  other  device  and  trickery,  he  was  induced 
to  seal  it,  believing,  at  the  time,  that  he  was  sealing  something  else, 
and  it  may  also  be  proven  that  what  purports  to  be  a  deed  is  in 
truth  not  a  deed,  but  a  forged  instrument ;  but  it  cannot  be  proven 
that  the  transactions  which  preceded  and  induced  the  execution 
were  fraudulent.    Where  a  party  knowingly  and  voluntarily  signs 


576  FRAUD 

a  deed,  although  it  was  in  violation  of  his  duty  and  the  law,  or 
be  induced  thereto  by  the  fraudulent  contrivances  of  others,  yet 
if  it  be  such,  upon  its  face,  as  will  convey  title,  it  can  only  be 
impeached  and  set  aside,  and  parol  evidence  be  received  for  that 
purpose,  in  a  court  of  ecjuity. 

Widnett  vs.  linrlbut,  115  111.  403. 

Acts  and  Declarations: 

Prior  and  contemporaneous  conversations  are  admissible  and 
may  be  taken  into  consideration  by  the  jury  for  the  purpose  of 
ascertaining  whether  the  contract  was  procured  by  fraud  or  through 
false  pretenses. 

VanBuskirk  vs.  Day,  32  111.  260. 

Parol  evidence  of  the  circumstances  connected  with  the  transac- 
tion and  the  declared  intention  of  the  parties  in  executing  a  writ- 
ten agreement  is  admissible  for  the  purpose  of  showing  fraud, 
accident  or  mistake. 

Race  vs.  Weston,  86  111.  91. 

Verbal  statements  of  vendor  made  to  the  purchaser  before  sale 
as  to  nature,  character,  capability  and  value  are  admissible  in  evi- 
dence,— not  for  purpose  of  varying  written  contract,  Init  to  show 

fraud. 

Hicks  vs.  Stevens,  121  111.  186. 

And  likewise,  the  intent  to   purchase   goods  and  not  pay   for 
them  may  ])e  found  from  the  acts  of  purchaser  after  the  sale. 
Hanchett  vs.  Mansfield,  16  App.  407. 

Circumstantial  Evidence : 

—  In  General:  Proof  of  fraud  may  be  made  by  facts  and  cir- 
cumstances which  raise  the  inference   tliat  it  was  perpetrated. 

McLeroth  vs.  Magerstadt,  136  App.  361;  Swift  vs.  Yanaway,  153  111. 
197;  Bear  vs.  Bear,  145  111.  21;  Straus  vs.  Kramort,  56  111.  254; 
Reed  vs.  Noxon,  48  111.  323;  Maxwell  vs.  McWilliams,  145  App. 
155;  XII  111.  Notes  762,  §  113.  i 

Fraud  may  be  inferred  from  facts  and  circumstances  shown,  and 
inferences  deducible  therefrom  based  upon  probabilities  of  human 
conduct. 

Fabian  vs.  Traeger,   215  111.  220. 

Fraud  is  rarely  established  by  direct  and  positive  evidence.  Like 
all  other  facts,  it  may  l^e  proved  by  circumstances  which  convince 
the  mind  of  its  existence. 

Cohen  vs.  Friedman,  259  111.  416;  Schwarz  vs.  Reznick,  257  111.  479. 
Fraud  may  be  proven  by  circumstances  from  the  existence  of 
which  the  inference  of  fraud  is  natural  and  irresistible. 
BuDock  vs.  Narriot,  49  111.  62. 

Fraud  may  be  inferred  from  circumstances,  as  a  conclusive  pre- 
sumption of  law,  or  as  a  prima  facie  or  rebuttable  presumption  of 
law,  or  as  an  argumentative  conclusion  of  fact. 
Hinton  vs.  Knott,  134  App.  294. 

In  the  investigation  of  questions  of  fraud,  the  court  should  be 
liberal  in  the  admission  of  evidence  tending  to  disclose  the  trae 
nature  of  the  transaction.  Circumstances  apparently  trivial  in 
themselves  may,  in  connection  with  other  facts,  afford  strong  evi- 
dence. 

Vigus  vs.  O'Bannon,  118  111.  334;  Hazelton  vs.  Carolus,  132  App. 
512;  McLeroth  vs.  Magerstadt,  136  App.  361. 


FRAUD  577 

Fraud  may  be  proven  by  circiiinstanees,  but  it  is  not  thereby 
established  unk^ss  the  eirc.u instances  proven  are  so  strong  as  to 
produce  a   eomietion   tliat   tlie  cliarge  of   fraud  is  true. 

Mortimer  vs.  McMullen,  202  111.  413;  Bryant  vs.  Simoncau,  51  III.  324. 

—  Financial  CondHion:  It  is  proper  on  an  alleged  sale  to  de- 
fraud cretlitors  to  prove  the  alleged  purchaser's  financial  condi- 
tion about  the  time  of  the  transaction. 

Fabian  vs.  Treager,  215  111.  220;  Kingman  vs.  Reineimer,  166  111.  208. 

—  Inadiquacy  of  Vonsidi  ration:  While  mere  inadequacy  of 
price  is  not,  per  sc,  a  ground  for  setting  ayide  a  transfer  of  prop- 
erty, yet  it  may  be  so  gross  and  palpable  as  to  amount,  in  itself, 
to  proof  of  fraud;  and  this,  in  connection  with  proof  of  imposi- 
tion and  misrepresentation  on  the  part  of  the  purchaser  and  his 
agents,  will  be  sufficient,  in  a  court  of  equity,  to  characterize  the 
transaction  as  frauciulent. 

Witherwax  vs.  Eiddle,  121  111.  140;   Eeed  vs.  Peterson,  91  111.  288; 
Lloyd  vs.  Highbee,  25  111.  494. 

—  CJiaractcr  and  Reputation:  In  actions  of  this  character,  evi- 
dence of  general  business  integrity  is  not  admissible  to  repel  pre- 
sumption of  fraud. 

McBean  vs.  Fox,  1  App.  177;  Ellwood  vs.  Walter,  103  App.  219. 

—  Interest  in  Transaction:  "It  would  be  an  unsafe  rule  to 
adopt  that  it  is  sufficient  proof  of  one's  commission  of  a  fraudu- 
lent act  that  it  was  for  his  interest,  and  that  of  no  one  else,  to 
have  the  act  done." 

Hanna  vs.  Eayburn,   84  111.  533. 

—  Statements  to  Commercial  Agency:  False  statements  made 
to  a  commercial  agency,  with  view  of  obtaining  credit,  are  com- 
petent on  question  of  fraud,  though  party  making  them  did  not 
know  party  acting  on  them  was  a  subscriber. 

Moyer  vs.  Lederer,  50  App.  94. 
But   evidence   of   the   rating   of   a   merchant   by  a   commercial 
agency,  not  shown  to  have  been  authorized  by  him  is  inadmissible. 
Henderson  vs.  Miller,  86  App.  232. 

—  Absence  of  Explanation:  Where  fraud  is  alleged,  and  proof 
is  offered  to  raise  an  inference  thereof,  the  fact  that  no  explanation 
of  the  transactions  is  offered  by  party  charged,  is  an  additional 
circumstance  to  be  considered,  and  from  which  inferences  may 
be  drawn. 

Schumaeker  vs.  Bell,  164  111.  181.' 

—  Other  Fraudnlent  Acts:  Other  acts  of  fraud  are  admissible 
in  evidence  to  prove  the  fraudulent  acts  charged,  where  the  evi- 
dence shows  that  the  two  acts  were  committed  in  pursuance  of  a 
common  purpose  to  defraud. 

Lookwood  vs.  Doane,  107  HI.  235;  Gray  vs.  John,  35  111.  222;  Heut- 
macher  vs.  Lowman,  66  App.  448. 
So  complaints  of  others  to  party  charged,  in  relation  to  sim- 
ilar transactions  are  competent  to  show  knowledge. 
Allen   vs.    iMillison,   72  111.  201. 
But  if  such  other  acts  are  distinct  and  not  connected  with  the 
fraud  they  were  intended  to  prove,  they  are  inadmissible,  though 
of  a  similar  kind. 

Henderson    vs.    Miller,    36    App.    232;    Burroughs    vs.    Comegys,    17 
App.  653. 
Ev. — a  7 


578  FRAUD 

A  fraudulent  conveyance  of  chattels  to  one  person  is  irrelevent 
on  an  issue  of  fraud,  to  show  that  another  and  different  transac- 
tion with  other  parties  is  alike  fraudulent. 
Simpkins  vs.   Berger,   2  App.   101. 

Where  fraud  is  the  basis  of  a  defense  to  a  written  instrument, 
it  is  not  competent  in  support  thereof  to  show  a  like  fraud  com- 
mitted upon  another,  not  connected  with  the  suit,  where  it  does 
not  appear  that  the  facts  and  circumstances  are  admitted  and 
intent  to  defraud  denied,  and  where  there  is  no  offer  to  show  a 
general  scheme  or  plan  to  defraud  the  public  by  means  alleged 

to  have  been  practiced  in  the  particular  instance. 
Buckley  vs.  Acme  Pood  Co.,   113  App.  210. 

Reliance  Upon  Representations: 

Where  a  party,  ignorant  of  the  real  facts,  and  having  no  ready 
means  of  information,  makes  a  purchase  or  enters  into  a  trans- 
action, as  to  the  subject  matter  of  which  representations  have  been 
made  which  are  material,  the  law  will  presume  that,  as  a  matter 

of  fact,  he  relied  upon  them. 

Hicks  \'S.  Stevens,  121  111.  186. 

And  he  may  so  testify. 

Haldenian  vs.  Schuli,  109  App.  259 ;  Thorne  vs.  Prentiss,  83  111.  99, 

But  plaintiff  need  not  prove  he  did  not  know  statements  to  be 
false,  as  this  would  require;  him  to  prove  a  negative.     Defendant 
must  show  that  plaintiff  knew  the  facts. 
Hiner  vs.  Eichter,  51  111.  299. 

Opinions  of  Witnesses: 

Opinions  or  conclusions  of  witness  that  misrepresentations  were 

made  are  incompetent. 

German  Ins.  Co.  vs.  Gruner,  112  111.  68. 

WEIGHT  AND  SUFFICIENCY. 
Preponderance : 

It  is  sufficient  if  the  fraud  alleged  be  established  by  a  prepon- 
derance of  the  evidence. 

Mortimer  vs.  McMullen,  202  111.  413;  Merchants  Bank  vs.  Lyon,  185 

111.  313;  Sehroeder  vs.  Walsh,  120  111.  403;  Kingman  vs.  Eeineimer, 

166  111.  208;   Amer.  H.  &  D.  Co.  vs.  Hall,  110  App.  463;  XII  111. 

Notes  761,  §  112. 

But  must  be  proven  like  any  other  fact,  by  clear  and  convinc 

ing  evidence.      Something  more  than  mere  suspicion  is  required 

to  prove  allegations  of  fraud.     The  evidence  must  be  clear  and 

cogent,  and  must  leave  the  mind  well  satisfied  that  the  allegations 

are  true. 

McKennan  vs.  Mickleberry,  242  111.  117;  Union  Natl.  Bank  vs.  State 
Bank,  168  111.  519;  Shinn  vs.  Shinn,  91  111.  477;  Maginnis  vs.  Storrs, 
152  App.  454. 

Doubt  May  Remain: 

When  circumstances  proven  are  so  strong  as  to  produce  a  con- 
viction of  the  truth  of  the  charge,  although  there  may  be  some 
doubt,  fraud  is  proven.     This  is  the  extent  of  the  rule  that  fraud 

must  be  proven. 

Sehroeder  vs.  Walsh,  120  111.  403;  Bryant  vs.  Simoneau,  51  111.  324; 
Orient  Ins.  Co.  vs.  Weaver,  22  App.  122;  Eames  vs.  Morgan,  37 
111.   260. 


FRAUD  AND  DECEIT  579 

FRAUD  AND  DECEIT 

See    Fraud,    Fraudulent  Conveyances,    Weight    and    Suffi- 
ciency, Parol. 
Elements : 

The  elements  of  the  cause  of  action  are  representation,  falsity, 

scienter,  deception  and  injury. 

Foster  vs.  01)beiTeieh.  li.Ho"  111.  525;  Schwabacher  vs.  Eiddle,  99  111.  343. 

Admissibility  of  Evidence: 

—  thtintiff  May  Stale  as  to  Reliance:  Plaintiff  may  testify 
that  he  believed  and  relied  upon  the  alleged  misrepresentations  of 

defendant. 

Kearney  vs.  Daviii,  1(32  App.  37;  Haldman  vs.  Schuh,  109  App.  259; 
Thorne  vs.  Prentiss,  83  111.  99. 

—  Pamphlet:  A  pamphlet  published  by  defendant  containing 
representations  is  competent  in  action  for  fraud  and  deceit  where 
such  pamphlet  in  part  induced  plaintiff's  conduct. 

Prout  vs.  Martin,  1(30  App.  11. 

—  Circumstantial  Evidence:  Direct  and  positive  proof  of  knowl- 
edge is  not  required.  Circumstantial  evidence  is  competent  as 
to  whether  defendant  knew  his  representations  to  be  false. 

Hiuer  vs.  Kichter,  51  111.  299;  Jacobs  vs.  Marks,  83  App.  156. 

—  Value  of  Land:  In  an  action  of  deceit  to  recover  the  amount 
of  an  encumlirance  upon  land  falsely  represented  to  be  unin- 
cumbered, proof  of  value  of  land  is  competent. 

Hahl  vs.  Brooks,  213  lU.  134. 

—  Representations  of  Third  Persons:  In  suit  against  the  ven- 
dor of  land  to  recover  on  ground  of  false  and  fraudulent  repre- 
sentations made  by  him  as  to  nature  and  quality  of  land,  when 
vendor  had  never  seen  the  land,  it  is  competent  for  him  to  prove 
that  the  person  from  whom  he  purchased  made  similar  representa- 
tions to  him,  as  tending  to  show  the  statements  made  by  him  were 
not  recklessly  made,  and  without  any  ground  for  belief  in  their 

tnith. 

Merwin  vs.  Arbnckle,  81  111.  501. 

Weight  and  Sufficiency: 

—  Scienter:  It  is  necessary  to  aver  and  prove  scienter.  In 
such  case  it  is  not  enough  the  representations  made  by  defendant 
were  false, — they  must  have  been  known  by  him  to  be_  false.  They 
must  have  been  knowinglv  made  with  intent  to  deceive. 

Cantwell  vs.  Harding,"  249  111.  354 ;  Foster  vs.  Oberreich,  230  111.  525 ; 
Holdom  vs.  Ayer,  110  111.  448. 
The  fraud  and  scienter  constitute  the  ground  of  action. 

Mervin   vs.   Arbuckle,   81   111.    501;    Hiner  vs.   Eichter,   51   111.   299; 

Wheeler  vs.  Eandall,  48  111.  182. 

The  knowledge  of  the  falsity  of  the  representations  made  must 

rest  with  party  making  them  and  he  must  use  means  to  deceive. 

Cantweli  vs.  Harding',   249   HI.   354;    Tone  vs.   Wilson,   81   111.   529; 

Weatherford  vs.  Fishback,  4  111.  170. 

Proof  that  the  defendant  knew  that  his  representations  were 

false  at  the  time  he  made  them  need  not  be  made  where  it  appears 

that   defendant   stated   a   material    fact   and   asserted   knowledge 

thereof,  upon  which  plaintiff  relied. 
Crane  vs.  Sehaefer,  140  App.  647. 


580         FRAUDULENT  CONVEYANCES 

In  action  of  tort  for  a  false  warranty  tlie  scienter  need  not  be 
averred  and  if  charged,  need  not  be  proven. 
Wallace  vs.  Tanner,  118  App.  639. 

—  Allegations  Divisible:     The  allegations  made  in  a  declaration 

in  action  of  deceit  are  regarded  as  divisible  and  the  plaintiff  may 

succeed,  if  he  can  prove  any  of  them  which  of  itself  makes  a  cause 

of  action ;  and  may  likewise  succeed  although  he  may  not    prove 

the  misrepresentations  precisely  as  laid,  nor  any  of  the  different 

forms  as  alleged.    All  that  is  required  is  proof  substantially  of  the 

material  allegations. 

Crane  vs.  Schaefer,   140  App.  647. 

—  Plaintiff's  Knowledge:  Plaintiff  is  not  required  to  prove  that 
he  did  not  know  the  statements  of  vendor  to  be  false.  Such  proof 
must  be  made  by  defendant,  if  he  seeks  to  defeat  a  recovery  upon 
the  ground  that  plaintiff  knew  the  facts,  and  was  not,  therefore, 
deceived  in  the  purchase. 

Hiner  vs.  Eichter,  51  111.  299. 

—  Rescission  of  Contract:    It  is  not  necessary  to  show  effort  to 

rescind  the  contract. 

Cantwell  vs.  Harding,  249  111.  354;  Seltz  vs.  Springer,  236  111.  276. 
—  Preponderance    Sufficient:      Plaintiff   need   only   prove   the 
material  allegations  of  his  declaration  by  a  preponderance  of  the 

evidence. 

Crane    vs.    Schaefer,    140    App.    647;    Budlong    vs.    Cunningham,    11 
App.  29. 


FRAUDULENT  CONVEYANCES 

See  Fraud,  Fraud  and  Deceit,  Parol. 
Presumptions : 

—  In  General:  Fraud  will  not  be  presumed,  but  must  be  proven 
like  any  other  fact,  by  clear  and  convincing  evidence. 

"Mathews  vs.   Rei'nhardt,   149  111.   635;    Schroeder  vs.  Walsh,   120  111. 
403;   Mey  vs.  Giilliman,  105  111.  272;  XII  111.  Notes  813,   §236. 
It  is  a  presumption  of  law  that  a  conveyance  is  made  in  good 

faith. 

O'Neal  vs.  Boone,  82  111.  589. 
All  transactions  are  presumed  to  be  fair  and  honest,  until  con- 
trary is  proven. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  Merchants  Natl.  Bank  vs. 
Lyon,  185  111.  343. 

—  Honest  Motive:  Fraud  is  never  presumed  and  when  trans- 
actions may  fairly  be  reconciled  with  honesty  and  the  weight 
of  the  evidence  is  in  favor  of  any  honest  motive,  that  conclusion 

should  always  be  adopted. 

McKennan  vs.  Miekleberry,  242  111.  117;  Union  Natl.  Bank  vs.  State 
Bank,  168  111.  519;  Kennedy  vs.  Kennedy,  194  111.  346;  Mey  vs. 
Gulliman,  105  111.  272. 

—  Eelationship:  The  fact  that  the  alleged  fraudulent  trans- 
action occurs  between  relatives  will  not  change  the  rule  as  to  bur- 
den of  proof,  the  relationship  being  merely  a  circumstance  which 


FRAUDULENT  CONVEYANCES  581 

may  excite  suspicion  but  will  not,  of  itself,  amount  to  proof  of 
fraud. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  Schioeder  vs.  Walsh,  120 
111.  403;  Young  vs.  Ward,  16  App.  593. 

—  Preference  of  Creditor:  No  presumption  of  fraud  arises  from 
preferring  one  creditor  to  another. 

Peoria  Natl.  Bank  vs.  Khea,  155  111.  4:!4;  Dueher  Watch  Co.  vs. 
Young,  155  111.  22G;  8ehroeder  vs.  Walsh,  120  111.  403;  Ger.-Amer. 
Bank  vs.  Hoffman,  120  App.  303;  Meaeham  vs.  liahn  Co.,  46 
App.  144. 

And  this  rule  applies  to  corporations. 

Blair  vs.  111.  Steel  Co.,  159  111.  350. 
And  when  a  party  contends  that  the  indebtedness  which  mort-' 
gage  was  given  to  secure  is  not  hona  fide,  burden  is  upon  him  to 

prove  it. 

Coates  vs.  Miller,  99  App.  227. 

Where  creditor  receives  property  in  payment  of  debt,  and  other 
creditors  assail  the  transaction,   alleging  secret  trust,  burden  of 
proof  rests  upon  such  attacking  creditors. 
Wood  vs.  Clark,  121  111.  359. 

—  Inadequacy  of  Consideration:  Although  mere  inadequacy 
of  price  is  not  per  se  ground  for  setting  aside  a  transfer  of  prop- 
ertv,  yet  it  may  be  so  gross  and  palpable  as  to  amount,  in  itself, 

to  proof  of  fraud. 

Sehwarz  vs.  Reznick,  257  111.  479 ;  Mathews  vs.  Eeinhardt,  149  111.  635 ; 
Zich  vs.  Guebert,  142  111.  154;  Eeed  vs.  Peterson,  91  111.  288;  Bay 
vs.  Cook,  31  111.  336;  Farwell  vs.  Norton,  77  App.  685. 

—  Existence  of  Debts:  It  will  not  be  presumed,  in  absence  of 
proof,  that  the  debts  existed  at  time  of  transaction. 

Bittingcr  vs.  Kastcn,  111  111.  260;  Tunison  vs.  Chamblin,  88  111.  378; 
Eogers  vs.  Dimon,  106  App.  201. 

—  Selling  Price:     It  will  be  presumed  that  the  price  paid  was 

full  value  of  the  property. 

Jewett  vs.  Cook,  81  111.  260;   Beach  vs.  Miller,  23  App.  151. 

—  Voluntarij  Conveyance:  Voluntary  conveyance  by  party  in- 
debted at  time,  raises  presumption  of  fraudulent  intent. 

State  Bank  vs.  Barnett,  250  111.  312;  Hank  vs.  A^anlngen,  196  111.  20; 
Moritz  vs.  Hoffman,  35  111.  553. 
But  to  raise  presumption,  it  must  be  sho^^^l  grantor  did  not 

retain  sufficient  assets  to  pay  debts. 

Denard  vs.  Eogers,  203  111.  464;  Falloon  vs.  Mclntyre,  118  111.  292; 
Bittinger  vs.  Kasten,  111  111.  260.  f 

Burden  of  Proof: 

—  Fraud:  j\Iust  be  proven  by  a  preponderance  of  the  evidence, 
and  burden  of  proof  is  upon  party  alleging  it. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  Merchants  Bank  vs.  Lyon, 
185  111.  343;  Wood  vs.  Clark,  121  111.  359;  Bear  vs.  Bear,  145  111. 
21;  Maginnis  vs.  Storrs,  152  App.  454;  XII  111.  Notes  813,  §  236. 
A  mere  doubt  of  the  fairness  of  the  transaction  is  not  enough 

to  impeach  it. 

Waterman  vs.  Donnolson,  43  111.  29. 
Burden  of  overcoming  presumption  of  fraud  arising  from  vol- 
untary conveyance  by  one  indebted  at  time,  is  on  party  making 

such  conveyance. 

Kennard  vs.  Curran,  239  111.  122;  Dillman  vs.  Nadelhofer,  162  111.  625. 


582  FRAUDITLENT  CONVEYANCES 

—  Relationship  as  Creditor:  To  impeach  a  conveyance,  com- 
plainant must  aver  and  prove  he  was  a  creditor  at  the  time. 

Clayton  vs.  Claytou,  250  111.  433;  State  Bank  vs.  Barnett,  250  111, 
312;  Bittinger  vs.  Kasten,  111  111.  260;  Moritz  vs.  Hoffman,  35  111. 
553;  I^amont  vs.  Began,  96  App.  359;  Johnston  vs.  Hirschberg, 
85  App.  47. 

A  judgment  rendered  a  year  after  conveyance  is  not  admissible. 

Martin  \s.  Dunr-an,  181711.  120. 

—  Grantee  of  Fraudulent  Grantor:  Where  it  is  shown  that  one 
claims  title  under  a  grantee  whose  title  is  fraudulent  the  burden  is 
on  him  to  show  that  he  purchased  in  good  faith  and  without  notice 
of  the  fraud, 

Lyon  vs.  Moore,  259  111.  23 ;  Eoseman  vs.  Miller,  84  111.  297, 

Admissibility  of  Evidence: 

—  In  General:  Intent  to  defraud  creditors  by  the  conveyance 
of  property  may  be  ascertained  by  inference,  from  circumstances, 
as  a  conclusive  presumption  of  law,  or  as  a  prima  facie  presump- 
tion of  law,  or  as  an  argumentative  conclusion  of  fact,  according 
to  the  facts  and  circumstances  of  each  case, 

Higgins  vs.  Higgins,  219  111.  146;  Hughes  vs.  Noyes,  171  111.  575; 
Kee<l  vs.  Noxon,  48  III.  323. 

Fraudulent  intent  is  a  question  of  fact  to  be  established  by 
extrinsic  proof. 

Dempsey  vs.  Bowen,  25  App.  192. 
"While  fraud  cannot  be  presumed,  yet  it  may  be  inferred  from 
facts  and   circumstances  shown,   and  inferences  deducible   there- 
from, based  on  the  probabilities  of  human  conduct. 

Fabian  vs.  Traeger,  215  111.  220;  Bear  vs.  Bear,  145  111.  21. 

Participation  in  fraud  by  grantee  need  not  be  proven  by  direct 
evidence. 

Young  vs.  Sextion  Natl,  Bank,  59  App.  152. 

—  Grantor  as  to  Intent:     Grantor  may  testify  as  to  what  his 

intent  was. 

Keunard  vs.  Curran,  239  111.  122;  HaiJi  vs.  Vanlngen,  196  111.  20; 
Podoloski  vs.  Stone,   186  111.  540. 

And  may  be  asked  direct  (juestion  whether  sale  was  made  in  good 
faith.  Opposite  party  has  the  right  on  cross-examination  to  ascer- 
tain details. 

Miner  vs.  Phillips,  42  111.  123. 

—  Financial  Condition  of  Parties:  Where  a  conveyance  is  at- 
tacked as  in  fraud  of  creditors,  it  is  competent  to  prove  grantor 

was  insolvent  or  financially  embarrassed. 

Clark  vs.  Harper,  215 'ill.  24;  Beach  vs.  Miller,  130  111.  162;  Eamsey 
vs.  Nioliols,  73  App.  643. 
Financial  condition  of  purchaser,  at  time  of  conveyance,  may  be 

shown. 

Fabian  vs.  Traeger,  215  111.  220;  Kingman  vs.  Eeineimer,  166  111.  208. 

—  Sacrifice  of  Property:     Subsequent  sacrifice   of  property  is 

competent  to  show  fraud, 

Jewett  vs.  Cook,  81  111,  260, 

—  Manner  of  Obtaining  Goods  from  Creditors:  It  is  admis- 
sible upon  the  question  as  to  the  intent  with  which  the  sale  is 
made,  to  show  the  manner  in  which  the  debtor  had  recently  ob- 
tained goods  from  his  creditors. 

Hanehett  vs.  Kimbark,  118  111.  121;  Lockwood  vs.  Doane,  107  lU, 
235;  Gray  vs.  St.  John,  35  111.  222. 


FRAUDULENT  CONVEYANCES         583 

—  Similar  Sales:  As  tending  to  show  that  a  sale  was  made  to 
defraud  creditors,  it  is  competent  to  sliow  tliat  on  tlie  same  day, 
there  was  a  second  sale  of  another  stock  of  goods  owned  by  prac- 
tically the  same  parties,  to  the  same  buyer,  where  such  sales  were 
so  closely  connected  as  to  raise  the  presumption  that  they  were 
parts  of  the  same  transaction. 

Fabian  vs.  Traeger,  215  111.  220, 

—  Publication  of  Transfer:  The  fact  that  no  mention  is  made 
of  a  conveyance,  in  a  newspaper  especially  devoted  to  publica- 
tion of  real  estate  transfers,  is  not  competent  evidence  upon  the 
issue  of  fraud  in  making  such  conveyance. 

Murray,  Nelson  &  Co.  vs.  Leiter,  93  App.  176. 

—  Terms  of  Credit :  It  is  competent  to  show  terms  of  credit 
of  sale  as  tending  to  prove  fraud. 

Swift  vs.  Lee,  65  111.  336 ;  Cowling  vs.  Estes,  15  App.  255. 

—  Confession  of  Judgment :  In  favor  of  third  person,  on  date 
of  transfer,  cannot  be  shown  by  creditor,  where  no  proof  is  of- 
fered to  connect  purchaser  of  goods  with  such  transfer. 

Schroeder  vs.  Walsh,   120  111.  403. 

—  Change  in  Character  of  Possession:  An  interpleading  claim- 
ant of  attached  property  may  prove  acts  of  his  own,  lending  to 
show  a  change  in  the  character  of  his  possession,  after  he  took 
possession,  under  a  chattel  mortgage,  of  the  goods,  which  he  had 

theretofore  controlled  as  agent  of  the  mortgagor. 
Martin  vs.  Duncan,  181  ID.  120. 

—  Declarations  of  Grantor:  Evidence  of  declarations  subse- 
quent to  conveyance,  made  by  grantor,  in  absence  of  grantee,  are 
not  admissible  to  impeach  title  com^eyed. 

Sawyer   vs.    Bradshaw,    125    111.    440;    Durand    vs.    Weightman,    108 
111.   489. 

Where   the   debtor   is  in   possession,   ostensibly   as   tenant   and 

agent  of  the  holder  of  title,  evidence  of  declarations  and  acts  of 

debtor  is  admissible  to  show  title  was  not  acquired  in  good  faith. 
Hutchinson  vs.  Crow,  56  App.  558, 

—  Latitude  of  Examination:  In  admitting  evidence  to  estab- 
lish fraud,  a  reasonable  latitude  must  be  allowed  on  both  direct 
and  cross  examination,  and  in  latter,  the  court  could  admit  evi- 
dence having  a  reasonable  tendency  to  throw  light  on  the  trans- 
action, even  though  the  inquiry  is  as  to  matters  not  touched  upon 
in  direct  examination. 

Fabian  vs.  Traeger,  215  111.  220. 

Weight  and  Sufficiency  of  Evidence: 

— 1)1  General:  In  order  to  successfully  impeach  a  voluntary 
settlement  upon  wife,  it  lies  upon  complainant  to  aver  and  prove 
that  he  was  a  creditor  at  that  time,  and  that  the  grantor  was  then 
insolvent,  or  such  facts  and  circumstances  as  would  authorize  a 
court  or  jury  to  presume  insolvency. 

State" Bank  vs.  Barnett.  250  111.  312;   Bittinger  vs.  Kasten,  111  111. 
260;   Moritz  vs.  Hoffman,  35  111,  553. 

—  Testimony  of  Grantor:  Grantor  may  testify  as  to  his  intent. 
But  the  fact  that  he  states  he  did  not  intend  to  defraud  credi- 
tors, even  though  he  may  not  be  contradicted  by  any  direct  evi- 
dence, does  not  bind  the  court  to  believe  him,  if,  from  the  other 


58-t  FRAUDULENT  CONVEYANCES 

evidence  or  from  the  inherent  improl)ability  or  contradiction  in 
the  testimony,  the  court  is  satistied  of  the  falsity  of  the  state- 

mpnts 

Kennard  vs.  Curran,  239  111.  122;  Hauk  vs.  Vanlngen,  196  111.  20  j 
Bell  vs.  Devoe,  9G  111.  217;  Thoru  vs.  Crawford,  17  App.  395.  ,/, 
Specific  Intent  as  to  Particular  Creditor:  It  is  not  neces- 
sary to  show  specific  intent  to  defraud  particuhir  creditor  at- 
tacking transaction,  and  any  evidence  tending  to  prove  trans- 
action to  be  fraudulent  as  to  one  creditor,  is  equally  available  as 
to  any  existing  creditor. 

Scott  vs.  Lumaghi,  236  111.  564. 

Knowledge  of  Parties:    To  impeach  a  conveyance  for  fraud, 

both  vendor  and  vendee  must  be  shown  to  have  intended  to  com- 

TTii i"    ivmifi 

Walsh  vs.  O'Neill,  192  111.  202;  Union  Natl.  Bank  vs.  State  Bank, 
168  111.  519;  Hinton  vs.  Knatt,  134  App.  294;  Edwards  vs.  Story, 
105  App.  433;   Bowden  vs.  Bowden,  75  111.   143. 

—  Sale  for  Valuable  Consideration:  AVhen  conveyance  is  made 
for  valuable  consideration,  fraudulent  intent  must  be  proven  by 
evidence  sufficient  to  establish  it  without  aid  of  legal  presump- 
tion. 

Hughes  vs.  Noyes,  171  111.  575. 
A  conveyance,   though   with   intent  to   defraud   creditors,   will 
be   sustained   where   it   is   to   an   innocent   purchaser,   having   no 
notice  of  the  fraud,  and  upon  sufficient  consideration. 
Zich  vs.  Guebert,  142  111.  154. 
As  to  Relatives:     Where  conveyance  is  made  by  an  insol- 
vent debtor,   if  a   near   relationship   exists   between   grantor  and 
grantee,  more  vigilant  and  jealous  scrutiny  will  be  excited  and 
clearer 'and  more   convincing  proof  will  be  required  than  when 
transaction  is  between  strangers. 

Clark  vs.  Harper,  215  111.  24;   Rindskoph  vs.  Kuder,  145  111.  607. 

—  Attempt    to   Justify    Conveyance:     An    attempt   by    grantee 

to  justify  the  conveyance  as  absolute  when  it  is  not,  affords  strong 

evidence  of  actual  fraud. 

Beidler  vs.  Crane,  135  111.  92. 

—  Resale  to  Debtor:  The  fact  that  a  creditor,  at  request  of 
his  debtor,  purchased  personal  property  belonging  to  latter,  at 
a  sale  on  execution,  with  his  own  money,  and  afterwards  sold 
same  to  debtor  at  price  paid  for  it,  with  interest  on  the  money 
advanced  and  a  charge  for  time  and  trouble,  fails  to  show  any 
fraud  on  part  of  such  creditor,  as  against  rights  of  other  cred- 
itors. 

Sawyer  vs.  Bradshaw,  125  HI.  440. 

—  Withholding  Mortgage  from  Record:  Mere  omission  to  re- 
cord a  mortgage,  though  caused  by  request  of  mortgagor,  does 
not  make  mortgage  fraudulent  as  to  subsequent  creditors  or  pur- 
chasers with  notice  of  its  existence. 

Haas  vs.  Sternback,  156  111.  44. 

—  Mortgage  Exceeding  Debt:  Mortgage  exceeding  debt  is  evi- 
dence of  fraud.  ,,  ^^„ 

Sawyer  vs.  Bradshaw,  125  111.  440 ;  ITpton  vs.  Craig,  .57  111.  257. 

But  is  not  conclusive,  and  is  subject  to  explanation. 

Kaysing  vs.  Hughes,  64  HI.  123;  Wooley  vs.  Fry,  30  111.  158. 


GAMBLING  CONTRACTS  585 

Grantor  as  Witness: 

Creditors  of  a  vendor  have  riglit  to  call  him  as  a  witness  and 

prove,  if  thev  can,  that  sale  was  merely  colorable. 
Weber  vs.  Hertz,  188  lU.  68. 
Such   witnesses   acting   and   defending   in   their  own  interest, 
may  be  examined  and  testimony  afterwards  introduced,  the  effect 
of  which  is  to   contradict   their  testimony,   and   their  statements 

do  not  conchisivelv  bind  pai'tv  calling  them.  :;•:.; 

Podolski  vs.  ^  Stone,  186  111.  540, 
Where  a  person  charged  with  having  fraudulently  conveyed 
his  property  to  hinder  and  delay  his  creditors,  is  put  upon  the 
stand  by  person  to  whom  such  property  is  conveyed,  for  purpose 
of  showing  good  faith  of  the  transaction,  it  is  competent,  upon 
cross  examination,  to  show  by  him  that  he  had  admitted  he  owed 
such  person  nothing. 

Silvis  vs.  Oltman,  53  App.  392. 


FREIGHT  RATES 

Reasonableness : 

Not  what  are  the  usual  and  customary  charges  are  necessarily 
fair  and  reasonable  charges,  nor  is  what  is  fair  and  reasonable  in 
one  place  evidence  of  what  is  fair  and  reasonable  in  another ;  but 
proof  of  what  is  usual  and  customary  under  substantially  like 
conditions  in  many  places  in  the  state  tends  more  or  less  to  prove 
what  is  fair  and  reasonable  in  any  particular  place  in  the  state. 
C.  P.  6k  St.  L.  Ey.  Co.  vs.  People,  136  App.  2. 

Classification  and  schedule  of  Commissioners  admissible  where 
same  is  shown  to  have  been  published,  and  is  prima  facie  evi- 
dence of  the  schedules  of  commissioners. 

C.  B.  &  Q.  R.  Co.  vs.  Jones,  149  111.  361. 


GAMBLING  CONTRACTS 

See  Bucket  Shops,  Gaming. 

Defined: 

All  contracts  made  lietween  parties  who  have  no  intention  of 
delivering  or  receiving  the  property  but  intend  to  settle  by  dif- 
ferences that  may  exist  in  the  market  price  of  the  article  at  time 
of  settlement  and  at  time  of  contracting,  are  gambling  contracts 

and  therefore  void. 

Semler  Milling  Co.  vs.  Fyffe,  127  App.  514;  Dunbar  vs.  Armstrong, 
115  App.  549. 
If  it  is  apparent  from  the  facts  and  circumstances  surround- 
ing a  transaction  involving  the  sale  of  grain  or  other  commodity 
that  the  matter  is  to  be  settled  by  payment  of  differences,  the 
transaction  is  a  gambling  one,  and  all  notes,  contracts  or  convey- 
ances based  upon  alleged  rights  arising  out  of  such  transaction 

are  null  and  void. 

Pratt  &  Co.  vs.  Ashmore,  224  111.  587. 


586  GAMBLING  CONTRACTS 

A  mere  written  offer  to  make  a  contract  to  sell  a  commodity 
at  a  certain  price,  to  be  delivered  at  a  specified  time,  is  not  a 
contract,  and  does  not  of  itself  create  an  option;  but  Miien  there 
is  added  a  clause  by  which,  for  valuable  consideration,  the  prom- 
ising party  agrees  to  leave  the  offer  open  for  acceptance  until  a 
certain  time,  an  option  is  thereby  created. 
Bates  vs.  AVoods,  225  111.  126. 

Burden  of  Proof: 

The  party  asserting  that  transactions  were  gambling  ones  has 
burden  of  proof. 

Pelouze  vs.  Slaughter,  241  111.  215 ;  Johnson  vs.  Milmine,  150  App. 
208 ;  Cromwell  vs.  Davies,  163  App.  152 ;  Marvel  vs.  Marvel,  96 
App.  609;  Pixley  vs.  Boynton,  79  111.  351;  XII  III  Notes  828,  §  40. 

And  should  be  made  out  in  chief. 

Barnet  vs.  Baxter,  64  App.  544. 
AYlien  the  contract  appears  colorable  and  no  bona  fide  mutual 
intention  to  sell  and  receive  is  affirmatively  shown,  the  burden  of 
proving  the  legality  and  good  faith  of  such  transactions  is  upon 
him  who  asserts  legality  and  seeks  to  enforce. 
Wheeler  vs.  McDeimaid,  36  App.   179. 

On  bill  tiled  by  party  to  set  aside  a  sale  of  his  land  under  a 
decree  of  foreclosure  of  mortgage,  on  ground  that  mortgage  was 
given  to  secure  money  won  by  gambling,  burden  of  proof  is  upon 
him  to  establish,  by  a  preponderance  of  evidence,  not  only  that 
he  lost  money  while  gaml)ling  with  defendant,  but  that  all  or 
part  of  the  money  so  lost  by  gambling  was  money  for  which  note 
and  mortgage  were  given,  in  whole  or  in  part. 
Patterson  vs.  Scott,  142  111.   138. 

Presumptions : 

Intention  may  be  inferred  where  party  making  purchase  never 
demanded  the  purchase  money,  but  only  margins. 

Jamieson  vs.  Wallace,  167  111.  388;  Jo'nes  vs.  Jones,  103  App.  382. 
From  the  mere  fact  that  such  transactions  were  closed  before 
maturity,   an   account  of  losses  being  rendered  on  basis  of  dif- 
ference in  price,  it  should  not  be  inferred  that  such  was  the  inten- 
tention  of  the  parties  ab   initio,   and   that  there  was  an  under- 
standing that  there  should  be  no  delivery  of  the  commodity  sold. 
Ware  vs.  Jordan,  25  App.  534. 
But  where  it  is  shown  that  the  broker  and  his  client  intended 
to  engage  in  a  fictitious  sale,  the  presumption  has  been  held  to 
obtain  that  all  parties  entered  into  same  with  like  intention. 
Beveridjre  vs.  Hevritt,  8  App.  467. 

Admissibility  of  Evidence: 

—  Intention  in  General:     Intention  of  parties  gives  character 

to  the  transaction. 

Pixley  vs.  Boynton,  79  111.  351;  Dunbar  vs.  Armstrong,  115  App.  549. 
And  in  such  cases,  intention  may  be  determined   from  nature 
of  transaction  and  method  of  carrying  on  the  business. 

First  Natl.  Bank  vs.  Miller,  23.5"  111.  135;  Pratt  &  C!o.  vs.  Ashmore, 
224  111.  587;  Pope  vs.  Hanke,  155  111.  617;  Jamieson  vs.  Wallace, 
167  111.  388. 

—  Direct  Evidence  of  Intention:  The  right  to  testify  as  to 
intention  depends  upon  whether  facts  and  circumstances  in  the 
record  so  far  connect  the  parties  with  the  intent  as  to  make  it  a 


GAMBLING  CONTRACTS  587 

fair  question  for  the  jury  to  determine  under  all  the  evidence 
whether  it  was  the  expressed  or  implied  understanding  between 
the  parties  that  no  delivery  was  to  be  made,  but  settlement  was 
to  be  made  on  differences  only. 

Seniler  Milling  Co.  vs.  Fyffe,  127  App.  514 ;  Pardridge  vs.  Cutler,  104 
App.  89. 
A  party  should  not  be  permitted  to  state  what  his  intention 
was,  where  not  disclosed  to  the  other. 

Scanlon  vs.  Warren,  169  111.  142;  Dunbar  vs.  Armstrong,  115  App. 
549;  Benson  vs.  Morgan  &  Co.,  26  App.  22;  XII  111.  Notes  829,  §  42. 
In  suit  upon  a  promissory  note,  in  which  one  of  the  defenses 
was  that  the  note  was  given  for  money  due  and  owing  upon  a 
gambling  contract,  for  purchase  of  options  on  board  of  trade, 
the  court  asked  one  of  the  plaintiffs,  who  was  a  witness  in  the 
case,  if  there  was  no  understanding  between  him  and  defendant, 
that  he  was  to  furnish  pork  or  grain,  and  whether  the  whole  of 
the  transaction,  from  beginning  to  end,  was  not  merely  to  charge 
defendant  with  differences  that  might  have  grown  out  of  the. 
transaction :  Held,  that  there  w^as  no  special  objection  to  the 
question. 

Kreigh  vs.  Slierman,  105  111.  49. 

—  Course  of  Dealing:  Proof  is  competent  as  to  how  the  par- 
ties have  been  in  the  habit  of  dealing  together  in  respect  to  like 

transactions. 

Watt  vs.  Costello,  40  App.  307;  Colderwood  vs.  McCrea,  11  App.  543; 
Beveridge  vs.  Hewitt,  8  App.  467. 

—  Pecuniary  Circumstances  of  Purchaser:  The  fact  that  pur- 
chase of  stocks  through  a  broker  is  much  larger  in  amount  than 
the  purchaser  is  able  to  pay  for,  which  fact  is  known  to  the 
broker,  is  a  strong  circumstance  tending  to  show  that  there  was 
no  intention  that  the  stocks  were  to  be  delivered  to  purchaser. 

Jamieson  vs.  Wallace,  167  111.  388. 

—  Occupation:  It  is  persuasive  evidence  also  of  unlawful 
character  that  the  purchases  and  sales  were  numerous  and  of 
great  quantities,  that  the  purchaser  was  a  resident  in  the  coun- 
try, engaged  in  other  regular  business,  had  no  apparent  use  for 
the  commodity  and  no  place  to  receive  or  store  it,  and  that  each 
purchase  was  closed  out  by  a  sale  before  the  day  for  delivery 
and  each  short  sale  covered  by  a  purchase. 

Watts  vs.  Costello,  40  App.  307;   Miles  vs.  Andrews,  40  App.  155; 
WTieeler  vs.  McDermaid,  36  App.  179. 

—  Board  of  Trade  Rules:  In  suit  by  broker  to  recover  for 
losses  sustained  in  closing  out  contracts  negotiated  by  him  for 
person  not  member  of  board  of  trade,  its  rules  are  not  admissible. 

Pardridge  vs.  Cutler,   168   111.  504. 

—  Similar  Trasactions:  In  determining  the  intention  of  par- 
ties to  a  contract  for  the  purchase  and  sale  of  stocks,  the  fact 
that  the  parties  have  had  similar  transactions  which  were  set- 
tled by  the  payment  of  differences,  may  be  considered. 

Jamieson    vs.    Wallace,    167    111.    388;    Colderwood   vs.    McCrea,    11 
App.  543. 
Evidence  of  similar  acts  three  months  after  an  act  in  question, 

relevant. 

Gardiner  vs.  Meeker,  169  111.  40. 


588  GAMBLING  CONTRACTS 

It  is  competent  for  purpose  of  showing  the  nature  of  the  trans- 
actions, to  })rovc  by  other  witnesses  that  they  had  similar  trans- 
actions at  or  about  the  same  time,  l)ut  the  period  of  time  to  be 
covered  must  rest  largely  in  the  discretion  of  the  trial  court. 

First  Natl.  Bank  vs.  Miller,  235   111.  135;   Pratt  &  Co.  vs.  Ashmore, 
224  III.  587;  Stanniger  vs.  Tabor,  1U3  App.  330. 

—  Intention  to  Force  Market:  In  an  action  under  an  illegal 
contract  for  the  buying  and  selling,  as  agent,  and  for  commis- 
sions, etc.,  plaintiff  is  not  bound  to  offer  proof  of  claims  not  made 
by  him,  but  defendant  has  right  to  disprove  plaintiff's  claims, 
if  he  can.  The  defendant  w411  have  the  right  to  introduce  testi- 
mony tending  to  show  that  the  purchase  and  sales  were  alike  parts 
of  an  unlawful  attempt  to  force  the  market,  especially  w-here  the 
evidence  of  both  parties  does  not  tend  to  prove  independent  trans- 
actions, but  parts  of  a  single  scheme. 

Foss  vs.  Cummings,  149  111.  353. 

—  Information  From  Agent:     "Where  one  dealing  on  board  of 

•trade   only  through  his  broker  is  asked,   when   testifying  in  his 

own  behalf,  a  question  which  calls  for  a  statement  of  facts  not 

within  his  personal  knowledge,  but  of  facts  reported  to  him  by  his 

agent,  such  evidence  is  hearsay  and  should  not  be  admitted.     The 

broker  should  be  called  to  testifv  to  the  facts. 
Grubey  vs.  Natl.  Bauk,  133  111.  79. 

—  Declarations  and  Conversations:  A  verbal  contract  may  be 
explained  by  facts,  circumstances  or  conversations  which  shed 
light  upon  the  meaning  of  the  words.  In  such  case,  it  is  proper 
to  ascertain  such  extrinsic  facts  as  the  parties  may  have  had  in 
view,  and  conversations  at  or  near  the  time  of  the  deal,  as  to  how 
same  would  be  settled,  are  admissible. 

Brand  vs.  Henderson,  107  111.  141, 
That  the  parties  to  dealings  in  grain  intended  to  settle  by  way 
of  differences  in  the  market  value  of  the  grain  and  the  option 
price,  need  not  be  proven  by  express  declarations  or  statements 
of  the  parties,  but  may  be  established  by  the  attending  circum- 
stances of  the  transaction.  And  the  statement  of  the  manager 
of  the  branch  office  which  conducted  the  business,  explaining  the 
method  of  doing  business,  is  competent  as  characterizing  the 
transactions,  without  regard  to  the  fact  that  it  was  made  more 

than  six  months  before  suit  was  begun, 
Bartlett  vs.  Sliisher,  215  111.  348. 

—  Correspondence:  Correspondence  between  a  broker  and  his 
client  in  terms  of  speculation  is  evidence  of  character  of  trans- 
action, 

Wlieeler  vs.  MeDermaid,  36  App.  179. 

—  PartnersMp  Change  to  Corporation:  Where  a  partnership 
is  changed  into  a  corporation  and  there  is  a  reasonable  presump- 
tion that  the  relations  between  the  corporation  and  a  person  are 
merely  a  continuation  of  those  between  such  person  and  the  part- 
nership, evidence  of  such  relations  are  not  to  be  excluded  because 
of  the  change  from  a  partnership  to  a  corporation. 

Dillon  vs.  McCrea,  59  App.  505. 

—  Warehouse  Receipts:  Evidence  tending  to  prove  that  grain 
of  the  character  ordered  was  in  fact  purchased  or  sold  and  was 


GAMBLING  CONTRACTS  589 

represented  by  warehouse  receipts,  delivered  to  defendants,  is 
adiiiissitile  on  question  of  intention  of  parties  to  contract  to  make 
actual  delivery. 

Eiley   vs.  Lamson,   1G4  App.  297. 

Weight  and  Sufficiency  of  Evidence: 

—  Contract  Xot  Conclusive:  A  contract  wliich  is  within  the 
mischief    of    statute    prohibiting   gambling    transactions,    is    void 

though  not  within  the  letter. 

Bates  vs.  Woods,  225  111.  126;  Stock  Exchange  vs.  Board  of  Trade, 
196  111.  396. 
"The  form  of  the  contract  is  by  no  means  conclusive  of  the  true 
nature  of  the  transaction.  That  must  be  determined  from  the  real 
intention  of  the  parties.  If  it  appears  to  be  their  intention  that 
the  property  sold  is  not  to  be  actually  delivered,  but  that  a  set- 
tlement ultimately  made  between  them  upon  the  basis  of  the  dif- 
ference between  the  contract  and  the  market  price,  it  is,  not- 
withstanding its  form,  a  wagering  contract,  void  at  common  law 

and  prohibited  by  our  statutes." 

111.  T.  &  S.  Bank  vs.  LaTouclie,  101  App.  341;  Kennedy  vs.  Stout,  26 
App.  133;  Colderwood  vs.  McCrea,  11  App.  543. 

—  Form  of  Order:  That  orders  were  in  form  for  the  actual 
purchase  and  sale  of  wheat  for  future  delivery  is  a  circumstance 
of  little  weight  as  evidence  of  intention,  and  actual  delivery  under 
one  order  will  not  be  conclusive  of  an  intention  to  receive  it,  when 
order  for  purchase  was  given. 

Miles  vs.  Andrews,  40  App.  155. 

—  Mutualiiy  of  Intention:  To  invalidate  a  contract  for  pur- 
chase and  sale  of  stocks  in  the  future,  the  intention  of  both  par- 
ties to  settle  transaction  by  pavment  of  differences  must  be  shown. 

Jamieson  vs.  Wallace"   167*111.  338;  Pixley  vs.  Boynton,  79  111.  351; 

Ware  vs.  Dumont,  123  App.  1;  Kiley  vs.  Lamson,  164  App.  297. 

It  must  appear  that  neither  party  intended  the  commodity  to 

be  delivered  or  intended  actual  purchases  and  sales  to  be  made  but 

that  both  had  the  intention  of  settling  on  the  differences  in  price 

only. 

Kerting  vs.  Stiirtevant,  181  App.  517;  Pelouze  vs.  Slaughter,  241  111, 
215. 
^-  WareJiouse  Receipts:  A  transaction  involving  the  purchase 
and  sale  of  gi^ain  is  not  relieved  of  its  gambling  character  by  fact 
that  the  grain  was  in  city  of  Chicago,  and  that  warehouse  receipts 
were  held  therefor  by  one  of  the  parties,  who  was  a  member  of 
the  board  of  trade,  the  rule  of  which  required  actual  delivery  of 
the  grain,  where  it  was  the  understanding  that  the  parties  were 
to  settle  by  payment  of  differences,  the  same  as  former  transac- 
tions between  them. 

Pratt  &  Co.  vs.  Ashinore,  224  Xll.  587. 

—  Preponderance  of  Evidence:  It  is  not  necessary  that  jury 
should  be  convinced  that  the  transaction  was  an  illegal  one;  a 
clear  preponderance  of  the  evidence  is  sufficient. 

Livingston  vs.  Miller,  154  App.  104;  Johnson  vs.  Milmine,  150  App. 
208;  McCormick  vs.  Nichols,  19  App.  334. 

Question  of  Fact: 

The  intention  of  the  parties,  where  it  is  claimed  that  the  intent 
was  to  make  an  option  contract,  to  be  settled  by  the  payment  of 


590  GAMING 

differences,  is  a  question  of  fact  for  the  jury,  to  be  determined 

from  the  evidence. 

Pope  vs.  Hanke,  155  111.  617. 

GAMING 

See  Gambling  Contracts,  Bucket  Shops,  Gaming  House,  Im- 
munity. 
Recovery  of  Money  Lost: 

—  Burden  of  Proof:  In  action  by  a  person  other  than  the 
loser,  to  recover  money  lost  at  gambling,  the  burden  of  proof  is 
upon  plaintiff  to  prove  that  the  losses  at  any  one  sitting  amounted 
to  as  much  as  ten  dollars. 

Eanney  vs.  Flynn,  60  App.  104. 
And  each  sitting  is  a  separate  cause  of  action. 

Johnson  vs.  McGregor,  157  111.  350. 
Plaintiff  must  show  by  a  preponderance  of  the  evidence  that 
the  money  alleged  to  have  been  lost  was  lost  by  party  alleged 
and  won  by  defendant. 

Mitchell  vs.  Nelson,   142  App.  534. 

But  where  conspiracy  is  charged,  plaintiff  is  entitled  to  recover 
from  all  defendants  the  amount  lost,  irrespective  of  who  was  the 
winner  thereof. 

Batman  vs.  Cook,  120  App.  203. 

—  Liahility  of  Broker:  Where  it  is  shown  that  party  losing  had 
an  understanding  between  him  and  his  broker,  that  there  would 
be  a  settlement  as  between  them,  on  differences,  recovery  may  be 
had  against  such  broker. 

Pelouze  vs.  Slaughter,  241  111.  215;  Kruse  vs.  Kennett,  181  111.  199. 

—  Demand:    Demand  need  not  be  made  before  bringing  action. 

Johnson  vs.  McGregor,  157  111.  350;  Affg.,  Johnson  vs.  McGregor,  55 
App.  530. 

—  Fraud  and  Covin:  In  a  suit  to  recover  treble  the  amount  of 
the  losses,  evidence  is  admissible  to  show  that  while  suit  is  being 
prosecuted  in  name  of  a  third  party,  it  is  really  the  suit  of  the 
loser,  and  that  he  and  plaintiff  have  conspired  together  for  pur- 
pose of  mulcting  defendant.  Such  proof  is  admissible  under  gen- 
eral issue. 

Kizer  vs.  Waldron,  198  111.  274;  Staninger  vs.  Tabor,  103  App.  330. 

—  Checks  as  Corroboration:     In  action  to   recover  money  lost 

at  gambling,  when  loser  testifies  he  obtained  some  of  the  money 

by  checks  drawn  at  time,  and  produces  and  identifies  .the  checks, 

they  are  admissible  in  corroboration  and  as  tending  to  show  he 

had  the  money  to  gamble  with. 

Kizer  vs.  Walden,  96  App.  593. 

—  Competency  of  Husband:  Husband  is  competent  witness 
for  his  wife,  in  suit  by  her  to  recover  money  lost  by  him  at  gam- 
ing. 

Johnson  vs.  McGregor,  157  111.  350. 

—  Immunity:  Intention  of  statute  was  to  preclude  defendants 
in  a  chancery  suit  from  refusing  to  make  sworn  answers,  on  the 


GAMING  HOUSE  591 

^ound  that  they  could  not  lawfully  be  compelled  to  give  any  evi- 
dence against  themselves. 

Patterson  vs.   Seott,  142  111.  138. 


GAMING  HOUSE 

See  Immunity. 
In  General: 

Where  defendant  is  accused  of  renting  rooms  for  purpose  of 
keeping  therein  a  conmion  gaming  house,  guilty  knowledge  may 
be  shown   by  proof  that  on  former  occasions  premises  had  been 
rented  to  same  party  for  gaming  purposes. 
People  vs.  Viskiniski,  255  111.  384. 

Where  a  party  is  indicted  for  "keeping  a  gambling  device," 
evidence  is  admissible  that  the  machine  was  actually  used  by  de- 
fendant for  gambling  purposes,  if  merely  to  show  that  the  machine 

was  a  gambling  device. 

Bobel  vs.  People,  173  111.  19. 
Where  proof  showed  that  accused  was  present  in  and  about  the 
room  at  all  times  during  the  day  and  night ;  that  he  talked  to 
persons  there  and  on  one  occasion  placed  a  cover  upon  a  table, 
arranged  the  chairs  for  players,  and  procured  the  necessary  chips 
to  be  usecl  in  play;  and  on  another  occasion,  when  a  player  re- 
marked that  he  w^as  going  on  the  last  car,  defendant  informed 
him  that  a  hack  would  be  running  every  hour  until  morning,  it 
is  sufficient  to  sustain  a  charge  of  keeping  a  gambling  house. 

People  vs.  Brewer,  142  App.  610. 

So  it  is  sufficient  where  it  is  proven  that  at  the  time  of  arrest 

of  one  as  keeper  of  a  common  gaming  house,   there  were  found 

seven  or  eight  persons  in  an  upper  room,  in  the  act  of  playing 

faro,  and  the  proof  showed  that  the  premises  were  furnished  as 

a  common  gaming  house. 

Stevens  vs.  People,  67  111.  587. 

And  where  it  is  proven  that  defendant  was  seen  frequently 
in  certain  rooms;  that  witness  was  there  two  or  three  times,  and 
saw  the  defendant  dealing  the  cards  at  the  game  of  faro ;  that  the 
rooms  were  kept  and  used  as  a  common  gambling  room;  that 
defendant  had  charge  of  the  rooms  and  whenever  any  questions 
arose  about  the  games  being  played  there,  all  disputes  were  re- 
ferred to  defendant  for  settlement;  that  there  were  in  the  rooms 
the  implements  of  gambling,  and  that  the  rooms  were  fitted  up 
for  gambling  rooms,  the  evidence  is  sufficient  to  sustain  convic- 
tion, though  no  witness  states  in  so  many  words  that  there  was 
any  gambling  "for  money  or  other  valuable  thing." 
Bobbins  vs.  People^  95  111.  175. 

Before  a  -conviction  can  be  had  for  leasing  premises  for  a  gam- 
ing house,  it  is  necessary  for  prosecution  to  prove  beyond  a  rea- 
sonable doubt  that  defendant  had  actual  knowledge  that  prem- 
ises leased  were  to  be  used  for  gambling  purposes,  and  were  leased 

by  him  for  that  purpose. 

Flynn  vs.  People,  123  App.  591;  Frank  vs.  McDonald,  86  App.  336; 
McDonald  vs.  Tree.  69  App.  134. 


592  GARNISHMENT 

GARNISHMENT 

See  Good  Faith,  Burden  of  Proof. 
Answer : 

—  Admissibility:  Answer  which  the  garnishee  has  made  under 
oath  should  go  before  the  ^\iry  who  may  give  it  such  weight  as 
they  may  believe  it  entitled  to  in  connection  with  all  the  circum- 
stances in  the  case. 

Schwab  vs.  Gingerich,  13  111.  698;  Cliott  vs.  Tivoli  Amusement  Co., 
82  App.  244. 

But  an  answer  in  writing  not  under  oath  cannot  be  used  as 
evidence  of  the  facts  therein  stated. 

Empire  Eoofing  Co.  vs.  Macey,  115  111.  390. 

—  Disproving:     Burden  of  proof  is  upon  plaintiff. 

Payne  vs.  C.  E.  I.  &  P.  Ey.  Co.,  170  111.  607;  Eippen  vs.  Sehoen,  92 
111.  229;  Trnitt  vs.  Griffin,  61  111.  26;  I.  C.  E.  E.  Co.  vs.  Cobb,  48 
111.  402;  Eeid  Murdoch  Co.  vs.  Bank,  135  App.  49;  Horn  vs. 
Booth,  22  App.  385. 

And  if  the  answer  is  not  disproved,  garnishee  should  be  dis- 
charged. 

Lacshear  vs.  White,  88  111.  43 ;  C.  St.  L.  E.  E.  Co.  vs.  Killenberg,  92 

111.  142;  C.  &  E.  I.  E.  E.  Co.  vs.  Blagden,  33  App.  254;  Manowsky 

vs.  Conray,  33  App.  141 ;  XII  111.  Notes  844,  §  93. 

But  where  garnishee  charges  himself  with  a  sum  of  mctoey  which 

he  claims  as  a  set-off,  he  must  show  to  what  extent  or  state  of 

facts  from  which  court  can  determine  the  amount. 

Crain  vs.  Gould,  46  111,  293 ;  McCoy  vs.  Williams,  6  111.  584. 


GIFTS 

See  Advancements,  Parent  and  Child,  Fiduciary  Relations, 
Husband  and  Wife,  Title,  Fraudulent  Conveyances,  Infants, 
Deeds. 
Defined : 

A  gift  is  a  voluntary,  immediate  and  absolute  transfer  of  prop- 
erty without  consideration. 

Morey  vs.  Wiley,  100  App.  75. 

The  naked  promise  to  give  is  not  a  gift ;  there  must  be  some  act 
to  pass  the  property. 

May  vs.  May,  36  App.  77. 

A  promise  by  a  father  to  give  to  his  son  the  coal  underlying 
the  home  farm,  or  in  case  of  the  sale  of  the  coal,  upon  which  an 
option  had  been  given,  to  give  him  the  proceeds,  is  a  mere  prom- 
ise of  a  gift,  which  the  father  is  at  liberty  to  revoke. 
Carson  vs.  Carson,  256  111.  381. 
Where  the  gift  is  of  a  chose  in  action,  the  mere  intention  to 
deliver,  without  delivery,  does  not  execute  the  gift. 
Chamberlain  vs.  Williams,  62  App.  433. 
But  intention  in  cases  of  certain  character  may  be  the  control- 
ling factor. 

Hageman  vs.  Hageman,  204  HI.  378. 


GIFTS  593 

There  are  two  kinds  of  gifts;  g-ifts,  simply  so  called,  or  gifts 
inter   vivos,^   as    they   were    distinguished   in   the    civil    law;   gifts 
causa  mortis,  or  those  made  in  the  apprehension  of  death. 
Marsh  vs.  Prentis,  48  App.  74. 

Presumptions : 

Presiniii)tion  of  gift  may  arise  from  circumstances. 
Foley  vs.  McMahon,  73  111.  66. 

And  may  arise  from  the  moral  obligation  to  give.  ,,,, 

Capek  vs.  Kropik,  129  111.  509;  Broiuwcll  vs.  Bromwcll,  139  111.  424; 
Lux  vs.  Hof,  47  111.  425. 

The  presumption  that  where  title  to  land  purchased  with  the 
husband's  money  is  taken  in  the  wife's  name  the  conveyance  is  a 
gift  is  not  a  conclusive  one,  but  it  may  be  overcome  by  clear  proof 
showing  it  was  not  the  intention  of  the  parties  that  the  conveyance 
was  to  be  so  considered,  and  if  such  proof  is  made  the  wife  will 
be  held  to  be  a  trustee. 

Backseits  vs.  Leichtweis,  256  111.  357. 

Burden  of  Proof: 

Where  title  to  property  is  claimed  as  a  gift,  burden  is  upon 
one  claiming  the  gift. 

Gilmore  vs.  Lee,  237  111.  403;  Mer.  Loan  Co.  vs.  Egan,  222  111,  494; 
Milliard  vs.  Milliard,  221  111.  86;  Banium  vs.  Eeed,  136  111.  388; 
Bourdeau  vs.  Bourdeau,  45  111.  480. 

Where  confidential  relation  exists,  the  donee  has  burden  of  prov- 
ing affirmatively  good  faith,  full  knowledge  and  independent 
action  on  part  of  the  donor. 

Gilmore  vs.  Lee,  237  111.  402;  Kittle  vs.  Brovni,  161  App.  98;  Wight 
vs.  Warden,  162  App.  182.  ;, 

Where  a  loan  is  made,  the  burden  of  proof  rests  upon  the  bor- 
rower to  show  that  what  was  at  first  a  loan  was  afterwards  changed 

into  an  absolute  gift,  if  he  claims  a  gift.  ;ii 

Selleck   vs.   Selleok,   107  111.   389. 

Admissibility  of  Evidence : 

—  Declarations  of  Deceased  Donor:  Declarations  of  deceased 
donor  as  to  intention  are  inadmissible  in  evidence  to  show  what 

she  did  in  respect  to  her  propertv,  either  by  will  or  gift. 
Barnum  vs.  Eeed,   136   111.  388. 

The  declarations  of  a  husband  before  his  death,  that  he  had  given 
government  bonds  to  his  wife,  is  not  sufficient  to  show  title  in  her 
where  it  appears  he  referred  to  a  letter  or  writing,  in  the  nature 
of  a  testamentary  disposition,  which  is  void  because  not  prop- 
erly attested,  as  a  will,  as  the  evidence  of  the  gift. 
Comer  vs.  Comer,  120  111.  420. 
—  Pecuniary  Condition  of  Beneficiary:  Inadmissible  where 
gift  is  accompanied  by  delivery. 

Crum  vs.  Thornley,  47  111.  192. 

—  Parol  to  Change  Contract:  Where  personal  property  is  de- 
livered by  one  person  to  another,  under  an  express  promise,  made 
in  writing,  by  the  latter,  to  return  the  same  "whenever  called 
for,"  the  promise  is  a  written  contract,  the  terms  and  conditions 
of  which  cannot  lawfully  be  varied  or  modified  by  parol  proof, 
and  such  undertaking  is  entirely  incompatible  with  the  idea  of  an 

absolute  gift. 

Selleck  vs.  Selleck,  107  111.  389. 

Ev. — 38 


594  GIFTS 

—  Circumstances:  Evidence  as  to  what  was  said  at  time  of 
assignment  of  a  policy  of  insurance,  should  he  considered  as  tend- 
ing to  show  the  intention,  whether  of  a  gift  or  not,  and  to  explain 
the  possession  of  the  policy  subsequent  to  the  assignment. 

Weaver  \s.  Weaver,  TS'^App.  301 ;  Bauman  vs.  Ash,  143  111.  649. 

Weight  and  Sufficiency: 

—  Delivcnj:  To  constitute  a  valid  gift  inter  vivos,  possession 
and  title  must  pass  to  and  vest  in  donee  irrevocably.  In  this 
respect  alone,  a  gift  causa  mortis  differs  from  that  of  a  gift 
inter  vivos,  as  in  the  case  of  the  former  it  is  revocable  on  the 
recovery  of  the  donor. 

Barnum  vs.  Eeed,  136  111.  388. 
Delivery  to  agent  of  donor  does  not  constitute  a  present  gift. 

Trubey  vs.  Pease,  240  111.  513. 
To  establish  gift  infer  vivos  it  must  be  shown  that  property  was 
delivered  in  lifetime  of  decensed  with  intent  to  vest  title  in  donee. 

Eengel  vs.  Sehoden,  178  App.  151. 
To  establish  a  gift  inter  vivos  the  delivery  must  appear  to  have 

been  absolute. 

Milliard  vs.  Milliard,  221  111.  86. 
Title  to  personal  property  by  gift  may  be  passed  by  delivery 
of  it  by  the  owner  to  anotlier  as  tru,stee  for  the  donee. 

Trubey  vs.  Pease,  240  111.  513. 
Where  the  donor  at  time  of  declaring  a  gift,  divests  himself 
of  the  means  of  possession  and  dominion  over  it,  and  invests  the 
donee  with  such  means,  he  is  to  be  considered  as  surrendering 
possession  of  it ;  so  where  an  unequivocal  declaration  of  a  gift 
is  accompanied  by  a  delivery  of  the  only  means  by  which  the  pos- 
session of  the  article  given  can  be  obtained,  the  delivery  is  suf- 
ficient. 

People  vs.  Benson,  99  App.  325. 

It  is  essential  to  a  donation  inter  vivos  that  the  gift  be  abso- 
lute and  irevocable ;  that  the  giver  part  with  all  present  and  future 
dominion  over  the  property  given;  that  the  gift  go  into  effect  at 
once  and  not  at  some  future  time;  that  there  be  a  delivery  of  the 
thing  given  to  the  donee,  and  that  there  be  such  a  change  of  pos- 
session as  to  put  it  out  of  the  power  of  the  giver  to  repossess  him- 
self of  the  thing  given. 

Shafer  vs.  Manning,  132  App.  570. 

An  inter  vivos  gift  of  notes  is  established  by  proof  that  the 
donor  placed  the  notes  in  an  envelope  marked  with  donee's  name, 
as  owner,  executed  a  writing  importing  a  present  transfer  and 
delivery  of  the  notes,  and  delivered  the  key  to  the  safety  deposit 
box  where  the  notes  were  kept,  to  the  donee,  who  subsequently 
took  them  into  his  possession. 

Hagcman  vs.  Hageman,  204  111.  378. 

Where  a  wife  intends  and  attempts  to  give  and  believes  she  has 
given  her  husband  certain  promissory  notes  signed  by  him,  pay- 
able to  her,  and  released  him  from  liability  upon  them,  and  such 
notes  are,  upon  his  death,  found  among  his  effects,  such  fact,  unde- 
nied  and  unexplained,  raises  the  presumption  of  their  delivery  to 

him  in  his  lifetime. 

Morey  vs.  Wiley,  ]00  App.  75. 


GOOD  FAITH  595 

Where  a  husband  handed  his  wife  a  sum  of  money  he  had  just 
brought  from  the  bank,  and  either  said  nothing  or  just  asked 
her  to  take  care  of  it,  and  she  took  it  to  their  coiiuuon  bed  room, 
containing  his  pocket-book  and  liers,  and  put  it  in  lier  own  pocket- 
book,  without  his  knowledge,  and  he  was  in  the  liabit  of  handing 
her  his  money,  to  take  care  of,  this  does  not  establish  a  gift  of 
the  money  to  her. 

Pierce  vs.  Giles,  93  App.  524. 

—  Intention:  If,  by  mistake  of  law,  a  party  intending  to  make 
a  gift,  fails  to  do  those  things  which  the  law  requires  to  carry 
his  intention  into  effect,  mere  proof  of  his  intention,  however  posi- 
tive, cannot  change  the  title  to  the  property. 

Williams  vs.  Chamberlain,  165  111.  210;  Triibey  vs.  Pease,  240  111.  513. 

There  must  not  only  be  an  intention  to  make  the  gift,  but  actual 

delivery  of  the  res  must  take  place,  in  order  to  validate  it. 
Tnibey  vs.  Pease,  146  App.  507. 

—  Of  Didarations  of  Donor:  AVhere  a  husband  bought  a  piano 
and  took  it  home,  and  told  various  persons  he  had  bought  it  for 
his  wife,  and  had  given  it  to  his  wife,  and  it  was  his  wife's  piano, 
this  is  sufficient  to  support  his  wife's  claim  to  the  piano  as  a  gift, 
after  her  husband's  death. 

Pierce  vs.  Giles,   93  App.  524. 

—  Clear  Proof :  A  gift,  whether  direct  or  in  trust,  must  be 
established  by  clear  proof,  and  there  must  be  no  uncertainty  either 
as  to  the  subject  or  object  of  the  gift. 

Barnum  vs.  Eeed,  136  111.  388;  May  vs.  May,  36  App.  77. 
The  proof  to  establish  a  gift  causa  mortis  must  be  clear  and 
convincing. 

Woodburu  vs.  Woodburn,  23  App.  289. 


GOOD  FAITH 

See  Frattd,  Frattdulent  Conveyances. 
As  to  Color  of  Title: 

—  Defined:  The  good  faith  required  by  statute  in  the  creation 
or  acquisition  of  color  of  title  is  a  freedom  from  a  design  to 
defraud  the  person  having  the  better  title. 

Keeney   vs.    Glos,    258    111.    555;    Burns   vs.   Edwards,    163   111.    494; 
Smith  vs.  Ferguson,  91  111.  304. 

There  is  good  faith  in  the  acquisition  of  title  where  there  is  no 
fraud  and  the  color  of  title  is  not  acquired  in  bad  faith. 

Coward  vs.   Coward,   148   111.   268;    Stubblefield   vs.   Borders,   92   111. 
279;    Chickering  vs.   Fails,   26   111.   507;    McConnell   vs.   Street,   17 
111.  253. 
A  title  is  obtained  in  good  faith  if  it  is  obtained  with  the  pur- 
pose of  obtaining  title,  and  in  the  belief  bona  fide  that  it  is  being 

obtained. 

Davis  ^s.  Hall,  92  111.  85;   Smith  vs.  Ferguson,  91  111.  304;  Winters 
vs.  Haynes,  84  111.  585. 
Good  faith  in  the  acquirement  of  title,  within  the  meaning  of 
the  statute,  does  not  require  ignorance  of  an  adverse  claim,  or 


596  GOOD  FAITH 

defects  of  title.     Notice,  actual  or  constnictive,   is  of  no  conse- 
quence. 

Davis  vs.  Hall,  92  111.  85;  County  of  Piatt  vs.  Goodell,  97  111.  84; 
Coleman  \s.  Billings,  89  Til.  183;  Chiekering  vs.  Failes,  26  111.  507; 
Brain  vs.  Melton,  125  111.  647;  XI  111.  Notes  74,  §  113. 

—  Presiimptions:  Color  of  title  will  be  presumed  to  have  been 
acquired  in  good  faith,  until  such  presumption  is  overcome  by 

proof. 

Keeney  vs.  Glos,  258  111.  555 ;  Peabody  Coal  Co.  vs.  Burri,  255  111.  592 ; 
Tavlor   vs.   Hamilton,   173    111.    392;    Davis   vs.   Halls,   92    111.   85; 
Stumpf  vs.  Osterhage,  111  111.  82;  Sexson  vs.  Barker,  172  111.  361. 
Is  a  question  of  fact  and  v^ill  be  presumed. 

Dawson  vs.  Edwards,   189  111.   60;    Sexson  vs.  Barker,   172   111.   361; 

Coward  vs.   Coward,   148   111.   268;    Baldwin  vs.   Ratcliffe,   125   111. 

376;    Coleman   vs.    Billings,    89    111.    183;    Jennings   vs.    Gage,    13 

111.  611. 

Bad  faith  in  acquiring  color  of  title  must  be  proven,  since  it 

will  be  presumed  it  was  acquired  in  good  faith. 

Peabody  Coal  Co.  vs.  Burri,  255  111.  592 ;  Godfrey  vs.  Dickison  Power 
Co.  228  111.  487;  Dawson  vs.  Edwards,  189  111.  60;  Sexson  vs. 
Barker,  172  111.  361. 

—  Acquisition   by  Gmntor-'s  Ancestors:     Alleged  bad  faith  of 

grantor's  ancestor  in  acquiring  color  of  title  cannot  be  imputed  to 

the  grantees,  unless  it  is  proven  that  they  purchased  with  actual 

notice  thereof. 

Richards  vs.  Carter,  201  111.  165;  Lewis  vs.  Pleasants,  143  111.  271. 

—  Intermediate  Otvuer:  Bad  faith  in  an  intermediate  owner 
will  not  affect  the  title  of  a  purchaser  in  good  faith,  under  pay- 
ment of  taxes  in  good  faith  under  claim  of  color  of  title  by  a  prior 

vendor. 

Paris  vs.  Lewis,  85  HI.  597. 

—  Weight  and  Sufficiency  of  Evidence:  Good  faith  does  not 
exist  where  paper  title  relied  on  is  a  deed  in  which  the  description 
of  the  land  has  been  materially  altered  and  the  deed  then  recorded. 

Kirby  vs.  Kirby,  236  111.  255. 
Bad  faith  is  not  established  by  notice  of  adverse  claim. 

Simons  vs.  Drake,  179  111.  62. 
Is  not  shown  by  omission  of  gTantee  in  tax  deed  to  comply  with 
law  as  to  procedure  antecedent  to  issuance  of  deed. 
Duck  Island  Club  vs.  Bexstead,  174  111.  435. 
Is  shown  where  one  whose  duty  it  is  to  pay  tax;  permits  prem- 
ises to  be  sold  and  acquires  tax  title. 
Hanna  vs.  Palmer,  194  111.  41. 
The  testimony  of    an  occupant  of    land  that    he  bought  and 
acquired  title  in  good  faith  is  not  rebutted  by  proof  of  general 

reputation  that  the  title  of  person  whom  he  succeeded  was  bad, 
Conner  vs.  Goodman,  104  111.  365;   Smith  vs.  Ferguson,  91  111.  304; 
Piatt   Co.   vs.   Goodell,   97   111.    84;    Eansom  vs.   Fox,   65   111.   200; 
MeCagg  vs.  Heaeock,  42  111.  153. 

Payment  of  Taxes: 

Where  receipt  is  alleged  to  have  been  signed  by  a  person  not 

having  an  official   character,   it  is  proper  to  show  by  parol  that 

the  receipt  was  given  in  good  faith,  on  payment  of  taxes,  and  by 

person  connected  with  collection  of  revenues,  and  duly  credited 

on  collector's  book. 

Elston  vs.  Kennicott,  46  111.  188. 


GOOD  FAITH  597 

Bringing-  of  Suit: 

Queslioiis  ;i;sk('(l  of  plaintiff  in  personal  injury  suit,  as  to  per- 
son to  wiioni  he  first  complained  ot;  his  injury,  whetlier  he  had 
inquired  where  he  could  present  his  claim,  or  whether  he  had  ever 
presented  his  claim  to  defendant  before  bringing  suit,  are  permis- 
sible only  to  test  plaintiff's  good  faith  in  bringing  suit,  and  extent 
of  such  examination  is  largely  within  trial  court's  discretion,  which 
will  not,  in  absence  of  abuse,  be  interfered  with  by  a  court  of 
review. 

C.  R.  T.  &  p.  Ry.  Co.  vs.  Steekmaii,  224  111.  500. 

Garnishment : 

In  garnishment  proceeding  to  reach  the  proceeds  of  a  judgment 
which  has  been  assigned,  evidence  of  circumstances  under  which 
assignment  was  made  is  admissible  to  show  it  was  made  in  good 
faith. 

Williams  vs.  West  Chi.  St.  Ry.  Co.,  199  111.  57. 

Guardian  and  Ward: 

Burden  of  proof  rests  upon  person  claiming  benefit  of  trans- 
action between  guardian  and  ward  to  show  good  faith. 

~     Baum  vs.  Hartman,  226  111.  160;  MeParland  vs.  Larkin,  155  111.  84. 

False  Imprisonment: 

AVhere  no  crime  was  committed,  information  of  defendant,  to 
show  good  faith,  is  inadmissible  in  bar  but  might  be  admissible  in 
mitigation  of  damages. 

Ryan  as.  Donnelly,  71  111.  100.     (See  False  Imprisonment.) 

Libel  and  Slander: 

The  fact  that  a  libelous  article  was  published  in  good  faith  lias 

no  bearing  on  the  issues,  except  as  to  amount  of  fine. 

People  vs.   Strauch,  247   111.  220. 

Dram  Shops: 

AVhere  keeper  does  not  deny  regularly  selling  liquor  to  a  hus- 
band contrary  to  wife's  warning,  further  evidence  by  him  that  he 
refused  to  sell  to  the  husband  when  he  was  actually  drunk,  does 

not  show  good  faith  and  may  be  excluded. 
Wolfe  vs.  Johnson,   152  111.  280. 

Negotiable  Instruments: 

After  defendant  has  shown  title  of  payee  to  have  been  defec- 
tive burden  of  proof  is  upon  assignee  to  establish  that  he  took  the 

instrument  in  good  faith. 

Sehintz  \s.  Amer.  T.  &  S.  Bank,  152  App.  76. 

Business  Transactions  Generally: 

In  ordinary  business  transactions  good  faith  is  presumed. 

Travis  vs   Pearson,  43  App.  579. 
But  such  presumption  only  continues  until  there  is  evidence  to 

the  contra rv. 

Biefenthaler  vs.  Hall,  96  App.  638. 

Direct  Evidence: 

When  good  faith  of  party  is  involved,  he  may  testify  directly 

thereto. 

People  vs.  Wohlford,  148  111.  296;  People  vs.  Rudorf,  149  App.  215. 
See  Fraudulent  Conveyances. 


598  GRAND  JURORS 

GRAND  JURORS 

See  Witnesses. 
Admissibility  of  Affidavits: 

—  To  Impeach  Return  of  Indictment:  Affidavits  of  grand  jur- 
ors are  not  admissible  in  evidence  for  the  purpose  of  showing  that 
twelve  of  their  number  were  not  in  favor  of  finding  a  true  bill 
which  has  been  reported  as  found.  The  endorsement  of  an  indict 
ment  as  a  true  bill  by  the  foreman  is  conclusive  evidence,  the 
same  as  any  other  matter  of  record. 

Gitchell  vs.  People,   146  111.   175. 
Nor  can  affidavits  of  grand  jurors  be  received  to  disclose  the 
fact  that  certain  witnesses  were  present   during  examination  of 

others. 

People  vs.  Arnold,  248  111.  169;  Gilmore  vs.  People,  87  App.  128. 

—  In  Support  of  Indictment:  Affidavits  of  grand  jurors,  how- 
ever may  be  received  in  support  of  an  indictment  of  that  body. 

People  vs.  Strauch,  153  App.  544. 

GRAND  JURY 

See  Immunity. 
Examination  of  Witnesses : 

The  proceedings  before  a  grand  jury  must  be  kept  strictly  secret, 
and  that  can  not  be  done  if  witnesses  should  be  present  during  the 
examination  of  each  other.  The  rule,  therefore,  is  that  one  witness 
must  never  be  permitted  to  be  present  at  the  examination  of  an- 
other. 

People  vs.  Arnold,  248  111.  169. 

GUARDIAN  AND  WARD 

See  Bonds. 
Transactions  Between: 

—  Freswnptions:  A  transaction  between  guardian  and  ward 
during  the  continuance  or  shortly  after  the  termination  of  the 
relation  is  presumptively  fraudulent  when  assailed  by  ward,  and 
burden  is  on  guardian  to  shoAV  the  fairness  of  the  transaction. 

Bamn  vs.  Hartman,  226  111.  160;  McParland  vs.  Larkin,  155  111.  84. 
From  the  confidential  relation  existing  between  the  parties,  all 
transactions  between  them   which   prejudicially   affect  the  inter- 
est of  the  ward,  are  constructively  fraudulent. 
Carter  vs.  Tice,  120  111.  277. 
It  is  not  necessary  in  such  cases  that  actual  and  intentional 

fraud  be  established. 

McParland  vs.  Larkin,  155  111.  84. 
Guardian  must  establish  to  the  satisfaction  of  the  court  that 
the  act  proceeded  from  independent  and  uninfluenced  will  of  the 

ward. 

Banm  vs.  Hartman,  226  111.  160. 

Guardian's  Account: 

—  Effect  of  Partial  Settlement:  "When  items  inthe  account  of 
a  guardian,  which  are  apparently  regular  on  their  face,  are  al- 
lowed, there  is  a  j^rima  facie  presumption  in  favor  of  their  regu- 


HABITS  599 

larity,  but  if  it  appear  from  the  face  of  the  account  that  the 
items  were  improperly  allowed,  no  such  presun)i)tion  will  sus- 
tain them. 

Marshall  vs.  Coleman,  187  111.  GHG;  Bond  vs.  Lockwood,  33  111.  2V2; 
Wilcox  vs.  Parker,  23  App.  429. 
And  upon  final  settlement,  parol  evidence  is  admissil)le  to  cor- 
rect mistake  in  amount  charged  to  guai'dian. 

In  re  Steele,  65  111.  322;   Brandon  vs.  Browne,  106  111.  519. 

—  Ejfcct  of  Final  Set  lie  men  I:  The  judgment  of  a  probate  court 
upon  final  settlement  of  a  guardian  asserting  balance  du(?  the  ward, 
is  conclusive  upon  guardian  and  his  sureties  in  action  upon  the 

bond.  „  ^„    „„„ 

Evan  vs.  People,   165  111.   143;   Kattlcnien  vs.  Guthrie,   142  111.  3o7; 
Gillett  vs.  Wiley,  126  111.  310;  XII  111.  Notes  880,  §  92. 

—  Eeceipt  of  Ward:  A  receipt  given  by  a  ward  after  his  major- 
ity is  prima  facie  evidence  that  guardian  had  on  or  before  its 
date,  paid  him  the  sum  therein  named,  but  is  not  conclusive.  Like 
any  other  receipt,  it  is  open  to  explanation  or  contradiction. 

Gillett  vs.  Wiley,  126  111.  310. 
And  this  as  against  sureties  though  they  may  have  relied  upon 

t*p1  PflSP 

'  Carter  vs.  Tice,  120  111.  277. 

HABITS 

See  Custom  and  Usage,  Animals. 
As  to  Negligence: 

—  In  General:  Proof  of  habits  of  persons  is  not  admissible 
where  there  is  direct  evidence  of  the  circumstances  of  the  acci- 

C    &  A.  Ky.  Co.  vs.  Pearson,   184  111.  386;    Salem  vs.  W'ebster,   192 

'ill.  369;  C.  K.  I.  &  P.  Ey.  Co.  vs.  Clark,  108  111.  113;  Quincy  G.  & 

E.  Co.  vs  Clark,  109  App.  20;  C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Moss, 

89  App.  1. 

Specification  of  sort  of  habits  sought  to  be  introduced  must  be 

made. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Bell,  70  111.  102. 
In  action  against  railroad  to  recover  damages  for  killing  stock 
upon  defendant's  right  of  way,  habits  of  plaintiff  in  permitting 
stock  to  pasture  on  right  of  way  is  inadmissible. 

Landgabe  vs.  Wabash  Ey.  Co.,  163  App.  583. 

—  In  Absence  of  Eye  Witnesses:  AYhere  there  are  no  eye  wit- 
nesses to  the  accident,  the  habits  of  deceased  are  competent  on 

question  of  due  care  of  deceased. 

Stollery  vs.  Cicero  St.  Ey.  Co.,  243  HI.  290;  Collison  vs.  I.  C.  E.  E. 
Co.,  239  111.  532;  I.  C'  E.  E.  Co.  vs.  Ashline,  171  111.  313;   Devine 
vs.  Natl.  Safe  Co.,  145  App.  322;   O'Donnell  vs.  Eiter  Conley  Co., 
172  App.  601 ;  Humason  vs.  Mich.  Cent.  259  111.  462. 
But  this  does  not  mean  that  such  evidence  is  competent  if  no 
witnesses  saw  what  the  deceased  was  doing  at  the  instant  of  the 
accident.    If  there  are  eye-witnesses  who  saw  what  occurred  imme- 
diately before  and  immediately  after  the  accident,  the  evidence 
of  habits  of  care  may  properly  be  rejected. 

Anderson  vs.  Met.  W.  S.  El.  By.  Co.,  170  App.  210;   Cf.  Geisert  vs. 
Morris,  160  App.  72, 


600  HABITS 

Wliere  there  are  no  eye-witnesses  to  the  killing  of  a  person,  proof 
that  deceased  was  of  careful  habits  is  competent  as  tending,  with 
the    natural    instinct   of   self-preservation,    to   show    deceased   was 

exercising  ordinary  care  for  his  safety. 

Collison  vs.  I.  C.  K.  R.  Co.,  239  111.  532;  C.  &  A.  Ey.  Co.  vs.  Wilson, 
225  111.  50;  Dallemand  vs.  Saalefeldt,  175  IlL  310;  C.  &  B.  I.  Ey. 
Co.  vs.  Beaver,  199  111.  31;  Parkin  vs,  G.  C.  C.  &  St.  L.  Ry.  Co.,  149 
App.  421;  Eoss  vs.  C.  E.  1.  &  P.  Ey.  Co.,  149  App.  286;  Casper  vs. 
I.  C.  E.  E.  Co.,  149  App.  588. 
In  absence  of  direct  proof  as  to  exercise  of  due  care  by  person 
injured,  defendant  may  show  his  habits  as  to  carelessness  and  reck- 
lessness in  performance  of  his  duties. 

P.  D.  &  E.  E.  E.  Co.  vs.  Puckett,  52  App.  222. 
Where  the  engineer  and  fireman  killed  by  the  explosion  of  the 
boiler,  and  no  person  cognizant  of  the  manner  in  which  the  engi- 
neer was  managing  locomotive  at  the  time,  in  action  to  recover 
for  killing  of  the  engineer,  competent  to  admit  evidence  tending 
to  show  that  deceased  was  competent  and  careful,  for  the  pur- 
pose of  rebutting  any  presumption  arising  from  want  of  skill  on 
his  part.  So,  also,  is  it  competent  to  show  the  habits  of  the  de- 
ceased in  respect  to  care  and  caution,  as  tending  to  raise  presump- 
tion that  he  was  in  the  exercise  of  due  care  and  caution. 

T.  St.  L.  &  K.  C.  E.  Co.  vs.  Bailey,  145  111.  159;  I.  C.  E.  E.  Go.  vs. 
Puckett,  210  111.  140. 
[Note :  Foregoing  cases,  specially  note  fact  no .  one  saw  the 
accident.  Similar  evidence  admitted  in  B.  &  0.  S.  W.  Ry.  Co. 
vs.  Then,  159  111.  535  (59  App.  561),  and  C.  C.  C.  &  St.  L.  R.  R. 
Co.  vs.  Keenan,  190  111.  217  (92  App.  430)  and  there  is  no  sug- 
gestion in  either  that  no  one  saw  the  accident,  or  that  the  rule  is 
limited  to  such  cases.] 

—  WheJi  Til  ere  are  Eyc-Witncsses:  Wliere  evidence  of  care- 
ful habits  of  deceased  is  admitted  at  a  time  when  it  was  supposed 
there  were  no  eye-witnesses  to  the  accident,  and  defendant  after- 
wards introduces  evidence  of  eye-witnesses,  it  is  not  error  to  refuse 
to  strike  out  such  testimony  as  to  halnts  of  deceased. 

Standard  Brew.  Co.  vs.  Erie  E.  E.  Co.,  167  App.  302. 
But  it  is  error  to  give  instruction  as  to  consideration  of  such 

evidence  under  that  state  of  proof. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Moss,  89  App.  1. 

—  Habits  of  Employees  Generally:  In  action  for  personal  in- 
juries, plaintiff  may  show  habits  and  general  reputation  of  the 
employe  for  recklessness,  and  is  not  confined  to  method  in  which 
he  usually  performed  acts  similar  to  one  causing  injury. 

Met.  El.  Ey.  Co.  vs.  Fortin,  203  111.  454;  Cons.  Coal  Co.  vs.  Seniger, 
179  111.  370;  Western  Stone  Co.  vs.  Whalen,  151  111.  472. 
Evidence  to  show  habits  of  a  motorman  operating  an  electric  car, 
as  to  use  of  intoxicating  liquor  prior  to  day  of  accident  is  improper, 
but  otherwise  as  to  his  cond.ition  as  to  such  use  on  day  of  acci- 
dent. 

FitzPatrick  vs.  Bloom.  City  Ey.  Co.,  73  App.  516. 
But  proof  of  previous  acts  of  negligence,   or   the  bad   reputa- 
tion is  not  admissible  as  tending  to  show  that  party  was  negli- 


HABITS  601 

gent  at  timo  in  question  nor  conid  tlie  jnry  fioTii  snoh  proof  prop- 
erly draw  the  conclusion  tliat  he  was  t'lien  guilty  of  negligence, 
Tuthill  vs.  Belt  Ey.  Co.,  145  App.  50. 
The  reputation  of  a  chauffeur  involveil  in  an  accident,  for  care- 
fulness, competency  or  skillfulness,  is  not  admissible  on  the  ques- 
tion of  his  negligence,  unless  in  the  absence  of  direct  evidence  on 
such  question. 

Shaw  vs.  Corriugton,  171  App.  232. 
The  incompetency  of  a  servant  to  discharge  the  duties  of  his 
position  is  not  established  only  by  proof  of  his  general  reputation 
but  by  testimony  of  many  instances  of  carelessness  and  negligent 
conduct  in  performance  of  such  duties.  Eeputation  alone,  without 
citation  of  any  concrete  fact  or  instance  would  not  be  sufficient  to 
constitute  notice  to  the  master  of  incompetency  or  proof  that  servant 
was,  in  fact,  incompetent. 

LaChappelle  vs.  AUis-Chalmers  Co.,  157  App.  112. 

—  Habits  of  Third  Fcrso)is:  In  action  to  recover  for  death  by 
negligence,  while  deceased  was  engaged  in  coupling  cars,  evidence 
of  usual  mode  of  coupling  and  uncoupling  cars  at  same  place  by 
others  is  inadmissible.     AVhat  others  did  or  were  in  the  habit  of 

doing  does  not  tend  to  prove  issue  as  to  due  care  of  deceased. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Clark,  108  111.  113;  Vollman  vs.  McMullen, 
138  App.  616. 
But  proof  of  customary  method  of  doing  an  act  by  those  who  are 
frequently   and   habitually    required   to   perform    it   is   some    evi- 
dence as  to  whether  the  method  is  or  is  not  negligent. 
Campbell  vs.  C.  E.  I.  &  P.  Ey.  Co.,  243  111.  620. 

—  To  Behut  Presumption  of  Death:     Habits  of  absent  party 

may  be   shown  to  aid   or  rebut  the  presumption  of  death  from 

absence. 

Donovan  vs.  Major,  253  111.  179;  Johnson  vs.  Johnson,  114  111.  611. 

—  To  Show  Siiieidc:  Habits  are  competent  upon  question  of 
whether  injuries  received  by  insured  were  accidental  or  inten- 
tional. 

Wilkinson  vs.  Aetna  Insurance  Co.,  240  111.  205;  Travellers'  Insurance 
Co.  vs.  Ayers,  217  111.  390. 

—  As  to  Contracts  for  Payment  of  Money:  Proof  that  deceased 
was  in  the  habit  of  making  prompt  and  punctual  payments  of 
demands  against  him  is  only  admissible  in  aid  of  presumption  of 

pajinent  arising  from  lapse  of  time. 

Parker  vs.  Parker,  52  App.  333;  Compare,  Orr  vs.  Jason,  1  App.  439; 
Thorp  vs.  Goeway,  85  111.  611;  Chi.  Trust  Co.  vs.  Ward,  113  App. 
327. 
Habit  of  party  in  giving  notes,  admissible  if  confined  to  gen- 
eral reputation. 

Travers  vs.  Snyder,  38  App.  379. 
But  such   evidence  is  not   admissible,  or  testimony  concerning 
habits  of  deceased  in  "not  going  much  in  debt  and  of  promptly 
paying  his  debts"  when  jioi  in  aid  of  presumption  from  lapse  of 

time. 

Jones  vs.  Cline,  84  App.  428. 
Evidence  is  admissible  to  show  that  deceased  was  prompt  to 
pay   his   debts'  as  tending  to   rebut  any   circumstantial  or  other 
evidence  that  his  books  were  improperly  kept. 

March  vs.  Miles,  59  App.  102.     (See  Pecuniary  Circumstances.) 


602  HANDWRITING 

'■'1' —  As  to  False  Pretenses:     Evidence  tending  to  show  that  defend- 
ant was  in  the  habit  of  making  false  pretenses  or  resorting  to  fraud- 
ulent practices  in  the  making  of  sales  of  horses  is  inadmissible. 
Jackson  vs.  People,  126  111.  139. 

—  Of  I  mane  Persons:  Where  plaintiff,  in  action  for  personal 
injuries,  is  insane,  confined  in  a  hospital  at  the  time  of  the  trial 
and  unable  to  be  present  and  testify  in  her  own  behalf,  evidence  is 
admissible  in  her  behalf  as  to  her  habits  tending  to  show  that  at 
the  time  of  the  injury  she  was  probably  exercising  ordinary  care 
for  her  personal  safety. 

Chicago  vs.  Doolan,  99  App.  143. 

—  Of  Animals:  In  action  for  malicious  mischief  in  castrating 
a  bull  calf,  the  property  of  another,  which  had  entered  the  prem- 
ises of  defendant,  evidence  of  effect  on  cows  of  being  served  by 
bull  of  cross  breed,  and  that  when  a  bull  once  attacks  a  man  he 
has  a  tendency  to  again  attack  that  particular  man  at  first  oppor- 
tunity, is  admissible. 

People  vs.  Jones,  241  111.  482. 

Weight  and  Sufficiency: 

Proof  by  those  well  acquainted  with  the  deceased,  testifying  that 
he  was  sober,  temperate  man,  was  very  careful,  was  possessed  of 
all  his  faculties,  eyes,  hearing,  limbs,  sight  and  body,  young,  active 
and  of  large  experience  in  railroading,  tends  to  show  deceased 
in  exercise  of  ordinary  care  at  time  of  accident. 

C.  B.  &  Q.  E.  Co.  vs.  Gunderson,  174  111.  49.5;  T.  C.  E.  E.  Co.  vs. 
Cozby,  174  111.  109;  I.  C.  E.  E.  Co.  vs.  Nowieki,  148  111.  29;  C.  & 
A.  E.  E.  Co.  vs.  Casey,  11.5  111.  115;  C.  E.  I.  &  P.  E.  Co.  vs.  Clark, 
108  111.  113;  Missouri  Fimiaee  Co.  vs.  Abend,  107  111.  44;  C.  B,  & 
Q.  E.  Co.  vs.  Gregory,  58  111.  272. 

Competency  of  Witnesses: 

In  prosecution  for  selling  intoxicating  liquor  to  person  in  habit 
of  becoming  intoxicated,  there  is  no  error  in  allowing  witnesses 
to  testify  to  the  habit  of  such  person  as  to  intoxication,  when 
speaking  from  personal  observation. 
Gallagher  vs.  People,  120  111.  179. 


HANDWRITINa 

See  Photographs,  Hypothetical  Questions. 
PROOF  OF  GENUINENESS. 
By  Comparison: 

—  In  General:  The  genuineness  of  a  signature  cannot  be  proven 
by  comparison  with  a  signature  or  other  writings  admitted  to  be 
genuine,  where  such  signature  or  other  writings  are  not  a  part 
of  the  record  and  are  not  in  evidence  in  the  case ;  but  where  such 
signature  or  other  writings  are  already  in  evidence  in  the  case, 
comparison  may  be  made  by  the  jury  and  by  experts  testifying. 
Craig  vs.  Trotter,  252  111*.  228;  Stitzel  vs.  Miller,  250  111.  72. 

The  genuineness  of  a  signature  cannot  be  proven  by  comparing 
it  with  an  admitted  genuine  signature  to  papers  or  documents  not 
in  evidence  in  the  case,  and  which  are  collateral  to  the  issue,  and 
therefore  not  admissible  in  evidence  for  any  other  purpose. 

Himrod  vs.  Gilman,  147  111.  293 ;  "VVTiitaker  vs.  Masten,  143  App.  195. 


HANDWRITING  603 

So  writing  or  signature  may  not  be  compared  with  signature  to 
verilied  plea  denying  writing  in  question. 

Travel's  vs.  Snyder,  oH  App.  37it;  Snow  vs.  AViLiijin,   19  App.  r)42. 

Where  a  signature  is  by  mark,  a  gi'iiuiiie  writing  so  signed  is 
not  admissible  for  purposes  of  comparison,  the  mark  having  no' 
established  characteristics  like  a  handwriting,  by  which  it  may 
be  recognized. 

Travers  vs.  Snyder,  38  App.  379. 

Where  a  signature  in  ciuestion  is  alleged  to  be  merely  a  fac  simile 
traced  from  other  instruments,  sm-h  instruments  are  admissible 
in  evidence,  and  do  not  violate  the  rule  against  proving  hand- 
writing by  comparison. 

Stitzel  vs.  Miller,  250  111.  72. 

The  rule  that  the  genuineness  of  handwriting  cannot  be  proven 
or  disproven  by  allowing  the  jury  to  compare  it  with  the  hand- 
writing of  the  party,  proven  or  admitted  to  be  genuine,  obtains 

in  criminal  as  w'ell  as  civil  cases. 

Junipertz  vs.  People,  21  111.  375. 

—  By  Court:  Where  the  issue  in  a  trial  without  a  .jury  is 
whether  or  not  certain  signatures  are  genuine,  the  court  may  and 
should  compare  them  M'ith  signatures  in  evidence  admitted  to 
be  genuine,  as  a  means  of  determiiiing  v/hether  they  are  genuine. 

Greenbaum    vs.    Bornhofer,    167    111.    640;    Brobstou    vs.    Cahill,    64 
111.  356. 

—  By  Jury:  The  genuineness  of  handwriting  cannot  be  proven 
or  disproven  by  allowing  the  jury  to  compare  with  other  writing 
by  the  party  admitted  or  proven  to  be  genuine. 

Jumpertz  vs.  People,  21  111.  375. 
The  general  rule  that  the  genuineness  of  handwriting  cannot 
be  proved  or  disproved  b}^  comparison,  is  subject  to  the  exception 
that  if  the  instrument  to  be  used  as  a  standard  is  properly  in 
evidence  in  the  case  for  any  other  purpose,  then  the  signature  or 
paper  in  question  may  be  compared  with  it  by  the  jury. 

Eogeis   vs.    Tyley,   144    111.    652;    Himrod   vs.    Oilman,    147    111.    293; 

Brobstcn  vs.  Cahill,  64  111.  356;  Frank  vs.  Taubman,  31  App.  592; 

Schubert  vs.  Schubert,  168  App.  419;  XII  111.  Notes  532,  §450. 

The   admission   of   another  instrument,   admittedly   genuine,   in 

order  to  compare  the  handwriting  in  such  paper  with  the  alleged 

instrument  would  be  error. 

Snow  vs.  Wig-gin,  19  App.  542. 

But  otherwise  where  the  \vriting  to  be  used  as  a  standard  is 
properly  in  the  case  for  other  purposes. 

Eogers  vs.  Tyley,  144  111.  652 ;  Himrod  vs.  GUman,  147  111.  293. 

And  a  disputed  signature  which,  if  genuine,  relates  to  the  issue, 
may  be  compared  by  the  jury  with  a  signature  admitted  or  proved 
to  be  genuine,  which  is  already  in  the  case,  as  evidence  upon  the 
issue. 

Brobstcn  vs.  Cahill,  64  111.  356;   Frank  vs.  Taubman,  31  App.  592; 
N.  F.  Ins.  Co.  vs.  Sweet,  46  App.  598. 

—  By  Witnesses:  Proof  of  handwriting  of  a  party  cannot  be 
made  by  comparing  it  with  other  writing  by  him,  but  by  witnesses 
who  have  seen  him  write  and  are  familiar  with  his  signature,  or 


604  HANDWRITING 

who  have  seen  letters  or  documents  which  he  recognized  and  ad- 
mitted to  be  in  his  own  handwriting. 
Putnam  vs.  Wadley,  40  111.  346. 
The  genuineness  of  a  handwriting  cannot,  in  general,  be  proven 
or  disproven  by  comparison  with  another  writing  known  to  be 
genuine,  but  only  by  testimony  of  witnesses  who  have  a  general 
knowledge  of  the  handwriting  of  the  person. 

Bevan  \s.  Atlanta  Natl.  Bank,  142  111.  302;  Eogers  vs.  Tyley,  144 
111.  652;  Massey  vs.  Farmers'  Natl.  Bank,  104  111.  327;  Eigg  vs. 
Powell,  142  111.  453;  Melvin  vs.  Hodge,  71  111.  422;  Putnam  vs. 
Wadley,  40  111.  346;  Kernin  vs.  Hill,  37  111.  209. 

Upon  the  question  of  the  genuineness  of  a  signature  to  a  prom- 
issory note  sued  on,  a  witness  who  has  never  seen  the  defendant 
write,  but  who  has  examined  the  signature  to  the  note  sued  on  and 
a  signature  admitted  to  be  genuine,  cannot  testify  as  to  his  opin- 
ion of  the  genuineness  of  the  signature  in  question. 
Pierce  vs.  DeLong,  45  App,  462. 

Expert  and  Opinions: 

—  ISuhjcct  of  Expert  Testimony:  AVhether  two  instruments  or 
two  signatures  were  written  by  the  same  person  is  a  matter  for 
expert  opinion;  it  is  an  exception  to  the  general  rule. 

Eogers  vs.  Tyley,  144  111.  652;  Rass  vs.  Sebastian,  lOO  111.  602. 
Where  opinion  "is  based  upon  other  writings  properly  in  evi- 
dence, expert  may  give  his  opinion  as  to  the  authorship  of  ques- 
tioned writings. 

O  'Neill  vs.  Beland,  133  App.  594. 

—  Competency  of  Witnesses:  A  witness  who  has  seen  another 
write  is  competent  to  testify,  as  is  also  one  who  has  acquired  a 
knowledge  of  the  other's  handwriting  by  correspondence  or  in 
the  ordinary  course  of  business. 

Stitzel  vs.  Miller,  250  111.  72, 
Witness   who   has  never  seen  party,   whose  handwriting  is  in 
issue,  write  until  after  the  difficulty,  is  incompetent. 

Board  of  Trustees  vs.  Misenheimer,  78  111.  22. 
A  party  cannot  be  thus  allowed  to  manufacture  evidence  for 

himself. 

Travers  vs.  Snyder,  38  App.  379 ;  Cf .  Pate  vs.  People,  8  111.  644. 

But  the  fact  that  witness  had  seen  party  wa-ite  but  once  does 
not  go  to  his  competency  but  to  the  weight  which  should  be  given 

his  testimony  by  the  jury. 

Cross  vs.  People,  47  111.  152 ;  Woodford  vs.  McClenahan,  9  HI.  8o. 
To  render  a  witness  competent  to  testify  to  handwriting,  he 
must  be  acquainted  with  the  handwriting  of  the  person  whose 
handwriting  is  in  issue,  either  from  having  seen  the  person  \^Tite, 
or  having  been  acquainted  with  such  handwa^iting  in  business  trans- 
actions, so  as  to  have  in  his  mind  an  example,  so  that  from  memory 
alone  he  can  give  an  opinion  as  to  whether  the  MT-iting  in  question 
is  in  fact  the  handwriting  of  the  person  whose  handwriting  is  in 

ISSUG 

Eiggs   vs.   Powell,    142    111.    453;    Putnam   vs.   Wadley,   40   111.    346; 

Trustees  vs.  Meisenheimer,  78  111.   22. 

.  A  wdtness  may  have  sufficient  knoAvledge  of  a  handwriting  to 

give  his   opinion   as   to   a    disputed   signature,   although   he   may 

never  have  seen  him  write.     There  are  two  modes  by  which  a 


HANDWRITING  605 

knowledge  of  the  handwriting  of  another  may  he  acquired,  first, 
by  having  seen  the  party  write,  and  secoiiclly  from  having  seen 
letters,  bills  and  other  documents  purporting  to  be  in  the  hand- 
writing of  the  party,  and  having  al'terwards  ])ersoiially  counnu- 
nicated  with  him  respecting  them,  or  acted  upon  them  as  his,  the 
party  having  known  and  acquiesced  in  such  acts,  founded  upon 
their  genuineness,  or  by  such  adoption  of  them  into  the  ordinarw 
business  transactions  of  life  as  induced  a  reasonable  presumption 

of  their  being  his  own  writings. 

Trustees  vs.  Misonheiiner,  78  111.  22;  Kelly  vs.  Falloon,  108  App.  108; 
Pate  vs.  People,  8  111.  644. 
A  witness,  to  prove  the  signature  of  a  person,  must  either  have 
seen  him  write  or  nuist  be  acquainted  with  his  handwriting  from 
having  seen  letters,  bills  or  documents  purporting  to  be  in  his  hand- 
writing, and  having  afterwards  communicated  with  him  respecting 
them,  or  acted  upon  them  as  his,  he  having  known  and  acquiesced 
in  such  acts,  founded  upon  their  supposed  genuineness.  ^lere  ex- 
amination of  signatures  admitted  to  be  genuine,  and  comparison 

of  same  with  one  in  dispute  is  not  sufficient. 
Snyder  vs.   McKeever,   10  App.    188. 
And  it  is  not  enough  that  witness  may  have  seen  signatures  to 
other  writings  unless  they  are  shown  to  have  been  recognized  by 

the  party  as  having  been  signed  by  him. 

Putnam  vs.  Wadley,  40  111.  346;   Ennor  vs.  Hodson,  28  App.  445. 

;A'' Witness  was  called  whose  business  had  been  for  many  years, 
as  an  officer  of  a  bank,  to  examine  papers  with  view  to  detecting 
alterations  and  erasures,  and  ascertaining  spurious  from  genuine 
writings  and  signatures.  He  was  requested  to  examine  the  papers 
in  evidence  critically  and  to  state  his  opinion  to  the  jury  whether 
there  had  been  alterations  or  erasures.     Held  proper. 

Pate  vs.  People,  8  111.  644;  Collins  vs.  Crocker,  15  App.  107. 

Where  a  witness  states  that  as  agent  of  a  certain  company  and  in 
connection  with  his  transactions  he  has  frequently  seen  and  that 
he  well  knows  all  the  signatures  of  the  parties  to  an  instrument,  it 
is  enough  to  show  either  that  he  has  seen  them  write  or  that  he  has 
seen  documents  subscribed  with  their  names  and  by  them  recognized 

to  be  genuine. 

Job  vs.  Tebbets,  9  111.  143. 

It  is  not  indispensable   that  the  witness  shall  say  that  he  is 
familiar  with  the  person's  handwriting  before  giving  his  opinion 
in  the  case,  if  it  otherwise  sufficiently  appears  that  he  is. 
Eiggs  vs.  Powell,  142  111.  453. 

A  witness  who  swears  that  he  believes  he  has  seen  the  grantor 
write,  but  declines  to  say  positively  that  he  knows  he  had  seen 
him  write,  but  believes  that  he  knows  his  handwriting,  and  be- 
lieves that  the  instrument  produced  was  signed  1)y  him,  is  compet- 
ent, and  the  evidence  is  strong  persuasive  evidence  to  prove  the 

signature. 

Fash  vs.  Blake,  38  111.  363. 
Where  a  witness  shows  he  was  acquainted  with  a  person  in  his 
lifetime,  and  his  handwriting,  and  had  seen  him  write,  he  will  be 


606  HANDWRITING 

competent  to  ^ve  his  opinion  as  to  the  genuineness  of  a  signature 
purporting  to  lie  that  of  such  deceased  person. 
Long  vs.  Little,  119  111.  600. 
—  Examination  of  Witnesses:     A  witness  should  he  asked,  first, 
if  he  is  ac(iuainted  with  the  handwriting,  then  in  the  manner  in 
which  he  became  acquainted,  then  whether  he  believes  the  paper 
in  dispute  to  be  in  the  party's  handwriting. 
Pate  vs.  People,  8  111.  643. 
Expert  should  be  allowed  to  state  not  only  his  conclusions,  but 

his  reasons  therefor. 

O'Neill  vs.  Beland,  133  App.  594. 
Where  a  witness  called  to  prove  a  signature  to  a  note  bases  his 
is  not  genuine,  from  having  seen  the  alleged  maker  of  the  note 
write,  it  is  proper  for  him  to  state,  without  argiiment,  the  points 
of  difference  between  the  signature  of  the  note  and  the  genuine 
signature  of  the  alleged  maker,  where  there  is  no  other  signature 
or  writing  of  the  alleged  maker  in  evidence  with  which  to  make 

comparison. 

Nagle  vs.  Sclmaclt,  239  111.  595. 
Where  a  witness  called  to  prove  a  signature  to  a  note  bases  his 
opinion  in  part  on  signatures  to  other  notes,  if  the  signatures  differ, 
the  defendant  may  show  that  fact  on  cross  examination  as  bearing 
upon  the  weight  to  be  given  to  the  opinion  of  the  witness. 

Bevan  vs.  Atlanta  Natl.  Bank,  142  111.  302. 
While  the  genuineness  of  a  signature  cannot  be  proven  by  com- 
paring it  with  another  signature  admitted  to  be  genuine,  yet, 
where  the  witness  testified  that  he  was  acquainted  with  the  defend- 
ant's handwriting  when  young;  that  he  had  been  absent  from  him 
for  eighteen  years,  but  had  seen  him  write  during  the  last  four 
years,  and  that  he  would  not  take  the  signature  in  dispute  to  be  his, 
it  was  proper,  on  cross  examination,  for  the  purpose  of  testing 
witness'  observation  and  memory,  to  show  him  the  signature  to  the 
plea  putting  the  execution  of  the  note  in  issue,  about  the  genuine- 
ness of  which  there  was  no  question,  and  ask  him  whether  it  was 
a  genuine  signature  of  the  defendant.  This  would  not  be  proving 
a  signature,  but  would  enable  the  witness  to  determine  how  reliable 
and  accurate  was  the  impression  of  the  defendant's  signature,  as 
fixed  in  his  memory,  with  a  view  to  confirming  or  modifying  his 
previously  expressed  opinion  in  regard  to  the  signature  in  con- 
troversy. 

Melvin  vs.  Hodges,  71  111.  422. 
To  prove  the  handwriting  of  the  alleged  maker  of  a  note,  a  wit- 
ness was  called  who  had  testified  that  some  six  years  before  he  had 
seen  maker  write,  and  that  it  M'as  his  impression  that  the  signature 
to  the  note  was  in  such  party's  handwriting,  but  on  cross  examin- 
ation said  he  did  not  know  if  he  could  pick  out  his  signature  from 
a  number,  whereupon  counsel  handed  the  witness  a  paper  having 
written  upon  it  the  party's  name  sixteen  times  and  asked  him  to 
point  out  the  genuine  signatures,  if  any  were  such,  and  court  ex- 
cluded the  question,  to  which  exception  was  taken:  Held,  such 
test  of  witness'  knowledge  was  not  admissible. 
Massey  vs.  Farmer's  Natl.  Bank,  104  111.  327. 


HEARSAY  607 

Where  witness  lias  testified  that  signature  was  not  his,  hotel  reg- 
ister containing  his  signature  may  be  sliuwn  and  he  may  be  asked 

if  that  is  his  signature. 

II(il)art  vs.  Van  Aerman,  146  App.  1. 

Photograph : 

if  a  pioper  foundation  is  laid,  showing  that  original  instrument 
bearing  signature  desired  to  be  used  in  evidence  is  out  of  jurisdic- 
tion of  eou]-t,  and  cannot  be  obtained,  and  preliminary  proof  as  to 
accuracy  is  made,  a  photographic  copy  of  document  is  admissible. 
"Stitzel  vs.  Miller,  250  lU.  72. 

Motive  or  Reason: 

On  issue  as  to  genuineness  of  signature  where  proof  is  nearly 
equally  balanced  evidence  tending  to  show  a  reason  for  the  execu- 
tion, and  a  Reasonable  probability  or  improbability  that  same  was 
executed  and  delivered  is  not  only  competent  but  highly  important. 
Hunter  vs.  Harris,  131  111.  4S2. 

But  financial  responsibility  of  parties  is  inadmissible  on  issue 

of  forgerv. 

Stitzel  vs.  Miller,  157  App.  401. 

HANDWRITING  AS  TEST  OF  INSANITY. 

It  is  competent  to  show  by  an  expert  that  handwriting  is  one  of 
tests  of  insanity,  and  that  signature  would  be  affected  by  physical 
as  well  as  mental  condition  of  person. 
Entwistle  vs.   Meikle,   180   111.   9. 


HEARINa 

See  Positive  and  Negative. 


HEARSAY 

See  Pedigree,  Dying  Declarations,  Ancient  Documents,  Ad- 
missions AND  Declarations,  Limitations. 
ADMISSIBILITY. 
In  General: 

The  general  rule  is  that  a  witnes  shall  testify  only  to  facts  within 

his  personal  knowledge  and  not  as  to  what  he  has  heard  others 

say. 

Hately  vs.  Kiser,  253  111.  288;  C.  &  A.  E,  E.  Go.  vs.  Johnson,  116  111. 
206;   Trevisani  vs.  Postal  Tel.  Co.,  176  App.   139. 

Hearsay  evidence  is  inadmissible. 

C".  &  E.  I.  E.  E.  Co.  vs.  Donwortli,  203  111.  192;  Bishop  vs.  Georgen- 
son,  60  111.  484;  Eggnian  vs.  Nutter,  169  App.  116. 
Extra-judicial  statements  of  third  persons  cannot  be  proven  by 
hearsay  unless  such  statements  are  part  of  the  res  gestae. 
Carlton  vs.  People,  150  111.   181. 
Party  originally  making  the  statements  should  be  called  and  re- 
quired to  testify,  and  not  a  witness  who  heard  the  statements. 

Treat  vs.  Merchants  Life  Assn,  198  111.  431;  Bishop  vs.  Georgenson, 
60  111.  484;   Dorlando  vs.  Bradley,  66  111.  412. 


608  HEARSAY 

The  declarations  of  third  persons,  out  of  presence  of  the  party, 
are,  in  general,  hearsay  and  inadmissible. 
Mahon  vs.  Gaither,  59  Apj).  583. 

The  law  requires  the  sanction  of  an  oath  to  all  parol  testimony. 

It  never  gives  credit  to  the  bare  assertion  of  anyone,  however  high 

his  rank,  or  pure  his  morals.     The  case  of  pedigree,  prescription 

or  custom  are  exceptions  to  this  rule. 

Marshall  vs.  C.  &  G.  C.  E.  E.  Co.,  48  111.  475. 

Declarations  by  Party: 
—  In  General:     Declarations  in  absence  of  party  to  be  bound 

therebv  are  inadmissible  against  him. 

Vail  vs.  Evnearson,  249  111.  501;   Home  B.  &  L.  Assn.   vs.   McKay, 
217  111.  551;  Farlow  vs.  Town  of  Camp  Point,  1S6  111.  256. 
Testimony  as  to  declarations  in  his  own  favor,  made  by  a  party 
to  an  action,  but  not  in  the  presence  of  the  adverse  party,  is  not 

competent  evidence  for  the  former. 
Wright  vs.  Esftree,  181  111.  464. 
A  party  will  not  be  allowed  to  make  evidence  by  proving  his 
own  declarations  in  his  own  favor,  uttered  in  the  absence  of  those 
whose  interests  are  sought  to  be  affected,  where  they  are  not  part 

of  the  res  gestae. 

Oliphant  vs.  Liversidge,  142  lU.  160. 
Statements  of  grantor  and  wife  of  grantee,  made  in  absence  of 
grantee,  are  inadmissible  against  him  or  his  heirs. 
Francis  vs.  Eliodes,   146  ill.  635. 
Declarations  of  daughter,  as  to  gifts  from  father,  made  in  his 

absence,  are  inadmissible. 

Stock  vs.  Seegar,  99  App.  353. 
Declarations  of  husband,  in  absence  of  wife,  tending  to  show 
fraud  in  conveyance  to  her,  are  not  admissible,  on  creditor's  bill, 
to  affect  interest  of  wife,  and  same  rule  applies  to  her  grantor. 

Bennett  vs.  Stout,  98  111.  47. 

Statements  by  Third  Persons: 

General  liulcs:     Testimony  as  to  statements  made  by  one  not 

a  party  to  the  suit  is  inadmissible  except  for  impeachment. 

Kobertson  vs.  Brost,  83  111.  116;  I.  C.  E.  E.  Co.  vs.  Hall,  58  111.  409; 
Guerney  vs.  Brown,  27  App.  640;  E.  J.  &  E.  Ey.  Co.  vs.  Lawler, 
229  111.  621;  XII  111.  Notes  503,  §223. 
Hearsay  evidence,  i.  e.,  resting  on  the  veracity  and  competency 
of  a  person  other  than  the  witness,  is,  in  general,  inadmissible. 

Bishop  vs.  Georgenson,  60  111.  484;  Corey  vs.  McDaniel,  42  111.  512; 

C.  &  A.  E.  E.  Co.  vs.  Lambert,  12  App.  408;  Gibson  vs.  Gibson,  15 

App.  328;  Carter  vs.  Carter,  152  111.  434. 

General  statements  of  persons  not  parties  to  the  record,  nor  in 

privity  with  the  party  against  whom  they  are  sought  to  be  used, 

are  inadmissible. 

Montgomery  vs.  Brush,  121  HI.  513. 
Declarations   of  third  parties  should  not  be   admitted   in  evi- 
dence until  the  party  against  whom  they  are  offered  is  connected 

with  them. 

Aiken  vs.  Hodge,  61  111.  436;  Bennett  vs.  Stout,  98  111.  47;  Hyde  vs. 
Howes,  2  App.   140. 
Declarations  of  third  persons,  out  of  presence  of  party,  are  thus 

inadmissible  to  charge  him. 

A.  M.   TT.  Express  Co.  vs.  Gilbert,  57  111.  468;    Kent  vs.   Mason,  79 

111.  540. 


HEARSAY  609 

—  Criminal  Action :  The  statements  or  admissions  of  third  per- 
sons are  liearsay  and  as  a  jiiMicral  rule,  not  admissible.  The  admis- 
sions of  the  injured  person  eau  not  t)e  used  except  by  way  of  im- 

.  peachment,  for  the  state  is  not  bound  by  the  mere  hearsay  testi- 
mony of  the  injured  party. 

People  vs.  Pezutto,  1^55  III.  ,583;  Moock  vs.  People,  100  111.  242. 

Nor  is  proof  of  threats  of  third  persons  admissible. 
Carlton  vs.  People,  150  111.  181. 

—  Affidamts:  The  ex  parte  affidavit  of  third  persons  is  inad- 
missible   as    evidence    and    amounts    to    no    more    than    hearsay. 

Maniiincr  vs.  Stockton,  34  111.  306;  Shreve  vs.  Town  of  Cicero,  129  111. 
226;  Petrea  vs.  Hedeger,  173  App.  203. 
And  the  fact  that  it  is  a  part  of  the  files  in  the  ease  does  not 
change  its  character  nor  make  it  competent  evidence. 
Qninn  vs.  Rawson,  5  App.   130. 

An  affidavit  in  aid  of  a  plea  of  non  est  factum  is  not  evidence 
for  the  jury. 

Miller  vs.  Metzger,  16  111.  390. 
An  affidavit  on  which  an  attachment  issued  is  thus  not  compe- 
tent evidence  in  replevin  by  a  third  person  for  possession  of  the 
property. 

Dobbins  vs.  Hanehett,  20  App.  396. 

—  Agent:  A  party  cannot  prove  reports  of  agents  to  him.  The 
defense  of  the  principal  cannot  be  proven  by  statements  made  to 
him  by  his  agent. 

Gmby  vs.  Natl.  Bank  of  111.,  133  111.  79;  Carpenter  vs.  Joliet  Natl. 
Bank,  19  App.  549, 

Principal  cannot  testify  as  to  transaction  handled  exclusively 
through  agent. 

Carpenter  vs.  First  Nat.  Bank,  119  111.  352. 

—  Award:  An  award  is  not  evidence  against  a  person  not  a 
party  to  the  submission. 

Woodward  vs.  Woodward,  14  111.  370. 

—  BUI  of  Lading:  A  recital  in  a  bill  of  lading  that  the  goods 
when  shipped  were  in  good  order  is  not  admissible  in  evidence  as 
between  the  shipper  and  the  consignee  to  prove  the  fact. 

Mitchell  vs.  Willard,  21  App.  500. 

—  Citij  Officers:  In  an  action  by  a  party  against  a  city  to  re- 
cover money  unlawfully  exacted  under  threats  of  arrest,  conver- 
sations had  between  officers  of  city,  where  no  one  representing  city 
is  present,  in  so  far  as  such  conversations  go  beyond  statements  of 
what  had  been  said  or  done  by  the  city  through  its  officers,  are  in- 
admissible; but  it  is  competent  for  the  plaintiff  to  show  that  the 
subordinate  officers  of  the  city  told  him  what  had  been  said  to 
them  by  superior  officers  of  the  city  conceraing  his  arrest. 

City   of  Chicago   vs.   Waukesha  Brew.   Co.,   97   App.    583. 

—  Deed:  In  action  for  broker's  commission,  the  recitals  of  a 
deed  as  to  the  consideration  are  mere  hearsay  and  do  not  tend  to 
establish  purchase  price  paid  by  vendee  to  vendor. 

Hollinger  vs.  Phillips,  140  App.  317. 
So  as  to  value  of  property  in  proceedings  to  condemn. 
O'Hara  vs.  C.  M.  &  N.  By.  Co.,  139  111.  151. 

Ev. — 3  9 


610  HEARSAY 

As  to  strangers,  recitals  are  merely  ex  parte  statements  of  the 

parties  to  the  deed. 

Spohr  vs.  City  of  Chicago,  206  111.  441. 

—  Letters:    A  letter  containing  the  unsworn  statement  of  one. 

not  a  party  to  a  cause  is  mere  hearsay. 

Kiich  vs.  Boost,  145  App.  411 ;  Winslow  vs.  Newlan,  45  111.  145. 
Letters   between   different    officers   of   a    defendant    corporation 
touching  the  liability  of  the  corporation  to  plaintiff  are  not  admis- 
sible in  evidence  for  corporation ;  a  party  cannot  so  make  evidence 

for  himself. 

Bagley  vs.  Grand  Lodge,  131  111.  498. 
Letters  received  by  wife  not  admissible  to  prove  her  character. 

Farrell  vs.  Farrell,  28  App.  37. 
May  be  admissible  where  one  of  a  series  or  shown  to  have  been 
acted  upon, 

Jones  vs.  Jones,  124  App.  201. 

Letter  of  consignee,  inadmissible  in  action  by  consignor,  for  loss 

of  package. 

U.  S.  Express  Co.  vs.  Hutchins,  67  111.  348. 

A  letter  ■v^rritten  by  a  third  person  not  a  party  is  hearsay  and 

inadmissible. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Lassen,  12  App.  659. 

A  letter  received  by  a  part}^  from  a  third  person  in  reply  to  a 

letter  written  by  party  in  relation  to  matter  at  issue  not  admissible 

for  such  party. 

Capen  vs.  DeSteiger  Glass  Co.,  105  111.  185, 
A  letter  written  by  third  person  stating  that  in  paying  certain 
taxes  he  paid  as  agent  of  owner,  is  inadmissible  to  prove  that  fact. 
Hardin  vs.  Gouveneur,  69  111.  140. 
Correspondence  between  a  party  and  a  third  person  with  whom 
other  party  has  no  connection  not  competent  as  against  latter. 
I.  C.  E.  E.  Co.  vs.  Cobb,  72  111.  148. 
Where,  in  action  on  note  alleged  to  be  lost,  the  maker  produces 
the  note  which  he  claims  to  have  received  in  a  letter  from  his 
father,  the  father  also  the  payee,  an  indorsement  on  note  and  letter 
stating  that  the  father  paid  the  note  and  so  sends  it  to  the  maker 
are  not  admissible  in  evidence;  they  are  mere  hearsay  and  not 

part  of  res  gestae. 

Chamberlain  vs.  Chamberlain,  116  lU.  480. 
A  letter  from  an  attorney  to  his  client  is  not  admissible  in  an- 
other case  between  other  parties  to  show  that  the  money  now  sued 
for  was  sought  to  be  recovered  from  other  parties. 

Iglehart  vs.  Jernegan,  16  111.  513. 

—  Libel   and   Slander:     Proof   that   facts  published   were   told 
defendant  by  another  person  is  inadmissible. 

Spolek  Hlastel  vs.  Hoffman,  204  111.  332;  Eansom  vs.  McCurley,  140 
111.  626. 

—  Location  of  Lot:     May  be  fixed  by  a  witness  from  hearsay 
and  repute,  independent  of  any  plat. 

Judson  vs.  Glos,  249  111.  82. 

—  Maker   of  Note:     In   action   against   surety,   declarations  of 
principal  maker  not  party  to  suit,  are  inadmissible. 

Gurney  vs.  Brown,  27  App.  640. 


HEARSAY  611 

—  Marriage  Engag-moif:  Statenients  of  plaintiff,  in  absence  of 
defendant,  inadmissible. 

Walinsley  vs.  Kobijison,  fi3  111.  41. 

—  Medical  Books:  It  is  not  competent  for  counsel  to  produce 
and  read  from  medical  works,  much  less  is  it  competent  to  attempt 
to  prove  the  contents  of  such  books  by  witnesses  testifying  solely 
from  memory;  such  evidence  is  mere  hearsay  and  incompetent. 

Chi.  City  Ry.  Co.  vs.  Douglas,  104  App.  41;  Weyli  vs.  Chi.  City  Ey.  Co., 

148    App.    165.  ;      )|;j|t 

—  Narrative:  Statements  of  an  investigrator  so  far  as  they  are 
mere  narrations  of  past  occurrence,  are  hearsay. 

Keely  Co.  vs.  Hargreaves,  236  111,  316. 
Narration  of  past  events,  or  statements  as  to  intention  or  motive 
of  parties  in  making  deed,  or  of  alleged  facts,  relative  to  execution 
of  deed,  or  as  to  sufficiency  or  validity  thereof,  are  hearsay. 

Knight  vs.  Kuight,   178  111.  553. 

Where  a  physician  called  by  defendant  to  prove  femoral  hernia 
could  not  be  caused  b}^  external  violence,  admits  recollecting  one 
such  case  in  a  hospital  but  had  no  personal  knowledge  of  the  facts 
of  that  case,  it  is  proper  to  exclude  a  question  asking  what  kind  of 
external  violence  caused  that  hernia,  and  what  the  appearance  of 
same  was,  since  without  personal  knowledge  of  facts,  his  answer 
to  first  branch  of  the  question  would  be  hearsay. 
City  of  Chicago  vs.  Saldman,  225  111.  625. 

In  action  on  insurance  policy,  it  is  proper  to  permit  witness  who 
found  deceased's  revolver  to  state  that  the  latter 's  daughter  told 
him  where  to  find  it,  but  is  not  competent  to  prove  by  him  her 
statements  as  to  how  the  revolver  came  to  be  there. 
Treat  vs.  Merchants  Life  Assn.,  198  111.  431. 

—  Partnership:  Fact  of  cannot  be  proven  by  declarations  of 
alleged  partners. 

Montgomery  vs.  Black,  124  111.  57;  Smith  vs.  Hulett,  65  111.  495; 
Bishop  vs.  Georgenson,  60  111.  484;  Bartless  vs.  Wilcox,  68  App. 
142;  XIII  111.  Notes  1096,  §51. 

The  defendant  made  and  delivered  his  promissory  note  and  the 
payees  thereof  indorsed  the  same  in  blank.  Plaintiff  purchased 
same  as  a  third  person,  for  value,  before  its  maturity,  and  with- 
out notice  of  any  defenses  thereto.  Under  this  state  of  facts,  a 
statement  by  defendant  that  the  makers  of  the  note  and  the  person 
of  whom  plaintiff  purchased  it  both  told  him  they  were  partners 
(plaintiff  not  being  present)  is  hearsay  evidence  and  inadmissible. 
Mahon  vs.  Gaither,  59  App.  583. 

^  —  Physical  Fact:     It  is  improper  to  permit  witnesses  to  state,  on 
direct   examination,   whether   they  had   ever  heard   plaintiff  was 
afflicted  with  ailments  before  his  injury. 
Chi.  City  Ry.  Co.  vs.  Uhter,  212  111.  174. 

—  Value:  Expressions  of  opinion  of  third  persons  as  to  value 
are  hearsay. 

Aiiven  vs.  Hodge,  61  111.  436. 
Proof  of  market  value  of  a  commodity  at  a  particular  time  and 
place  cannot  be  made  by  hearsay  evidence,  except  in  absence  of 
witnesses  having  personal  knowledge. 

Tully  vs.  West.  U.  Tel.  Co.,  141  App.  312. 


612  HEARSAY 

Dealers'  prices-current  are  not  admissible  in  evidence  to  prove 

value. 

Cook  Co.  vs.  Haniies,  10  App.  24. 

—  Receipts  of  Third  Persons:    Are  admissions  of  stranger,  and 

not  admissible. 

Heller  vs.  Howard,  11  App.  554. 

Upon  an  issue  whether  the  defendant  promised  to  pay  for  goods 

delivered  to  a  third  person,  receipts  from  such  third  person  to  the 

defendant  showing  that  such  defendant  had  settled  with  him  and 

paid  him  in  full  are  inadmissible ;  the  plaintiff  is  a  stranger  to 

them. 

Denccr  vs.  Parsons,  8  App.  625. 

In  action  of  assumpsit  upon  two  promissory  notes,  the  defense 
was  that  the  notes  were  given  under  and  in  pursuance  of  the  mutual, 
unlawful  agreement  of  the  parties  to  deal  in  differences.  Plaintiff 
testified  in  contradiction  of  defendant  that  there  was  no  such  agree- 
ment, and  that  in  all  cases  there  was  or  might  have  been  a  delivery 
if  desired,  and  offered  in  evidence  his  check  to  a  third  party  accom- 
panied with  papers  from  such  party  showing  that  he  had  on  hand, 
corn,  ready  to  deliver  to  plaintiff:  Held,  that  such  evidence  was  in- 
admissible. 

Eoehe  vs.  Day,  20  App.  417. 

—  Report  to  Master:  Testimony  by  plaintiff  that  foreman  in- 
formed him  that  he  had  reported  defect  to  employer  is  hearsay. 

Fisher  vs.  Nubian  Iron  Co.,  60  App.  568. 

—  Boundary  Line:  Testimony  of  witnesses,  based  entirely  upon 
what  survevor  who  ran  the  line  told  them,  is  improper. 

Keyfuss  vs.  Hill,  243  111.  140. 

—  Employe:  In  action  for  commissions,  testimony  of  employe 
of  buyer  that  buyer  stated  property  was  for  sale,  and  asked  him  to 
look  after  it,  improper. 

Benedict  vs.  Dakin,  243  111.  384. 

—  Board  of  Trade  Transactions:  Question  calling  for  facts 
not  within  witness'  own  knowledge  not  competent,  being  hearsay. 

Gruby  vs.  Natl.  Bank,  133  111.  79. 

—  Reference  to  Party:  Where  a  party  in  interest  has  referred 
to  a  third  person  as  having  the  matter  in  charge  and  states  that  such 
person  can  tell  with  respect  to  such  matter,  the  statements  of  the 
person  so  referred  to  are  not  hearsay,  but  become  original  evidence. 

Bai-toletti  vs.  Hoerner,  154  App.  336. 

—  3Iiscellaneous  Instances:  Neighbors  cannot  testify  whether 
they  have  ever  heard  of  the  plaintiff  having  been  seriously  injured; 

such  is  hearsay  evidence. 

C.  &  A.  Ey.  Co.  vs.  Johnson,  116  111.  206. 
What  person  in  temporary  charge  of  mortgaged  goods  said  when 
levy  was  made  is  hearsay,  and  inadmissible  in  replevin  by  mort- 
gagee. 

Dorian  vs.  Bradley,  66  111.  412. 
In  action  for  false  and  fraudulent  representations  as  to  quality 
of  land  sold,  defendant  cannot  be  permitted  to  ask  of  one  who  en- 
tered the  land  and  sold  it  to  a  third  person  what  that  person  said 
to  him  ''in  connection  with  the  buying;"  it  is  mere  hearsay. 

Drew  vs.  Beall,  62  111.  164. 


HEARSAY  613 

Testimony  of  a  post-master  that  a  money  order  was  purchased  at 
his  oftiee  is  mere  hearsay,  where  he  li;is  no  knowledge  of  it,  except 
such  as  he  derived  from  tlie  money  order  record  and  statements  of 
money  order  ck'rk. 

Protection  Ins.  Co.  vs.  Foote,  79   111.  3(31. 

The  testimony  of  a  witk)\v,  upon  a  |)etilion  foi  dower,  as  to  what 
her  huslwnd  told  her  in  regard  to  his  payment  foi  the  land  is  hear- 
say and  inadmissible. 

Morse  vs.  Thorsell,  78  111.  600. 

Where  a  person  makes  a  sale  through  an  agent,  not  being  present 
himself,  his  own  testimony  as  to  amount  received  is  necessarily 
hearsay. 

Cai-penter  vs.  Joliet  Natl.  Bank,  19  App.  549;   Affd.,  119  111.  352. 

In  action  by  a  lot-owner  against  a  railroad  company  for  damages 
caused  by  use  of  street,  thereby  preventing  egress  and  ingress,  to 
adjacent  lots  of  plaintiff,  statements  by  officers  of  road  as  to  in- 
tended future  use  of  street  are  inadmissible  in  behalf  of  company, 
being  hearsay  and  matter  of  opinion. 

P.  Ft.  W.  &  C.  Ey.  Co.  vs.  Eeich,  101  111.  157. 

Evidence  of  declaration  by  a  father  that  title  to  land,  liefore  then 
taken  in  name  of  son,  was  so  taken  to  defeat  creditors,  is  inadmiss- 
ible against  the  son ;  it  is  hearsay. 

Cochran  vs.  McDowell,  15  111.  10. 

Where  an  action  is  brought  against  two  railroad  companies  for 

damages  for  negligence  in  constructing  road,  proof  of  mortgage  by 

one  of  them  to  show  that  it  had  means  to  build  the  road,  and  was 

the  principal  actor,  is  res  infer  alios  acta  and  inadmissible. 
K.  &  S.  K.  E.  Co.  vs.  Horan,  131  III.  288. 

Upon  question  as  to  certain  dealings  in  stocks  by  one  on  account 
of  another,  and  by  his  alleged  authority,  entries  in  books  of  broker 
through  whom  former  claimed  to  have  done  the  business,  are  inad- 
missible ;  they  are  res  inter  alios  acta.  'i  ■ 
Boyd  vs.  Yerkes,  25  App.  527;  Schwarze  vs.  Southerland,  51  App.  175. 

In  action  on  constable's  bond  for  failure  to  take  suftieient  replevin 

boTid,  declarations  of  sureties  in  the  latter,  made  in  absence  of  the 

constable  and  before  w^rit  came  into  his  hands,  are  inadmissible. 
Melody  vs.  People,  8  App.  485. 

It  is  admissible  to  lix  the  date  of  a  particular  event,  to  prove  by  a 
witness  that  he  heard  of  the  occurrence  at  a  particular  time. 
Fisher  vs.   People,   103   111.   101. 

The  stalement  that  witness  was  told  about  the  accident  by  her 
son  is  not  hearsay  evidence  Vvhere  it  was  to  fix  the  date  to  be  applied 
to  her  subsequent  testimony  as  to  whether  there  was  a  barricade 

along  the  curb  at  the  time  of  the  accident. 

Youngvert  vs.  City  of  Chicago,  174  App.  299. 

In  action  for  repairs  ordered  by  defendant 's  superintendent,  who 
had  agreed  to  pay  at  the  same  rate  received  from  a  corporation 
formerly  operating  and  owning  one  of  such  factories,  testimony 
of  a  Avitness  claiming  to  have  learned  the  terms  of  agreement  from 
an  officer  of  defendant  corporation,  mere  hearsay. 
Glucose  Sugar  Co.  vs.  Flinn,  184  111.  123. 

Where  evidence  showed  that  vendor  of  horse  stated  he  was  dan- 
gerous, but  not  that  he  was  a  man-eater,  admission  of  evidence  that 


614  HEARSAY 

a  veterinary  surgeon  refused  to  treat  the  horse  because  he  was  a 
man-eating  horse  incompetent  and  hearsay. 
Caruthers  vs.  Balsley,  89  App.  559. 
Testimony  in  road   obstniction  case  that  witness  overheard  the 
party  who  complained  to  the  commissioners  state  that  defendant 
ought  to  be  made  move  his  fence  back  as  he  was  in  the  road,  is  not 

admissible  where  defendant  was  not  present  at  such  conversation. 
Farlow  vs.  Town  of  Camp  Point,  186  111.  256. 
"  Testimony  that  witness  had  heard  facts  from  "reliable  source" 

is  hearsay. 

Carpenter  vs.  Calvert,  83  111.  62. 

It  is  error  to  admit  hearsay  evidence  of  conversations.     Party 

originally  making  such  statements  should  be  called. 

Bishop  vs.  Georgenson,  60  111.  484;  Kent  vs.  Mason,  79  111.  540. 

Evidence  as  to  opinions  expressed  by  persons  as  to  value  of  in- 
vention are  hearsav  and  inadmissible. 
Aiken  vs.  Hodge,  61  111.  436. 
Declarations  of  a  i;)erson,  not  shown  to  be  agent  of  party,  are  in- 
admissible to  bind  party. 

Callaghan  vs.  Myers,  89  111.  566. 
Where  the  question  is  whether  there  was  a  fraudulent  represen- 
tation ot  financial  condition,  made  to  induce  sale  of  goods  on  credit, 
evidence  is  inadmissible  by  the  seller  to  prove  a  report  of  such 

representation  by  his  agent  made  in  absence  of  buyer. 
Henderson  vs.  Miller,  36  App.  232. 
So  is  a  private  memorandum  of  representations  made  to  seller  on 
another  occasion,  it  not  appearing  that  the  memorandum  was  known 

to  the  buyer  or  authorized  by  him. 

Henderson  vs.  Miller,  36  App.  232. 

Permitting  a  police  officer  to  testify  that  he  got  a  description  of 
defendant  from  a  certain  named  person  is  inadmissible  as  in  viola- 
tion of  the  hearsay  rule. 

People  vs.  Lukosziis,  242  111.  101. 

Evidence  as  to  what  the  deceased  injured  party  told  witness  is 
hearsay  and  inadmissible  in  action  to  recover  damages  for  his  death 
from  negligent  act  where  statement  is  not  part  of  res  gestae. 
Swift  &  Co.  vs.  Griffin,  109  App.  414. 
In  prosecution  for  abortion,  statements  by  deceased  to  attending 
physician,  who  was  treating  her  for  effects  of  abortion,  relative  to 
manner  in  which  her  illness  was  brought  about  by  herself  are  mere 
hearsay  and  inadmissible. 

Clark  vs.  People,  224  111.  554. 
Hearsay  as  to  indebtedness  of  one  is  inadmissible. 

Pollard  vs.  People,  69  111.  148. 
Evidence  by  attorneys  that  judge  told  them  he  went  to  grand  jury 
room  and  delivered  a  charge  upon  law  of  criminal  libel  is  hearsay 

and  incompetent. 

People  vs.  Strauch,  153  App.  544;  Aff.  247  111.  220. 

Declarations  of  deceased  grantor,  out  of  presence  of  grantee,  and 

against  his  interests,  are  mere  hearsay  and  inadmissible  against 

grantee. 

Patterson  vs.  Patterson,  251  111.  153. 


HEARSAY  615 

Declarations  of  stranger,  on  call  by  person  for  liquor,  that  latter 
had  enough,  inadmissible  on  issue  of  intoxication. 
L.  E.  &  W.  Rj.  Co.  vs.  Zoffiugcr,  1U7  ill.  199. 

On  petition  by  widow  for  dower,  statements  of  husband  and  his 
vendors  as  to  payment  for  land,  inadmissible. 
Wanie  vs.  Keiidali,  78  111.  598. 

Declarations  of  stranger  tluit  he  had  furnished  party  with  money 
to  buy  land  is  hearsay. 

Walker  vs.  Douglas,  70  111.  445. 
Statements  of  persons  riding  with  plaintiff  at  time  of  accident 
are  inadmissible  against  him. 

Pronskevitch  vs.  C.  &  A.  R.  Co.,  232  111.  136. 
Hearsay  statements  of  deliverer  of  message,  inadmissible  to  show 
sending  or  contents. 

C.  &  A.  Ry.  Co.  vs.  Jennings,  217  111.  494. 
Declarations  of  third  person  not  hearsay,  where  material  to  show 
notice  by  such  person. 

Benedict  vs.  Dak  in,  243  111.  384. 
Conversations  between  carriers'  agents,  in  absence  of  plaintiff, 
hearsay. 

Amer.-Mer.  Ex.  Co.  vs.  Gilbert,  57  111.  468. 
Conversation  between  plaintiff  and  husband,  in  action  against 
latter 's  parents  for  alienation,  hearsay. 
Hilling  vs.  Hilling,  32  App.  519. 

Evidence  as  to  how  statements  of  account  were  settled  between 
witness  and  broker,  hearsay.     And  as  to  whether  a  third  person 
made  report  as  to  certain  transactions. 
Grubey  vs.  Natl.  Bank,  35  App.  354. 

Declarations  of  principal  that  he  had  gotten  surety  "fixed"  in- 
admissible on  intoxication  of  latter. 
Harty  vs.  Smith,  74  App.  194. 

Testimony  of  what  others  told  witness  inadmissible. 

Frezinski  vs.  Newborg,  43  App.  506 ;  People  vs.  Covey,  179  App.  354. 
Testimony  of  attorney  that  clerk  told  him  there  was  no  funds 
to  pay  claims  is  hearsay. 

Hern  vs.  Allen,  179  App.  223. 

Evidence  that  plaintiff  acted  on  information  purporting  to  come 
from  defendant,  hearsay. 

Hyde  vs.  Howes,  2  App.  140. 

Impeachment : 

Hearsay  evidence,  w^hen  admitted  under  some  exception  to  the 

rule  excluding  that  character  of  evidence,  becomes  subject  to  the 

general  rules  of  law  which  govern  the  impeachment  of  evidence. 
Kennedy  vs.  Modern  Woodmen,  243  111.  560. 

Where  attention  of  witness  for  plaintiff  is  called  to  a  conversation 
with  a  third  person  after  the  accident,  and  he  is  asked  by  defend- 
ant if  he  did  not  make  certain  statements  to  such  person,  defendant 
may  call  such  third  person  and  ask  him  if  the  other  witness  made 
such  statements  to  him,  but  it  is  not  proper  to  ask  him  to  repeat 

what  the  latter  said. 

E.  J.  &  E.  Ry.  Co.  vs.  Lawlor,  229  111.  621.     (See  Impeachment.) 


616  HEIRSHIP 

Weig-ht : 

Hearsay  evidence  which  has  been  received  without  objection  will 

be  treated  as  competent. 

Hoover  vs.  Empire  Coal  Co.,  149  App.  258;  Pittman  vs.  Gatey,  10  111. 
186;  Mason  vs.  Truitt,  257  111.  18. 


HEIRSHIP 

See  Legitimacy,   Pedigree,   Descent  and  Distribution,  Resi- 
dence. 
Presumption : 

The  presumption  of  law  is  that  a  person  dying  intestate  has  left 
heirs  capable  of  succeeding  to  his  estate  and  this  presumption  is  so 
violent  that  it  can  only  be  repelled  by  proof. 

Harvey  vs.  Thornton,  14  111.  217;   Pyle  vs.  McBratley,   15   111.  314; 
Chicago  vs.  Major,  18  111.  349;  Fel  vs.  Young,  63  111.  106. 

The  law  indulges  no  presumption  that  a  person  will  die  without 
leaving  a  child  or  children. 
'hi ; ill      Gannon  vs.  Peterson,  193  111.  372. 

So  a  woman  is  presumed  to  be  capable  of  bearing  children  as 
long  as  she  lives,  unless  from  other  matters  than  that  of  age. 
Hill  vs.  Spencer,  196  111.  65. 

Admissibility  of  Evidence: 

—  Conclusiun  of  Witness:  In  proof  of  heirship  it  is  not  com- 
petent for  witness  to  state  conclusions.  It  is  not  within  the  prov- 
ince of  the  witness  to  state  that  the  claimant  is  an  heir  of  a 
certain  decedent,  but  he  may  state  the  relationship  of  the  parties. 
Two  propositions  must  be  established,  first,  the  relationship  of  the 
claimant  through  a  common  source  of  ancestry ;  second,  that  there 
are  no  descendants  from  the  same  ancestry  who  are  entitled  to 

share  in  the  estate. 

Clark  vs.  Jackson,  222  111.   13. 
The  certificate  of  a  probate  judge  is  inadmissible  to  show  who 
are  the  heirs  of  a  deceased  person. 

Greenwood  vs.  Spiller,  3  111.  504. 

Weight  and  Sufficiency: 

Proof  that  certain  persons  are  the  only  surviving  children  of 
the  deceased  person  does  not  establish  the  fact  that  they  are  the 
only  heirs,  as  he  may  have  had  children  who  died  before  him,  leav- 
ing children,  who  would  be  his  heirs  also.  Proof  should  be  made 
that  no  children  of  the  deceased  had  died,  leaving  children,  hus- 
band or  wife,  the  law  would  declare  the  surviving  children  to  be 

the  only  heirs. 

Skinner  vs.  Fulton,  39  111.  485;   Clarke  vs.  Jackson,  222  111.   13. 

If  other  persons  than  heirs  claim  as  devisees  it  devolves  upon 
them  to  establish  their  right  and  the  heir  need  not  prove  that 
no  one  holds  as  devisee  or  grantee  from  his  ancestor. 
Schmidt  vs.  Brown,  226  111.  590. 

—  Decree  in  Partition:  In  an  action  of  ejectment  it  was  held 
that  a  decree  in  partition  which  finds  the  allegations  of  the  peti- 
tion to  be  true,  among  which  is  that  of  the  death  of  a  person  and 


HOMESTEAD  617 

the  heirs  he  left,  is  prima  facie  evidence  of  the  death  and  heir- 
ship. 

BenefieM  vs.  Albert,  1.32  111.  665. 
And  this  applies  though  suit  is  brought  against  stranger.     The 
doctrine  that  judgments  and  decrees  are  evidence  only  in  suits 

between  parties  and  jirivies  has  no  application  in  such  cases. 
Whitman  vs.  Honneberry,  7o  111.   lOi). 

—  Petition  in  Probate:  But  recitals  of  petition  for  letters  of 
guardianship  and  orders  of  probate  court  approving  actions  of 
guardian  are  mere  hearsay  and  incompetent  on  question  of  heir- 
ship, where  issue  between  stranuers. 

Howard  vs.  111.  T.  &  S.  Bank,  189  111.  568. 

HIGHWAYS 

See  Abandonment,  Dedication,  Obstructing  Highways. 

HISTORY 

Judicial  Notice: 

Courts  will  take  judicial  notice  of  historical  facts. 

Dowie  vs.   Sutton,  227  111.   183;   McCoy  vs.  Col.  Exposition  Co.,   186 
111.  356. 

Opinions  of  Witnesses: 

The  mere  opinions  of  witnesses  are  not  admissilile  as  evidence 
of  historical  facts.  Courts  are  required  to  ascertain  facts  from 
history,  but  they  consult  its  authentic  sources  and  not  from  the 
opinions  of  witnesses. 

Happy  vs.  Nortoii,  33  111.  398. 

HOMESTEAD 

See  Statute  of  Frauds,  Ejectment,  Acknow^ledgments. 
Presumptions : 

—  From  Purchase  with  Proceeds  from  Release  of  Homestead: 
AVhere  a  wife  releases  dower  and  homestead,  in  consideration  of 
being  paid  a  portion  of  the  purchase  money,  if  the  money  be  used 
in  the  purchase  of  a  new  home,  an  intent  to  invest  her  with  the 
same  rights  therein  that  she  had  in  the  old  one  will  be  presumed. 

Nance  vs.  Nance,  28  App.  587. 

—  Release :  It  will  not  be  presumed  that  a  warranty  deed  con- 
tained a  release  of  homestead. 

Mason  vs.  Truitt,  257  HI.  18. 

—  Abandonment:  Where  there  is  removal  from  the  homestead 
premises,  it  will  be  taken  as  an  abandonment,  unless  it  clearly 
appear  there  was  an  intention  to  return  and  occupy  it. 

Kloss  vs.  Wylezalek,  207  111.  328;  Jackson  vs.  Saekett,  146  111.  646. 
The  abandonment  of  the  homestead  will  not  be  presumed  from 
the  fact  that  the  head  of  the  family  had  gone  in  search  of  another 
home,  and  being  disappointed,  returned  to  his  old  home. 

Lynn  vs.'Sentil,  183  111.  382;  Titman  vs.  Moore,  43  111.  169;  Ives  vs. 
Mills,  37  111.  74;  Kitchell  vs.  Bergwein,  21  111.  40;  XII  111.  Notes 
905,  §  101. 


618  HOMESTEAD 

While  the  re-marriage  of  a  widow  and  removal  to  the  home  of 
her  second  husband  raises  a  presumption  of  abandonment  of  her 
homestead,  yet  such  presumption  will  yield  to  explanatory  proof 
showing  the  removal  was  meant  to  be  temporary. 

Loveless  vs.  Thomas,  152  111.  479  j  Buch  vs.  Couologue,  49  111.  391. 
But  this  may  be  true  only  when  second  husl)and  had  no  home- 
stead. 

Home  Ins.  Co.  vs.  Field,  42  App.  392. 

—  Occupancy:  Husl)and  having  deserted  the  wife,  occupancy 
of  wife  is  presumptive  evidence  of  homestead  character,  and  con- 
structive notice  of  wife's  rights. 

.Lynn  vs.  Sentil,  183  111.  382. 

—  Where  Premises  Exceed  Statutory  Limit:  Where  the  several 
forty-acre  tracts  lie  contiguous,  and  the  debtor  has  a  dwelling 
house  on  any  given  forty-acre  tract,  which,  with  the  building  there- 
on, is  of  the  value  of  more  than  $1,000,  in  such  ease,  the  law  regards 
the  forty  acres  on  which  the  residence  is  situated  as  the  farm  or 
lot  of  ground  selected  by  him  as  a  homestead. 

Miller  vs.  McAllister,  197  111.  72. 

—  As  to  Value:  There  can  be  no  presumption  that  value  of 
premises  occupied  as  a  homestead  exceeds  one  thousand  dollars. 

Mueller  vs.  Conrad,  178  111.  276. 
If  the  deed  to  homestead  property  recites  a  consideration  of 
less  it  will  be  presumed,  in  absence  of  proof  to  contrary,  that  the 
property  was  worth  less  than  one  thousand  dollars. 
"Karsten  vs.  Winkleman,  200  111.  547. 

—  Right  to  Exemption:  A  party  showing  he  is  the  head  of  a 
family,  that  he  occupied  the  premises  as  a  homestead  at  time  .judg- 
ment was  rendered,  and  that  he  has  not  released  same,  is  prima 
facie  entitled  to  his  homestead  exemption,  unless  such  homestead 
is  shown  to  be  liable  to  sale  under  statutory  exceptions. 

Bach  vs.  May,  163  111.  547. 

Burden  of  Proof: 

Where  an  estate  of  homestead  has  not  been  set  off,  or  its  value 

tendered  when  property  was  sold  on  execution,  one  asserting  lien 

of  execution  against  grantee  of  judgment,  debtor  has  burden  of 

proving  the  estate  conveyed  was  worth  more  than  one  thousand 

dollars. 

Kilmer  vs.  Garlick,  185  111.  406. 

Where  the  statute  limits  the  value  of  homestead  to  $1,000,  and 
the  wife,  who  claims  the  property  as  grantee  of  her  husband  under 
his  individual  deed  which  is  void,  under  the  statute,  because  it  is 
not  signed  by  her,  seeks  to  establish  the  validity  of  the  deed  on 
ground  that  the  property  was  in  excess  of  that  value,  she  has 
burden  of  proving  that  fact. 

Strayer  vs.  Dickerson,  205  111.  257. 

A  lessor  who  seeks  to  avoid  an  oil  lease  upon  ground  that  it  was 

a  lease  of  his  homestead,  and  was  not  acknowledged  and  executed 

as  required  by  statute,  must  plead  and  prove  all  the  facts  which 

will  entitle  him,  under  the  statute,  to  such  homestead. 
Gillespi  vs.  Fulton  Oil  Co.,  236  111.  188. 


HOMESTEAD  619 

Admissibility  of  Evidence: 

—  To  Show  l)iU)it:  J'roof  of  a  conversation  between  proposed 
purchaser  of  a  house,  and  pi'oposed  vendor,  to  the  effect  that  former 
intended  to  occupy  the  house  as  his  home,  if  lie  bought,  is  not  ad- 
missible for  pm^pose  of  establishing  a  homestead  estate  as  against 
a  loan  association  advancing  the  pui'chase  money,  where  the  con- 
versation was  not  in  the  hearing  of  any  officer  or  agent  of  the 

association. 

Home  B.  &  L.  Assn.  vs.  MeCay,  217  111.  551. 
Leaving  household  goods,  is  admissible  on  question  of  intention. 
Potts  vs.  Davenport,  79  111.  455;   Lynn  vs.  Sentil,  183  111.  382. 

—  Extent  of  Residence:  One  claiming  a  homestead  may  show 
that  his  resid(mce  covers  more  than  one  legal  subdivision,  and  that 
two  or  more  lots,  or  a  town  lot  and  a  tract  of  farm  land  adjoining 
in  the  same  inclosure,  though  constituting  separate  tracts  or  lots, 
are  occupied  as  one  parcel  of  land,  constituting  a  single  residence, 
within  the  meaning  of  the  statute. 

Sever  vs.  Lyons,  170  111.  395. 

—  Parol:  After  foreclosure  of  a  mortgage  in  which  the  home- 
stead is  not  released,  and  a  sale  and  deed  of  the  property  is  made, 
parol  evidence  is  admissible  in  action  of  forcible  detainer  for  posses- 
sion, to  show  the  premises  were  occupied  as  a  homestead  at  time 
of  execution  of  mortgage,  and  have  been  so  occupied  ever  since. 
Such  evidence  is  not  to  contradict  or  vary  the  record,  but  to  show 
what,  in  fact,  was  the  subject  matter  of  the  mortgage,  and  hence, 
the  subject  matter  of  the  claim. 

Parrott  vs.  Kumpf,  102  111.  423. 

—  Value:  Where  it  is  set  up  in  defense  in  ejectment  that  de- 
fendant holds  the  right  of  homestead  in  the  premises,  the  value 

of  the  premises  is  immaterial. 

Pardee  vs.  Lindley,  31  111.  174. 

—  To  Show  Temporary  Absence:  Retention  of  part  of  prem- 
ises is  competent  to  show  temporary  absence. 

Potts  vs.  Davenport,  79  111.  455. 

Weight  and  Sufficiency  of  Evidence: 

On  claim  of  homestead  by  minor  children  of  a  deceased  person, 
the  proof  showed  deceased  occupied  the  premises  up  to  time  of 
his  death,  by  residence  thereon,  that  he  was  married,  had  children, 
that  he  lived  with  them  as  head  of  the  family,  and  that  the  land 
was  not  of  the  value  of  .$1,000.  The  proof  was  clearly  sufficient 
and  brought  the  case  within  every  requirement  of  the  statute. 
Kingman  vs.  Higgins,  100  111.  319. 

Evidence  that  deceased   moved  into  a  house  temporarily  until 

he  could  get  possession  of  a  farm  he  had  leased,  but  neither  he  nor 

his  wife  had  ever  occupied  the  house  or  slept  in  it  a  single  night, 

does  not  show  such  "occupation  as  a  residence"  as  will  give  him 

an  estate  of  homestead  in  the  premises. 
Sill  vs.   Sill,   185  111.  594. 

Voting : 

The  fact  that  the  husband  Azotes  at  a  different  place  from  the 
situs  of  the  homestead,  and  that  the  wife  announced  the  property 


G20  HOMICIDE 

was  for  sale,  is  not  conclusive  evidence  of  abandonment  of  the 

homestead. 

Myers  vs.  Elliott,  101  App.  86. 

Such  voting  is  not  conclusive. 

Imhoff  vs.  Lipe,  1^2  111.  282;   Titman  vs.  Moore,  43  111.  169. 

While  offering  to  vote,  or  even  voting,  may  not  be  conclusive 
of  the  fact  of  residence  in  a  collateral  proceeding,  since  it  is  pos- 
sible that  he  may  have  voted  illegally,  yet  such  acts  are,  as  against 
him  and  those  claiming  under  him,  evidence  to  show  the  inten- 
tion with  which  he  removed  to  the  place  where  his  vote  is  offered, 
and  when  to  this  is  added  the  oath  prescribed  by  statute  where  the 
right  of  a  voter  is  challenged,  the  evidence  is  very  strong  that  a 
legal  change  of  residence  was  intended  and  actually  accomplished. 
Jackson  vs.   Sackett,  146  111.  646;   Titman  vs.   Moore,  43  111.   169. 

To  Show  Abandonment: 

Testimony  of  claimant  as  to  intention  to  abandon,   entitled  to 
little  weight  where  acts  and  declarations  are  to  contrary. 
Buck  vs.  Conlogue,  49  111.  391. 
Absence  of  twenty  years  held  conclusive. 

Hart  vs.  Kandolph,  142  111.  521;  Cahill  vs.  Wilson,  62  111.  137;  Carr 
vs.  Eising,  62  111.  14;  Maher  vs.  McConaga,  47  111.  392. 

Judicial  Notice: 

Where  a  person  entitled  to  a  homestead  exemption  is  the  owner 
of  more  than  one  lot,  the  court  will  take  judicial  notice  of  the  sub- 
division of  town  and  city  property  into  separate  lots  and  blocks, 
for  the  purpose  of  determining  what  land  is  covered  by  the  exemp- 
tion. 

Sever  vs.  Lyons,  170  111.  395. 

Although  the  premises  occupied  covered,  in  the  aggregate,  several 
governmental  subdivisions  and  exceeded  in  value  and  quantity  the 
amount  allowed  by  law,  the  court  will  take  judicial  notice  of  each 
of  said  subdivisions  and  its  boimdaries,  and  it  is  competent  for 
claimant  to  show  that  the  particular  subdivision  on  which  the  home 
was  actually  situated,  was  not  excessive  in  value  or  quantity. 
Hill*  vs.  Bacon,  43  111.  477. 


HOMICIDE 

See  Intent,  Threats,  Conspiracy,  Abortion,  Dying  Decla- 
rations, Character,  Separate  and  Similar  Offenses,  Experi- 
ments, Corpus  Delicti,  Circumstantial,  Confessions,  Alibi, 
Sanity  and  Insanity,  Admissions,  Coroner's  Inquest,  Immunity, 
Illegally  Obtained,  Privileged  Communications,  Intoxication, 
Res  Ctestae,  Demonstrative  Evidence. 
Innocence : 

Defendant  is  entitled  to  the  benefit  of  the  presumption  of  inno- 
cence through  all  the  steps  of  the  trial  and  during  the  considera- 
tion of  all  the  evidence  by  the  jury  after  they  have  been  instructed 
by  the  court,  and  until  they  determine  from  a  consideration  of 
all  the  evidence  that  the  guilt  of  the  defendant  has  been  established 
beyond  a  reasonable  doubt.    The  presumption  of  innocence  attends 


HOMICIDE  621 

aeensed  at  every  stage  of  the  proceedings  until  the  jury  agree  upon 

a  verdict. 

F\ynn  vs.  People,  222  III.  303  j  see  also  People  vs.  Aml)acli,  247  111.  451. 

Intent : 

Malieidus  intent  need  not  be  proven  by  direct  testimony. 

Huiiimond  vs.  People,  199  111.  173;  Priederich  vs.  People,  147  111  310; 
Conn  vs.  People,  116  111.  458. 
Intent  may  be  inferred  from  the  facts  and  circumstances  shown 

by  the  evidence. 

People  vs.  Anderson,  239  111.  168. 

Every  sane  man  is  presumed  to  intend  all  the  natural  and  prob- 
able conse(|uences  following  from  his  own  deliberate  act. 
Weaver  vs.  People,  132  111.  536. 

And  direct  evidence  of  the  intent  to  kill  is  not  necessary  in  order 
to  establish  the  crime  of  murder. 
People  vs.  Casey,  231  111.  261. 

So  the  intention  may  be  inferred  from -the  acts  of  the  person 
charged  with  the  crime,  as  well  as  by  words  and  declarations. 
Crosby  vs.  People,  137  111.  325. 

If  one  voluntarily  and  willfully  does  an  act,  the  direct  natural 
tendency  of  which  is  to  destroy  the  life  of  another,  the  natural 
and  irresistible  conclusion,  in  the  absence  of  qualifying  facts,  is 
that  the  destruction  of  such  other  person's  life  .was  intended. 
Weaver  vs.  People,  132  111.  536. 

Intention  may  always  be  presumed  from  the  circumstances  con- 
nected with  the  perpetration  of  the  offense.  What  the  circum- 
stances connected  with  the  perpetration  of  the  offense  are  or  may  be 
is  a  matter  of  proof,  and  defendant  may  testify  as  to  his  intention 
and  such  testimony  be  considered  in  connection  with  other  facts 
and  circumstances  surrounding  the  transaction.  AVhile  the  inten-. 
tion  is  manifested  by  the  circumstances  connected  with  the  per- 
petration of  the  offense,  and  the  sound  mind  and  discretion  of  the 
person  accused,  yet  other  evidence  of  intention  may  be  resorted  to 
either  by  the  prosecution  or  the  defense. 
Wohlford  vs.  People,  148  111.  296. 

Intention  is  manifested  by  the  circumstances  connected  with  the 
perpetration  of  the  offense  and  the  sound  mind  and  discretion  of 
the  person  accused.  Every  sane  man  is  presumed  to  intend  the 
natural  and  probable  consequence  of  his  act,  and  the  intention  may 
be  inferred  from  the  acts  of  the  persons  charged  with  crime  as 
well  as  by  words  and  declarations.  The  intention  with  which  an 
act  is  done  is  a  question  of  fact,  either  to  be  shown  by  the  decla- 
rations of  the  party  or  to  be  inferred  from  the  character,  manner 
and  circumstances  of  the  assault. 

Crosby  vs.  People,  137  111.  325. 

Intent  to  kill  does  not  enter  into  the  definition  of  murder.  It 
is  enough  if  the  unlawful  killing  be  mth  malice  aforethought, 

either  express  or  implied. 

Adams  vs.  People,  109  111.  444. 
One  who  shoots  at  another  with  the  unlawful  purpose  of  maim- 
ing or  wounding  or  disabling  him  may  be  guilty  of  murder  if 
death  results,  even  though  he  may  not  have  intended  to  kill. 

Morello  vs   People,  226  111.  388. 


622  HOMICIDE 

Where  aeeiised  was  charged  with  murdering  a  son  of  his  tenant, 
in  an  eneouuter  which  took  place  in  an  attempt  to  smoke  out  the 
tenant  and  to  dismantle  the  house,  it  is  competent  to  show  the 
state  of  the  weather, — that  there  was  snow  on  the  ground,  and  that 
the  youngest  member  of  the  family  was  a  baby  about  a  year  old. 
Such  evidence  being  competent  to  show  that  accused  provoked  the 
difficulty  under  such  circumstances  as  would  excite  certain  and 
probabl}'  desperate  resistance. 

Gedye  vs.  People,  170  111.  284. 

Where  the  result  of  the  act  is  not  fatal  and  the  crime  charged 
is  assault  with  intent  to  murder,  the  necessary  specific  intent  may 
be  presumed  from  the  act,  the  natural  and  probable  consequences 
of  which  would  be  the  death  of  the  injured  person, 
Crosby  vs.  People,  137  111.  325. 

An  intention  to  commit  murder  is  the  gist  of  the  offense  of  an 
assault  to  commit  murder,  and  it  must  be  such  an  assault  as,  should 
death  ensue,  the  party  charged  would  be  guilty  of  the  crime  of 
murder. 

Hammond  vs.  People,  199  111.  173. 

Since  there  must  be  no  mixture  of  deliberation  or  malice  to  re- 
duce  homicide    from  murder   to   manslaughter,    there   is  no   such 
offense  as  assault  with  intent  to  commit  manslaughter. 
Moore  vs.  People,  146  111.  600. 

Before  a  homicide  can  be  denominated  manslaughter,  the  killing 
must  be  the  result  of  that  sudden  and  violent  impulse  of  passion 
which  is  supposed  to  be  irresistible.  The  intent  to  commit  murder 
is  an  essential  element  to  show  the  existence  of  that  crime,  and 
such  intent,  like  any  other  fact  necessary,  must  be  proven  beyond 
a  reasonable  doubt.  It  is  not  necessary  however,  that  the  party 
should  have  brooded  over  the  intent  or  entertained  it  for  any  con- 
siderable time.  It  is  sufficient  if  he  intend  to  kill  the  party  as- 
saulted at  the  time  he  made  the  assault. 

Bonardo  vs.  People,  182  111.  411;  Weaver  vs.  People,  132  111.  536. 

Malice : 

—  Defined:  Malice  not  only  includes  anger,  hatred  and  revenge, 
but  every  other  unlawful  and  unjustifiable  motive.  ]\lalice  is  not 
confined  to  ill-will  towards  an  individual,  but  is  intended  to  denote 
an  action  flowing  from  any  wicked  and  corrupt  motive, — a  thing 
done  with  a  wicked  mind, — where  the  fact  has  been  attended  with 
such  circumstances  as  evince  plain  indications  of  a  heart  regard- 
less of  social  duty  and  fatally  bent  on  mischief;  hence  malice  is 
implied  from  any  deliberate  or  cruel  act  against  another,  however 
sudden,  which  shows  an  abandoned  or  malignant  heart. 

Parsous  vs.  People,  218  111.  386;  McCoy  vs.  People,  175  111.  224. 

Express  malice  is  that  deliberate  intent  to  unlawfully  take  the 
life  of  a  fellow  creature,  which  is  manifested  by  external  circum- 
stances capable  of  proof.  INlalice  is  implied  if  no  considerable 
provocation  appears  or  where  the  circumstances  of  the  killing  show 
an  abandoned  and  malignant  heart. 
Kota  vs.  People,  136  111.  655. 

Malice  is  not  confined  to  ill-will  toward  an  individual,  but  is  in- 
tended to  denote  an  action  flowing  from  any  wicked  and  corrupt 
motive, — a  thing  done  with  a  wicked  mind, — where  the  fact  has  been 


HOMICIDE  623 

attended  with  such  circumstances  as  evince  plain  indications  of  a 
heart  regardless  of  social  duties  and  fatally  bent  on  mischief; 
hence  malice  is  im])lied  from  any  deliberate  and  cruel  act  against 
another,  however  sudden,  which  shows  an  abandoned  and  malig- 
nant heart. 

People  vs.  Lucas,  244  111.  603, 

—  rrcistiniptions:     Malice  aforethought  is  implied  from  an  un- 
provoked, murderous  assault  from  which  death  results. 
Koser  vs.  People,  2:i4  111.  201. 

Malice  may  be  presumed  when  no  considerable  provocation 
appears,  but  when  the  circumstances  of  the  killing  show  an  aban- 
doned and  uialignant  heart.  When  the  act  is  committed  deliberately 
and  is  likely  to  be  attended  with  dangerous  consequences,  the  malice 

requisite  to  murder  will  be  presumed. 

Frieilerich  vs.  People,  147  111.  310;  Wallace  vs.  People,  159  111.  446. 

]\lalice  will  be  presumed  from  a  wanton  or  reckless  act. 

Dunaway  vs.  People,  110  111.  333.  . 
If  one,  with  an  abandoned  and  malignant  heart  and  a  reckless 
disregard  of  human  life,  makes  an  assault  upon  another  which,  in 
its  manner  and  circumstances,  is  likely  to  produce  death  of  party 
assailed,  not  only  will  malice  be  presumed,  but  the  specific  intent 
to  take  the  life  may  also  be  inferred,  for  the  reason  that  if,  with 
malice,  he  makes  an  assault  in  a  manner  likely  to  produce  death, 
he  must  be  presumed  to  intend  the  result  likely  to,  that  is,  which 
pr(5bably  and  naturally  would,  flow  from  his  act. 
Crosby  vs.  People,  137  111.  325. 
Malice  may  be  inferred  when  an  act  unlawful  in  itself  is  done 
deliberately  and  with  intention  of  mischief  or  great  bodily  harm. 
Adams  vs.  People,  109  111.  444. 
Malice  is  presumed  from  a  deliberate  killing  of  another. 

Spies  vs.  People,  122  111.  1. 
Malice  will  be  implied  if  no  considerable  provocation  appears  or 
when  all  the  circumstances  of  the  killing  show  an  abandoned  and 

malignant  heart. 

People  vs.  Cutright,  258  111.  430. 
Where  an  act  is  committed  deliberately  and  is  likely  to  be  at- 
tended with  dangerous  consequences  to  the  life  of  another,  malice 

may  be  presumed. 

Conn  vs.  People,  116  111.  458;  Dnnaway  vs.  People,  110  111.  333;  Perry 
vs.  People,  14  111.  496. 
It  is  not  necessary  that  the  party  should  have  entertained  the 
malicious  intent  for  any  considerable  time,  but  it  is  nevertheless 
true  that  malice  involves  deliberation.  The  deliberate  intent  to  kill 
may  not  have  been  formed  for  any  specified  length  of  time,  but  it 
must  exist  at  the  moment  of  killing. 

Marzen  vs.  People,  173  111.  43;  Weaver  vs.  People,  132  111.  536, 
To  co]istitute  malice,  it  is  not  necessaiy  that  the  party  brood 
over  or  meditate  the  performance  of  the  act  for  a  considerable 
space  of  time,  but  it  is  sulficient  if  it  were  deliberate  and  inten- 
tional, without  apparently  well  founded  danger  of  great  bodily 
harm,  or  where  there  is  no  such  provocation  as  iji  law  reduces  the 
homicide  to  manslaughter.  Malice  is  implied  where  one  pereon 
deliberately  injures  another;  and  if  a  person  use  a  deadly  weapon 


624  HOMICIDE 

on  another,  resulting  in  his  death,  it  must  be  inferred  that  the 

killing  was  malicious. 

Bornado  vs.  People,  182  111.  411;  Peri  vs.  People,  65  111.  17. 

Malice  is  always  presumed  when  one  person  deliberately  injures 
another.  It  is  the  deliberation  with  which  an  act  is  performed 
that  gives  it  character.  It  is  the  opposite  of  an  act  performed  in 
uncontrollable  passion,  which  prevents  the  deliberation  or  cool  re- 
flection in  forming  the  pui'pose. 

Marzen  vs.  People,   173  111.  43;   Friederich  vs.  People,  147  111.  310; 
Spies  vs.  People,  122  111.  1;  Davison  vs.  People,  90  111.  221;  XII 
111.  Notes  913,   §5. 
If  a  person  deliberately  use  a  deadly  weapon  on  another,  malice 

will  be  presumed. 

Friederich  vs.  People,  147  111.  310. 

The  fact  that  defendant,  immediately  after  striking  the  fatal 
blow,  showed  signs  of  remorse  and  sympathy  for  deceased,  and 
attempted  to  alleviate  his  injuries,  may  be  admissible  in  determin- 
ing the  question  as  to  whether  or  not  the  act  was  malicious  or  pre- 
meditated. 

Silgar  vs.  People,  107  111.  563. 

—  Necessity  of  Proof:     Proof  of  malice,  express  or  implied,  is 

essential  to  establish  a  charge  of  murder. 

People  vs.  Morris,  254  111.  559. 
It  is  indispensable  to  a  conviction  for  murder  that  the  killing  be 
done  with  malice  aforethought,  express  or  implied,  otherwise,  the 
offense  is  manslaughter. 

People  vs.  Bissett,  246  111.  516. 

Motive : 

—  Not  Essential:  If  the  evidence  in  a  murder  trial  shows  be- 
yond a  reasonable  doubt  that  the  accused  killed  deceased  with 
malice  aforethought,  it  is  wholly  immaterial  what  his  motive  was 
or  whether  the  evidence  indicates  any  motive. 

People  vs.  Enright,  256  111.  221 ;  Clefford  vs.  People,  229  111.  633.  ,,. 
"In  a  criminal  prosecution  the  People  are  required  to  prove  the 
commission  of  an  act  forbidden  by  law  and  to  prove  it  beyond  a 
reasonable  doubt,  but  they  are  never  required  to  prove  a  cause  or 
reason  that  induced  accused  to  commit  the  act  if,  without  such 
proof,  the  evidence  is  sufficient  to  show  that  the  act  was  done  by 
him.  If  accused  committed  the  act,  the  question  whether  he  had 
a  motive,  or  what  it  was,  is  immaterial.  Evidence  tending  to  show 
the  existence  or  non-existence  of  a  motive  is  admissible  and  is  fre- 
quently important  to  be  considered  in  connection  with  the  other 
evidence  in  the  case,  and  although  the  People  are  under  no  obliga- 
tion to  show  a  motive  for  the  commission  of  a  criminal  act,  they 
may  do  so.  If  the  People  claim  that  a  motive  existed  inducing  the 
commission  of  the  act,  it  must  be  proven,  and,  like  any  other  cir- 
cumstance, cannot  be  inferred,  but  as  they  are  not  required  to  show 
any  motive,  the  jury  should  not  be  informed  that  failure  to  show 
motive  tends  to  prove  that  the  act  was  not  committed." 
People  vs.  Enright,  256  HI.  221. 

—  Improper  Relations:  On  the  trial  of  a  man  for  the  murder 
of  a  young  woman  by  poison,  letters  found  in  his  possession,  ad- 
dressed to  deceased,  shown  to  be  in  his  handwriting,  tending  to 


HOMICIDE  625 

prove  the  relations  between  them  and  thus  tend  to  prove  motive, 
are  competent  in  evidence  against  defendant  without  direct  proof 
that  the  letters  had  been  delivered  to  iier. 
Simons  vs.  People,  150   111.  (iG. 

Upon  trial  of  a  woman  for  murder  of  her  husband,  proof  of  her 
unchastity,  is  admissible  as  evidence  of  motive,  but  declarations  of 
deceased  are  not  evidence  thereof. 
Weyrich  vs.  People,   89  III.   90. 

AVhere  defendant  is  cliarged  with  murder  of  spouse,  evidence 
tending  to  show  love  for  and  illicit  relations  with  another  is  admis- 
sible. 

Siebert  vs.  People,  143  111.  57. 

"Where  accused  is  charged  with  the  murder  of  a  woman  with 
whom  he  was  living,  ostensibly  in  the  marriage  relation,  evidence 
is  admissible  on  the  part  of  the  prosecution,   in  order  to  show 
motive,  to  prove  a  long  course  of  ill  treatment  of  the  woman. 
Painter  vs.  People,  147  111.  444. 

And  for  the  same  purpose,  to  show  the  relations  between  them, 
and  his  want  of  affection  for  her,  evidence  is  admissible  to  show 
he  compelled  her  to  lead  a  life  of  prostitution. 
Painter  vs.  People,  147  111.  444. 

Evidence  that  the  prisoner  and  a  supposed  confederate  had  in 

their  possession,  immediately  after  the  murder,  money  in  amount 

and  character  such  as  known  to  have  been  in  the  possession  of  the 

murdered  person,  is  relevant,  coupled  with  evidence  of  their  prior 

destitution,  and  is  admissible. 

Gates  vs.  People,  14  111.  433. 

Corpus  Delicti: 

—  Defined:   Corpus  delicti  is  made  up  of  two  essential  elements; 

fact  of  the  crime  and  the  criminal  agency  of  some  person  as  the 

cause  of  death. 

Hoch  vs.  People,  219  111.  265;  Campbell  vs.  People,  159  111.  9. 

—  Circumstantial:  The  corpus  delicti  may  be  proven  in  a  prose- 
cution for  murder  by  presumptive  or  circumstantial  evidence  where 
that  is  the  best  evidence  obtainable,  but  great  caution  should  be 

observed  in  acting  upon  it. 

People  vs.  Campagna,  240  111.  378;   Campbell  vs.  People,  159  111.  9; 
Gannon  vs.  People,  127  HI.  507;  XII  111.  Notes  922,  §  55. 
The  corpus  delicti  must  be  clearly  established. 
Hoch  vs.  People,  219  111.  265. 

—  Extra-Judicial   Confessions:      The    corpus   delicti   cannot    be 

established  by  extra-judicial  confessions  or  an  admission  of  the 

accused  alone. 

Gore  vs.  People,  162  111.  259. 

Extra-judicial  confessions  of  the  commission  of  crime,  where 
such  confessions  are  relied  upon  to  establish  guilt,  are  not  suffi- 
cient to  authorize  a  judgment  of  conviction  without  other  sufficient 
proof  of  the  corpus  delicti,  and  the  corpus  delicti  should  first 
be  otherwise  established,  not,  however,  necessarily  by  direct  evi- 
dence onlv. 

Campbell  vs.  People,  159  111.  9. 

Circumstantial  Evidence: 

—  Legal  Evidence:     Circumstantial  evidence  is  legal  evidence. 

Parsons  vs.  People,  218  111.  386. 
Ev.— 4  0 


626  HOMICIDE 

It  is  not  to  be  expected  crime  will  be  proven  by  direct  testimony. 
Schoolcraft  vs.  People,  117  111.  271. 

—  Kinds:  Circumstantial  evidence  is  evidence  of  facts  from 
which  the  existence  of  other  facts  may  be  inferred  and  is  of  two 
kinds,  viz.,  certain,  or  that  from  which  the  conclusion  in  question 
necessarily  follows;  and  uncertain,  or  that  from  which  the  conclu- 
sions does  not  necessarily  follow  but  is  probable  only  and  is  ob- 
tained by  a  process  of  reasoning. 

Gannon  vs.  People,  127  111.  507. 

Absolute  certainty  is  not  essential  to  proof  by  circumstances. 
It  is  enough  that  the  circumstances  are  such  as  to  produce  moral 
certainty  to  the  exclusion  of  every  reasonable  doubt. 
Otmer  vs.  People,  76  111.  149. 

—  WeigJit:  In  order  to  warrant  a  conviction  for  murder  on 
circumstantial  evidence,  the  circumstan'ces,  taken  together,  should 
be  of  a  conclusive  nature  and  tendency,  leading  on  the  whole  to  a 
satisfactory  conclusion  and  producing  in  effect  a  reasonable  and 
moral  certainty. 

Parsons  vs.  People,  218  111.  386;  Dunn  vs.  People,  158  111.  586. 
Before   conviction  can  properly  be  had  upon  purely   circum- 
stantial evidence,  the  guilt  of  the  accused  must  be  so  thoroughly 
established  as  to  exclude  every  reasonable  hypothesis  of  his  inno- 
cence. 

Purdy  vs.  People,  140  111.  46;  Dunn  vs.  People,  172  111.  582;  Marzen 
vs.  People,  173  111.  43;  XII  111.  Notes  922,  §  55. 

—  Chain  Simile :  Each  material  fact  essential  to  constitute  de- 
fendant's  guilt,  must  be  proven  beyond  a  reasonable  doubt.  But 
these  facts  may  be  proven  by  evidence  of  circumstances,  some  of 
much  and  others  of  little  weight,  resting  on  the  testimony  of  various 
witnesses  of  different  degrees  of  credibility  and  intelligence;  and 
so  in  the  chain  relied  upon,  there  may  be  links,  when  separately 
considered,  about  which  there  are  reasonble  doubts,  but  when  the 
entire  evidence  is  considered,  each  link  strengthens  every  other  link, 
and  thus  there  may  be  a  complete  chain  of  evidence,  satisfying, 
beyond  a  reasonable  doubt,  of  the  guilt  of  the  defendant. 

It  is  the  effect  of  the  evidence  as  a  whole,  and  not  of  distinct  parts 

of  it,   isolated   from  its  connection   with   the   other   evidence,    by 

which  the  jury  are  to  be  governed  in  determining  the  question  of 

guilt  or  innocence. 

Bressler  vs.  People,  117  111.  422. 

Identity : 

—  Deceased:  The  person  killed  must  be  proved  to  be  the  per- 
son named  in  the  indictment. 

Shepard  vs.  People,  72  111.  480 ;  Davis  vs.  People,  19  111.  73. 

AVhere  indictment  is  for  murder  of  person  described  by  chris- 
tian name  and  surname,  if  the  evidence  shows  the  killing  of  a  man 
described  only  by  surname,  though  the  same  surname,  there  is  a 
fatal  variance. 

Pcnrod  vs.  People,  89  111.  150. 

Proof  of  identity  is  not  necessarily  restricted  to  proof  of  name, 
but  may  rest  upon  other  particulars,  as,  for  instance,  a  person's 
occupation. 

Shepard  vs.  People,  72  111.  480. 


HOMICIDE  627 

Admitting  photograph   of   deceased  whose   identity   as   person 

killed  was  admitted   by  defendant,  is  not,   of  itself,   ground   for 

reversal,  though  evidence  unnecessary  and  might  properly   have 
been  excluded. 

Roberts  vs.  People,  226  111.  297. 

Expert  or  opinion  evidence  as  to  resemblance  of  specimens  of 

hair  is  inadmissible. 

Watt  vs.  People,  126  111.  9. 

—  Accused:     Finger  print  evidence  is   admissible,   with   other 

evidence,  as  a  means  of  identification. 
People  vs.   Jennings,   252   III.   534. 
But  not  proof  of  trailing  or  following  of  scent  by  bloodhounds. 

People  vs.   Pfansfhniidt,   262  111.  411. 

Evidence  of  foot-prints  and  their  correspondence  with  defend- 
ant's feet  is  competent  and  though  not,  of  itself,  of  any  independ- 
ent strength,  is  admissible  with  other  proof  as  tending  to  show 

identity. 

Dunn  vs.  People,  158  111.  586. 

Where  a  witness  has  positively  identified  accused  on  the  trial, 

counsel  for  accused  has  a  right  to  cross  examine  such  witness  as 

to  whether  or  not  he  stated  at  the  coroner's  inquest  that  he  was 

not  positive  of  such  identification,  and  are  not  restricted  to  the 

proof  O'f  the  coroner's  minutes  containing  the  signed  statements  of 

the  witness. 

Briggs  vs.  People,  219  111.  330. 
Where  defendant's  connection  with  the  crime  charged  rests  on 
the  testimony  of  one  witness,  it  is  error  to  permit  a  police  officer 
who  arrested  defendant  to  testify  that  he  got  the  description  of 
defendant  from  such  witness  and  that  the  latter  identified  him. 

People  vs.  Lukoszus,  242  111.  101.  i  - 

Deadly  Weapons: 

—  Judicial  Notice:  Judicial  notice  will  be  taken  that  a  pistol 
or  a  hoe,  used  for  the  purpose  of  assault,  is  a  deadly  weapon. 

Hamilton  vs.  People,  113  111.  34. 

—  Intent:  It  cannot  be  presumed,  from  the  mere  use  of  a 
deadly  weai)on,  that  the  party  intended  death. 

Smith  vs.  People,  142  111.  117. 

—  Malice:     IMalice  will  not  be  presumed  from  the  mere  fact  that 

a  deadly  weapon  was  used. 

Hammond  vs.  People,  199  111.  173. 

—  Deliberate  Use:     It  is  not  the  use  of  the  weaj)on  that  shows 

malice,  but  its  deliberate  use. 

Fi-iederich  vs.  People,  147  111.  310. 

—  Habit  of  Carrying:     Evidence  that  deceased  was  in  the  habit 

of  carrying  weapons  is  immaterial  where  it  does  not  appear  that 

accused  knew  of  such  habit  or  that  deceased  had  made  threats 

against  defendant. 

McDonnall  vs.  People,  168  111.  93. 

—  Possession:  The  bare  fact,  unexplained,  that  defendant,  with- 
out any  excuse  therefor,  and  when  menaced  with  no  danger,  either 
to  his  person  or  his  property,  was  armed  with  a  dangerous  and 
deadly  weapon,  of  itself,  is  a  strong  circumstance  from  which  it  may 
be  inferred  he  was  actuated  by  premeditated  malice. 

Stefly  vs.  People,  130  111.  98. 


628  HOMICIDE 

In  prosecution  for  murder  in  forcing  deceased  to  jump  from 
moving  freight  train,  evidence  that  defendants  were  seen  on  rail- 
road track  two  days  prior  to  the  offense,  and  that  one  of  them 
had  a  revolver,  is  admissible. 

Adams  vs.  People,  109  111.  444. 

—  Sale  to  Defendant:     Evidence  of  the  sale  of  a  revolver  to 

defendant  is  inadmissible  where  there  is  no  evidence  to  identify 

the  pistol  which  was  found  in  the  hand  of  deceased  as  the  same 

weapon. 

People  vs.  Smith,  254  111.  167. 

Cause  of  Death: 

The  requirement  of  the  law  as  to  proof  of  the  cause  of  death  is 
made  where  the  evidence  by  attending  physician  describes  a  wound 
which  every  person  of  average  intelligence  would  know  was  mortal, 
even  though  the  witness  does  not  expressly  testify  or  give  his  opin- 
ion the  wound  was  mortal. 

Waller  vs.  People,  209  111.  284. 

On  the  trial  of  one  for  murder  by  the  infliction  of  a  wound,  as 
claimed,  with  a  pair  of  shears,  a  physician  who  assisted  in  making 
the  post  mortem  examination  of  the  body  of  deceased,  and  who 
described  the  nature,  character  and  extent  of  the  wounds,  was  re- 
quested to  examine  the  pair  of  shears  and  to  tell  the  jury  whether 
or  not  the  wounds  upon  the  body  of  deceased  were  likely  to  have 
been  produced  with  that  instrument.  He  answered  that  the  wounds 
could  have  been  so  produced.  Held,  that  the  question  was  improper. 
Cannon  vs.  People,  141  111.  270. 

On  the  trial  of  a  charge  of  assault  with  intent  to  murder,  a  phy- 
sician who  made  post  mortem  examination  of  the  skull  fracture 
several  months  after  the  assault,  w^as  allowed  to  testify  as  to  the 
appearance  and  condition  of  the  wound  at  the  time. 
Fiiederich  vs.  People,  147  111.  310. 

Threats  of  Defendant: 

—  Principle  Upon  Which  Admitted:  Declarations  of  intention 
and  threats  are  admissible  in  evidence  not  because  they  give  rise 
to  a  presumption  of  law  as  to  guilt,  which  they  do  not,  but  because 
from  them,  in  connection  with  other  circumstances  and  on  proof 
of  the  corpus  delicti  guilt  may  logically  be  inferred. 

Henry  vs.  People,  198  111.  162. 
Threats  are  admissible  for  purpose  of  showing  animus,  it  being 
for  the  jury  to  determine  whether  they  were  the  result  of  momen- 
tary anger  or  were  the  expression  of  a  deliberate  intention. 

McCoy  vs.  People,  175  111.  224. 

—  Knowledge  of  Assailed:     Threats  of  accused  may  be  shown 

whether  other  party  knew  of  them  or  not. 

Palmer  vs.  People,  138  111.  356 ;  Eafferty  vs.  People,  72  111.  37 ;  West- 
brook  vs.  People,  126  111.  81;  Xll  111.  Notes  920,  8  44.  _ 

—  Competency  of  Witnesses:  Threats  cannot  be  testified  to  by 
witness  who  did  not  hear  defendant  make  same,  but  gained  knowl- 
edge of  same  through  a  conversation  with  deceased  shortly  before 

killing. 

Montag  vs.  People,  141  111.  75. 
f  __  Conspirators:     Threats  made  by  one  before  conspiracy  formed 
are  inadmissible  against  other  co-defendants. 

Wilson  vs.  People,  94  111.  299. 

..■.!;iii,iU 


HOMICIDE  629 

Where  a  number  of  persons  act  together  or  in  concert,  to  chastise 
or  beat  certain  other  pei-soiis,  and  one  of  the  persons  is  killed, 
expressions  and  statements  made  by  some  of  the  assailants  are  ad- 
missible as  characterizing  the  mission  on  which  accused  was  engaged 

at  the  time  they  were  made. 

Lyons  vs.  People,  137  111.  602;  Schoolcraft  vs.  People,  117  111,  271. 

To  bind  all  the  defendants  by  an  incriminating  statement  of  one, 
on  the  theory  that  it  was  made  in  presence  of  all,  the  evidence  must 
show  speciHcally  who  of  the  defendants  were  present  when  state- 
ment was  made. 

People  vs.  Barkas,  255  111.  516. 

—  Nature  and  Weight:  Threats  made  against  a  family  gener- 
ally, are  admissible. 

Sharp  vs.  People,  29  111.  464. 
Testimony  to  the  effect  that  defendant,  in  speaking  of  a  difficulty 
had  with  deceased,  said,  "he  was  part  Indian,  bad  medicine,  and 
something  worse  would  grow^  out  of  this  trouble,"  is  properly  ad- 

missiulG' 

Schoolcraft  vs.  People,  117  111.  271. 
A  threat  to  defend  one's  self  in  event  of  being  attacked  does  not 
imi^ly  the  same  malice  and  evil  intent  as  a  threat  to  kill,  unaccom- 
panied by  any  qualifying  words. 

Bolzer  vs.  People,  129  111.  112. 
"Where  provocation  intervenes  between  the  threat  of  defendant 
and  the  killing  by  him,  it  is  not  a  conclusive  presumption  of  law 
that  the  killing  was  in  pursuance  of  the  threat,  and  not  upon  the 
passion  produced  by  the  subsequent  provocation. 

Bolzer  vs.  People,  129  111.  112. 

—  Explanation:  Defendant  is  entitled  to  show  the  circum- 
stances under  which  threats  were  made  and  what  caused  or  occa- 
sioned tliem. 

Bolzer  vs.  People,  129  111.  112. 

Threats  of  Deceased: 

—  Not  ComnnDiicated:  On  plea  of  self-defense,  proof  of  threats 
by  deceased  against  accused,  made  to  third  persons  before  the  fatal 
affray,  are  admissible  even  though  not  shown  to  have  been  com- 
municated to  the  defendant. 

Neatherly  vs.  People,  227  111-  110;   Siebert  vs.  People,  143  111.  571; 
Price   vs.   People,   131   111.   223;    Campbell  vs.   People,   16   111.   16; 
XII  III.  Notes  920,  §  44. 
But  if  the  defendant  is  aggressor,  he  is  not  entitled  to  prove 

previous  threats. 

Adams  vs.  People,  47  111.  376. 

And  it  must  first  be  shown  that  deceased  was  the  assailant. 
People  vs.  Terrell,  262  111.   138. 

—  Overt  Act:  Before  a  party  may  attack  or  intiict  harm  upon 
the  person  making  threats,  there  must  be  some  overt  act  from  which 
an  intention  may  be  reasonably  inferred  to  carry  into  effect  the 
threats,  and  danger  must  be  imminent. 

Wilson  vs.  People,  94  111.  299. 
Threats  of  personal  injury  or  even  against  life  of  another  will 
not  justify  latter  in  taking  life   of  person  wdio  has  made  such 
threats  when  he  is  doing  nothing  to  put  them  into  execution. 
Gilmore  vs.  People,  124  111.  380;  People  vs.  Terrell,  262  111.  138. 


630  HOMICIDE 

—  Purpose:  Proof  of  previous  threats  is  admissible  only  for 
the  purpose  of  giving  character  to  any  attack  deceased  may  have 
subsequently  made  upon  accused. 
Leigh  vs.  People,  113  111.  372. 
Antecedent  threats  do  not  justify  an  assault  by  the  person 
against  whom  they  were  made,  but  they  are  proper  to  be  considered 
in  connection  with  the  acts,  at  the  time  of  the  assault,  of  the  per- 
son who  made  such  threats. 

People  vs.  Williams,  240  111.  633. 

Threats  of  Third  Persons: 

Evidence  as  to  apprehension  of  danger  by  deceased  from  others 
than  accused  is  inadmissible. 

Schoolcjaft  vs.  People,  117  111.  271. 
Threats  by  member  of  deceased's  family  may  be  shown  in  con- 
nection with  his  acts. 

Peoi)le  \s.  Williams,  240  111.  633. 

d  Where  accused  is  proved  to  have  left  the  scene  of  the  homicide, 
the  defense,  to  show  reason  for  his  leaving,  cannot  be  permitted 
to  prove  threats  of  violence  against  him,  which  he  did  not  hear  and 
of  which  he  had  no  knowledge  at  the  time. 
-iiKWN     Perteet  vs.  People,  70  111.  171. 

So  details  of  trouble  between  deceased  and  third  person,  not  long 
before  homicide,  are  inadmissible.  Fact  of  trouble  nmy  be  shown. 
One  accused  of  crime  may  prove  any  fact  or  circumstance  tending 
to  show  that  the  crime  was  committed  by  another  peraon  than  him- 
self. It  may  be  so  remote  in  point  of  time  as  to  be  immaterial.  To 
a  great  extent  it  must  be  left  to  the  presiding  judge  to  determine 
upon  the  facts  before  him  how  far  evidence  of  this  description  may 
have  a  tendency  to  throw  light  on  the  fact  to  be  found. 
People  vs.  Pezutto,  255  111.  583. 

On  trial  of  one  for  murder,  proof  that  the  day  before  the  homi- 
cide the  father  of  the  deceased  was  in  persistent  pursuit  of  defend- 
ant, armed  with  a  deadly  weapon,  seeking  his  life,  and  failing  to 
find  him,  threatened  to  kill  him  on  sight,  where  the  latter  heard  of 
such  threat,  and,  in  seeking  to  take  the  life  of  the  father,  killed  the 
daughter,  is  admissible  on  the  question  of  degree  of  punishment 

to  be  awarded. 

Nowacryk  vs.  People,  139  111.  336. 

Domestic  Relations: 

—  Of  Deceased:  Proof  of  condition  of  family  of  deceased  is  im- 
proper in  murder  trial. 

People  vs.  McMahon,  244  111.  45. 
And  is  inadmissible  for  alleged  purpose  of  Identifying  deceased. 
Fillipo  vs.  People,  224  111.  212. 

—  Of  Accused:  On  trial  for  murder  of  a  girl  employed  in  family 
of  accused,  proof  that  accused  and  his  wife  did  not  get  along  well 
together,  and  that  he  made  disrespectful  remarks  about  her  is  in- 
competent. 

People  vs.  McMahon,  244  111.  45. 

Previous  Quarrels  and  Difficulties: 

Where  it  is  shown  that  on  the  occasion  of  the  killing  the  accused 
was  armed  and  was  heard  to  say  that  if  his  hand  was  well  he  would 
"strike  some  licks"  that  night,  it  cannot  be  shown  that  there  had 


HOMICIDE  631 

been  a  difficulty  between  accused  and  a  person  other  than  deceased, 
unless  it  first  appear  tliat  sueli  person  was  present  or  expected. 
Leach  vs.  People,  53  ill.  oil. 

Details  ot"  a  conspiracy  of  which  deceased  was  a  member,  formed 
to  "clean  up  or  whip  defendant  and  his  family,"  are  admissible 
where  it  is  shown  that  defendant  had  knowledge  of  such  conspir- 
acy. 

Williams  vs.  People,  54  111.  422. 

Previous  attacks  upon   defendant  by   deceased  with  a  hatchet, 

and  the  fact  that  defendant  had  had  deceased  bound  over  to  keep 

the  peace,  is  admissible  in  corroboration  of  defendant's  account  of 

the  nature  and  character  of  the  threats. 

Bolzer  vs.  People,  129  111.  112 ;  Cahill  vs.  People,  lOfi  111.  G21. 

On  trial  for  murder,  proof  that  accused  admitted  he  stopped 

deceased  in  street  two  days  before  the  killing,   and  that  he  ran 

after  him,  called  him  vile  names,  and  threatened  to  "get  even  with 

him,"   is  admissible   for  the   purpose   of  showing  the   animus  of 

accused  towards  deceased. 

Henry  vs.  People,  198  111.  162. 
On  trial  for  wife  murder,  where  the  killing  is  claimed  to  be 
accidental,   proof   of  previous   quarrels   between  accused  and   de- 
ceased is  proper  and  a  long  and  continued  course  of  ill-treatment 

may  be  shown. 

Parsons  v.  People,  218  111.  386;  Synan  v.  People,  188  111.  609. 

Declarations  of  deceased  are  not  competent  to  prove  the  state 
of  mind  or  conduct  of  accused.    This  nuist  be  otherwise  proved,  and 
when  it  is  thus  proven,  the  declarations  of  deceased  are  competent 
to  prove  his  own  state  of  mind  when  they  were  uttered. 
Weyrich  vs.  People,  89  111.  90. 

Character  of  Accused: 

—  Ill  General:  In  all  criminal  cases,  whether  the  case  is  doubt- 
ful or  not,  evidence  of  good  character  is  admissible  on  the  part  of 

defendant. 

Addison  vs.  People,  193  111.  405;  Hirschman  vs.  People,  101  111.  568; 
Anneals  vs.  People,  134  111.  401;  Jiipitz  vs.  People,  34  111.  516. 
But  prosecution  cannot  put  such  character  in  issue. 
Kribs  vs.  People,  82  111.  425. 

—  Genereil  Reputaiion:  The  inquiry  must  be  made  with  ref- 
erence to  the  general  reputation  of  defendant,  for  it  is  the  gen- 
eral character  alone  which  can  afford  any  test  of  the  general  con- 
duct or  raise  a  presumption  that  the  person  who  had  maintained 
a  fair  reputation  down  to  a  certain  period  would  not  then 
begin  to  act  an  unworthy  part,  therefore  proof  of  particular  trans- 
actions in  which  a  person  may  have  been  concerned,  are  not  ad- 
missible. The  proper  question  is  not  ' '  personal  knowledge  by  wit- 
ness," but  defendant's  "general  reputation." 

Hirsehnian  vs.  People,  101  111.  568. 

—  Particular  Acts:  Particular  acts  of  misconduct  are  never 
admissible  in  rebuttal  of  proof  of  good  character. 

Aiken  vs.  People,  183  HI.  215;  McCarthy  vs.  People,  51  111.  231. 
But  on  cross  examination  evidence  of  arrests  held  not  revers- 
ible error. 

Jennings  vs.  People,  189  111.  320. 


632  HOMICIDE 

Where  defendant,  on  trial  for  murder  of  his  wife,  offers  evi- 
dence that  he  was  peaceable  and  law  abiding,  that  he  had  treated 
his  wife  kindly  and  that  she  admitted  she  had  a  good  home  and  a 
good  husband,  it  is  competent  to  prove,  in  rebuttal,  that  at  different 
times  the  defendant  brought  men  to  his  house  and  drank  liquors 
against  her  protest;  that  he  had  called  her  a  vulgar  name  and 
ordered  her  to  prepare  whiskey,  which  she  refused  to  do. 
People  vs.  Cutright,  258  111.  430.        ;     ■'_^_'_  ,',,^; 

Evidence  of  particular  acts  is  inadmissible  for  purpbs^  of  im- 
peaching defendant's  character  as  a  witness,  only,  and  though  not 
offered  for  purpose  of  proving  offense  charged. 

Aiken  vs.  People,  183  111.  215. 
■     — Time:  Witnesses  may  be   cross  examined   as   to  the  period 
of  acquaintance  with  such  general  reputation,  to  develop  its  remote- 

ness 

Halloway  vs.  People,  181  Til.  544. 

—  Stipulation:  Proof  of  good  character  may  be  made  by  stipu- 
lation. 

People  vs.  Anderson,  239  111.  168. 

—  Nvmhcr  of  Witnesses:  Court  may  limit  the  number  of  wit- 
nesses as  to  character. 

People  vs.  Arnold,  248  111.  169. 

—  Weight:  Previous  good  character  of  accused  is  but  a  circum- 
stance to  be  considered  by  the  jury  in  connection  with  all  the 
other  evidence,  in  determining  the  question  of  guilt  or  innocence. 
If  the  evidence  is  complete  and  convincing,  when  considered  with 
the  previous  good  character,  the  evidence  of  good  character  will 

not  avail. 

People  vs.  Anderson,  239  111.  168;  Hirschman  vs.  People,  101  111.  568. 

Evidence  tending  to  show  accused  was  an  immoral  man  is  incom- 
petent where  such  evidence  does  not  tend  to  throw  any  light  on 

any  issue  in  the  case. 

People  V.  Cleminson,  250  111.  135. 
Conduct  of  defendant   during  trial,  but  while  not  on  witness 
stand,  cannot  be  regarded  in  the  light  of  evidence  against  him. 

Purdy  vs.  People,  140  111.  46. 

Character  of  Deceased: 

—  In  General:  On  plea  of  self-defense,  evidence  that  the  repu- 
tation of  deceased  as  an  orderly  and  peaceable  citizen  was  bad, 
and  that  he  was  a  dangerous  man  and  had  made  previous  threats 
against  defendant  is  admissible. 

Walker  vs.  People,  133  111.  110. 
It  is  adnussible  for  the  defendant,  after  having  iirst  established 
that  he  was  assailed  by  deceased,  and  in  apparent  danger,  to  prove 
that  deceased  was  a  person  of  ferocity,  brutality,  vindictiveness 
and  excessive  strength,  such  evidence  being  offered  for  the  pur- 
pose of  showing  either  (1)  that  the  defendant  was  acting  in  ter- 
ror, and  hence  incapable  of  that  specific  malice  necessary  to  con- 
stitute murder  in  the  first  degree,  or  (2),  that  he  was  in  such 
apparent  extremity  as  to  make  out  a  case  of  self-defense,  or  (3), 
that  deceased's  purpose  in  encountering  him  was  deadly. 

Cannon  vs.  People,  141  111.  270;  Carle  vs.  People,  200  111.  494;  People 
vs.  Terrell,  262  111.  138. 


HOMICIDE  633 

It  should  be  sliown  tliat  such  reputation  was  at  time  of  assault 

knowu  to  accused. 

Cannon  vs.  People,  141  111.  270. 

—  When  Defendant  Assailant:  When  the  defendant  is  the 
assailant  or  commences  the  affray,  he  will  not  be  entitled  to 
show  in  defense  the  viciousness  or  wicked  disposition  of  the  per- 
son whom  he  has  slain. 

Having-  sought  and  brought  on  the  affray,  he  cannot  shield  him- 
self from  punishment  by  showing  that  he  aroused  the  vicious  or 
wicked  passions  of  party  killed.  But  when  evidence  is  submitted 
from  which  the  court  can  see  that  the  jury  may,  if  they  give  it 
credence,  find  that  the  party  killed  was  the  assailant,  and  that 
the  defendant  acted  in  self-defense,  such  evidence  becomes  admis- 
sible, as  tending  to  show  the  circumstances  by  which  the  defendant 
was  surrounded  and  the  extent  of  the  apparent  danger  to  his  life, 
or  person,  and  from  which  he  might  be  justified  in  believing  his 
life  was  in  danger,  or  that  he  was  in  danger  of  suft'eiing  great 
bodily  harm  at  the  hands  of  the  assailant,  and  illustrating  to  the 
jury  the  motive  bv  which  he  was  influenced. 

Cannon  vs.  People,  141  111.  270 ;  Carle  vs.  People,  200  111.  494. 
'  —  When  Douhtful:  Where  the  circumstances  of  the  case  make 
it  doubtful  whether  the  homicide  was  committed  in  necessary  self- 
defense,  evidence  is  admissible  to  show  dangerous,  quarrelsome 
and  vicious  character  of  deceased,  in  order  to  show  defendant  may 
reasonablv  have  believed  himself  in  danger. 

Kepley  vs.  People,  215  111.  358. 

—  Must  First  Be  Attacked:  The  character  of  deceased  as  a 
peaceable  and  quiet  man  is  presumed  to  be  good  until  the  contrary 
appears,  and  unless  defendant  introduces  evidence  attacking  the 
general  reputation  of  deceased  in  that  respect,  no  evidence  upon 
that  subject  is  admissible;  and  this  is  trae  notwithstanding  self 
defense  mav  be  interposed  and  relied  upon. 

Kelly  vs.  People,  220  111.  81. 
"Where  defendant  introduced  evidence  that  deceased  was  regarded 
as  a  good  man  in  a  fight,  and  many  other  things  that  tended  to 
show  his  character  as  a  quick  tempered,  violent  and  rash  man, 
proof  by  the  People  as  to  the  general  reputation  of  deceased  for 
peace  and  quiet  was  held  proper. 

Davis  vs.  People,  114  111.  86. 
The  state  may  introduce  evidence  of  the  good  character  of  de- 
ceased for  peaceablencss  in  rebuttal  where  his  reputation  in  that 
regard  has  been  attacked.  But  proof  th'at  a  man  is  large  and  strong 
does  not  tend  to  prove  that  he  had  a  violent  temper  or  was  quarrel- 
some, aggressive  and  addicted  to  fighting.  Proof  that  deceased 
was  peaceable  and  quiet  does  not  rebut  testimony  that  he  was 

large  and  strong. 

Kelly  vs.  People,  229  111.  81. 
So  evidence  brought  out  by  defendants  on  cross  examination,  to 
the  effect  that  deceased  was  a  large  muscular  man  and  capable  of 
taking  care  of  himself  is  not  an  attack  upon  his  reputation  for 
peace  such  as  justifies  the  admission  for  prosecution  of  evidence 
that  reputation  of  deceased  was  good,  notwithstanding  defendants 


634  HOMICIDE 

attempted  to  show  that  deceased  was,  at  one  time,  a  sparring  part- 
ner for  a  pugilist,  which  witness  denied. 

Kelly  vs.  People,  229  111.  81. 
On  trial  of  an  ex-police  officer  for  murder,  an  indictment  returned 
against  deceased,  and  the  proceedings  thereunder  for  his  appre- 
hension, are  properly  denied  admission,  where  the  killing  was  not 
done  in  an  attempt  to  arrest  deceased,  and  accused  is  permitted 
to  state  fully  his  knowledge  of  deceased's  alleged  bad  character. 

Kipley  vs.  People,  215  III.  358. 
Proof  of  previous  general   character  in  regard  to   peace   and 
quiet  only  is  allowed,  and  not  proof  of  particular  transactions  in 
which  deceased  may  previously  been  concerned. 

Cannon  vs.  People,  141  111.  270. 

Dying-  Declarations: 

—  Defined:  Dying  declarations  are  such  as  are  made  by  party, 
relating  to  facts  of  the  injury  of  which  he  afterwards  dies,  under 
the  fixed  belief  and  moral  conviction  that  his  death  is  impending, 
and  certain  to  follow  almost  immediately,  without  opportunity  for 
repentance,  and  in  absence  of  all  hope  of  avoidance ;  and  when  he 
has  despaired  of  life  and  looks  to  death  as  inevitable  and  near  at 

hand. 

Brom  vs.  People,  216  111.  148;  Scott  vs.  People,  63  111.  508;  Starkey 
vs.  People,  17  111.  16;  XII  111.  Notes  923,  §  67. 
They  are  such  as  are  made  relating  to  the  facts  of  the  injury, 
of  which  the  person  making  them  immediately  afterwards  dies, 
under  the  fixed  belief  and  moral  conviction  that  immediate  death 
is  inevitable,  without  opportunity  for  repentance  and  without 
hope  of  escaping  the  impending  danger  of  death. 

Simons  vs.  People,  150  111.  66;  Westbrook  vs.  People,  126  111.  81. 

—  Principle  Upon  Which  Admitted:  The  principle  upon  which 
dying  declarations  are  admitted  is  that  they  are  made  in  a  condition 
so  solemn  and  awful  as  to  preclude  the  supposition  that  the  party 
could  have  been  influenced  by  malice,  revenge  or  any  conceivable 
motive  to  misrepresent  and  when  every  inducement  was  to  speak 

the  truth. 

People  vs.  Cassesse,  251  111.  422. 
Fixed  Belief:    The  evidence  must  show  that  declarant  enter- 
tained a  fixed  belief  and  moral  conviction  that  his  death  was  impend- 
ing ;  that  he  had  no  hope  of  recovery  and  that  he  had  despaired  of 
life  and  looked  upon  death  as  inevitable  and  at  hand. 

People  vs.  Cassessee,  251  111.  422;  Westbrook  vs.  People,  126  111.  81; 
Collins  vs.  People,  194  111.  506 ;  Barnett  vs.  People,  54  111.  325. 

Acinol  Danger  of  Death:    Declarations  must  be  made  under 

circumstances  when  the  person  making  same  is  in  actual  danger 
of  death  and  has  given  up  all  hope  of  recovery. 

People  vs.  Cassesse,  251  111.  422;  North  vs.  People,  139  111.  81;  Starkey 
vs.  People,  17  111.  17. 

Opinion  of  Witness:     As  to  state  of  mind  and  condition  of 

declarant,  incompetent  unless  facts  upon  which  opinion  is  based 

are  first  shown. 

Westbrook  vs.  People,  126  111.  81. 

—  Preliminary  Proof:    The  question  whether  alleged  dying  dec- 
larations are  made  under  such  circumstances  as  to  render  them 


HOMICIDE  635 

admissible  in  evidence  is  to  be  determined  by  the  court  upon  the 

preliminary  proof. 

People  vs.  White,  251  111.  67. 
Proof  must  satisfy  the  court  beyond  a  reasonable  doubt  that  the 
declaration  was  made  in  extremity,  and  was  a  dying  declaration. 
People  vs.  White,  251  111.  67;  Westbrook  vs.  People,  126  Hi.  SI. 
The  court  should  determine  upon  the  admissibility  of  such  dec- 
laration upon  hearing  proof  of  the  condition  of  mind  of  the  de- 
ceased at  the  time  they  were  made,  which  f>roofs  it  is  advised  should 
not  be  taken  in  the  hearing  of  the  jury. 

Starkey  vs.  People,  17  111.  16;  Barnett  vs.  People,  54  lU.  323. 
When  dying  declarations  are  admitted  in  evidence,  the  prelim- 
inary proof  must  also  then  be  given  to  the  jury. 

Tracy  vs.  People,  97  111.  101;  North  vs.  People,  139  111.  81;   Starkey 
vs.  People,  17  111.  16;  Nordgren  vs.  People,  211  111.  425. 

—  Different  Statements:  Prosecution  is  not  restricted  to  proof 
of  declarations  made  on  one  occasion  only. 

Dunn  vs.  People,  172  111.  582. 

—  In  Writing:    If  in  writing,  must  be  produced  or  its  absence 

accounted  for. 

Dunn  vs.  People,  172  111.  582.  ; 

—  Exculpatory:  Dying  declarations  are  admissible  in  behalf  of 
accused. 

People  vs.  Hotz,   261  111.   239,  Cf.;   Moeck  vs.  People,  100  111.  242; 
Adams  vs.  People,  47  111.  376. 
A  statement  of  a  person  mortally  wounded,  that  he  did  no  wrong, 
though  not  a  dying  declaration,  is  admissible  against  accused  as 
part  of  the  res  gestae,  when  made  in  his  presence  and  hearing. 
Healy  vs.  People,  163  111.  372. 

—  Impeachment:  Dying  declarations  are  hearsay  evidence  and 
may  be  impeached  by  any  of  the  modes  by  which  the  evidence  of 
the  declarant  could  have  been  impeached  had  he  or  she  been  alive 

and  testifying  in  open  court. 

Nordgren  vs.  People,  211  111.  425;  Dunn  vs.  People,  172  111.  582;  Leigh 
vs.  People,  113  111.  372. 
Dying  declarations  may  be  impeached  by  proof  of  contradic- 
tory statements  on  material  questions,  though  such  contradictory 
statements  were  not  made  in  extremis. 
Dunn  vs.  People,  172  111.  582. 

—  Taking  hij  Jury:  Permitting  a  written  dying  declaration  to 
be  taken  by  the  jury  upon  retirement  is  an  abuse  of  the  court's 
discretion,  where  portions  of  it  have  been  held  inadmissible. 

Dunn  vs.  People,  172  111.  582. 

—  Weight:  The  weight  to  be  given  to  a  djang  declaration  is 
for  the  jury.  They  are  competent  to  the  same  extent  as  if  made 
under  the  sanction  of  an  oath,  from  necessity.  But  is  error  to 
instruct  the  jury  that  they  are  entitled  to  the  same  weight  as  if  the 

declarant  had  testified  as  a  witness. 

People  vs.  Warren,  259  Til.  213;   Nordgren  vs.  People,  211  111.  425; 
Cf.  Brom  vs.  People,  216  111.  148. 

Conspiracy: 

Persons  who  conspire  together  to  do  an  unlawful  act  which 
includes  the  assault  upon  the  person  of  another,  must  be  presumed 
to  have  intended  to  use  whatever  means  may  appear  to  be  neces- 
sary to  overcome  such  person's  resistance,  in  order  to  enable  them 


636  HOMICIDE 

to  carry  out  their  desii^n,  and  if  one  of  their  number  kills  such 

person  in  the  assault  upon  him,  all  the  conspirators  are  giiilty  of 

murder. 

People  vs.  Gukowski,  250  lU.  231. 

Where  accused  is  present  and  commits  a  crime  with  his  own  hand 
or  aids  or  abets  another  in  its  commission,  he  may,  in  either  case, 
be  considered  as  expressly  assenting  thereto. 
Lamb  vs.  People,  96  111.  73. 

The  defendant  may  be  guilty  of  murder  though  he  neither  took 

part  in  the  killing  or  assented  to  any  arrangement  having  for  its 

object  the  death  of  deceased. 

Brennan  vs.  People,  15  111.  511. 

Where  parties  are  jointly  indicted  for  murder,  and  the  evidence 
shows  that  one  did  the  killing  in  the  other's  presence,  to  justify 
the  conviction  of  the  latter,  it  must  appear,  beyond  a  reasonable 
doubt,  that  he  aided,  abetted  or  assistecl  in  the  killing. 
Jones  vs.  People,  166  111.  264. 

Where  two  parties  are  alone  present  at  the  time  of  the  killing 
of  another,  and  but  one  does  the  killing,  and  the  other  does  not  aid, 
abet  or  assist  in  the  killing,  but  afterwards  they  both,  with  guilty 
intent,  conceal  the  fact  of  the  crime,  the  one  not  participating  in 
the  crime  is  only  guilty  as  an  accessory  after  the  fact,  and  is  not 

guilty  of  murder. 

People  vs.  White,  81  HI.  333, 
On  trial  of  clerk  of  political  club  election  for  murder  of  candi- 
date who  he  claimed  had  made  an  assault  upon  him,  evidence  that 
candidate  and  supporters  had  formed  conspiracy  to  oust  regularly 
appointed  judge  of  election  is  admissible. 

Eoberts  vs.  People,  226  111.  296. 
No  person  can  be  held  liable  for  a  homicide  unless  the  act  was 
actually  or  constructively  committed  by  him;  and  in  order  to  be 
his  act,  it  must  be  committed  by  his  ovm  hand  or  by  some  one 
acting  in  concert  with  him,  or  in  furtherance  of  a  common  design 
or  purpose.  Where  the  criminal  liability  arises  from  the  act  of 
another,  it  must  appear  that  the  act  w^as  done  in  furtherance  of 
the  common  design  or  in  prosecution  of  the  common  purpose  for 
which  the  parties  were  assembled  or  conspired  together. 

Butler  vs.  People,  125  111.  641. 

Officers  and  Official  Character: 

Before  the  prosecution  can  take  advantage  of  the  official  char- 
acter of  deceased  for  the  purpose  of  characterizing  the  acts  of 
defendant  as  murder,  it  is  essential  that  it  be  shown,  beyond  a  rea- 
sonable doubt,  that  defendant  had  knowledge  of  the  official  char- 

acter  of  deceased. 

People  vs.  Bissett,  246  111.  516;  Eafferty  vs.  People,  69  111.  111. 
Ordinance  of  municipality,  defining  duties  of  officers,  is  inad- 
missible where  deceased  was  not,  at  the  time  of  killing,  clothed  as  a 
police  officer  or  possessed  of  any  badge  or  insignia  of  his  official 
character  displayed  upon  or  about  him  at  the  time  of  the  killing, 
and  it  is  not  shown  that  accused  knew  of  the  official  character  of 

deceased. 

People  vs.  Bissett,  246  HI.  516. 


HOMICIDE  637 

On  the  trial  of  a  peace  officer  for  murder,  proof  of  his  official 
duties  is  inadmissible  as  they  are  defined  by  public  law.  The 
official  character  of  the  officer  is  pertinent  in  determining  the  legal 
relations  and  duties  of  the  person  killed  to  the  person  killing,  with 
respect  to  each  other,  and  thus  characterize  their  acts  at  time  of 
the  killing,  and  defendant  has  a  right  to  have  the  juiy  properly 
instructed  on  tliat  question. 

Lynn  vs.  People,  170  111.  527. 

Evidence  of  the  official  character  of  the  person  killed  and  of  the 
capacity  in  which  he  wtis  acting  may  be  admitted  without  any  al- 
legation to  that  effect  in  the  indictment. 
North  vs.  People,  139  111.  81. 

Evidence  tending  to  show  that  an  officer  was  beating  defendant 
over  the  head  with  his  billy,  before  the  latter  fired  the  fatal  shot, 
tends  not  only  to  reduce  the  homicide  from  murder  to  manslaugh- 
ter, but  also  to  prove  that  defendant  fired  such  shot  in  necessary 
self-defense  although  not  necessarily  conclusive  for  either  pur- 
pose. 

North  vs.  People,  139  111.  81. 

"SYarrant  is  admissible,  though  defective,  to  show  authority  of 

dGC63SGQ 

Palmer  vs.  People,  138  111.  356. 
The  illegality  of  the  warrant  may  be  shown  by  defendant  to  nega- 
tive malice  on  his  part.  If  the  process  is  shown  to  be  void,  this  will 
reduce  the  homicide  to  manslaughter  unless  proof  shows  express 

Eafferty  vs.  People,  69  111.  111. 
Aiding,  abetting  or  assisting  is  affirmative  in  its  character.  It 
is  not  sufficient  that  there  is  a  mere  negative  acquiescence  not  in 
any  way  made  known  to  the  principal  malefactor.  So,  if  one  of 
two  persons,  in  resisting  arrest  for  crime,  shoots  the  officer,  in  the 
presence  of  the  other,  such  other  person  will  not  be  responsible  for 
such  shooting,  unless  he  combine  with  the  other  party  or  connive 

at  the  shooting. 

White  vs.  People,  139  111.  143. 
Wliere  a  person  makes  a  threat  that  he  will  use  a  revolver  upon 
one  whom  he  supposes  to  be  a  constable,  in  case  he  attempts  his 
arrest,  showing  a  purpose  to  resist  arrest  by  any  officer,  it  will  be 
competent  evidence  against  him  on  his  trial  for  the  subsequent 
killing  of  a  constable  while  attempting  to  arrest  him,  as  tending 
to  show  malice  and  evil  intention  on  his  part,  and  to  give  character 
to  his  act  in  killing  deceased,  whether  the  latter  knew  of  his  threats 
or  not. 

Palmer  vs.  People,  138  111.  356. 

Where  the  defense  is  that  at  the  time  of  the  killing,  deceased 
was  assisting  an  officer  in  illegally  arresting  defendant,  the  burden 
of  proving  that  fact  is  on  defendant. 
Eafferty  vs.  People,  72  111.  37. 

On  the  trial  of  one  for  murder  of  a  constable  while  attempting 
to  arrest  defendant  on  a  bastardy  warrant  having  no  seal  attached 
thereto,  when  the  theory  of  the  defense  was  that  the  killing  was  in 
self-defense,  and  in  resistance  of  a  supposed  hostile  movement  of 
deceased  when  the  latter  stretched  out  his  arm,  the  warrant,  al- 


638  HOMICIDE 

though  technically  defective  in  the  matter  of  a  seal,  is  admissible 
in  evidence  for  the  prosecution  to  show  why  deceased  attempted  to 
put  his  hand  upon  defendant,  and  that  the  movement  of  deceased 
was  made  for  a  lawful  purpose  and  under  authority  of  a  writ. 
Palmei-  \s.  People,  138  111.  356. 

Articles  in  Evidence: 

Physical  objects  which  form  a  part  of  or  serve  to  illustrate 
the  transaction  or  occurrence,  which  is  the  subject  of  judicial 
investigation,    may    be    displayed   before    the    jury    and    formally 

introduced  in  evidence. 

People  vs.  Morris,  254  111.  559.  ;tMn:j  _  '■>[ 

So  bed,  mattress,  sheets,  pillows  and  other  bed  clothing  per- 
taining to  the  bed  in  the  room  where  deceased  was  murdered, 
together  with  an  apron  found  in  the  room,  and  defendant's  over- 
coat, may  be  displayed  to  the  jury  in  the  course  of  the  trial  and 

introduced  in  evidence. 

Painter  vs.  People,  147  111.  444. 
And  buggy  in  wdiich  deceased  was  shot. 

Henry  vs.  People,  198  111.  162. 
In  prosecution  for  murder  by  throwing  bomb,  other  bombs  are 
not  admissible  in  evidence  on  issue  of  malice  and  intent  of  maker, 
but  are  competent  to  prove  that  bomb  thrown  was  made  by  party 

charged  to  have  made  same. 

Spies  vs.  People,  122  111.  1. 
A  vial  and  box  containing  poison  were  held  properly  admis- 
sible in  evidence. 

Siebert  vs.  People,  143  111.  571. 
And  bullet  removed  from  the  body  of  deceased,  and  a  revol- 
ver belonging  to  accused,  admissible. 
McCoy  vs.  People,  175  111.  224. 
Blood-stained  clothing,  where  there  is  question  as  to  effect  of 
powder  burns  upon  clothing. 

People  vs.  Morris,  254  111.  559. 
Such  objects,  in  the  discretion  of  the  court,  may  be  taken  to 
the  jury  room  upon  their  retirement. 

People   vs.   Morris,    254   111.    559;    McCoy   vs.    People,    175   111.   224; 
Painter  vs.  People,  147  111.  444. 

Separate  Offenses: 

Where  proof  tends  to  establish  crime  charged,  or  where  the  two 
are  inseparable,  such  evidence  is  admissible. 

Painter  vs.  People,  147  111.  444;  Jennings  vs.  People  252  III.  534. 

One  criminal  act  may  be  shown  as  evidence  of  another,  where 
such  a  connection  between  them  exists  in  the  mind  of  the  actor  as 
links  them  together  for  some  purpose  wdiich  he  intended  to  ac- 
complish. When  facts  and  circumstances  amount  to  proof  of  an- 
other crime  than  that  charged,  and  there  is  ground  to  believe  that 
the  crime  charged  grew  out  of  it,  or  was  in  any  way  caused  by  it, 
such  facts  and  circumstances  may  be  proved  to  show  the  quo  animo 

of  the  accused. 

Henry  vs.  People,  198  111.  162. 
Evidence  of  the  commission  of  other  crimes  is  inadmissible  as 
a  substantive  fact,  but  when  not  separable  from  a  competent  con- 


HOMICIDE  639 

fession  same  may  be  admitted  under  cautionary  directions  from 

the  court. 

Gore  vs.  People,  162  111.  259. 

Evidence   is   admissible   to   prove   the   killing  by   accused   of  a 

person  not  named  in  the  indictment,  and  an  assault  by  him  upon 

another   person   not    named,    wliere   such   evidence    is    inseparable 

from  that  of  the  killing  of  the  person  named,  and  relates  to  the 

same  transaction. 

Hiekam  vs.  People,  137  111.  75. 
Evidence  that  about  a  half  an  hour  after  the  shooting  of  de- 
ceased by  defendant  in  presence  of  his  family,  the  defendant  com- 
mitted the  crime  of  rape  upon  wife  of  deceased,  is  incompetent 
as  not  being  part  of  the  res  gestae,  nor  tending  to  explain  de- 
fendant's motive. 

Farris  vs.  People,  129  111.  521. 
Proof   that    accused    on    murder   trial,    just    before    the    crime 
charged,  had  a  tight  with  another  person,  is  inadmissible  where 
deceased  had'  no  knowledge  of  such  fight. 

Brom  vs.  People,  216  111.  148. 

Admissions  and  Confessions: 

—  ConstitntioTud  Privilege:  Admitting  in  evidence  state- 
ments made  by  accused,  after  being  warned  that  whatever  he  said 
might  be  used  against  him,  is  not  error  as  being  a  violation  of  the 
statutory  guaranty  against  a  person  being  compelled  to  testify 
against  "himself  particularly  where  none  of  the  statements  are  in 
the  nature  of  an  admission  or  confession  of  guilt  as  to  the  crime 
charged,  but  onlv  explanation  of  certain  of  his  acts. 

Hoch  vs.  People,  219  111.  265. 
Admissions   and  statements  made  by  accused  when  testifying 
as  a  witness  in  his  own  behalf  on  a  prior  hearing,  may  be  proven  by 
the  People  on  the  subsequent  trial,  although  the  accused  does  not 

testify  on  the  latter  trial. 

Miller  vs.  People,  216  111.  309. 
Parol  evidence  is  admissible  to  prove  what  one  accused  of  crime 
voluntarily  disclosed  before  the  coroner's  jury,  if  it  is  shown  that 
his  examination  there  was  not  reduced  to  writing.  But  such 
statements  are  inadmissible  where  he  is  under  arrest  and  com- 
pelled to  answer  under  oath,  but  if  he  testify  voluntarily,  his 
statements  made  while  so  testifying,  though  under  arrest,  are  ad- 

DnissiniG. 

Lyons  vs.  People,  137  111.  602. 
Confessions  by  the  accused  of  a  crime  other  than  that  charged 
in  the  indictment,  while  not  admissible  as  a  substantive  fact,  when 
not  separable  from  a  competent  confession,  may  go  to  the  jury 
under  cautionarv  directions  from  the  court. 

Gore  vs.  People,  162  111.  259. 

—  Implied  Confessions:  Declarations  or  statements  made  in 
the  presence  of  a  party  are  received  in  evidence,  not  as  evidence 
in  themselves,  but  to  understand  what  reply  the  party  to  be 
affected  should  make  to  them.  Even  if  he  make  no  reply,  the 
statements  are  still  admissible  upon  the  principle  that  if  a  party 
is  silent  when  he  should  have  replied,  the  presumption  of  acquies- 
cence arises.    "Where  a  statement  is  made  either  to  a  man  or  within 


640  HOMICIDE 

his  hearing  that  he  is  concerned  in  the  commission  of  an  act  or  crime 
and  to  which  he  returns  no  reply,  the  natural  inference  is  that 
the  imputation  is  well  founded,  or-  he  would  have  replied  to  it. 
Silence  is  tantamount  to  confession. 

Watt  vs.  People,  126  111.  9;  Ackerson  vs.  People,  124  111.  563;  Gannon 
vs.  People,  127  111.  507. 

An  admission  or  confession  may  be  implied  from  the  conduct 
of  the  party  in  remaining  silent  w4ien  charged  with  crime,  or 
with  complicity  therein,  or  when  the  statements  are  made  by  a 
third  person  in  his  presence  affecting  him,  when  the  circumstances 
afford  an  opportunity  to  act  or  speak  in  reply  and  men  similarly 
situated  would  naturally  deny  the  imputed  guilt,  or  make  some 
explanation  of  the  statement.  Even  if  defendant  makes  no  reply, 
the  statement  to  him  is  admissible. 
People  vs.  Tielke,  259  111.   88. 

But  accusation  is  not  admissible  if  accused  denies  guilt,  or  re- 
frains from  advice  or  fear. 

People  vs.  Pfanschmidt,  262  111.  411. 

It  is  competent  for  the  People  to  show  the  circunistances  of  the 
pursuit  and  capture  of  the  defendant  after  the  homicide.  Evidence 
of  the  conduct  of  the  party  either  before  or  after  being  charged 
with  the  offense,  is  admissible  not  only  as  part  of  the  res  gestae, 
but  as  indicative  of  a  guilty  mind.  So  the  acts  of  the  accused  by 
way  of  resisting  arrest  or  preventing  arrest  may  be  shown, 
Jamieson  vs.  Peoi)le,  145  111.  357. 

With  respect  to  all  verbal  admissions,  they  should  be  received 
with  great  caution,  as  that  kind  of  evidence  is  subject  to  imper- 
fection and  mistake,  and  such  confessions  must  be  shown  to  have 

been  deliberately  made. 

Marzen   vs.   People,   17.3   111.   43. 
—  Co-Defendants  and  Conspirators:     Declarations  of  a  co-de- 
fendant,  made  directly  after  the   fatal  shot,   are  inadmissible  in 
favor  of  the  other  defendant,  whether  they  tend  to  implicate  the 

former  or  excuse  the  latter. 

Crosby  vs.  People,  137  111.  325. 
Admissions  and  statements  made  out  of  court  by  one  of  two 
defendants,   to  the   effect  that  he  was  present  and  saw  his   co- 
defendant  do  the  shooting  is  admissible  against  the  declarant  as 
identifying  him  as  one  of  the  persons  present  at  the  shooting. 

MeUann  vs.  People,  226  111.  562. 
Where  a  number  of  persons  act  together  or  in  concert,  to  chas- 
tise or  beat  certain  other  persons,  and  one  of  the  persons  attacked 
is  killed,  expressions  and  statements  made  by  some  of  the  assail- 
ants are  properly  admitted  in  evidence  on  the  trial  of  one  of  them 
for  murder,  as  characterizing  the  mission  on  which  he  was  en- 
gaged at  the  time  they  were  made. 

Lyons  vs.   People,  137  111.  602. 
A  conspiracy  being  established,  only  the  declarations  of  mem- 
bers in  furtherance  of  same  are  admissible. 

Spies  vs.  People,  122  111.  1. 
On  the  separate  trial  of  one  who  was  jointly  indicted  with  two 
others  for  the  crime  of  murder,  the  statements  and  threats  of  the 
latter  against  deceased,  made  when  one  on  trial  was  not  present, 


HOMICIDE  641 


were  properly  admitted  in  evideiiee,  the  testimony  warranting 
the  conclusion  tliat  tliey  wei-e  all  acitiiig  in  concert  in  the  prose- 
cution of  a  common  design,  and  although  temporarily  separated, 
such  separation  being  for  the  purpose  of  providing  weapons  and 

making  preparations  to  carry  their  design  into  execution. 
Gardner  vs.  People,  4  111.  83. 

To  bind  all  of  the  defendants  by  the  incriminating  statements 
of  one,  upon  the  theory  that  they  were  made  in  the  presence  of 
all,   the  evidence  must  show  specitically  each   of   the   defendants 
was  present  when  the  statements  were  made. 
People  vs.  Barkus,  255  111.  516. 

—  Whole  of  Admisswn:  If  a  witness  testifies  to  a  part  of  a 
conversation,  the  party  against  whom  it  is  offered  is  entitled  to 

have  all  that  was  said  on  the  same  subject  in  that  conversation. 

Tracy  vs.  People,  97  111.  101. 
So  where  prosecution  interrogated  offtcial  reporter  as  to  testi- 
mony of  accused  on  former  trial,  defendant  not  testifying  on  sec- 
ond trial,  the  cross  examination  should  not  have  been  restricted 
to  an  inquiry  whether  the  questions  and  answers  thereto  were 
fully  stated  by  the  reporter.  Defendant  was  entitled  to  have  the 
jury  know  all  the  statements  he  had  made  in  the  course  of  his 
examination  on  the  former  trial,  touching  the  points  or  matters 
to  which  the  questions  and  answers  called,  out  by  the  prosecution 
related. 

Other  questions  and  answers  propounded  to  him  upon  the  same 
examination  which  tended  to  explain,  qualify,  correct  or  in.  any 
manner  throw  light  on  the  matters  touched  upon  by  the  questions 
and  answers  proven  by  the  People  were  proper,  being  necessary 
to  a  full  and  accurate  understanding  of  the  statements  or  admis- 
sions sought  to  be  proven. 

Miller  vs.  People,  216  111.  309. 

Where  a  police  officer  arresting  accused  was  allowed  to  testify 
as  to  what  was  said  by  him  after  he  was  arrested,  it  is  error  to 
refuse  to  allow  accused  to  give  his  version  of  the  conversation. 
Briggs  vs.  People,  219  111.  330. 

Where  a  witness  for  accused  has  testified  that  deceased  was 
advancing  upon  accused,  who  warned  deceased  not  to  follow  him, 
it  is  improper  to  ask  him,  on  cross  examination,  whether  he  said 
anything  to  that  effect  in  his  testimony  at  the  coroner's  inquest, 
without  first  showing  that  he  had  been  specifically  interrogated 
as  to  the  matter  at  the  inquest,  or  been  directed  or  given  oppor- 
tunity to  state  all  that  was  said  and  done  at  the  time  of  the  affray. 
Larranee  vs.  People,  222  111.  155. 

—  Value:  A  confession  is  not  equivalent  to  a  statement  or 
admission  of  fact  tending  to  prove  gnilt.  A  confession,  in  its 
legal  sense,  means  an  acknowledgment  of  guilt. 

McCann  vs.  People,  226  111.  502;   Michaels  vs.  People,  208  111.  603; 
Johnson  vs.  People,  197  111.  48. 
The  value  of  confessions  depends  upon  the  circumstances  under 
which  they  are  made,  and  it  is  for  the  jury  to  say  to  what  weight 

they  are  entitled. 

People  vs.  Gukowski,  250  111.  231. 

Ev. — 41 


642  HOMICIDE 

The  weight  to  be  given  to  implied  confessions  is  for  the  jury. 

People  vs.  Tielke,  259  111.  88. 
Statements  of  a  witness  as  to  verbal  admissions  of  a  party  should 
be  received  by  the  jury  with  great  caution,  as  that  kind  of  evi- 
dence is  subject  to  imperfection  and  mistake.     It  is  only  where 
the  admissions  are  deliberately  made  and  positively  identilied  that 
the  evidence  afforded  by  them  is  of  a  satisfactory  character. 
Marzen  vs.  People,  173  111.  43. 
Where  evidence  is  entirely  circumstantial  and  the  verdict  of 
conviction  must  rest  almost  entirely  on  an  alleged  voluntary  con- 
fession or  admission  made  by  accused  to   the  witness  under  cir- 
cumstances rendering  the  making  of  it  'highly  improbable,  the  fact 
that  the  admission  was  made  must  be  clearly  proven  before  it  can 
be  accepted  as  a  basis  of  conviction. 
People  vs.  McMahon,  254  111.  62. 
Where  the  crime  is  clearly  shown,  independent  of  admissions 
or  confessions,  to  have  been  committed  by  some  person,  then  admis- 
sions or   confessions,   freely   and  voluntarily   made,   may   be   suf- 
licient  to  convict. 

Gore  vs.   People,   162   111.   259;    Andrews  vs.   People,    117   111.    195; 
Bergeu  vs.  People,  17  111.  425. 
Extra-judicial  confessions,  when  freely  and  voluntarily  made, 

are  of  the  highest  order  of  evidence. 

Lyons  vs.  People,  137  111.  602;  Langdon  vs.  People,  133  111.  382. 
Those  portions  of  a  confession  introduced  in  evidence,  which 
are  in  favor  of  the  accused,  are  entitled  to  as  much  consideration 
as  those  which  are  against  him,  where  they  are  not  disproved  by 
other  testimony  and  are  not  improbable  or  untrue,  when  consid- 
ered with  all  the  other  evidence. 

Burnett  vs.  People,  204  111.  208 ;  Hanrahan  vs.  People,  91  111.  142. 

Ees  Gestae: 

—  Acts  and  Statements  of  Accused:  The  defendant's  own.  dec- 
larations, either  before  or  after  the  assault,  are  not  admissible  in 
bis  own  behalf;  except  as  part  of  the  res  gestae,  because  they  are 
self-serving  and  hearsay. 

Carle  vs.  People,  200  111.  494, 

A  defendant  cannot  prove  his  own  statements  indicating  a  law- 
ful purpose,  when  made  just  prior  to  his  departure  for  alleged 
scene  of  crime.     Such  statements  are  self  serving. 
Conn  vs.  People,  116  111.  458. 

Evidence  of  what  the  prisoner  said  about  deceased,  after  the 
commission  of  the  crime  and  after  the  prisoner  had  gone  three- 
quarters  of  a  mile  from  the  place  where  it  was  committed,   are 

not  admissible  for  the  prisoner. 
Gardner  vs.  People,  4  111.  83. 

So  defendant  is  not  entitled  to  prove  as  part  of  the  res  gestae 

after  he  was  in  jail  he  appeared  dazed  and  when  told  he  had  killed 

his  wife,  called  his  informer  a  liar.     Such  evidence  is  not  part 

of  the  res  gestae  and  could  not  explain  what  he  did  at  the  time 

of  the  alleged  shooting. 

Collins  vs.  People,  194  111.  506. 

Evidence  of  a  conversation  with  accused  some  time  after  the  act, 

not   a  part   of  the   act  nor   contemporaneous   explanation  of   it. 


HOMICIDE  643 

is  not  admissible  for  accused  as  part  of  the  I'es  gestae  nor  compe- 
tent to  show  the  condition  of  his  mind. 
North  vs.  People,  139  111.  81. 

The  siibseqnent  expressions  of  the  prisoner  that  he  did  not  re- 
gret the  act,  tliougli  improper,  are  not  erindnaL  So  long  as  the 
law  justifies  the  act,  he  need  have  no  other  regret  than  that  which 
naturally  results  to  anyone  who  may  be  under  the  dire  necessity 
of  taking  human  life. 

Brown  vs.  People,  39  111.  407. 
AVhere  the  killing  was  of  a  highway  commissioner,  shot  by 
accused  in  the  act  of  removing  a  fence  belonging  to  accused,  it  is 
not  admissible  for  the  defense,  as  part  of  the  res  gestae,  to  prove 
that  the  fence  was  not  in  the  highway,  the  highway  having  been 
vacated,  if  at  all,  long  prior  to  the  killing. 

Davison  vs.  People,  90  111.  221. 

—  Statements  of  Injured  Persons:  The  declarations  or  admis- 
sions of  deceased,  exculpating  defendant,  are  not  competent  except 
as  dving  declarations  or  when  part  of  the  res  gestae. 

Moeck  vs.  People,  100  111.  242. 
It  is  competent,  where  the  line  of  defense  justified  the  shooting  of 
the  person  killed  as  in  self-defense  of  the  accused,  in  rebuttal  of 
that  theor.y,  to  show  the  person  killed  was  not  aggressive,  but,  on 
the  contrary,  acted  on  the  defensive,  and  to  that  end,  any  of  his 
declarations  explanatory  or  accompanying  acts  would  be  admis- 
sible as  part  of  the  res  gestae. 

Wilson  vs.  People,  94  111.  299. 
The  statements  or  admissions  of  third  persons  are  hearsay;  and 
as  a  general  rule,  inadmissible.  Admissions  by  the  injured  per- 
son cannot  be  used  by  accused,  except  by  way  of  impeachment, 
where  defendant  is  on  trial  charged  with  commission  of  a  crime, 
for  the  state  is  not  bound  by  the  mere  hearsay  statements  of  the 

injured  party. 

People  vs.  Pezutto,  255  111.  583. 

The  declarations  of  deceased,  after  being  shot  by  defendant 
police  officer,  "Gentlemen,  I  am  dying,  I  did  no  wrong,"  while 
not  competent  as  dying  declaration  because  a  conclusion,  is  admis- 
sible as  part  of  res  gestae. 

Healy  ^s.  People,  163  111.  372. 

Evidence  admitted  in  a  murder  trial  that  the  deceased,  who 
had  been  stabbed  in  the  breast  by  defendant  with  a  sharp  iron 
rod,  ran  a  short  distance,  and,  exposing  his  breast,  said,  "Look 
where  he  speared  me;  I  am  done,  I  am  gone,"  immediately  expir- 
ing, is  not  reversible  error,  whether  the  declaration  was  a  dying 
declaration  or  not,  where  the  truth  of  the  statement  is  undis- 
puted. 

Gedye  vs.  People,  170  111.  284. 

—  Exclamations  and  Statements  of  Third  Persons:  Whenever 
it  becomes  important  to  show  the  occurrence  of  any  fact  or "  cir- 
cumstance, it  is  competent  and  proper  also  to  show  any  accom- 
panying act,  declaration  or  exclamation  which  relates  to  or  is 
explanatory  of  such  fact  or  event. 

Lander  vs.  People,  104  111.  248. 


64^  HOMICIDE 

The  actions  of  the  people  surrounding  accused  at  the  time  of  the 
alleged  assault,  and  the  declarations  made  by  them  are  admissible 
in  behalf  of  accused  as  part  of  the  rtvs-  gestae. 
Davids  vs.  People,  192  111.  176. 

The   exclamation   of  anotlier,   in  presence  of  accused,  may  be 
admissible  as  giving  character  to  the  conduct  of  the  accused. 
Gannon  vs.  People,  127  111.  507. 

While  the  law  will  not  permit  husband  and  wife  to  testify  as 
to  their  confidential  communicatiojis  with  each  other,  a  third 
person  hearing  a  conversation  between  husband  and  wife  may  give 

evidence  of  it. 

Gannon  vs.  People,  127  111.  507. 

AVhere  deceased  had  been  pursued  by  several  persons  and  killed, 

prosecution  was  properly  permitted  to   ask  witness   "if  he   saw 

any  indication  of  a  difference  of  opinion  or  purpose  among  the 

persons  composing  the   crowd  who  rushed   to   the   barn,"   Held, 

proper  as  part  of  the  res  gestae. 
Brennan  vs.  People,  15  111.  511. 
Proof  of  statements  made  by  defendant's  wife  to  a  doctor  and 
another  person  in  explaining  how  her  attention  was  first  called 
to  the  fact  that  something  was  the  matter  with  the  girl  the  defend- 
ant was  charged  v/ith  murdering,  and  Avhat  the  condition^  of  the 
girl  was  when  found  by  her  is  not  erroneous,  wdiere  there  is  noth- 
ing in  such  statements  "prejudicial  to  the  defendant  or  in  any  way 

connecting  him  with  a  crime. 

People  vs.  McMahon,  244  111.  62 ;  see  Ees  Gestae — Murder. 

Insanity: 

.     Presumptions:     The  legal  presumption  is  that  all  men  are 

People   vs.   Casey,   231   111.   2G1;   Jamieson  vs.  People,    145   111.   357; 
Montag  vs.  People,  141  111.  75. 
The  legal  presumption  that  all  men  are  sane  makes  it  unnec- 
essary for  the  People,  in  the  first  instance,  to  prove  the  sanity 

of  the  accused. 

People  vs.  Casey,  231  111.  261. 
Every  person  is  presumed  to  intend,   and  is  accordingly  held 
responsible   for  the  probable   consequences  of  his  own  acts  and 

conduct. 

People  vs.  Gukowski,  250  111.  2.31. 
Burden   of  Proof:     If   defendant  prove   facts  and   circum- 
stances tending  to  prove  his  insanity,   the  burden  of  proof  then 
devolves  upon  the  prosecution  to  show  the  sanity  of  accused  be- 
yond a  reasonable  doubt. 

People  vs.  Casey,  231  111.  261;  Chase  vs.  People,  40  111.  352;  Hopps 
vs.  People,  31  111.  385. 
—  Proof  of  Sanity:    Non  experts  who  have  had  opportunity  to 
observe  a  person,  may  give  their  opinions  as  to  his  mental  condi- 
tion and  capacity,  at  the  same  time  stating  their  reasons  and  the 
facts   observed   upon   which   they    base    their   opinions,    including 
conversations  as  a  part  of  the  observed  facts,  but  to  render  such 
testimony  admissible,  they  must  be  limited  to  conclusions  drawn 
from  the  specific  facts  thus  disclosed. 
Jamieson  vs.  People,  145  111.  357. 


HO:\[ICTDE  ,645 

Wlien  a  part  of  a  conversation  is  proven  to  show  insanity,  the 

witness  is  bound  to  give  in  evidence  tlie  entire  conversation,  so 

far  as  it  forms  a  pai-t  of  the  ground  upon  which  opinions  are 

based. 

Janiiesoii  vs.  People,  145  111.  357. 

—  Good  Character:  AVhere  defense  is  insanity,  evidence  of 
uniform  good  character  as  a  man  and  a  citizen  is  proper  for  tlic 
jury  to  consider;  -whether  a  person  whose  character  has  been  uni- 
formly good,  has  in  an  insane  moment  committed  the  crime  charged. 
Under  plea  of  insanity,  he  is  entitled  to  all  the  benefit  which  may 
be  derived  from  the  fact  of  uniform  good  character,  as  tending, 
slightly  it  may  be,  to  the  conclusion  that  he  could  not  have  been 
sane  at  the  time  the  deed  was  done.  If  a  man  of  a  sudden,  fall 
from  a  high  position  to  the  commission  of  outrageous  crimes,  it 
would  not  be  an  unnatural  or  forced  inference  that  he  may  have 
been  affected  with  insanitv  at  the  time. 

Hopps  vs.  People,  31  "ill.  385. 

—  Degree  of  InaanUy:  Unsoundness  of  mind  or  affection  of 
insanity  must  be  of  such  a  degree  as  to  create  an  uncontrollable 
impulse  to  do  the  act  charged,  by  overriding  the  reason  and  judg- 
ment and  oliliterating  the  sense  of  right  and  wrong  as  to  the  par- 
ticular act  done,  and  deprive  the  accused  of  the  power  to  choose 

between  them. 

Myer  vs.  People,  156  Til.  126;  Dnnn  vs.  People,  109  111.  635;  Hopps 
vs.  People,  31  111.  385. 
Before  criminal  accountability  ends,  the  affection  of  insanity, 
or  the  irresistible  insane  impulse  thereby  created,  must  be  of  such 
a  degree  and  character  as  to  obliterate  the  sense  of  right  and 
wrong  as  to  the  particular  act  done,  and  if  accused,  at  time  of 
commiting  the  criminal  act  charged,  was  capable  of  distinguish- 
ing between  right  and  wa^ong,  the  defense  of  insanity  is  not  made 

out. 

Hornish  vs.  People,  142  111.  620. 
Degree   of  Proof:     Defense  of  insanity  need  not  be  estab- 
lished by  a  preponderance  of  the  evidence,  but  only  by  such  evi- 
dence as  raises  a  reasonalile  doubt. 

People  vs.  Capey,  231  111.  261;  Hopps  vs.  People,  31  111.  385;  Dacey 
vs.  People,  lie  111.  555. 
"Where  there  is  reasonable  doubt  as  to  the  sanity,  from  the  whole 

evidence,  defendant  should  be  acquitted. 

Jamieson   vs.  People,   145   111.   357;   Dacey  vs.   People,   116  111.   555; 
Hopps  vs.  People,  31  111.  285. 

Intoxication: 

Defense  or  Excuse:  AVhere  one  who  is  voluntarily  intoxi- 
cated commits  a  homicide,  under  such  circumstances  as  would 
have  constituted  murder  by  one  not  intoxicated,  the  intoxication 

is  no  defense  or  excuse. 

Bleieh  vs.  People,  227  HI.  SO. 
When  belief  of  danger  arises  only  from  the  intoxicated  condi- 
tion of  the  person  entertaining  the  same,  it  neither  excuses  his 
action  nor  reduces  the  grade  of  his  offense. 
Bleieh  vs.  People,  227  HI.  80. 
Voluntary  intoxication  furnishes  no  excuse  for  crime  commit- 
ted under  its  influence,  even  if  the  intoxication  is  so  extreme  as 


646  HOMICIDE 

to  make  the  author  of  the  crime  unconscious  of  what  he  is  doing, 
or  to  create  a  temporary  insanity. 

Upstone  vs.  People, 'l()9  111.  I(i9;  Dunn  vs.  People,  109  111.  635. 

When,  without  intoxication,  the  law  woukl  impute  to  the  act  a 
criminal  intent,  as  in  the  case  of  wanton  killing  without  provo- 
cation, drunkenness  is  not  av;iilal)le  to  disprove  such  intent. 

Upstone  vs.   People,   109   111.    1(39;   Eaflerty  vs.   People,  UG   111.   118; 

r:  Doyle  vs.  People,  147  III.  398, 

When  the  nature  and  essence  of  the  offense  is  by  law  made  to 
depend  upon  the  state  or  condition  of  mind  of  the  accused,  at  the 
time  and  with  reference  to  the  acts  done,  drunkenness  as  a  fact 
as  affecting  the  control  of  the  mind  is  proper  for  the  consideration 

of  the  jury. 

Crosby  vs.  People,  137  III.  325. 

On  a  prosecution  for  assault  with  intent  to  murder,  defend- 
ant may  show  in  defense  that  from  drunkenness  he  was  incapable 
of  forming  any  intent  whatever,  and  especially  the  specific  intent 
charged.  Drunkenness  is  no  excuse  for  any  act  done  or  commit- 
ted. The  defendant  may  be  punishable  for  the  consummated 
offense,  whatever  it  may  be,  and  the  want  of  mind  operates,  not 
by  way  of  excuse  for  crime  connnitted,  but  renders  accused  incap- 
able of  committing  the  graver  offense. 
Crosby  vs.  People,  137  111.  325. 

Where  the  plea  is  self-defense,  proof  as  to  whether  accused 
w^as  intoxicated  at  the  time  is  competent.  A  man  threatened  with 
danger  may  judge  from  appearances,  and  determine  by  the  cir- 
cumstances surrounding  him  whether  he  is  in  actual  danger  of 
losing  his  life  or  suffering  great  bodily  harm.  His  ability  to  see 
and  comprehend  what  was  occurring,  and  to  form  therefrom  a 
reasonable  and  well  grounded  belief  that  he  was  in  danger  of  los- 
ing his  life  or  suffering  gi-eat  bodily  harm,  would  be  affected  in  a 
greater  or  less  degree  by  intoxication.  A  man  in  a  state  of  intox- 
ication may,  because  thereof,  misconceive  his  situation  and  sur- 
roundings, and  misapprehend  the  acts  and  conduct  and  purposes 
of  others,  and  arrive  at  a  wholly  unfounded,  irrational  and  un- 
just belief  of  personal  danger  which  would  not  find  lodgment  in 
the  mind  if  his  mental  faculties  were  not  in  an  abnormal  condi- 
tion. 

Miller  vs.  People,  216  111.  309. 

—  Proof  of  Drunkenness:  Such  intoxication  may  be  evidenced 
by  the  person's  conduct,  by  predisposing  circumstances,— that  is, 
by  the  drinking  of  intoxicating  liquors  or  by  the  condition  of 
intoxication  prior  or  subsequent  to  the  time  in  question,  but  within 
such  time  as  that  the  conditiou  might  be  supposed  to  continue.  A 
party  entitled  to  prove  the  fact  of  intoxication  is  not  concluded  by 
the  denial  of  such  witness  that  the  party  was  drunk.  He  may 
prove  the  drinking  of  intoxicating  liquors  by  such  witness  to  be 
so  recent  before  the  time  in  question,  and  in  such  quantities  as 
that,  in  consequence  thereof,  it  is  most  probable  he  would  be  in  a 
condition  of  intoxication  at  the  time  in  question. 
Miller  vs.  People,  216  111.  309. 

If,  on  the  trial  of  a  person  for  shooting  another,  it  is 
claimed  by  the  defense  that  accused  was  hopelessly  drunk,  it  is 


HO:\IICIDE  647 

not  improper  to  allow  witnesses  for  the  People  to  testify  they 
made  a  test  of  the  revolver  offered  in  evidence  as  the  one  with 
which  the  shot  was  fired,  and  as  to   number  of  pounds  pressure 

on  the  trigger  it  required  to  diseliarge  it. 

Collins  vs.  People,  194  111.  506. 
On  trial  for  murder,  court  is  justified  in  refusing  to  permit  a 
thirteen  year  old  daughter  of  accused   to  express  opinion   as   to 
whether  her  fatlier's  condition  on  night  of  crime  was  such  as  to 
render  him  unconscious  of  his  acts  and  surroundings. 

Collins  vs.  People,  194  111.  506. 

Alibi: 

—  Burden  of  Proof:  Burden  of  proof  in  establisliing  the  de- 
fense of  an  alibi  is  on  defendant,  and  to  maintain  it,  it  is  incum- 
bent upon  him  to  prove  facts  and  circumstances  which,  when  con- 
sidered with  all  the  evidence  relied  upon  to  estalilish  his  guilt  of 
the  crime  charged,  is  sufficient  to  create  in  the  minds  of  the  jury 

a  reasonable  doubt  of  the  truth  of  the  charge. 

Flaniiaoan  vs.  People,  214  111.  170;  Houser  vs.  People,  210  111.  253; 
Anneals  vs.  People,  134  111.  401. 

—  Purpose:  The  defense  of  an  alibi  does  not,  in  theory,  deny 
that  the  crime  was  committed,  but  is  designed  to  prove  that  de- 
fendant, during  the  whole  time,  was  so  far  from  the  place  where 
the   crime   was   committed,   that   he   could   not   have   participated 

in  it. 

People  vs.  Lukozus,  242  111.  101. 

Where  a  witness  merely  denies  that  he  participated  in  any  way 

in  the  crime  charged,  and  contradicts  the  testimony  of  the  witness 

who  claimed  to  identify  him.  the  fact  that  he  testified  after  leaving 

a  certain  saloon  he  went  across  the  street  to  his  boarding  house 

and  went  to  bed  does  not  amount  to  making  the  defense  of  alibi, 

where  he  called  no  witness  to  prove  that  he  was  not  at  the  scene 

of  the  crime. 

People  vs.  Lukoszus,  242  111.   101. 

—  Cross  Examinotion:     Where  one  accused   of  murder  denies 

that  he  was  near  the  scene  of  the  crime,  and  claims  he  was  at 

another  place,  it  is  proper  for  prosecution  to  prove  that  shortly 

before  the  commission  of  the  crime,  he  was  seen  near  the  scene 

of  the  crime,  even  though  he  was  engaged  in  other  offenses  when 

observed  by  the  witness. 

Peojilc  vs.  Jennings,  252  111  534. 

Threats  of  Suicide: 

Threats  of  suicide  by  deceased,  not  accompanied  by  any  act  or 
declaration  which  they  might  explain,  being  mere  hearsay  are  not 
admissible  on  part  of  the  defense. 

Siebert   vs.    People,    143    111.    571;    Clark    vs.    People,    224    111.    554; 
Howard  vs.  People,  185  111.  552. 

Where  declarations  offered  as  evidence  are  part  of  the  res  gestae, 
or  are  accompanied  by  acts  of  the  deceased  which  might  explain 

or  characterize  them,  such  declarations  are  admissible. 
Nordgren  vs.  People,  211   111.  425. 
Proof  that  deceased  was  in  a  cheerful  and  healthy  condition  of 
mind,  as  answer  to  the  defense  of  suicide,  is  proper  matter  of 


648  HOMICIDE 

rebuttal,   but  should  not  be  offered  in  chief,  although  that  line 

of  defense  has  already  been  announced. 

Jumpertz  vs.  People,  21  111.  375. 
On  the  trial  of  a  wife  and  her  paramour  for  the  murder  of 
her  husband  by  administering  to  him  poison,  declarations  of  de- 
ceased made  at  different  times  within  a  year  before  his  death,  and 
prior  to  his  last  sickness,  that  he  intended  to  take  his  own  life, 
not  accompanied  by  any  act  of  deceased  which  they  might  explain, 
being  mere  hearsa.y,  are  not  admissible  on  the  part  of  the  defense. 

Siebert  vs.  People,  143  111.  571. 

Provocation : 

Words    or    gestures,    however   provoking   or    insulting,    cannot 

amount  to  that  considerable  provocation  which  the  law  recognizes 

as  necessary  to  reduce  the  killing  from  murder  to  manslaughter. 

So,  letters  written,   or  proof  of  their  contents,   are  inadmissible 

to  show  provocation. 

Crosby  vs.  People,  137  111.  325;  Fiiederich  vs.  People,  147  111.  310. 

IMere  worcls  cannot  be  said  to  constitute  considerable  provocation. 
No  provocation  by  words  only,  however,  opprobrious,  will  mitigate 
intentional. killing  so  as  to  reduce  homicide  to  manslaughter. 
Steffy  vs.  People,  130  111.  98. 
No  provocation  by  words  only,  addressed  to  the  person  killing, 
or  to  another  in  his  presence,  however  opprobrious,  will  mitigate 
the  intentional  killing  so  as  to  reduce  the  killing  to  manslaughter. 
McCoy  vs.  People,  175  111.  224 ;  Jackson  vs.  People,  18  -111.  269. 
No  provocation,  however  great,  offered  the  day  before  the  crime, 
can  be  shown  in  justification  or  excuse,  or  have  a  tendency  to 
reduce  the  crime  from  murder  to  manslaughter,   for  the  reason 
that  there  has  been  sufficient  time  between  the  provocation  and 
the  killing  for  deliberation. 

Nowacryk  vs.  People,  139  111.  336. 

Self  Defense: 

—  Modern  Doctrine:  The  ancient  doctrine  of  the  common  law 
that  the  right  of  self-defense  did  not  arise  until  every  effort  to  es- 
cape, even  to  retreating  until  an  impassable  wall  or  something  of 
that  nature  had  been  reached,  has  been  supplanted  in  America  by 
the  doctrine  that  a  man,  if  unlawfully  assaulted  in  a  place  where 
he  has  a  right  to  be,  and  put  in  danger,  real  or  reasonably  appar- 
ent, of  losing  his  life  or  receiving  great  bodily  haimi,  is  not  re- 
quired to  endeavor  to  escape  from  his  assailant,  but  may  stand 
his  ground,  and  repel  force  v/ith  force,  even  to  the  taking  of  the 
life  of  his  assailant,  if  necessary,  or  in  good  reason  apparently 
necessary,  for  the  preservation  of  his  own  life,  or  to  protect  him- 
self from  receiving  great  bodily  harm.  It  is  not  necessary  to  the 
right  of  self-defense  that  a  party  having  otherwise  the  right  to 
exercise  it,  cannot  "escape"  the  clanger  by  fleeing  from  his  assail- 
ant. 

Hammond  vs.  People,  199  111.  173. 

It  is  not  sufficient  to  constitute  the  intent  to  murder  that  the 
party  charged  intended,  at  the  instant  of  the  assault,  to  kill 
the  party  assaulted.  One  may,  in  self-defense,  intentionally  kill 
another  and  not  be  guilty  of  murder.  The  intent  to  kill  may  not  be 
an  intent  to  commit  murder,  but  to  take  the  life  of  another  in  self- 


HO^MICIDE  649 

defense  or  upon  that  siuldeu   heat  of  passion  which  reduces  the 
crime  of  killing  to  manslaughter. 

Haimnond  vs.  People,  199  111.  173. 

—  Purpose:  When  self-defense  is  replied  upon,  it  pi'esupposes 
that  the  accused  connnitted  the  act,  and  that  the  defense  is  in- 
voked in  justification. 

People  vs.  Sniith,  254  111.  167. 

—  Apparent  Danger:  If  defendant  act  from  real  and  honest 
conviction,  induced  by  reasonable  evidence,  he  acts  in  self-defense 
though  it  shonld  transpire  he  was  mistaken. 

It   is  not  necessary  that  he  should  act  as  a  man  of  ordinary 

judgment  and  courage. 

People  ^•s.  MeGiiinis,  234  111.  68 ;  SteiBmeyer  vs.  People,  95  111.  383 ; 

Maher    vs.    People,    24    111.    241;    Sehuier   vs.    People,    23    111.    11; 

Campbell  vs.  People,  16  111.  17;  XII  111.  Notes  915,  §  18. 

The  necessity  of  taking  the  life  of  the  deceased  need  not  be  real 

and  absolute,  but  if  the  necessity  is  so  apparent  as  to  induce  the 

belief  in  a  reasonable  mind  that  the  danger  ^vas  so  imminent  that 

no  other  means  of  escape  exists  but  to  take  the  life  of  deceased  in 

order  to  preserve  that  of  accused,  such  apparent  danger  will  jus- 

tifv  the  homicide. 

Sehnier  vs.  People,  23  111.  11. 

If  a  person  kill  another  in  self-defense,  it  must  appear  that  the 
danger  was  so  urgent  and  pressing  that  in  order  to  save  his  own 
life  or  to  prevent  his  receiving  great  bodily  harm,  the  killing  of 
the  other  was  absolutely  necessary.  The  danger  need  not  be  real, 
but  it  must  be  apparently  imminent,  urging  and  pressing. 
Price  vs.  People,  131  111.  223. 

The  right  of  a  person  to  act  in  self-defense  does  not  rest  upon 
his  mere   belief   of   danger,   regardless   of   the    circumstances   or 
whether  such  belief  was  reasonable  or  not. 
Kyle  vs.  People,  215  111.  250. 

One  wdio  is  assailed  in  such  a  manner  as  to  induce  in  him  a  rea- 
sonable and  well  grounded  belief  that  he  was  in  actual  danger  of 
losing  his  life  or  suffering  great  bodily  harm,  is  justified  in  de- 
fending himself  when  acting  under  such  apprehension,  even  to 
the  extent  of  taking  the  life  of  his  assailant,  whether  the  danger 

was  real  or  onlv  apparent. 

Mackin  \s.  People,  214  111.  232;   Davisou  vs.  People,  90   111.   221. 

—  Actual  Danger:  Actual  and  positive  danger  is  not  indis- 
pensable to  justifv  self-defense. 

Roach  vs.  People,  77  111.  25;  Crews  vs.  People,  120  111.  317. 

The  law  does  not  make  a  distinction  between  actual  and  appar- 
ent  self-defense   but  betw^een   danger  which  is  real  and   danger 

which  is  apparent. 

Henry  vs.  People,  198  111.  162. 
The  size  and  strength  of  deceased  is  competent  to  be  proven 
by  defendant  on  a  plea  of  self-defense,  as  a  circumstance  calcu- 
lated to  excite  fear. 

Lyons  vs.  People,  137  HI.  602. 

—  Belief  of  a  Beasonahlc  Person:  A  belief  of  danger  must  be 
such  as  a  reasonalile  person  would  have  entertained  under  the 
circumstances,  in  view  of  the  appearances. 

Bleich  vs.  People,  227  HI.  80. 


6r,o  no:\rTCiDE 

Fear,  under  the  influence  of  whieli  a  person  may  take  the  life 
of  his  assailant,  is  the  fear  of  a  reasonable  person,  excited  by  the 
circumstances  surrounding  him  at  the  time.  If  acting  under  the 
influence  of  such  fears  he  does  what  a  reasonable  person  might 
have  done  under  the  circumstances,  he  will  be  justified. 
People  vs.  Williams,  240  111.  633. 

A  person,  when  threatened  with  danger,  must  determine  from 
the  appearances  and  surrounding  circumstances  as  to  the  neces- 
sity of  resorting  to  self-defense,  and  if  the  danger  is  apparently 
so  imminent  and  pressing  that  a  reasonably  prudent  man  would 
suppose  it  was  necessary  to  take  the  life  of  his  assailant  to  pre- 
serve his  own,  or  to  avoid  the  infliction  of  a  grievous  bodily  injury, 

then  the  killing  would  be  justified. 

Maher  vs.  People,  24  111.  241;  Campbell  vs.  People,  IG  111.  16. 
One  who  has  killed  another  cannot  justify  his  action  under  a 
plea  of  self-defense  where  it  would  not  have  appeared  to  a  rea- 
sonable person,  in  a  like  situation  with  the  defendant,  that  he  was 
in  danger  of  great  bodily  harm  or  losing  his  life. 
Bleich  vs.  People,  227  111.  80. 
'If  defendant  is  assaulted  by  deceased  in  such  a  manner  as  to 
induce  in  him  a  reasonable  and  well  grounded  belief  that  he  is  in 
actual  danger  of  losing  his  life  or  suffering   great,  liodily  harm, 
when  acting  under  such  reasonable  belief,  he  is  justified  in  de- 
fending himself,  whether  the  danger  is  real  or  only  apparent. 

Stiller   vs.    People,    187   111.    244;    Enright   vs.    People,    155    111.    32; 
Panton  vs.  People,  114  111.  505. 

—  Good  Faith :  It  is  essential  to  a  justification  of  self-defense 
to  show  the  facts,  whether  deceptive  or  otherwise,  that  the  jury 
may  determine  whether  they  were  sufficient  to  excite  the  fear  of 
a  reasonable  person,  and  whether  accused  acted  in  good  faith 
under  the  influence  of  such  fear. 

Gainey  vs.  People,  97  111.  270. 

—  Accused  Aggressor:  One  who  is  the  aggressor  and  begins 
an  affray,  in  which  he  takes  the  life  of  another,  cannot  escape  the 
consequences  of  the  killing  upon  the  ground  that  he  was  acting  in 
self-defense,  unless  he  endeavors  in  good  faith  to  decline  further 
struggle  before  he  inflicted  the  mortal  wound. 

Mackin  vs.  People,  214  111.  232. 
When  a  person  brings  on  an  assault  and  when  he  finds  the  per- 
son assaulted  is  armed  and  ready  to  defend  himself,  produces  a 
deadly  weapon  and  kills  him,  he  cannot  escape  the  consequences  of 
the  killing  of  such  parly  by  claiming  self-defense. 

Henry  vs.  People,  198  111.  162. 
If  accused  seek  and  bring  on  a  difficulty  with  deceased  at  the 
time  of  killing,  he  will  not  be  allowed  to  avail  of  the  right  of  self- 
defense  in  order  to  clear  himself  of  the  consequences  of  the  kill- 
ing, however  imminent  the  danger  in  which  he  found  himself  in 
the  progress  of  the  affray,  which  he  brought  on  himself. 

Gainey  vs.  People,  97  111.  270. 
A  person  cannot  follow  up  his  enemy  and  if  an  encounter  en- 
sue, justify  the  killing  as  being  done  in  self-defense. 

Hughes  vs.  People,  116  111.  330. 


HOI\riCIDE  651 

One  who  pursues  and  mortally  wounds  one  who  struck  hira  and 
ran  away,  caunot>  justify  the  homicide  on  ground  of  self-defense. 
Bonardo  vs.  People,  182  111.  411. 
In  a  prosecution   for  shooting  a  restaurant  keeper,   where  the 
plea  is  self-defense,  it  is  proper  to  show,  as  bearing  on  the  ques- 
tion of  who  was  the   aggressor,   that   before   deceased   came   into 
the  room,  accused  had  assaulted  a  waiter  and  chased   him  from 
the  room,  and  had  thrown  dishes  and  crockery  on  tlie  floor. 
People  vs.  White,  2-51  111.  67. 

Defense  of  Habitation: 

A  person  within  his  own  house  may.  exercise  all  needful  force 
to  keep  an  aggressor  out,  even  to  the  taking  of  his  life.  A  man's 
house  is  his  castle,  and  he  may  defend  it  even  to  the  taking  of  life, 
if  necessaiy  or  apparently  necessary,  to  prevent  the  person  from 
forcibly  entering  it  against  his  will,  and  when  warned  not  to 
enter  and  to  desist  from  the  use  of  force.  A  man  in  his  own 
habitation  may  resist  force  with  force,  and  oppose  an  unlawful 
attempt  to  enter  against  his  will  by  one  who,  in  a  violent  manner, 
attempts  to  enter  with  a  purpose  of  assaulting  or  otfering  vio- 
lence to  him,  even  to  the  extent  of  taking  the  life,  although  the 
circumstances  may  not  be  such  as  to  justify  the  belief  that  there 
was  actual  peril  of  life  or  great  bodily  harm. 
Hapier  vs.  People,  213  111.  142. 

A   tenant   may   forcibly   resist   landlord's   attempt  at   forcible 
eviction,  even  though  tenant  is  in  arrears  for  rent. 
Gedye  vs.  People.  170  111.  284. 

Admissibility  of  Evidence  in  General: 

Upon  a  trial  for  murder,  any  doubt  under  the  rule  governing 
the  production  of  testimony,  should  be  resolved  in  favor  of  the 

accused. 

Tracy  vs.  People,  97  111.  101. 
Evidence  is  admissible  which  is  relevant  and  tends  to  prove 
the  issue.  One  accused  of  crime  may  prove  any  fact  or  circum- 
stance tending  to  show  that  the  crime  was  committed  by  another. 
Such  evidence  may  be  so  remote  in  point  of  time  as  to  be  imma- 
terial. To  a  great  extent,  such  admission  of  evidence  is  within 
the  discretion  of  the  trial  judge. 

People  vs.  Pezntto,  255  111.  583;  People  vs.  Pfaiischmidt,  262  111.  411. 
He  may  show  that  another  man  boarded  with  the  family  at  the 
time  of  the  murder ;  his  relations  to  the  family ;  his  opportunities  to 
know  deceased  carried  money,  and  other  pertinent  circumstances. 
Synon  vs.  People,  188  111.  609. 
Where   the  juiy  has   power  to   fix   different   punishments,   any 
evidence  is  admissible  on  the  part  of  the  defense  which  tends  to 
show  the  conduct  of  accused  was  less  culpable  than  the  proof  on 
the  part  of  the  prosecution  tends  to  show. 
Fletcher  vs.  People,  117  111.  184. 

Burden  of  Proof  in  General: 

Burden  of  proving  defendant  guilty  rests  upon  state. 

South  vs.   People,  98  111.  261;   Ilalloway  vs.   People,   181  111.   544. 


652  HOMICIDE 

The  killing  being  proven,  the  burden  of  proving  circumstances 
in  mitigation  or  that  will  justify  or  excuse  the  homicide  will 
devolve  upon  the  accused,  unless  the  proof  on  the  part  of  the 
prosecution  sufficiently  manifests  the  crime  committed  only  amounts 
to  manslaughter,  or  that  the  accused  was  justitied  in  committing 

the  homicide. 

Peoi)le  vs.   Hubert,  251   111.   .514;    Parsons  vs.   People,   218  111.   386; 
Kipley   vs.   People,   215   111.   358;    Kota  vs.   People,   136   111.   655; 
XII  111.  Notes  918,  §  36. 
And  defendant  is  not  required,  when  he  assumes  the  burden  of 
proof,  to  "satisfactorily"  establish  such  defense. 

Halloway   vs.    People,    181    111.    544;    Appleton    vs.    People,    171    111. 
473;   Alexander  vs.  People,  96  111.  96. 

Reasonable  Doubt: 

Reasonable  doubt,  which  will  justify  an  acquittal,  must  arise 
from  the  evidence  or  lack  of  evidence. 
People  vs.  Zajicek,  233  111.  198. 
The  people  are  not  required  to  establish  guilt  beyond  a  possi- 
bility of  a  doubt. 

Pooplo  vs.  Lucas.  244  111.  603. 

Weight  and  Sufficiency: 

A  person  may  intentionally  take  human  life  without  being  guilty 
of  murder,  and  he  mav  do  so  and  not  be  guilty  of  any  crime. 
Smith  vs.  People,  142  111.  117. 

Proof  that  accused  induced  another  to  commit  suicide  by  tak- 
ing poison  is  sufficient  to  warrant  his  conviction  for  murder,  but 
in  such  case,  direct  proof  that  the  poison  was  taken  by  his  pro- 
curement is  required. 

Burnett  vs.  People,  204  111.  208. 

If  a  person  who  is  enfeebled  by  disease  is  unlawfully  assaulted 
and  an  injury  inflicted  upon  him  which  would  not  have  been 
mortal  to  a  man  in  good  health,  but  which  was  mortal  to  him  in 
his  then  enfeebled  condition,  the  assailant  is  to  be  deemed,  in  law, 
guilty  of  unjustifiable  homicide,  either  murder  or  manslaughter, 
as  the  case  may  be,  though  the  asssailant  did  not  know  of  the 
enfeebled  condition  of  the  person  assaulted.  In  such  case,  the 
legal  presumption  is  not  only  that  the  probable  and  necessary  con- 
sequences of  the  assault  are  intended,  but  the  possible  conse- 
quences also.  If  the  assault  was  committed  in  the  perpetration 
of  a  felony,  the  killing  would  be  murder.  It  is  immaterial,  in 
respect  of  criminal  liability,  that  the  injury  but  hastened  the 
death  of  the  person  assaulted,  for  the  offender  may  not  apportion 

his  own  wrong. 

Cunningham  vs.  People,  195  111.  550. 
A  distinction  is  to  be  borae  in  mind  between  the  rules  of  crim- 
inal responsi])ility  for  a  result,  and  the  proper  pleading  of  the 
cause  that  produced  the  result.  Thus,  when  a  man's  will  con- 
tributes to  impel  a  physical  force,  whether  such  force  proceeds 
directly  from  another  or  from  another  and  himself,  he  is  to  be 
held  responsible  for  the  result  the  same  as  if  his  own  unaided 
hand  had  produced  it.  If  the  blow  so  physically  affected  deceased 
as  that,  from  the  injurious  effects  thereof,  he  was  rendered  unable 
to  stand  and  walk,  and  as  a  consequence,  fell  upon  the  cobble 


HOSPITAL  RECORDS  653 

stones  and  death  resulted  from  llie  fall,  the  hlow  is  to  be  regarded 

as  the  cause  of  death,  even  though  it  might  not,  in  itself,  have 

proven  mortal.     If  death  results  indirectly  from  a  bl-ow,  through 

a  chain  of  natural  causes,  unclianged  by  human  action,  the  blow 

is  regarded  as  the  cause  of  dcatli. 
Koser  vs.  People,  224  111.  201. 

Where    one    person    attacks    another   without    justifiable    cause, 
and  without  malice,  express  or  implied,  without  any   mixture  of 
deliberation  whatever,  and,  by  the  use  of  a  deadly  weapon,  kills 
him  the  killing  amounts  only  to  manslaughter. 
Smith  vs.  People,  142  111.  117. 

One  who,  in  resentment  of  an  insult  to  a  female  relative,  strikes 
the  offender  with  his  fist,  without  any  intention  of  killing  him, 
but  with  the  result  that  the  party  is  knocked  down  and  killed,  is 

guilty  of  no  more  than  manslaughter. 
People  >'s.  Mighell,  254  111.  53. 

Conviction  for  murder  is  sustained  by  proof  that  accused  was 
the  aggressor  in  the  affray  into  which  he  entered  armed  with  a 
deadly  weapon;  that  he  fired  the  fatal  shot  intentionally,  never  at 
any  time  in  good  faith  declining  further  combat ;  that  he  did  not 
fire  the  shot  under  the  influence  of  real  fear  of  great  personal 
injury,  and  that,  although  he  "fired  in  the  heat  of  passion,  he 
did  so  without  provocation  sufficient  to  excite  ungovernable  anger. 
Jennings  vs.  People,  189  111.  320. 

Joint  conviction  will  be  sustained  where  it  is  shown  defendants 
went  armed  to  a  place  where  they  were  likely  to  meet  deceased, 
for  a  common  purpose  of  investigating  a  difficulty  he  had  had  with 
a  relative  of  both,  and  that  one  held  and  controlled  the  team  while 
the  other  fired  the  fatal  shot. 

McDonnall  vs.  People,  168  111.  93. 

The  aiding  and  abetting,  w^hich  is  necessary  to  constitute  one 
a  principal  to  the  homicide  committed  by  another,  consists  in  some- 
thing affirmative  in  its  nature ;  and  even  if  threats  made  were  ovei-- 
heard  and  no  effort  made  to  prevent  their  being  carried  out,  such 
fact  is  not  sufficient  to  convict  as  a  principal. 
Crosby  vs.  People,  189  111.  298. 


HOSPITAL  RECORDS 

Competency: 

Hospital  records  are  only  evidence  of  facts  necessarily  within 
the  knowledge  of  the  person  making  the  entry. 
Met.  Life  Ins.  Co.  vs.  Moravec,  116  App.  271. 

And  physician's  returns  of  births  are  only  evidence  of  facts 
necessarily  within  his  knowledge,  and  not  of  matters  of  mere  hear- 
say gathered  up  by  him,  and  hence  is  not  evidence  to  prove  a 
statement  contained  therein  that  the  child  was  the  second^  one 
borne  by  the  mother,  which  was  not  a  fact  within  the  physician's 

knowledge. 

Howard  vs.  111.  T.  &  S.  Bank,  189  111.  568. 
In  suit  on  a  life  insurance  policy,  entries  made  in  the  records 
of  a  medical  institution,  and  in  the  books  of  a  physician,  showing 


654  HOSTILE  WITNESS 

the  physical  condition  of  a  party  having  the  same  name  as  the 
insured,  who  was  examined  about  the  time  the  insured  applied 
for  his  policy,  are  not  admissible  in  absence  of  proof  of  identity 
of  the  parties. 

Met.  Life  Ins.  Co.  vs.  Mitt-hell,  175  111.  322. 
Nor  is  same  admissible  without  identification  of  hand\\Titing  of' 
one  in  attendance  upon  the  party  at  such  hospital. 

Schmidt  vs.  K.  &  L.  of  S.,  176  App.  213. 


HOSTILE  WITNESS 

See  Bias  and  Hostility. 


HOTEL  REGISTERS 

Admissibility : 

A  hotel  register  and  an  expense  account  of  a  witness  are  admis- 
sible as  tending  to  show  that  such  witness  was  not  at  a  particular 

place  on  a  certain  day  as  claimed  by  the  opposite  party. 
James  vs.  Conklin,  158  App.  640. 

But  an  entry  on  a  hotel  register  is  not  competent  evidence  of 
the  facts  therein  recited  or  in  corroboration  of  tlie  testimony  that 
a  person  was  elsewhere  at  the  time  of  the  commission  of  a  certain 
act,  when  offered  in  his  behalf.  The  entry  is  a  self-serving  state- 
ment, and  while  competent  evidence  against  him,  it  is  incompetent 
in  his  behalf. 

People  vs.  MeKeown,  171  App.  146, 

"Where  a  witness  has  testified  that  a  signature  in  issue  is  not  his, 
hotel  register  containing  his  signature  may  be  shown  him  on  cross- 
examination  and  he  nuiy  be  asked  if  that  is  his  signature. 
Hobart  vs.  Van  Aerman,  146  App.  1. 

It  is  not  error  for  the  People  to  exhibit  to  the  jury  the  hotel 
register  relied  upon  by  defendants  in  attempting  to  prove  an 
alibi,  and  comment  upon  the  clean  appearance  of  the  book,  and 
the  fact  that  all  the  names  were  in  same  handwriting,  and  ap- 
peared to  be  made  at  same  time,  as  tending  to  show  it  was  not  a 
register  in  daily  and  actual  use. 

Hauser  vs.  People,  210  111.  253. 

The  admission  in  evidence,  on  trial  for  manslaughter,  in  pro- 
curing an  abortion,  of  an  entry  on  a  hotel  register  offered  to  show 
deceased  attempted  to  conceal  her  visit  with  accused  to  the  town 
where  abortion  was  procured,  by  registering  under  an  assumed 
name,  is  not  error,  where  the  clerk  and  proprietor  had  already, 
without  objection,  testified  to  such  registry. 
Cook  vs.  People,  177  lU.  146. 


HUSBAND  AND  WIFE 

See  Abandonment,  Advancements,  Ante  Nuptial  Contracts, 
Bigamy,  Divorce,  Gifts,  Infants,  Legitimacy,  Marriage,  Crim- 


HUSBAND  AND  AVIFE  655 

iNAL  Conversation,  Alienating  Affections,  Medical  and  Surg- 
ical Services,  Fraudulent  Conveyances. 
PRESUMPTIONS  AND  BURDEN  OF  PROOF. 
Agency : 

—  xUjcncy  of  Ilnshdnd:  The  relation  of  principal  and  agent 
does  not  spring:  from  that  of  husband  and  wife,  nor  can  it  be  pre- 
sumed from  that  relation  alone. 

Wallace  vs.  Monroe,  22  App.  602;   Donk  Bros.  Coal  Co.  vs.  Leavitt, 
109  App.  385. 
A  husband  has  no  implied  authority  to  bind  his  wife  as  prin- 
cipal by  contract. 

'  Wohlstein  vs.  Smiley,  168  111.  438;  Sayles  vs.  Mann,  4  App.  516. 
Nor  can  a  wife  be  bound  as  undisclosed  principal  by  contract 
under  seal,  by  her  husliand,  as  principal,  purporting  to  be  in  his 
own  behalf  even  though  the  contract  would  have  been  valid  with- 
out a  seal. 

Walsh  vs.  Mnrphy,  167  111.  228. 

"While  a  husband  may  act  as  agent  for  his  wife  in  investing 
and  taking  care  of  her  funds,  yet  where  the  rights  of  his  creditors 
are  involved,  the  circumstances  must  show  that  they  recognized 
the  relation  of  agency  between  them. 

That  the  Avife  permitted  the  husband  to  hold  himself  out  as 
owner  of  property,  and  thereby  gained  credit,  is  a  material  cir- 
cumstance where  controversy  is  between  husband  and  judgment 

creditors. 

Hank  vs.  Van  Ingen,  196  lU.  20. 

When  a  husband  receives  payments  of  money  on  an  obligation 
to  his  wife,  the  possession  of  the  obligation  is  evidence  tending 
to  prove  he  has  authority  to  receive  the  money  for  his  wife,  but 
is  by  no  means  conclusive  of  that  fact. 
Yazel  vs.  Palmer,  81  111.  82. 

A  wife  may  use  her  money,  deposited  in  a  bank,  to  pay  her 
husband's  debts,  and  for  this  purpose  may  permit  him  to  sign 

checks  for  her. 

Keene  vs.  Keene,  172  App.  183. 
Husband's  handling  of   income  of  wife's  separate   estate  will 
be  presumed  to  be  in  character  of  agent. 
Patten  vs.  Patten,  75  111.  446. 
Burden  of  proving  fact  of  agency  rests  upon  party  asserting  it. 
Yazel  vs.  Palmer,  81  111.  82. 

—  Agency  of  ^yifc:  If  a  husband  and  wife  are  living  together, 
there  is  a  presumption  arising  out  of  the  circumstances  of  co- 
habitation that  the  husband  assents  to  a  contract  made  by  the 
wife  for  necessaries  suital)le  to  his  degree  and  estate ;  but  this 
presumption  may  be  rebutted  by  proof.  The  presumption  which 
co-habitation  furnishes  is  strengthened  by  proof  that  the  wife  has 
been  permitted  by  the  husband  to  purchase  other  articles  of  the 
same  sort  for  the  use  of  the  household.  But  it  nnist  be  ordinarily 
necessary  for  what  may  be  termed  the  domestic  department  to 
which  the  wife's  authority  to  bind  her  husband  is  restricted. 

Bergh  vs.  Crosby,   162  App.  536;   Compton  vs.   Bates,   10  App.   78; 
XII  111.  Notes  938,  §  9. 


656  HUSBAND  AND  WIFE 

But  presumption  may  be  rebutted  by  proof  that  the  husband 
had  provided  them  or  furnished  the  wife  with  means  of  provid- 
ing them  for  herself. 

Compton  vs.  Bates,  10  App.  78. 

Presumption  as  to  wife's  authority  ceases  when  husband  noti- 
fies merchant  not  to  give  credit  to  wife. 
Hibler  vs.  Thomas,  99  App.  355. 

Where  goods  are  supplied  a  woman  living  separate  from  her 
husband,  the  l)urden  of  proof  rests  upon  the  person  giving  credit, 
to  show  the  husband's  liability,  the  presumption  being  against 
the  same. 

Eea  vs.  Derkie,  25  111.  414. 
And  has  the  burden  of  showing  that  wife  left  husband  for  suf- 
ficient cause. 

Brineherhoff  vs.  Briggs,  92  App.  537.  » 

Where  goods  are  supplied  a  woman  living  separate  from  her 
husband,  the  presumption  is  that  he  is  not  liable  for  same,  unless 
she  is  deserted  by  the  huslmnd. 
Eea  vs.  DiiVkie,  25  111.  414. 

A  tradesman  who  sells  the  goods  to  the  wife  upon  credit  of  the 
husband,  in  an  action  for  the  price,  takes  the  burden  of  showing 
express  authority,  or  of  making  proof  of  such  facts  and  circum- 
stances as  will  establish  same,  on  part  of  wife  to  purchase. 
Compton  vs.  Bates,  10  App.  78. 

And  has  the  burden  of  showing  that  they  were  necessaries. 
Artz  vs.  Eobertsou,  50  App.  27. 

In  an  action  against  a  bank,  by  a  husband,  for  money  paid  to 

his  wife  from  his  account,  evidence  that  his  wife  frequently  made 

deposits  on  his  account,  presenting  his  bank-book  and  drawing  the 

money  from  the  bank  on  account  of  her  husband,  and  that  the 

bank   had  no   notice   of  any  change   in   the   relationship   between 

the  husband  and  wife,  is  admissible  to  show  whether  or  not  the 

wife  had  actual  or  implied  authoritj^  from  the  husband  to  draw 

On  his  account. 

Moline  Sav.  Bank  vs.  Liggett,  106  App.  223. 

Where  the  husband  and  wife  are  living  together  he  has  burden 
of  proof  to  show  that  for  some  reason  she  did  not  have  authority 
to  bind  him  for  necessaries. 

Bonney  vs.  Perham,  102  App.  634. 

Ownership  of  Property: 

—  From  Possession :  It  is  presumed,  in  absence  of  evidence  to 
contrary,  that  the  husband  is  the  owner  of  property  in  his  posses- 
sion, and  of  which  the  wife  may  be  in  possession,  if  they  are  living 

together,  as  husband  and  wife. 

Curran  vs.  McGrath,  67  App.  566;  Laing  vs.  Day,  8  App.  631;  Far 
rell  vs.   Patterson,  43   111.   52;   Eobinson  vs.   Breems,  90   111.   351; 
XII  111.  Notes  949,  §  99. 
So  where   the   wife  claims  such  property  as  against  her  hus- 
band's creditors,  the  burden  of  proof  is  upon  the  wife  to  show 

where  and  how  she  got  it. 

Edie  vs.  Path,  4  App.  275;  Laing  vs.  Day,  8  App.  631. 
The  presumption  of  ownership  of  property  by  execution  debtor 
arising  from  the  fact  that  he  resided  in  the  house  where  the  prop- 


HUSBAND  AND  WIFE  657 

erty  was  in  use  as  household  furuilure,  and  that  he  was  apparent 

head  of  the  family,  is  rehuttahle. 

Giveiibcrg  vs.  Stovous,  i212  HI.  (ioG. 
Possession  by  the  husband,  after  the  wife's  death,  of  a  note  and 
mortgage  formerly  the  property  of  the  wife,  and  which  she  has 
properly   indorsed   and   assigned   to   him,   raises   the   presumption 
that  he  is  the  legal  and  equitable  owner  thereof. 

Mahan  vs.  Schroeder,  23G  111.  3i)2. 
—  Foreign  State:     In  absence  of  proof  to  contrary,  it  will  be 
presumed  the   common  law  rule  that  the  wife's  money   and   the 
income  from  her  real  estate  became  the  property  of  her  husband 
upon  mai-riage,  prevails  in  a  foreign  state. 

Hogue  vs.  Steele,  207  111.  340. 

Family  Expense: 

It  will  be  presumed  that  where  a  husband  and  wife  live  to- 
gether, he  bears  the  expense. 

Dovine  vs.  Devine,  180  111.  447;  Bonney  vs.  Perham,  102  App.  634. 
An  article  is  not  a  family  expense,  chargeable  upon  both  hus- 
band and  wife,  under  the  statute,  if  it  in  no  way  conduces  to  the 
welfare  of  the  family  generally,  although  at  times  it  is  used  or 
displayed  in  the  family  by  the  one  for  whom  it  was  purchased. 
Hyman  vs.  Harding,  "l62  111.  357. 

Transfer  of  Chattels: 

To  be  valid  as  against  third  persons,  transfers  of  chattels  be- 
tween husband  and  wife  living  together  must  be  in  writing  and 
acknowledged  and  recorded  as  chattel  mortgages,  and  where  al- 
leged to  be  in  settlement  of  indebtedness,  the  law  requires  satis- 
factory proof  that  there  was  a  valid  and  subsisting  indebtedness 

between  tlie  husband  and  wife. 

Harrison  vs.  TourtiUott,  148  App.  576. 

ADMISSIONS 
By  Husband: 

A  hus1)and  cannot  bind  his  wife  by  admissions  made  in  her 
absence  if  he  is  not  her  agent. 

Loluman  vs.  Grmidler,  Ui8  App.  161. 
The  right  of  the  wife  to  the  ownership  of  personalty  cannot  be 
prejudiced  by  the  declarations  of  the -husband  made  out  of  her 

presence. 

Pierce  vs.  Hasbrouoh,  49  111.  23. 
An  admission  by  a  husband,  made  after  transaction  in  which 
he  was  agent  for  his  wife  was  closed,  is  inadmissible  to  bind  the 

wife. 

Lowden  vs.  Wilson,  233  HI.  340. 
In  creditor's  bill  proceeding  to  set  aside  a  conveyance  of  real 
estate  from  husband  to-  wife,  a  written  declaration  made  by  the 
husband  before  complainant's  indebtedness  was  incurred,  to  the 
effect  that  he  had  used  his  wife's  money  in  purchasing  the  prop- 
erty and  he  held  the  title  in  trust  for  her,  is  admissible  in  favor 
of  the  wife,  where  the  husband  is  dead  and  no  motive  for  falsi- 
fying the  facts  appears. 

German  Ins.  Co.  vs.  Bartlett,  188  111.  165. 
The  declarations  of  a  husband  that  the  money  paid  on  purchase 
of  land  belonged  to  his  wife,  and  that  he  wished  the  contract  to 

Ev.— 42 


658  HUSBAND  AND  WIFE 

inure  to  her  benefit,  are  admissible  in  evidence.  Like  all  such 
declarations,  they  are  not  conclusive,  but  may  be  disproved  by 
direct  or  circumstantial  evidence. 
Ci-ane  vs.  Wright,  46  111.  107. 
Declarations  of  husband  who  was  occupying  land  of  foimer  wife 
under  right  of  dower  and  homestead,  that  he  did  not  claim  to 
own  the  land,  admissible  against  his  wife,  who  claimed  to  own  the 
fee. 

Kirby  vs.  Kirby,  236  111.  255. 
On  bill  by  creditors  to  subject  land  conveyed  by  debtor  to  his 
wife,  to  payment  of  their  judgments,  declarations  of  debtor  sub- 
sequent to  his  conveyance  will  not  be  competent  evidence  against 

the  wife. 

Coale  vs.  Moline  Plow  Co.,  134  111.  350. 

The  declarations  of  grantor  of  land,  and  those  of  wife  of  gran- 
tee, all  made  out  of  presence  of  latter,  being  hearsay,   are  not 
competent  evidence  against  grantee,   on  bill   by  heirs  of  his  de- 
ceased wife  to  establish  resulting  trust  in  favor  of  complainants. 
Francis  vs.  Eoades,  146  111.  635. 

By  Wife: 

Statements  of  wife,  not  in  presence  of  husband,  and  not  part  of 
transaction  by  which  she  indorsed  and  assigned  to  him  a  note  and 
mortgage,  are  not  admissible  for  purpose  of  showing  husband  held 
note  and  mortgage  upon  express  trust. 
Malian  vs.  Schroeder,  236  111.  392. 
Admissions  and  declarations  of  the  wife  during  marriage  cannot 
be  proven  by  husband  in  action  between  other  parties. 

Joiner  vs.  Duncan,   174  111.   252.      (See  Admissions   and  Declara- 
tions— Wills.) 
COMPETENCY  OF  HUSBAND  AS  WITNESS 
In  General: 

Husband  is  incompetent  to  testify  for  or  against  wife  except  in 
cases  enumerated  by  the  statute. 

Schrefflei-  vs.  Chase,  245  111.  395;   Mitchinson  vs.  Cross,  58  111.  366; 

Gannon  vs.  People,  127  111.  507;  Stodder  vs.  Hoffman,  158  111.  486. 

Where   wife   is  incompetent,  husband  is  likewise  incompetent. 

Gillam  vs.  Wrioht,  246  111.  398;  Heintz  vs.  Dennis,  216  111.  487;  Stod- 
der vs.  Hoffman,  158  111.  486;   Shaw  vs.  Schoonover,  130  111.  448; 
Way  vs.  Harriman,  126  111.  132;   Treleven  vs.  Dixon,  119  111.  548; 
Gifford  vs.  McGiieron,  51  App.  387;  XIV  111.  Notes  1115,  §  39.^ 
At  common  law,  husband  could  not  be  a  witness  for  or  against 
his  wife  as  to  any  matter,  nor  could  he,  either  during  the  mar- 
riage or  after  its  termination  by  death  or  divorce,  be  called  as 
a  witness  to  testify  to  communications  between  them,  or  to  any 
fact  or  transaction  the  knowledge  of  which  was  obtained  by  means 
of  the  marriage  relation. 

Schreffler  vs.  Chase,  245  111.  395. 
And  when  wife  was  incompetent  to  testify  by  reason  of  being 
a  party  to  or  interested  in  suit,  husband  was  also  held  incompe- 
tent and  vice  versa. 

Mueller  vs.  Eebham,  94  111.  142. 

Separate  Property  of  Wife: 

—  In  Oeneral:    A  husband  is  competent  to  testify  for  or  against 
his  wife,  where  the  litigation  concerns  the  separate  property  of 


HUSBAND  AND  WIFE  659 

the  wife,  unless  the  wife  is  herself  incompetent  by  reason  of  the 
capacity  in  which  the  o])posite  party  sues  or  defends. 
Linkiiiaau  vs.  Kiie|ii>er,  2-6  ill.  473. 

Under  Section  5  of  the  Evidence  act,  a  husband  may  testify  in 
behalf  of  his  wife,  where  the  litigation  concerns  her  separate  prop- 
erty. 

Cassem  vs.  Heustis,  201  111.  208. 

Husband  and  wife  are  competent  to  testify  for  or  against  each 
other  only  in  the  cases  mentioned  in  tlie  exceptions  to  Section  5 
of  the  act  relating  to  evidence.  The  words  "except  in  cases  where 
the  wife  would,  if  unmarried,  be  plaintiff  or  defendant, "  do  not 
have  reference  to  the  cases  where  the  wife  is  subsequently  divorced, 
or  where  her  husband  has  died,  but  simply  in  cases  where  the  pro- 
posed witness  has  never  been  married, — where  the  controversy 
does  not  concern  a  right  resulting  from  marriage. 
Smith  vs.  Long,  :06  lU.-  485. 

In  litigation  respecting  the  wife's  separate  property,  and  in 
which  she  would,  if  unmarried,  be  the  defendant,  the  husband  is 
competent  to  testify  for  or  against  her,  under  exceptions  to  Sec- 
tion 5  of  Evidence  act. 

Booker  vs.  Booker,  208  111.  529. 

Under  the  proviso  of  the  section,  husband  is  not  competent  to 
testify  to  any  admissions  or  conversations  of  his  wife,  whether 
made  by  her  to  him  or  to  third  persons,  except  in  suits  or  causes 

between  such  husband  and  wife. 

Marks  vs.  Madseu,  2(51  111.  51;  Mumford  vs.  Miller,  7  App.  62;  Ged- 
ney  vs.  Gedney,  61  App.  511 ;  Leiserowitz  vs.  Fogarty,  135  App. 
609. 

—  Bill  to  Declare  Besulting  Trust:  A  husband  may  testify 
as  to  business  transactions  in  behalf  of  his  wife,  though  joined  as 
co-defendant,  where  suit  relates  to  her  separate  property,  the  bill 
being  filed  by  the  assignee  of  a  corporation  in  which  the  husband 
was  chief  stockholder,  to  set  aside  deed  to  her  and  have  resulting 
trust  declared  in  favor  of  corporation  for  benefit  of  creditors. 

Pain  vs.  Farson,  179  111.  185. 

—  Action  for  Personal  Injuries:     In  suit  by  wife  for  personal 

injuries,  husband  is  a  competent  witness. 

N.  C.  St.  By.  Co.  vs.  Willner,  206  111.  272. 
A  right  of  action  for  personal  injuries  to  wife  is  her  separate 
property  and  husband  is  competent  witness  in  her  behalf. 

Anderson  vs.  ^Nloore,  108  App.  106;  City  of  Eock  Island  vs.  Larkin, 
136  App,  579. 

—  Malpractice:     An  action  for  malpractice,  brought  by  wife, 

is  her  separate  property  and  husband  is  a  competent  witness  in 

her  behalf. 

Kolber  vs.  Frankenthal,  159  App.  382. 

—  Proceeding  for  Partition:  In  proceeding  for  partition,  hus- 
bands of  female  co-defendants  are  competent  witnesses,  since  the 
litigation  is  concerning  the  separate  property  of  their  wives. 

Grindle  vs.  Grindle,  240  111.  143. 

—  Bill  to  Set  Aside  Contract:  In  suit  by  wife  to  set  aside  a 
contract  made  between  her  and  the  executor  of  her  father's  wdll, 
concerning,  her  separate  property,   her  husband   is  a  competent 

witness. 

Stevens  vs.  Collison,  256  111.  238. 


660  HUSBAND  AND  WIFE 

—  Where  Husband  Administrator:     "Where  person  sues  as  ad- 
ministrator, fact  that  his  wife  is  sole  heir  of  intestate  does  not 
render  administrator  incompetent  as  witness. 
Bailey  vs.  Eobinsoii,  149  App.  457. 

Adverse  Party  Heir  or  Personal  Representative: 

If  a  wife  is  incompetent  by  virtue  of  her  interest,  the  adverse 
party  suing  or  defending  in  a  representative  capacity,  her  hus- 
band is  likewise  incompetent. 

Hamilton  vs.  Chaffee,  158  App.  54. 
A  husband  is  not  a  competent  witness  in  behalf  of  his  wife 
where  adverse  party  sues  or  defends  as  executor  of  a  deceased 

person. 

Mann  vs.  Forein,  166  111.  446;  Warrick  vs.  Hull,  102  HI.  280;   Crane 
vs.  Crane,  81  111.  165. 
When  wife  is  disqualified  as  witness  against  heirs  and  executor, 

her  husband  is  also. 

Pyle    vs.    Pvle,    158    HI.    288;    Stodcler   vs.    Hoffman,    158    111.    486; 

Mueller  vs.  Eebliam,  94  111.  142.  _     - 

The  husband  of  testatrix  is  incompetent  in  suit  to  contest  will, 

to  testify  to  any  fact  or  transaction,  the  knowledge  of  which  was 

obtained  by  means  of  the  marriage  relation,  including  conversations 

with  testatrix,  in  his  presence,  during  the  marriage,  testified  to 

by  other  witnesses. 

Wetzel  vs.  Firebaugh,  251  111.  190. 

Husband  of  a  deceased  grantee  cannot  testify  as  to  any  of  her 

statements   or  conversations   for  purpose   of  showing  delivery   of 

deed,  but  he  may  testify  to  acts  he  witnessed  with  reference  to  such 

delivery. 

Weigrand  vs.  Eutsehke,  253  111.  260. 

A  party  to  a  suit  whose  interest  is  adverse  to  that  of  complain- 
ant, who  sues  as  administrator  of  deceased  person,  is  not  compe- 
tent, under  Section  2  of  Evidence  act,  to  testify  in  behalf  of  him- 
self, and  his  co-defendants,  to  conversations  with  deceased,  for 
whom  he  testifies  he- was  acting  as  agent,  where  he  was  not  called 
upon  by  administrator  to  testify  as  to  any  such  conversations. 
"Elwell  vs.   Hicks,   238  111.   170. 

In  proceeding  by  heirs  to  set  aside  or  reform  deeds  made  by 
their  ancestor,  the  husband  of  one  of  the  grantees  is  not  com- 
petent to  testify  as  to  conversations  with  grantor,  tending  to  sus- 
tain the  deeds. 

Lyons  vs.  Willey,  253  HI.  440. 

The  incompetency  of  husbands  and  wives  to  testify  for  or  against 

each  other  applies  to  attestation  of  wills,  and  the  disqualification 

as  respects  wills  is  not  removed  by  provisions  of  act  relating  to 

evidence. 

Gump  vs.  Gowans,  226  111.  635. 

The  statute  making  the  husband  or  wife  of  anj^  devisee  or  ben- 
eficiary a  competent  witness  to  a  will  cannot  be  given  retroactive 

effect. 

Rowlett  vs.  Moore,  252  111.  436. 
The  right  of  a  husband  to  testify,  in  litigation  concerning  wife's 
separate  estate,  "as  other  parties  may"  under  provisions  of  act 
on  evidence  and  depositions  does  not  extend  to  suit  against  execu- 


HUSBAND  AND  WIFE  661 

tors  and  devisees  to  set  aside  a  will  in  which  his  wife's  interests 
are  adverse  to  tiie  will. 

Pyle  vs.  Pyle,  lo8  111.  289;   Stodder  vs.  Iloffnuin,   158  111.  486. 
On  bill  by  wife  to  set  aside  a  sale  of  her  land  under  a  tleed  of 
trust,  where  executor  of  deceased  creditor  is  defending,  the  hus- 
band is  not  a  competent  witness  for  his  wife. 

Trclcaven  vs.  Dixon,  119  111.  548. 
Where  heir  of  deceased  person  files  bill  against  other  heirs  to  set 
aside  will  of  testator,  husband  of  complainant  is  competent  to 
testify  to  any  matter  of  whicli  he  had  knowledge  except  as  to 
admissions  and  conversations  of  complainant  made  during  mar- 
riage. 

Mueller  vs.  Eebham,  94  111.  142. 

Husband  of  an  heir  is  competent  to  testify  on  behalf  of  per- 
sonal representatives  in  proceedings  on  claim  tiled  against  estate 
of  deceased. 

Freeman  vs.  Freeman,  62  111.  189. 
On  bill  for  specific  performance,  neither  complainant  nor  her 
husband  is  competent  witness  where  defendants  are  defending  as 
heirs. 

Gladville  vs.  McDole,  247  111.  34. 

Void  Marriage: 

A  void  marriage  does  not  disqualify  eitlier  party  from  testify- 
ing against  the  other. 

Clark  vs.  People,  178  111.  37. 

Divorced  Husband: 

Divorced  husband  not  competent  to  testify,  in  will  case,  as  to 
mental  capacity  of  testatrix. 

SchreffleV  vs.  Chase.  245  111.  395. 

COMPETENCY  OF  WIFE  AS  WITNESS 
Criminal  Actions: 

The  Avife  of  one  joint  defendant  may  be  allowed  to  testif}^  for 
the  other  if  the  grounds  of  defense  are  several  and  distinct  and 
not  dependent  upon  each  other,  but  she  is  not  a  competent  wit- 
ness where  her  testimony  has  the  direct  effect  of  aiding  her  hus- 
band. 

Gillespie  vs.  People,  176  111.  238. 

AVife  of  defendant  may  be  called  as  witness  against  co-defend- 
ant when  lujUe  prosequi  is  entered  as  to  the  husband. 
Love  vs.  People,  160  111.  501. 
The  wife  of  one  of  defendants  named  in  indictment  may  tes- 
tify in  corroboration  of  her  husband,  who  |)leaded  guilty  before 
the  trial  and  was  not,  so  far  as  the  record  shows,  on  trial,  where 
her  testimony  is  neither  for  nor  against  her  husband. 
Graff  vs.  People,  208  111.  312. 

Where  Acting'  as  Agent: 

Unless  wife  has  acted  as  her  husband's  agent,  she  is  not  com- 
petent witness  in  litigation  to  which  he  is  a  party. 
Elec.  Vehicle  Co.  vs.  Price,  138  App.  594. 

To  make  a  wife  a  competent  witness  by  reason  of  agency,  it 
must  appear  that  she  was  authorized  by  her  husband  to  conduct 
some  business  transaction  for  him  which  she  did  conduct  and 
then  she  may  testify. 

Donk  Bros.  Coal  Co.  vs.  Stroetter,  229  111.  134. 


G62  HUSBAND  AND  WIFE 

If  the  wife  of  a  party,  ia  the  business  transaction  as  to  which 
she  has  testified,  has  acted  as  agent  of  her  husband,  then  she  is 

a  competent  witness. 

Lumbard  vs.  Holdmann,  115  App.  458;  Dannewitz  vs.  Miller,  179  App. 

185. 

Where  property  is  phiced  in  charge  of  wife,  during  husband's 

absence,    with    instructions   in   regard   thereto,    it    is   a   "business 

transaction,"  and  an  "agency,"  sufficient  to  enable  her  to  be  a 

witness  in  suit  by  husband. 

Sargeaut  vs.  Marshall,  38  App.  642. 

In  action  by  inn-keeper,  proof  that  he  is  absent  a  greater  part 

of  the  time,  and  during  such  absence  his  wife  manages  the  inn  is 

enough  to  permit  her  to  testify  as  his  agent. 
Mitchell  vs.  Hughes,  24  App.  308. 
W^ife's  competency  limited  by  extent  of  agency.     If  agent  for 
part  of  transaction  only,  she  is  competent  witness  only  as  to  that 

part. 

Poppers  vs.   Miller,   14  App.   87;    I.   C.   E.  E.   Co.   vs.   Messnard,    15 
App.  213. 
And  unless  she  is  agent,  she  cannot  testify  as  to  admissions  of 

opposite  party. 

Eobertson   vs.   Brost,   83   111.   116;    Elec.   Vehicle   Co.   vs.   Price,   138 
App.  594. 
A  wife  is  competent  to  testify  as  to  transactions  where  she  is 
alleged  by  opposite  party  to  have  acted  as  agent  of  the  husband. 
Schneider  vs.  Kabsch,  91  App.  386. 
Husband's  testimony  that  he  was  wife's  agent  in  her  business, 
insufficient  proof  of  such  agency  to  make  him  a  competent  wit- 
ness for  her. 

Waggonseller  vs.  Eexford,  2  App.  455. 

The  fact  that  a  party's  wife  was  present  when  he  purchased 
goods,  and  selected  them,  with  assistance  of  her  husliand,  does 
not  make  her  agent  of  latter,  and  in  suit  against  him  for  price, 
the  wife  is  not  a  competent  witness  in  his  behalf,  to  prove  the 
goods  were  furnished  on  credit  of  a  third  person,  in  payment  of 
debt  of  such  third  person  to  the  husband. 
Trepp  vs.  Baker,  78  111.  146. 

A  married  woman  may  properly  testify  for  her  husband  as  to 
conversations  with  parties  in  regard  to  business  transactions,  in 

which  she  has  acted  as  the  agent  of  her  husband. 

McDavid  vs.  Eork,  92  App.  482. 
Even  where  the  wife  is  administratrix  of  her  husband's  estate, 
she  is  competent  to  testify  against  the  estate  as  to  acts  done  by 
her  as  agent  of  her  husband. 

Eobnett  vs.  Eobnett,  43  App.  191. 

Attesting  Witness  of  Will: 

The  wife  of  an  executor  is  not  a  competent  attesting  witness. 

Such  incompetency,  like  that  of  wife  or  husband  or  a  legatee  or 

devisee,  is  not  removed  by  Wills  act. 
Fearn  vs.  Postelwaite^  240  111.  626. 

Though  executor  make  written  release. 
Eowlett  vs.  Moore,  252  111.  436. 


HUSBAND  AND  WIFE  663 

Family  Expense: 

Where  husband  and  wife  are  joint  defendants,  both  are  com- 
petent witnesses. 

Ven-les  vs.  Jansen,  96  App.  328. 

But  wife  is  incompetent  as  against  husband  to  prove  that  arti- 
cle purchased  by  her  was  family  expense. 

Hynuiii  vs.  ilaidiiit^^  HV2   111.  o")il. 

Admissions  and  Declarations  in  General: 

Under  section  5  of  the  Evidence  act,  and  its  proviso,  a  wife  is 
not  competent,  either  during  or  after  coverture,  to  testify  to  any 
conversation  between  herself  and  her  husband,  or  to  any  admis- 
sions made  by  him  to  her,  or  to  any  conversation  between  him  and 
a  third  person,  or  to  any  admissions  made  by  him  to  a  third  i)er- 
sou,  except  in  causes  between  husband  and  wife. 

Stepheus  vs.  Collisoii,  2o6  111.  238;  Doiinan  vs.  Donuan,  236  111.  3ii; 
Wickes  vs.  Waldion,  228  111.  56;  XIV  111.  Notes  1132,  §155. 

A  wife  cannot  testify  as  to  declarations  of  or  conversations 
with  her  husband  during  coverture,  although  the  marriage  rela- 
tion has  been  severed  by  death  or  divorce. 

Geer  vs.  Goudy,  174  111.  Sli;  Fletcher  vs.  Shepard,  174  111.- 262. 

A  wife  is  incompetent  to  testify  as  a  witness  to  any  admission 
or  conversation  of  her  husband  relative  to  transaction  concern- 
ing benefit  certificate  in  suit  wherein  she  is  named  beneficiary, 
but  she  is  not  incompetent  to  testify  as  a  witness  to  such  trans- 
actions relating  to  such  benefit  certificate,  such  as  delivery  of  cer- 
tificate to  her,  the  keeping  of  same  by  her  and  where  she  kept 
it,  and  the  fact  of  payment  and  advancement  by  her  of  money 
to  and  for  the  benefit  and  use  of  her  husband. 

Conner  vs.  Conner,   145  App.  608. 

Actions  by  or  Against  Husband: 

—  In  General:     Wife  is  incompetent  to  testify  for  her  husband 

except  as  provided  by  statute. 

Schrefller  vs.  Chase,  245  111.  395. 

—  To  Establish  Resulting  Trust:     The  wdfe  of  a  complainant  in 

bill  in  chancery  to  establish  resulting  trust  is  not  competent  to 

testify  for  her  husband. 

Francis  vs.  Ehoades,  146  111.  635. 

—  Bill  to  Declare  Deed  a  Mortgage:  On  bill  by  person  seeking 
to  have  a  deed  made  by  him  declared  to  be  a  mortgage,  and  to 
redeem  therefrom,  his  wdfe  is  not  competent  witness  in  his  behalf. 

Keithley  vs.  Wood,  151  111.  566. 

—  Bill  to  Cancel  Deed:  In  suit  in  chancery  by  husband  to 
cancel  deed  for  duress,  the  wife  is  not  a  competent  witness  in  his 

behalf. 

Eendleman  vs.  Eendleman,  156  111.  568. 

—  Bill  to  Compel  Ee-Convcyancc:  In  suit  by  husband  and 
wife  to  compel  re-conveyance  of  certain  land  to  them  which  had 
belonged  to  the  husband,  and  which  he  had  conveyed,  the  wife  is 
not  a  competent  witness  in  her  husband's  behalf. 

Kofsky  vs.  Kofsky,  254  111.  88. 

—  Bill  to  Contest  Will:  The  wife  of  a  legatee  is  not  a  compe- 
tent witness  in  suit  to  contest  will,  as  she  is  incompetent  to  tes- 
tify either  for  or  against  her  husband. 

Wetzel  vs.  Firebaugh,  251  111.  190. 


664  HUSBAND  AND  WIPE 

The  wife  of  a  contestant  of  a  will,  where  the  opposite  party  de- 
fends as  a  devisee,  is  not  a  competent  witness. 
Bevelot  vs.  Lestrade,  153  111.  625, 

—  Bill  to  Foreclose  Mortgage:  On  bill  by  mortgagor  and  wife 
against  heirs  of  deceased  mortgagee,  the  wife  is  incompetent  to 
testify  to  anything  in  behalf  of  her  husband,  unless  she  was  com- 
petent to  testify  in  her  own  behalf. 

McGooden  vs.  Bartholie,  132  App.  392. 

—  Deht  on  Bond:     In  debt  on  bond  given  to  wife,  conditioned 

to  pay  certain  sum  for  support,  wife  is  competent  witness  in  action 

for  breach. 

Bea  vs.  People,  101  App.  132. 

—  Actions  Against  Sureties:  In  action  against  one  of  makers 
of  a  note,  who  is  a  surety,  wife  of  principal  maker  is  not  a  compe- 
tent witness  for  the  maker,  for  the  reason  that  her  husband  is 

directly  interested  in  the  result  of  the  suit. 

Craig  vs.  Miller,  133  111.  300. 
In  action  against  sureties  upon  a  note,  the  wife  of  one  of  de- 
fendants was  offered  as  a  witness  to  testify  to  wliat  plaintiff  had 
told  her,  at  time  when  he  called  for  her  husband  to  go  and  see 
the  principal  debtor,  and  get  him  to  execute  a  mortgage  as  further 
security  for  the  debt.    Held,  incompetent. 

Phares  vs.  Barbour,   49  111.   370. 

—  On  Credit ors's  Bill:  On  creditor's  bill  to  set  aside  a  convey- 
ance of  land  by  a  husband  to  his  wife,  she  is  a  competent  witness 
to  prove  the  consideration  of  the  conveyance  and  its  good  faith. 

Payne  vs.  Miller,  103  111.  442. 

On  bill  to  set  aside  conveyance  made  by  judgment  debtor  as 

being  fraudulent  as  to  creditors,  the  wife  of  grantee  defendant  is 

not  a  competent  witness  for  him,  to  sustain  alleged  bona  fides  of 

the  conveyance. 

Gordon  vs.   Eeynolds,   114   111.   118. 

—  Trespass:  In  action  of  trespass  for  assault  and  battery,  wife 
of  defendant  is  incompetent  in  his  behalf. 

Eiedel  vs.  Crocker,  161  App.  608. 

In  action  of  trespass  by  husband,  against  a  stranger,  for  taking 
and  carrying  away  goods  of  the  husband,  the  wife  is  not  a  compe- 
tent witness  in  his  behalf. 

Hays  vs.  Parmalee,  79  111.  563 ;  Wolf  vs.  Vanllousen,  55  App.  295. 

—  Where  Bill  Disynissecl  as  to  Wife:  "Where  a  bill  in  chancery 
against  husband  and  wife  is  dismissed  as  to  wife,  on  the  hearing, 
she  will  not  thereafter  be  a  competent  witness  in  behalf  of  her  hus- 
band. 

Kuseh  vs.  Kusch,  143  111.  353. 

—  Husband  Next  Friend:    Wife  of  next  friend  is  competent 

witness. 

I.  C.  E.  E.  Co.  vs.  Becker,  119  App.  221. 
Where  husband  sues  as  administrator  for  death  of  son,  wife  is 

incompetent  witness. 

Thomas  vs.  Antliony,  261  111.  288, 

The  wife  who  sues  as  next  friend  is  not  incompetent  merely  be- 
cause her  husband  has  given  bond  for  costs  in  the  case. 
Kendalil  vs.  Walsh,  145  App.  601, 


HUSBAND  AND  WIFE  665 

Where  Marriagfe  Denied: 

A  woman  wliose  claim  as  being  lawful  widow  is  denied  by  others 
having-  or  asserting  interest,  as  heirs,  in  estate  of  her  aHeged  hus- 
band, is  incompetent  to  testify  to  the  fact  of  her  marriage,  in  pro- 
ceeding in  which  she  seeks,  as  distributee,  a  portion  of  all  his  per- 
sonal property,  until  her  status  as  a  widow  has  been  established 
by  ^n  adjudication  of  a  competent  court. 
Til  re   I'lstate  of  Maher,  210  111.  IGO. 

Divorced  Wife: 

Testimony  of  a  divorced  wife  of  a  party,  as  to  matters  occur- 
ring during  marital  relations,  is  incompetent. 

Wiekes  \s.   Walden,   1.50  App.   79;   Neubrecht   vs.  Sontmeyer,   50  til. 
74;  VVaddams  vs.  Humphrey,  22  111.  661;  XIV  111.  Notes  1132,  §  158. 
A  divorced  wife  is  incompetent  to  testify  in  behalf  of  her  former 
husband  in  suit  against  her  seducer. 
Eea  vs.  Tucker,  51  111.  110. 
In  bill  for  divorce,  filed  by  wife,  alleging  impotency  on  part  of 
husband,  testimony  of  former  wife,  since  divorced,  is  inadmissible 
on  behalf  of  complainant. 

Orillith  vs.  Griffith,  162  111.  368. 

Bigamous  Wife: 

Competency  of  second  wife  in  criminal  prosecution  of  husband, 
who  is  alleged  to  have  another  wdfe  living  and  undivorced,  is  for 
the  court,  both  as  to  questions  of  law  and  fact. 
Hoch  vs.  People,  219  111.  265.      (See  Bigamy.) 

In  prosecution  for  forgery,  the  alleged  wife  of  the  accused  is 
properly  permitted  to  testify  against  him  upon  proof  that  he  had 
a  wife  living  when  the  marriage  ceremony  with  the  witness  took 
place,  which  is  not  contradicted  by  accused  though  he  took  the 
stand  in  his  defense. 

Clark  vs.  People,  178  111.  37. 

-Proof  of  a  former  marriage  and  a  living  wife  being  made  aliunde, 
the  supposed  second  wife  becomes  a  competent  witness  to  admis- 
sions of  alleged  husband,  during  cohabitation,  that  he  was  never 
divorced  from  his  first  wife. 
Cole  vs.  Cole,  153  111.  585. 

COMPETENCY  OF  WIDOW  AS  WITNESS 
Admissions  and  Transactions  Generally: 

A  widow  cannot   testify  to  admissions  or  conversations  of  de- 
ceased husband,  although  called  against  her  interest. 
Abrahams  vs.  Wooley,  243  111.  365. 

In  suit  to  contest  will,  wddow  is  incompetent  to  testify  that  in 
her  judgment  testator  was  incapable  of  transacting  ordinary  busi- 
ness, wdiere  such   judgment  is   based  largely   upon   conversations 
between  herself  and  testator,  and  between  him  and  tliird  persons. 
Donoan  vs.  Donnau,  236  111.  341. 

A  widow  cannot  testify  to  conversations  with  deceased  husband, 
in  action  by  administrator.  Section  5  of  the  Evidence  act  only 
permits  a  husband  or  wife  to  testify  to  any  admissions  or  conver- 
sations of  the  other  in  suit  between  husband  and  wife. 

Neiee  vs.  C.  &  A.  E.  K.  Co..  254  111.  595;   State  Bank  vs.  Burnett, 
250  Til.  312. 
Widow  cannot  testify  as  to  the  mental  and  physical  condition 
of  the  testator,  nor  to  certain  of  his  habits,  as  she  is  not  compe- 


666  HUSBAND  AND  WIFE 

tent  to  testify  to  any  fact  or  transaction,  the  knowledge  of  which 
was  obtained  by  reason  of  the  marriage  relation. 
Donnan  vs.  Donnan,  256   111.   244. 

Surviving  wife  is  incompetent  to  testify  to  matters  or  conver- 
sations occurring  during  marriage. 

Stephens  vs.  Collisoii,  2r^C^  111.  238;  Yokum  vs.  Hic-ks,  93  App.  607. 

Disproving  Alleged  Admissions: 

A  widow  may  testify  to  facts  occurring  after  husband's  death, 
and  also  in  rebuttal  of  admissions  sworn  to  have  been  made  by 

her. 

Gillespie  vs.  Gillespie,  159  111.   84. 

In  partition  by  heirs  against  widow  of  their  deceased  ancestor, 
if  complainants  testify  as  to  conversations  had  between  them  and 
defendant  before  death  of  her  husband,  and  in  his  presence,  in 
wdiieh  it  is  claimed  she  made  certain  declarations  tending  to  sup- 
port allegations  of  the  bill,  she  has  the  right,  under  clause  8  of 
Section  2  of  p]vidence  act,  to  testify  for  purpose  of  disproving  or 
explaining  such  conversations  or  declarations. 
Blaueliar<l  vs.  Blauchard,  191  111.  450. 

Claim  Against  Estate: 

in  proceedings  on  claim  against  estate,  widow  of  deceased  is 
competent  to  testify  against  claim  as  to  transactions  relating  there- 
to, in  lifetime  of  deceased,  but  is  incompetent  to  testify  to  conver- 
sations or  admissions  of  deceased. 

Gregory  vs.  Gregory  Estate,  129  App.  96. 

Widow  is  competent  where  son  files  claim  for  necessaries  fur- 
nished his  mother  while  parents  were  living  apart  through  fault  of 

husband. 

Todtleben  vs.  Eudowski,  181  App.  318. 

Ante-Nuptial  Contracts: 

Widow  is  nut  a  competent  witness  in  her  own  behalf  against 
heirs  of  her  deceased  husband,  in  suit  by  her  to  set  aside  ante- 
nuptial contract. 

Yarde  vs.  Yarde,  187  111.  636;  Eichardson  vs.  Eichardson,  148  111.  563; 
Murdoek  vs.  Miirdoek,  121  App.   429. 
Nor  on  bill  for  dower,  w^here  ante-nuptial  contract  is  set  up  in 
bar,  is  she  competent  witness  to  testify  as  to  circumstances  attend- 
ing ma  kins'  of  agreement  for  purpose  of  impeaching  its  fairness. 
Taylor  vs.  Taylor,  144  111.  436. 
Nor  as  against  the  heirs  of  her  husband,  is  the  widow  a  com- 
petent witness  to  tell  what  took  place  at  time  of  execution  of  post- 
nuptial contract. 

Stokes  vs.  Stokes,  240  111.  330. 

Delivery  of  Deed: 

A  wife  is  incompetent  to  testify  to  conversations  or  admissions 
of  husband  during  marriage,  irrespective  of  the  question  of  her 
interest  in  the  suit;  but  where  her  interest  is  adverse  to  sustain- 
ing a  deed,  she  is  competent  to  testify  to  act  of  her  husband  in 
delivering  deed  to  grantee,  as  such  act  involves  no  conversation 

or  admission. 

Baker  vs.  Baker,  239  111.  82. 
Where  deeds  to  grantor's  sons  are  attacked  by  his  devisees,  his 
widow  cannot  testify  as  to  delivery  of  one  deed  which  reserved  life 


HUSBAND  AND  WIFE  667 

estate  in  her,  as  survivor,  greater  than  her  dower  interest ;  but  she 
may  testify  as  to  delivery  of  other  deed  whicli  reserved  no  life 
estate,  and  which,  if  given  elfeet,  would  deprive  widow  of  her  dower 
in  land  conveyed. 

White  vs.  Williard,  232  111.  404. 

The  widow  of  a  deceased  person  is  a  competent  witness  to  prove 
that  after  her  husband's  death,  she  found  a  deed  to  him  among 
his  papers,  as  tending  to  show  its  delivery  to  him,  tliat  being  "a 
fact  occurring  after  death  of  such  deceased  person." 

Griffin  vs.  Griffin,  ]25  Til.  430. 

WiUs: 

On  a  will  contest,  the  widow  of  testator,  whether  made  a  party 
complainant  or  defendant,  is  incompetent  if  her  apparent  interest 
in  the  pending  litigation,  at  time  she  is  otfered  as  witness,  lies  with 
side  offering  her  testimony. 

Baker  vs.  Baker,  202  111.  595. 

Testator's  widow  is  incompetent  to  testify  as  to  his  physical 
condition. 

Donnan  vs.  Donnan,  256  111.  244. 
But  may  testify  to  circumstances  showing  that  a  son  largely 
benefited  by  the  will  took  active  part  in  having  v/ill  prepared. 
Donnan  vs.  Donnan,  256  111.  244. 

Partition  and  Resulting  Trust: 

In  pi-oceeding  for  partition  among  children  of  deceased  land 
owner,  and  to  cancel  deeds  to  two  of  them,  if  the  only  issue  made  is 
the  validity  of  such  deeds,  the  children  are  not  incompetent  to 
testify  under  section  2  of  the  Evidence  act ;  nor  is  the  widow  in- 
competent except  as  to  matters  from  wdiich  she  is  excluded  by  sec- 
tion 5  of  such  act. 

Grindle  \s.  Grindle,  240  111.  143. 

On  bill  by  heirs  at  law  of  a  deceased  person,  against  his  widow, 
for  partition  of  land,  and  cross  bill  by  such  widow  to  have  result- 
ing trust  declared  in  her  favor,  she  is  not  a  competent  witness  to 
establish  the  trust  as  against  the  heirs. 
Connelly  vs.  Dunn,  73  111.  218. 

But  if  one  of  the  heirs,  an  adverse  party,  testifies  as  to  what 
property  widow  brought  with  her  upon  marriage,  the  widow  may 
testify  as  to  such  matter,  but  not  generally  to  show  the  land  was 

bought  with  her  means. 

Connelly  vs.  Dunn,  73  111.  218. 
•    Where  widow  of  a  deceased  person  sets  up  claim  to  land  sought 
to  be  partitioned  by  heirs  of  decedent,  she  is  not  a  competent  wit- 
ness in  her  own  behalf  to  testify  to  facts  not  within  exception  in 
section  2  of  Chapter  51,  of  statute,  for  purpose  of  defeating  title 

of  heirs  to  the  land. 

Lancaster  vs.  Blaney,   140  111.  203. 

In  proceeding  against  heirs  for  partition,  wherein  complainant 
seeks  to  estal)lisli  fact  of  her  marriage  with  deceased  land  owner, 
the  complainant  is  not  a  competent  witness  to  such  fact,  nor  are 
the  ex  parte  affidavits  of  other  witnesses  as  to  that  fact  competent 
to  be  considered  by  the  master. 

Crane  vs.  Stafford,  217  111.  21. 


668  HUSBAND  AND  WIFE 

In  suit  between  widow  and  heirs  of  her  deceased  husband,  in 
respect  to  title  to  land,  the  widow  cannot,  by  statement  of  facts 
after  husband's  death,  or  of  past  transactions,  make  evidence  in 
her  own  behalf,  and  prove  same  on  the  trial  as  evidence  in  her 

favor. 

Lancnster  vs.  Blaney,   140  111.  203. 

Action  as  Administratrix: 

Evidence  act  only  permits  a  husband  or  wife  to  testify  to  any 
admission  or  conversation  during  the  marriage  relation  where  the 
suit  is  between  husband  and  wife,  and  does  not  autliorize  proof  of 
such  conversation  where  wife  is  suing  as  administratrix  for  dam- 
ages for  her  husband's  death,  even  though  such  conversation  is 

part  of  the  res  gestae. 

Neice  vs.  C.  &  A.  Ey.  Co.,  254  111.  595. 

When  husband  commences  suit  for  injuries,  and  dies  before  trial 
his  widow,  being  substituted  as  administratrix,  is  incompetent  to 
testify  to  facts  during  his  lifetime  while  she  Avas  his  wife. 
Clark  vs.  Og-ara  Coal  Co.,  140  App.  207. 

Impeachment  of  Note: 

On  bill  by  heirs  of  a  deceased  person  to  impeach  a  promissory 
note  made  by  decedent  in  his  lifetime,  to  his  wife,  for  want  of  con- 
sideration, the  widow  is  not  a  competent  witness  in  her  OAvn  behalf 
to  show  a  consideration. 

Eichardson  vs.  Eifhardson,  148  111.  563. 

Action  by  or  Against  Personal  Representative: 

In  suit  to  set  aside  a  settlement  contract  between  complainant 
and  executor  of  her  father's  will,  the  testator's  widow  is  incompe- 
tent to  testify  as  to  any  fact  or  transaction,  the  knowledge  of  which 
she  could  have  acquired  only  by  reason  of  being  the  testator's  wife. 
Stevens  vs.  CoUison,  256  111.  238. 

AVhere  the  litigation  involves  the  separate  property  of  the  Mdfe, 

she  is  made  a  competent  witness  to  protect  the  same,  and  the  fact 

that  her  husband  is  dead,  will  not  render  her  incompetent  as  a 

witness  against  his  administrator,  V\^hen  her  property  is  replevied 

in  a  suit  by  a  party  claiming  under  her,  against  the  administrator 

of  her  husband's  estate. 

Primmer  vs.  Clabaiigli,  78  111.  94. 

In  action  by  executor  to  recover  on  an  account  in  favor  of 
decedent,  the  widow  of  deceased  was  incompetent  to  testify  for 
plaintiff  in  relation  to  a  conversation  of  defendant  with  her  hus- 
band in  her  presence  after  their  marriage,  in  regard  to  the  account, 
by  which  it  was  sought  to  prove  an  admission  by  defendant  of 
account  sued  on,  and  a  promise,  on  his  part,  to  pay  same  within  a 
period  fixed  by  statute  of  limitations  barring  such  action,  it  not 
appearing  that  the  witness  had  a  direct  interest  in  the  event  of 

the  suit. 

Beeves  vs.  Herr,  59  111.  81. 
In  suit  by  wife  of  mortgagor  against  executor  of  mortgagee,  to 
enjoin  sale  of  premises  thereunder,  neither  complainant  nor  hus- 
band is  competent  to  prove  that  she  never  released  her  homestead. 

Warrick  vs.  Hull,  102  111.  280. 


HYPOTliETlCAL  C^L'E8TI0NS  669 

In  action  of  trover  by  widow  against  administrator  of  deceased 
husband,  plaintiff  is  inconii)etent  witness  as  to  all  transactions  that 
took  place  between  her  and  deceased  during  liis  lifetime. 
Smith  vs.  Jaiiios,  163  App.  501. 

Concerning"  Benefit  Certificate: 

On  bill  of  interpleader  to  determine  rights  between  widow  and 
fraternal  society  to  funds  from  benefit  certilieate,  widow  is  in- 
competent to  testify  to  conversations  had  with  husband,  as  tend- 
ing to  establish  her  right  to  same. 

Kicllassii  vs.  Catholic  Union,  141  App.  297. 

In  action  on  insurance  policy,  wife  of  deceased  assured  is  com- 
petent to  testify  to  conversations  with  beneficiary ;  is  competent 
also  to  testify  to  facts  learned  during  married  relation  in  ways 
other  than  by  admissions  or  conversations. 

Clover  vs.   Modern  Woodmen,   142   App.   276, 

Abandonment  of  Homestead: 

Upon  petition  tiled  by  children  by  a  former  wife,  as  heirs,  ask- 
ing to  have  the  homestead  estate  vested  in  them  upon  the  ground 
that  the  v/idow  had  abandoned  same  though  continuing  to  receive 
the  rents  and  profits  thereon,  the  widow  may  testify,  as  against 
such  heirs,  that  she  had  not  abandoned  it  permanently. 
Can-  vs.  Carr,  177  111.  454. 


HYPOTHETICAL  QUESTIONS 

See  Expert  and  Opinion,  Mental  and  Physical  States,  Sanity 
AND  Insanity,  Wills. 
Right  to  Ask: 

Experts  may  be  asked  hypothetical  questions  as  to  matters  of 

skill  and  science. 

Viseher  vs.  N.  W.  El.  Ey.  Co.,  171  App.  544. 

The  party  seeking  the  opinion  of  an  expert  may,  within  reason- 
able limits,  put  his  case  hypothetically,  as  he  claims  it  to  have  been 
proven,  and  take  the  opinion  of  the  witness  thereon,  leaving  the 

jury  to  determine  whether  the  case  as  put  is  the  one  proven. 
Grand  Lodge  vs.  Wieting,  168  111.  408. 
Where  there  is  any  evidence  tending  to  establish  a  fact,  a  party 
has  a  right  to  base  hypothetical  questions  upon  such  evidence  re- 
gardless of  the  preponderance  of  the  evidence  upon  the  subject. 
He  is  not  obliged  to  accept  the  theories  of  opposite  party  as  to  what 

the  evidence  tends  to  prove. 

L.  E.  &  W.  Ey.  Co.  vs.  DeLong,   109  App.   241;   Catlin  vs.  Traders 
Ins.  Co.,  83  App.  40. 

Purpose: 

The  purpose  of  hypothetical  questions  is  to  obtain  the  opinion  of 
one  entitled  by  superior  learning  or  experience  to  speak  and  to 
express  an  opinion  upon  a  state  of  facts  which,  for  purpose  of  his 
consideration,  are  to  be  received  by  him  as  true. 

Netcher  vs.  Bernstein,  110  App.  484;   Gerard  Coal  Co.  vs.  Wiggins, 
52  App.  69. 


670  HYPOTHETICAL  QUESTIONS 

Must  Be  Based  on  Proof: 

Hypothetical  questions  must  be  based  on  proof.     Such  questions 
filled  with  partial  statements  of  facts  containing  inferences,  and 
conclusions  drawn  from  them  should  not  be  allowed. 
Haish  vs.  Payson,  107  111.  3(35. 

Prior  Proof: 

Prior  proof  of  all  the  facts  assumed  in  the  hypothetical  ques- 
tion is  not  essential  to  the  validity  of  the  question.  It  may  be  pred- 
icated upon  testimony  adduced  and  upon  testimony  which  court 

assumes  counsel  will  adduce. 

Eckels  vs.  Halstead,  136  App.  111. 

Inferences  from  Circumstances: 

For  the  puipose  of  framing  hypothetical  questions,  assumption 
of  facts  is  sufficiently  proven  by  the  proof  of  facts  and  circum- 
stances so  associated  with  the  facts  assumed  as  to  render  the  exist- 
ence of  the  assumed  facts  reasonable  and  probable. 
Economy  Light  Co.  vs.  Sheridan,  200  111.  439. 

Hypothetical   questions   involving  assumptions   of   facts,    as   to 
which  there  is  no  testimony,  may  be  allowed. 
Frambers  vs.  Eisli,  2  App.  499. 

In  stating  an  inference  involving  facts,  it  is  not  necessary  to 
detail  the  facts. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Lassan,  12  App.  659. 

Each  Question  Complete: 

Each  (juestion  should  be  complete  in  itself.    In  other  words,  the 

hypothetical  facts  which  there  is  evidence  tending  to  prove,  should 

be  specifically  detailed  in  each  of  the  questions. 
I.  C.  E.  E.  Co.  vs.  MeCulloni,  130  App.  267. 

Recitation  as  Actual  Facts: 

The  proper  method  of  asking  questions  of  expert  witnesses  is 
to  state  hypothetically  the  case  which  counsel  thinks  has  been 
proven  and  ask  a  question  upon  such  hypothetical  case,  and  not 
to  ask  the  question  in  the  form  of  a  recitation  of  actual  facts. 

Shaughnessy  vs.  Holt,  23G  111.  485;  Botwinis  vs.  Allgood,  113  App.  188. 

A  hypothetical  question  must  be  put  hypothetically.  That  it 
is  so  put  must  appear  early  in  the  question.  Counsel  may  frame 
the  question  upon  such  theory  and  upon  such  supposed  facts  as 
he  pleases,  provided  they  are  warranted  by  the  evidence.  The 
question  should  leave  the  jury  entirely  free  to  determine  for  them- 
selves the  truth  or  falsity  of  the  facts  assumed  in  it. 
Neteher  vs.  Bernstein,  110  App.  484. 

The  better  and  proper  practice  is  to  put  the  question  to  the  wit- 
ness, reciting  the  suj^posed  facts  hypothetically,  upon  which  the 
opinion  of  the  expert  is  wanted. 
Pyle  vs.  Pyle,  158  111.  289. 

The  proper  way  to  examine  an  expert  who  is  not  acquainted 
with  the  facts,  is  to  put  to  him  a  hypothetical  question  embody- 
ing the  facts  which  the  examiner  claims  the  proof  tends  to  estab- 
lish. 

S.  V.  C.  Co.  vs.  McCarthy,  136  App.  473. 

A  question  asked  of  expert  medical  witnesses  as  to  whether  it 
would  be  possible  for  a  person  to  have  a  fall  and  facial  paralysis 
result  from  the  fall  twenty-six  days  afterwards,  is  based  upon  the 


HYPOTHETICAL  QUESTIONS  671 

hypothesis  that  a  person  had  a  fall  and  calls  for  an  opinion  as  to 
facial  paralysis  resulting  therefrom,  and  is,  in  fact,  hypothetical. 

Viseher  vs.  N.  W.  El.  Ry.  Co.,  256  111.  572. 

Part  of  Facts: 

A  hypothetical  question  addressed  to  an  expert  witness  is  not 
improper  simply  because  it  ineludi^  only  part  of  the  facts  in  evi- 
dence, provided  the  testimony  temls  to  establish  such  facts  as  are 
embodied  in  the  question.  Where  there  is  evidence  tending-  to 
prove  each  of  the  facts  stated  in  the  hypothetical  question  upon 
which  the  opinion  of  the  witness  is  asked,  that  is  all  that  is  neces- 
sary. 

C.  &  E.  I.  R.  R.  Co.  vs.  Wallace,  202  111.  129;  Howard  vs.  People,  185 
111.  552. 

A  hypothetical  question  is  improper  which  omits  important 
rndisputed  material  facts. 

Fuchs  vs.  Tone,  218  111.  445;  City  of  Chicac^o  vs.  O 'Donnel,  124  App. 
78;   Catlin  vs.  Traders  Ins.  Co.,  83  App.  40. 

Usurping-  Functions  of  Jury: 

A  hypothetical  question  should  not  assume  ultimate  fact  which 
jury  is  to  determine. 

People  vs.  Arnold,  248  111.  169. 
If  opinion  is  desired  on  case  made  or  claimed  to  be  made  by  the 
testimony  produced  on  the  hearing,  witness  should  not  be  permitted 
to  state  his  opinion  based  on  the  conclusion  arrived  at  by  himself 
as  to  the  case  made  by  the  evidence  as  he  heard  it  and  weighed  it. 
The  proper  course  is  to  state  hypothetically  the  case  which  the 
party  producing  the  witness  thinks  has  been  proven  and  to  ask 
an  opinion  based  on  such  hypothetical  case. 

E.  A.  &  S.  Trac.  Co.  vs.  Wilson,  217  111,  47;  Goddard  vs.  Enzler,  222 
111.  462;  City  of  Aledo  vs.  Honeyman,  208  111.  415. 

It  is  not  the  proper  practice  to  ask  of  a  witness  called  as  an 
expert  a  question  which  does  not  eml)ody  a  hypothetical  state- 
ment of  the  facts,  but  which  directly  calls  upon  the  witness  to  put 
himself  in  the  place  of  the  jury  and  in  view  of  the  evidence  sub- 
mitted, pass  upon  the  issues. 

Pyle  vs.  Pyle,  158  111.  289. 

In  an  action  on  the  case  for  personal  injuries,  the  proper  ques- 
tion to  ask  an  expert  witness,  after  reciting  or  hypothetically  stat- 
ing to  him  the  manner  and  character  of  the  accidental  injury  in 
question,  is  whether  in  his  opinion  the  conditions  found  or  recited 
to  him  were  the  result  of  the  recited  or  supposed  accident,  rather 

than  whether  such  accident  might  or  could  have  produced  it. 

City  of  Chicago  vs.  Didier,  227  111.  571;  Chi.  City  Ry.  Co.  vs.  Rum- 
blee,  ]36  App.  233. 
After  the  hypothetical  statement  of  facts  as  to  the  manner  of  an 
accident  and  of  the  injuries  resulting  therefrom,  it  is  proper  to 
ask  the  expert,  "AVould  you  attribute  such  injuries  to  the  accident 
stated  in  the  question,  or  would  such  accident  be  sufficient  to  pro- 
duce such  injuries?" 

Netcher  ^  s.  Bernstein,  110  App.  484. 

Opinions  Based  on  Testimony  Heard  or  Read: 

Where  there  is  no  material  conflict  in  the  testimony,  an  expert 
may  be  asked  for  his  opinion,  based  upon  the  facts  testified  to  by 
witnesses,  which  testimony  he  has  heard,  and  without  any  hypo- 


672  HYPOTHETICAL  QUESTIONS 

thetical  statement  of  sueli  facts  where  the  question  assumes  the 
truth  of  such  testimony. 

Chi.  Trac.  Co.  vs.  Eoberts,  229  111.  481;  Pyle  vs.  Pyle,  158  111.  289; 
Schneider    vs.    Manning,    121    111.    376;    Walters    vs.    Mason,    159 
App.   560. 
So  question  may  be  based  partly  upon  the  testimony  which  the 
witness  has  heard. 

City  of  Chicago  vs.  Didier,  227  111.  571. 

Personal  Knowledge: 

Questions  put  to  an  expert  on  direct  examination  should  be 
hypothetically  framed  unless  there  is  no  conflict  in  the  evidence  or 
the  witness  is  personally  acquainted  with  the  facts. 

C.  &  A.  K.  B.  Co.  vs.  Glenny,  175  111.  238;  City  of  Chicago  vs.  Lamb, 
105  App.  204. 

The  opinions  of  witnesses  as  to  value  may  be  based  upon  a 
hypothetical  statement  of  what  has  already  been  proven,  in  the 
case,  as  to  quality,  conditions  and  situations  of  the  property,  as 
well  as  upon  their  own  actual  observation. 

C.  &  A.  E.  R.  Co.  vs.  Glenny,  175  111.  238;  Cf.  C.  &  W.  I.  R.  R.  Co.  vs. 
Heidenrich,  254  111.  231. 

Opinion  Based  Upon  Hearsay: 

The  opinion  of  a  medical  expert  is  not  admissible  formed  upon 
information  derived  from  private  conversations  with  Avitnesses  in 
the  case.  If  the  medical  expert  has  not  made  a  personal  examina- 
tion of  the  patient,  then  the  proper  practice  is  to  put  a  question 
to  the  witness  reciting  the  supposed  facts  hypothetically  upon  which 

the  opinion  of  the  exj^ert  is  wanted. 

L.  N.  Ey.  Co.  vs.  Sliires,  108  111.  617. 

Question  for  Jury: 

Whether  the  facts  stated  in  a  hypothetical  question  are  suffi- 
ciently established  by  the  proof  is  a  question  for  the  jury. 

C.  &  E.  I.  R.  R.  Co.  vs.  Wallace,  202  111.  129;  Economy  Light  Co.  vs. 
Sheridan,  200  111.  439. 

Obscure  Question: 

A  hypothetical  (juestion  is  improper  which  is  involved,  obscure, 

suggestive  and  leading. 

Chi.  City  Ry.  Co.  vs.  Sugar,  117  App.  578. 

Objections  to  Question: 

The  rule  that  olijection  to  a  question  should  be  specific  and  not 

general,  applies  to  hypothetical  questions. 

C.  &  E.  1.  R.  R.  Co.  vs.  Wallace,  202  111.  129;  Chi.  City  Ry.  Co.  vs. 
Buudy,  210  111.  39;  I.  C.  R.  R.  Co.  vs.  Becker,  119  App.  221; 
McCanley  vs.  Chi.  City  Ry  Co.,  163  App.  176. 

An  objection  to  a  hypothetical  question  upon  the  ground  that 
it  does  not  contain  all  the  elements  should  specifically  point  out 
the  elements  alleged  to  be  omitted. 

Riverton  Coal  Co.  vs.  Shejiard,  207  111.  395;  Cullen  vs.  Traders'  Ins. 
Co.,  83  App.  40 ;  Peter  vs.  Cohen,  176  App.  58. 

And  objection  that  question  varies  from  proof  should  specifically 
point  out  wherein  it  varies. 

Chi.  Un.  Trac.  Co.  vs.  Roberts,  131  App.  477. 

An  objection  that  the  answer  of  an  expert  witness  to  a  hypo- 
thetical question  was  based  upon  facts  not  included  in  the  question 


IDENTITY  673 

should  be  made  at  the  time  answer  is  given,  by  a  motion  to  strike 

it  out. 

Godduid   vs.   Euzler,   22l!   111.   4(32;   Siinpsou  vs.  Peoria  liy.  Co.,   179 
Api>.  307. 

Cross  Exaimnation : 

Upon  cross  examination,  any  fact  which,  in  the  sound  discretion 
of  the  court,  is  pertinent  to  the  inquiry,  whether  testified  to  by 
any  one  or  not,  may  be  assumed  in  a  hypotlietical  question,  with 
the  view  to  testing  the  skill,  learning  or  accuracy  of  the  expert  or 
to  ascertain  the  reasonableness  or  expose  the  unreasonableness  of 
the  opinion  he  has  expressed  to  the  jury.  A  question,  although  it 
goes  beyond  the  scope  of  the  evidence,  may  be  propounded  upon 
cross  examination  if  its  office  and  purpose  is  to  elicit  the  reason 
upon  which  the  expert  based  an  opinion  expressed  by  him  in  his 
examination  in  chief,  or  to  ascertain  the  extent  of  his  learning  and 
knowledge  of  the  particular  subject  upon  which  he  assumes  to  be 
an  expert. 

W.  Chi.  St.  Ey.  Co.  vs.  Fishman,  1G9  111.  196. 

If  party  considers  that  his  opponent's  hypothetical  question  does 
not  fairly  cover  the  evidence  he  m^ay,  upon  cross  examination, 
change  the  question  so  as  to  cover  the  facts  which  he  believes  are 
applicable  to  the  case,  and  shown  by  the  evidence,  and  failing  to 
do  so,  he  cannot  complain  on  appeal. 

City   of   Aledo   vs.   Honevman,   208   111.   415;    Chi.   City   Ey.    Co.   vs. 
Buudy,  210  111.  39;   EiVerton  Coal  Co.  vs.  Shepard,  207  111.  395. 

Or  may  call  the  attention  of  the  witness  to  the  omitted  fact  ou 

cross  examination. 

C.  &  E.  I.  Ey.  Co.  vs.  Wallace,  203  111.  129. 
It  is  proper,  on  cross  examination  of  a  medical  expert,  to  put 
to  him  hypothetical  questions  containing  supposed  states  of  facts 

other  than  those  shown  by  the  evidence. 
People  vs.  Dietmeyer,  164  App.  405. 
But  matters  assumed  must  be  pertinent  to  inquiry. 

San.  Dist.  vs.  Corneau,  257  111.  93;  McEniry  vs.  Tri-City  Ey.  Co.,  179 
App.  152. 
Wide  latitude  ought  to  be  allowed  in  the  cross  examination  of 

witnesses  examined  hypothetically. 

MoenniL'h  vs.  City  of  Chicago,  147  App.  553. 

IDENTITY 

See    Ambiguity,    Ownership,    Parol,    Former    Adjudication, 
Former  Jeopardy,  Alterations  and   Erasures,  Leading   Ques- 
tions. 
PERSONS 
Judicial  Notice: 

The  court  recognizes  the  letters  Jos.  as  a  common  abbreviation 
for  Joseph, — a  name  in  common  use. 
Feld  vs.  Loftns,  240  111.  105. 
Courts  cannot  judicially  notice  the  equivalents  of  names  of  per- 
sons in  another  language. 

Becker  vs.  German  Fire  Ins.  Co.,   68  111.  412. 
It  cannot,  for  instance,  know  that  Wilhelm  is  the  German  equiv- 
alent for  AVilliam. 

Becker  vs.  German  Fii'e  Ins.  Co.,  G8  111.  412. 
Ev.— 43 


674  IDENTITY 

Nor  can  it  take  notice  that  Bart,  is  a  contraction  for  Barthol- 
omew. 

Rives  vs.  Mai-s,  25  III.  315. 

Presumptions : 

—  Initial  of  Cliristian  Nam.es:  The  use  of  the  initial  of  the  chris- 
tian name  is  so  common  among  all  classes  that  it  is  not  regarded 
as  another  name  or  the  name  of  another  person,  but  is  simply  an 
abbreviation  of  the  full  name,  and  the  court  may  presume  it  to  be 

such. 

Lee  vs.  Mendall,  40  HI.  359. 
Only  one  christian  name  is  recognized  by  law,  and  a  middle 

name  or  initial  is  not  material. 

People  vs.  Dunne,  247  111.  410 ;  XITI  111.  Notes  925,  §  3. 
The  middle  initial  is  no  j^art  of  a  name,  and  it  ynW  be  presumed, 
after  m^any  years,  in  absence  of  evidence  to  contrary,  that  a  per- 
son who  attested  a  will,  signing  his  first  name  with  an  initial  for 
miLklle  name,  was  the  same  person  who  testified,  signing  by  in- 
itials of  first  and  middle  names,  where  the  first  initial  is  the  first 
letter  of  the  given  name  in  tbe  attestation,  although  the  middle 
initial,  when  testifying,  was  different. 

Slick  vs.  Brooks,  253  111.  58. 
In  absence  of  contrary  proof,  it  will  be  presumed  on  appeal 
from  a  confirmation  judgment  that  a  commissioner  appointed 
under  the  name  of  "Frank  Bettie,"  was  the  same  person  who 
signed  the  estimate  as  "Frank  AV.  Beattie,"  as  the  middle  initial 
is  no  part  of  the  name,  and  the  surnames  are  iden  sonans. 

Gross  vs.  Village  of  Grossdale,  177  111.  248. 

—  Same  Name:    There  is  no  conclusive  presumption  of  law  that 

a  signer  of  a  petition  and  a  trustee  voting  thereon  are  the  same 

person,  merely  because  they  bear  the  same  name. 
Ferguson  vs.  Trustees,  168  App.  225. 

—  Parties  to  Conveyance:  It  may  be  presumed  that  parties  to 
conveyances  are  the  same  persons  where  initials  of  christian  names 
are  used  and  they  are  the  initials  of  christian  names  given  in  full 
in  other  deeds  of  sarxie  premises,  the  surnames  being  the  same. 

Ogden  vs.  Bcniis,  125  111.  105;  Skinner  vs.  Fulton,  39  111.  4S7. 
Where  a  deed  is  delivered  to  the  father,  of  the  same  name  as 
his  minor  son,  Vv^ithout  any  statement  of  the  grantor  tha.t  it  was 
delivered  to  him  for  his  son,  the  presumption  is  that  it  was  de- 
livered to  the  father  for  his  own  benefit,  as  the  grantee. 

Fyffe  vs.  Fyffe,  106  111.  646 ;  Graves  vs.  Colwell,  90  111.  612. 
Where  a  conveyance  is  made  to  one  bearing  the  same  name  as 
the  prior  owner  and  grantor  thereof,  in  absence  of  evidence  to  the 
contrary,  he  will  be  presumed  to  be  the  same  person. 

Brown  vs.  Metz,  33  111.  339. 

—  Parties  to  Suit:  The  identity  of  a  person  incurring  a  lia- 
bility and  the  one  being  sued  must  be  prover^.  When  that  fact  is 
shown,  and  the  defendant,  being  a  woman,  is  sued  under  a  differ- 
ent name,  her  marriage  may  be  presumed,  unless  put  in  issue  in 

plea  in  abatement. 

Berber  vs.  Kertzinger,  23  111.  346. 
Identity  of  defendant  railway  company  is  sufficiently  alleged 
and  proved  by  the  initials  by  which  it  is  ordinarily  known,  in  the 
absence  of  specitic  objection. 

B.  &  O.  Ey.  Co.  vs.  Higgins,  69  App.  414. 


IDENTITY  675 

—  Existf/ncc  of  Parly:     The  presumption  of  the  authority  of 

an  attorney  to  act  for  a  pai'ty  in  bringing  a  suit  in  the  name  of 

such  party  necessarily  carries  with  it  the  presumption  of  existence 

of  such  party. 

Woodward  vs.  Donovan,  167  App.  503. 

—  Consignee:  Where  a  person  professing  to  be  the  consignee 
of  an  express  package  is  identified  by  a  trustwoi-thy  person,  as 
the  proper  consignee,  about  tlie  time  it  may  reasonably  be  expected 
consignee  will  call  for  the  package,  and  he  tells  person  delivering 
it  to  write  his  name  in  receipt  book,  such  proof  is  sufficient  to  raise 
a  presumption  of  proper  delivery  to  the  true  consignee,  which  con- 
signor, in  action  against  carrier,  must  meet  with  preponderance 

of  evidence. 

TenEych  vs.  Harris,  47  111.  268. 

—  Voter:  Where  a  person  of  a  certain  name  voted  at  an  elec- 
tion, and,  on  contest  of  election,  a  man  of  that  name  was  called 
as  witness,  who  showed  he  was  of  foreign  birth,  and  had  never 
been  naturalized,  it  was  presumed,  as  he  was  found  in  the  same 
county,  from  the  identity  of  the  name,  that  witness  was  the  per- 
son who  voted. 

Clark  vs.  Eobiiison,  SS  111.  499. 

Admissibility  of  Evidence: 

—  In  General:  A  witness  may  testify  to  a  person's  identity 
from  his  voice,  or  from  observing  his  stature,  complexion  or  other 

marks. 

People  vs.  Jennings,  252  111.  534. 

Or  from  foot-prints. 

Carletou  vs.  People,  150  111.  181;   People  vs.  Hannibal,  259  111.  512. 

Or  from  finger  prints. 

People  vs.  Jenning^s,  252  111.  534. 
But  whether  hair  found  in  hand  of  murdered  man  resembles 
in  color  his  own  hair  is  not  subject  of  expert  testimony. 

Watt  vs.  People,  126  111.  9. 

—  Opinion  Evidence:  Every  person  is  competent  to  express 
opinion  on  question  of  identity,  as  applied  to  persons,  things,  ani- 
mals or  handwriting,  and  may  give  his  judgment  in  regard  to  the 
size,  color  or  weight  of  objects,  and  may  estimate  time  and  dis- 
tances. He  may  state  his  opinion  as  to  sounds,  their  character, 
from  what  they  proceed  and  the  direction  from  which  they  seem 
to  come.  The  correspondence  between  boots  and  foot-prints  is 
a  matter  requiring  no  peculiar  knowledge,  and  to  which  any  per- 
son may  testify.  So  a  person  not  an  expert  may  give  his  opin- 
ion whether  certain  hairs  are  human  hairs.  And  a  witness  may 
state  what  he  understood  by  certain  "expressions,  gestures  and 
intonations,"  and  to  whom  they  were  applied,  otherwise  the  jury 

could  not   fully  understand   their  meaning. 

Carter  vs.  Carter,   152  111.  434. 

—  Parties  to  Contract:  Extrinsic  evidence  of  every  material 
fact  which  will  enable  court  to  ascertain  nature  and  qualities  of 
subject  matter  of  instrument,  or  in  other  words,  to  identify  per- 


676  IDENTITY 

sons  and  things  to  which  instrument  refers,  must  necessarily  be 
received. 

Cumberledge  vs.  Brooks,  235  111.  249;  Graves  vs.  Cohvell,  90  111.  612; 
Eiebling  vs.  Tracy,  17  App.  158. 
Where  corporation  is  mis-named  in  contract  of  guaranty,  proof 
is  admissible  to  show  corporation  intended  to  be  indemnified  by 

contract. 

Mall.  I.  K.  Co.  vs.  Pusey,  244  111.  184. 
An  unexecuted  blank  contract,  exhibited  to  plaintiff  for  infor- 
mation as  to  specifications  of  material   required   is  inadmissible 
to  identify  parties  to  contract  later  entered  into. 
T.  W.  k  W.  Ey.  Co.  vs.  Chew,  67  111.  378. 

—  In  Libel  and  Slander:  Testimony  of  the  hearers  as  to  the 
sense  in  which  they  understood  the  words  spoken  is  admissible. 
This  rule  applies  to  a  statement  of  the  witness  to  the  effect  that 
he  understood  the  alleged  slanderous  words  were  spoken  with  ref- 
erence to  plaintiff,  where  plaintiff's  name  was  not  used,  so  evi- 
dence is  admissible  to  show  to  whom  libelous  publication  referred. 

Ball  vs.  Evening  Amer.  Pub.  Co.,  237  111.  592 ;  Dexter  vs.  Harrison, 
146  111.  169;  Nelson  vs.  Borchenius,  52  111.  236. 

—  Devisee:  For  purpose  of  determining  the  object  of  a  testa- 
tor's bounty,  a  court  may  inquire  into  every  material  fact  relat- 
ing to  the  person  who  claims  to  be  interested  under  the  will,  in 
order  to  identify  the  person  intended  by  the  testator  as  the  lega- 
tee. 

Parol  evidence  is  admissible  of  any  extrinsic  circumstance  tend- 
ing to  show  what  person  or  persons  or  what  things  were  intended 
by  the  party  or  to  ascertain  his  meaning  in  any  other  respect. 
A  nickname  may  be  shown  as  may  also  a  name  gained  by  repu- 
tation. 

Coon  vs.  MeNelly,  254  111.  39. 

In  determining  intention,  parol  evidence,  though  not  admis- 
sible to  change  the  language  of  the  will,  may  be  received  when 
necessary,   to   identify   the   objects   or  subjects   of   the    testator's 

bounty. 

Collins  vs.  Capps,  235  HI.  560. 

Where  a  testator,  after  a  specific  devise  of  land  to  his  daugh- 
ter, added  immediately  after,  these  words,  "The  remaining  lands 
owned  by  me  to  be  equally  divided  between  the  four  boys,"  and 
the  proof  showed  he  had,  at  the  time,  seven  sons,  four  of  whom 
were  minors,  residing  with  him,  the  other  three  being  men  and 
living  in  their  own  homes,  apart  from  their  father,  parol  proof, 
not  only  of  the  previous  facts  known  to  the  testator,  and  of  the 
present  circumstances  under  which  he  made  his  will,  but  also  of 
his  declarations  made  at  time  of  making  his  will,  as  well  as  before 
and  after,  might  be  resorted  to  to  remove  the  ambiguity,  if  any, 
and  to  fix  the  objects  of  his  bounty. 
Bradley  vs.  Eeese,  113  111.  327. 

—  Beneficiary  of  Insurance:  Where  it  appears  by  extrinsic 
evidence  that  the  words  used  in  an  insurance  policy  to  designate 
the  beneficiary  fail  to  correctly  describe  any  person  related  to  or 


IDENTITY  677 

known  by  the  insured,  further  extrinsic  evidence  may  be  received 
to  aid  in  determining  wiio  was  the  intended  beneliciary. 
Hogan   vs.   Wallace,    166   111.   328. 

—  Parties  to  Suit:  Parol  evidence  is  admissible  to  identify 
parties  to  former  action. 

Penn.  Co.  vs.  Sloan,  125  111.  72;  Hea«ock  vs.  Lubukee,  108  111.  641; 
Ponil  vs.  Ennis,  69  111.  341. 

Rule  is  same  in  criminal  action  as  to  parties  or  offenses. 

People  vs.  Smith,  258  lU.  502. 
-—PHnoipal  in.  Recognizance:     May  be  proven  by  parol. 

O  'Brien  vs.  People,  41  111.  456. 

—  Voter:  Where  certificate  of  naturalization  gives  only  part 
of  name,  witness  may  prove  by  his  own  oath  that  it  was  issued 
to  him  and  that  he  is  the  person  naturalized  thereby. 

City  of  Beardstown  vs.  Virg-inia,  81  lU.  541. 

Weig-ht  and  Sufficiency: 

—  Accused:  Although  it  may  be  positively  proven  that  one 
of  tv/o  or  more  persons  committed  a  crime,  yet  if  it  is  uncertain 
which  is  the  guilty  party,  all  must  be  acquitted, 

Campbell  vs.  People,  16  111.  16. 

Where  defendant's  connection  with  the  crime  charged  rests 
upon  the  testimony  of  one  witness,  it  is  error  to  permit  an  officer 
who  arrested  defendant  to  testify  he  got  the  description  of  de- 
fendant from  such  witness  and  that  the  latter  identified  defend- 
ant. 

People  vs.  Lukoszus,  242  111.  101. 

The  identity  of  accused  with  person  tiring  a  shot  is  not  suf- 
ficiently shown,  to  warrant  his  conviction,  by  the  mere  fact  that 
foot-prints  at  the  place  of  crime  were  of  the  same  size  as  those 
found  where  accused  had  been  found  walking,  though  taken  with 
other  facts  may  raise  a  suspicion  of  guilt. 

Dunn  vs.  People,  158  111.  586 ;  Carlton  vs.  People,  150  111.  181. 

On  trial  of  two  for  burglary,  the  person  robbed  testified  posi- 
tively that  defendants  were  the  ones  who  committed  the  act.  The 
only  denial  was  the  testimony  of  defendants,  one  of  them  not 
denying,  in  terms,  that  he  was  present  and  aided  in  the  burglary, 
and  admitted  he  was  indicted  for  robbery  in  another  case.  The 
burglary  was  not  denied.  Such  evidence  was  sufficient  to  warrant 
a  conviction, 

Spabn  vs.  People,  137  111.  538. 

Testimony  of  prosecuting  witness  that  he  had  a  good  look  at 
the  man  who  robbed  him,  and  that  defendant  was  the  man,  coup- 
led with  the  fact  that  such  defendant  was  picked  out  by  prosecut- 
ing witness,  three  weeks  after  the  crime,  from  among  a  crowd  of 
twenty-five  hundred  men,  and  pointed  out  to  the  police  as  the 
robber,  is  sufficient  to  warrant  a  conviction  as  against  the  testi- 
mony of  two  witnesses  who  saAv  the  robber  some  distance  from 
them,  running  from  the  scene  of  the  crime,  and  who  testified  de- 
fendant was  not  the  man. 

People  vs.  Williams,  242  111.  197. 

• — Deceased:     See  Homicide. 

^- Owner  of  Stolen  Property:     Sufficient  to  prove  that  owner 
was  known  bv  a  certain  name. 
Hix  vs.  People,  157  111.  382. 


678  IDENTITY 

Where  names  of  ordinary  enunciation  are  not  distinguishable, 
the  doctrine  of  idcn  so  nans  will  apply. 
Banios  vs.  People,  18  111.  52. 

REAL  PROPERTY 

Subject  of  Devise: 

Where  devise  of  real  property  contains  two  descriptions,  one 
of  which  is  incomplete  but  not  incorrect,  jjarol  testimony  is  admis- 
sible to  identifv  the  premises. 

Lawren^  vs.  Lawrence,  255  111.  ."'.65;  Mnnall  vs.  Morrall,  2.36  111.  640; 
Decker  vs.  Decker,  121  111.  341;  Emert  vs.  Hays,  89  111.  11. 

But  if  after  rejecting  the  surplusage,  the  description  can  only 

be   made   to   apply   to   lands   of   testator   by   inserting   additional 

words,  or  if  there  be  but  one  description  and  it  is  wrong,  parol 

proof  cannot  be  made  to  identify  the  subject  matter  of  the  devise. 

Graves  vs.  Rose,  246  111.  76. 

A  testator,  by  his  will,  gave  his  widow  a  life  estate  in  a  tract 
of  land  with  power  to  sell  and  dispose  of  same  for  her  own  use 
and  benetit,  and  what  might  remain  unexpended  at  her  death,  to 
his  two  sons.  During  her  life  the  widow  sold  the  land  and  shortly 
afterwards  made  certain  loans  of  money  to  the  two  sons,  and  she 
admitted,  in  her  lifetime,  that  the  money  she  let  one  son  have 
Avas  his  money.  The  sale  of  the  land  for  cash,  and  the  subse- 
quent loan  of  the  money  made  a  prima  facie  case  that  the  money 
loaned  was  that  derived  from  the  sale. 

Walker  vs.  Pritehard,  121  111.  221.     (See  Ambiguity  Wills.) 

Conveyances : 

Where  a  conveyance  refers  to  a  plat,  such  plat  becomes  a  part 

of  the  conveyance   just  as  if  it  had  been  copied  into   the   deed, 

and  is  regarded  as  furnishing  the  true  and  correct  description  of 

the  dimensions  and  boundaries  of  the  land. 

Eeed  vs.  Bartlett,  255  111.  76;  People  vs.  New,  214  111.  287. 

And  such  plat  is  admissible  to  identify  and  locate  lot  or  prem- 

ISGS 

Black  vs.  C.  B.  &  Q.  R.v.  Co.,  237  111.  500;  Mann  vs.  Bergenian.  203 
111.  406;  Allniendinger  vs.  McHie,  189  111.  308;  Prouty  vs.  Tildcn, 
164  111.  16H;  Wetig  vs.  Bowman,  39  111.  416. 

Contracts  for  Conveyance: 

•-'Latent  ambiguities  may  be  explained  by  parol  evidence,  and 
such  evidence  may  be  resorted  to  for  purpose  of  identifying 
premises  in  suits  for  rectification  and  specific  performance,  and 
in  proceedings  affecting  title. 

Hedrick  vs.  Donovan,  248  111.  479;  Lynian  vs.  Gedney,  114  111.  388; 
McLennan  vs.  Johnson,  60  111.  306;  Crossett  vs.  Hobbs,  56  111.  231; 
XII  111.  Notes  520,  §  359. 
But  if  the  uncertainty  in  the  description   of  land  is  patent, 
extrinsic  evidence  is  not  admissi])le  to  show  what  was  intended. 
Wetmore  vs.  Watson,  253  111.  89;  Eampke  vs.  Beuhler,  203  111.  384; 
Winter  vs.  Trainor,  151  111.  191;  Hamilton  vs.  Harvey,  121  111.  469; 
Purington  vs.  N.  I.  E.  E.  Co.,  46  HI.  297;   Shirley  vs.  Spencer,   9 
lU.  583. 
A  description  of  lands  in  a  deed  not  sufficiently  certain  in  itself, 
may  be  made  so  by  reference  to  other  deeds  in  which  the  descrip- 
tion is  sufficient. 

Wetig  \s.  Bowman,  39  111.  416. 


IDENTITY  679 

Parol  evidence  is  always  admissible  to  explain  a  latent  amlji- 
guity,  showing  what  property  was  intended  to  be  conveyed. 

Evans  vs.  Gerry,  174  111.  595 ;  Bradish  vs.  Yocum,  130  111.  386 ;  Sharp 

vs.   Thompson,   100   111.  "447;    Fi>--her  vs.   Quaekciilnish,  83  111.  310; 

CoK'ord  vs.  Alexander,  67  111.  581 ;  Billings  vs.  Kankakee  Coal  Co.,  67 

111.  489;  Bybee  vs.  Hageman,  66  111.  519.  n 

If  the  description  in  a  deed  is  uncertain,  parol  evidence  of  any 

extrinsic    circumstances    is    admissible    to    identify    and   establish 

the  objects  of  the  call  in  the  deed. 

Koehling  vs.  People,   196  111.  353;   Kleiner  vs.  Bowen,   166  111.  537; 
Mason  vs.   Merrill,   129  111.  503;   Taylor  vs.  Wright,   121   111.  455. 
But  if  no  uncertainty  or   ambiguity  exists,  parol  evidence  of 
the  acts  and  conversations  of  grantor  and  grantee,  prior  to  execu- 
tion of  deed,  cannot  be  received  to  show  description  in  deed  is 

wrong. 

Duggan    vs.    UpDendahl,    197    111.    179;    Colcord    vs.    Alexander,    67 
111.  581.  ' 

And  this  though  there  was  no  property  in  existence  of  descrip- 
tion in  the  deed. 

Eichie  vs.  Pease,  111  111.  353. 
Where  there  is  a  latent  ambiguity  in  the  description  in  a  con- 
veyance, as  an  omission  to  refer  to  any  meridian,  the  defect  may 
be  obviated  by  proof.  Such  a  deed  is  not  void  for  uncertainty. 
Daugherty  vs.  Purdy,  18  111.  206. 
A  latent  ambiguity  in  the  description  of  land  in  a  conveyance 
as  where,  by  omitting  to  state  the  number  of  township  nortli^of 
the   base   line,   there   are   several  parcels   which    will   answer   the 
description,  may  be  explained  by  evidence;  and  is  so  explained 
when  it  is  shown  which  of  the  several  parcels  the  grantor  claimed. 
Clark  vs.  Powers,  45  111.  284. 
In  ejectment  for  a  tract  of  land  claimed  to  have  been  conveyed 
by  defendants  to  plaintiffs,  wliere  the  deed  is  subject  to  a  latent 
ambiguity,  the  burden  of  proof  will  rest  upon  plaintiff  to  show 
such  tract  was  a  part  of  the  land  intended  to  be  conveyed  to  him. 
Bradish  \s.  Yocnm,  130  111.  386. 
Where  a  deed  described  the  land  as  being  in  a  certain  section, 
without   showing  in  what  township  that  section  is  located,   and 
it  is  shown  there  are  several  sections  in  the  county  of  that  num- 
l)er,  the  deed,  taken  in  connection  wdth  such  showing,  will  reveal 
a  latent  ambiguity,  and  parol  evidence  will  be  admissible  to  show 
in  what  township  such  section  is  located. 

Hallidav  vs.  Hess,  147  111.  588;  Billings  vs.  Kankaliee  Coal  Co.,  67 
111.  489. 
The  location  of  a  town  lot  may  be  fixed  by  a  witness  from  com- 
mon repute,  irrespective  of  any  plat. 

Jndson  vs.  Glos,  249  111.  82;  Holbrook  vs.  Debo,  99  111.  372. 
Where  the  title  to  a  tract  of  land,  out  of  which  a  lot  in  con- 
troversy  is   carved,    is   established,    the   identity   of   the   premises 
may  be  shown  by  other  proof,  without  the  introduction  of  a  map 

or  plat  of  the  survey  of  which  the  lot  forms  a  part. 
Smith  vs.  Stevens,  82  111.  554. 
And   the   rule   admitting  evidence   of  a   practical   construction 
given  by  the  parties  to  a  writing,  extends  to  evidence  of  such 


680  IDENTITY 

acts  in  order  to  determine  the  ambiguous  terms  of  a  conveyance  as 
the  estate  conveyed. 

Farnam  vs.  Thompkins,  171   111.  519. 

Although  the  subject  matter  of  the  contract  is  defectively  set 
out  in  writing,  extrinsic  evidence  is  competent  to  show  what  was 
intended  for  the  purpose  of  correcting  the  defect,  and  does  not 
contradict  or  vary  the  contract,  but  only  identifies  the  subject 
matter. 

Hedriek  vs.  Donovan,  248  111.  479;  Clayton  vs.  Leman,  23.3  111.  435; 
Elwell  vs.  Hicks,  238  lU.  170. 

PERSONAL  PROPERTY 
Subject  Matter  of  Contract: 

A  written  contract  must  speak  for  itself  as  to  terms,  conditions 
and  limitations  of  the  agreement,  but  as  to  the  parties  and  sub- 
ject matter  of  the  contract,  extrinsic  evidence  is  always  competent, 
if  necessary,  for  their  identitieation,  without  reference  to  the 
question  of  latent  or  patent  ambiguity. 
Cumberledge  vs.  Brooks,  235  111.  249. 

Extrinsic  evidence  is  always  competent  to  identify  the  subject 
matter  of  a  contract,  if  necessary;  and  this  in  no  way  violates 
the  rule  that  parol  proof  is  never  admissible  to  vary  or  contradict 
the  terms  of  a  written  contract.  The  admissibility  of  parol  evi- 
dence, in  such  a  case,  does  not  depend  upon  the  distinction  be- 
tween patent  and  latent  ambiguity. 

Bulkley  vs.  Devine,  127  111.  406;  Marske  vs.  Williard,  169  111.  276. 

Parol  testimony  is  admissible  to  apply  a  written  agreement  to 
the  subject  matter  to  which  it  relates,  as,  to  show  that  the  prop- 
erty mentioned  in  a  contract  was  the   same  as  that  for  which 
suit  was  prosecuted,  when  that  is  a  material  question. 
Eeed  vs.  Ellis,  68  111.  208;  Marshall  vs.  Gridley,  46  111.  247. 

Where  Subject  of  Sale: 

The  onus  as  to  identity  of  property  sold  by  description,  being 

the  subject  matter  of  the  performance  of  the  contract,  is  upon  the 

vendor  in  action  for  the  price. 

Morris   vs.    Wibanx,   159   111.   627;    Wolf   vs.   Ditzsche,    75   111.    205; 
Scliilds  vs.  Eiebe,  9  App.  598. 

It  is  the  rule  of  uniform  application  that  parol  or  other  extrin- 
sic evidence  may  be  resorted  to  for  the  purpose  of  identifying  the 
property  sold.  This  does  not  infringe  upon  the  rule  that  the 
written  agreement  cannot  be  contradicted,  enlarged  or  varied  by 
parol. 

Marshall  vs.  Gridley,  46  111.  247. 

Upon  a  sale  of  a  "stock  of  goods"  in  a  certain  town,  parol  proof 
may  be  heard  to  show  of  what  the  stock  was  comprised. 
Knight  vs.  Parker,  25  111.  593. 

]\Iarks,  brands,  and  letters  on  stock  and  other  property  have 
been  held  by  our  courts  to  be  evidence  of  identity  and  of  owner- 
ship of  such  property. 

Ind.  Brew.  Co.  vs.  Cooke  Co.,  169  App.  347;   Foster  vs.  Wadsworth 
Co.,  168  111.  514;  P.  Ft  W.  &  C.  Ey.  Co.  vs.  Callaghau,  157  111.  406. 

Where  Subject  of  Mortgag-e: 

Parol  evidence  is  admissible  to  identify  the  chattels  included 
in  a  chattel  mortgage.     The  description  of  the  property  will  be 


IDENTITY  681 

sufficient  if  it  be  so  particular  that  it  can  be  identifiocl  as  that 

described  in  the  mortgage,  and  answers  the  general  description. 

Pike  vs.  Colvin,  07  111.  227 ;  Myers  vs.  Ladd,  26  111.  415. 

Where   personal   property   is  clearl.y   described,   but   the   lot  of 

ground  upon  which  it  is  situated  is  misdescribed,  parol  evidence 

would  be  admissible  to  establish  the  identity  of  the  property, 

Spauldinjj  vs.  Mozier,  57  111.  148. 

Property  Insured: 

A  mortgage  may  properly  be  introduced  in  evidence  in  action 
on  insurance  policy  as  well  as  oral  testimony,  to  identify  property 

mortgaged  and  destroyed. 

Hartford  Ins.  Co.  vs.  Haddon,  28  111.  260. 
In  suit  on  insurance  policy,  by  wife,  to  recover  for  loss  of 
goods  embraced  in  policy,  the  company  offered  in  evidence  deed  of 
assignment,  made  by  husband  of  plaintiff,  of  a  lot  of  hay  and 
other  property.  Such  evidence  was  irrelevant,  without  proof  that 
the  property  so  assigned  was  the  same  as  included  in  the  policy. 
Gcrniania  Ins.  Co.  vs.  McKee,  94  111.  494. 

Where  Subject  of  Larceny: 

Burden  is  on  prosecution  to  prove  identity  of  property  be- 
yond a  reasonable  doubt. 

Bishop  vs.  People,  194  111.  365, 

In  prosecution  for  receiving  and  concealing  alleged  stolen  prop- 
erty, the  burden  is  on  prosecution  to  prove  identity  of  property 
received  or  concealed  by  accused  as  being  same  property  alleged 

to  have  been  stolen. 

Schultz  vs.  People,  210  111.   196. 
For  the  purpose  of  identifying  kind  of  property  stolen,  simi- 
lar property,  properly  identified,  may  be  placed  in  evidence  by 

the  state, 

Jupits  vs.  People,  34  lU.  516. 
Money  must  be  proven   as  alleged,   and  sufficient   to   identify 

same. 

Williams  vs.  People,  101  111.  382 ;  Vale  vs.  People,  161  111.  309. 

Proof  of  theft  of  gold  certificate,  silver  certificates  and  national 

bank  bills,  called  by  witness  "state  bank  notes,"  is  not  variance 

from  indictment  charging  theft  of  treasury  notes,  national  bank 

bills  and  greenbacks. 

Keating  vs.  People,  160  111.  480. 

Testimony  that  owner  of  property,  described  in  indictment  for 

larceny   as   treasury   notes,   national   bank   bills,    greenbacks   and 

gold  and  silver  coin,  had  "130,"  consisting  of  "two  fifties  and 

three  tens,"  is  insuificient  to  identify  the  money  as  that  charged 

to  have  been  stolen. 

A^ile  vs.  People,  161  111.  309. 

MORTGAGE 

Parol  evidence  cannot  be  considered  to  vary  or  contradict  a 
mortgage,  but  it  is  competent  to  identify  the  subject  matter 
thereof  referred  to  in  general  terms,  and  to  show  the  situation, 
condition  and  mutual  relation  of  parties,  to  make  clear  the  mean- 
ing of  the  language  which  would  otherwise  be  uncertain. 
Chambers  vs.  Prewitt,  172  111.  615. 


682  ILLEGALLY  OBTAINED  EVIDENCE 

The  identity  of  the  mortgage  assumed,  when  left  in  doubt  by 

the  terms  of  tlie  deed,  may  be  shown  by  parol  evidence. 
Webster  vs.  Fleniinj?,  178  111.  140. 

ARBITRATION  AND  AWARD 

The  identity  of  the  subject  matter  of  an  arbitration  and  award 
may  be  shown  by  extrinsic  evidence. 

Ilendrickson  vs.  Reinbach,  33  111.  299. 

ACTION 

Certified  copy  of  judgment  is  admissible  for  purpose  of  estab- 
lishing prima  facie  the  identity  of  the  judgment  recited  in  the 
bond  without  requiring  a  certified  copy  of  all  the  proceedings. 
Eehm  vs.  Halverson,  197  111.  378. 

AYhere,  after  the  usual  praecipe  and  summons  in  an  action  of 
case,  the  plaintiff  is  non-suited  for  failure  to  file  a  declaration, 
the  court  cannot  presume  that  a  second  suit  brought  thereafter 
for  a  personal  injury  was  based  upon  the  same  cause  of  action 
as  the  first  suit,  nor  is  that  fact  capable  of  parol  proof  under  the 
circumstances. 

Gilibs  vs.  Crane  Elev.  Co.,  ISO  111.  191.     (See  Fokmer  Adjudication.) 
WILLS 

A  subscribing  witness  attesting  the  signature  to  a  will  is  no 
more  e(5mpetent  on  the  question  wiiether  anything  has  occurred 
to  the  will  subsequent  to  the  attestation  tlian  anybody  else,  and 
the  proponent  is  not  limited  to  the  testimony  of  such  witnesses 
as  to  its  identity. 

Webster  as.  Yorty,  194  111.  408. 


ILLEGALLY  OBTAINED  EVIDENCE 

Admissibility : 

—  Criminal  Action:  Though  papers  and  other  subjects  of  evi- 
dence may  have  been  illegally  taken  from  the  possession  of  the 
party  against  whom  they  are  offered  or  otherwise  unlawfully  ob- 
tained, it  is  no  objection  to  their  admissibility. 

Gindrat  vs.  People,  138  111.  103;  Langdon  vs.  People,  133  111.  381; 
Siebert  vs.  People,  143  111.  571;  Trask  vs.  People,  1.51  111.  523; 
Gates  vs.  People,  14  111.  433;  Jacobs  vs.  People,  117  App.  195. 

—  Civil  Action:     The  same  rule  applies  in  civil  actions. 

Mossman  vs.  Thorson,  118  App.  574;  XII  111.  Notes  489,  §  106. 


IMMUNITY 

See  Contested  Elections,  Contempt. 
Province  of  Court: 

Innuuuity  is  a  question  for  the  court. 

Minters  vs.  People,  139  111.  363. 
It  is  not  the  duty  nor  the  right  of  the  court  to  say  or  do  any- 
thing which  might  prevent  the  witness  from  testifying  if  he  sees 
proper. 

Eggers  vs.  Fox,  177  111.  185;  Bolen  vs.  People,  184  111.  338. 


IMMUNITY  683 

Right  to  Exercise  Privilege: 

—  In  General:  A  witness  is  not  bound  to  answer  any  question 
either  in  a  court  of  law  or  equity,  the  answer  to  which  will  ex- 
pose him  to  any  penalty,  fine,  forfeiture  or  punishment  or  which 
will  have  a  tendency  to  accuse  him  of  any  crime  or  misdemeanor, 
or  to  expose  him  to  any  penalty  or  forfeiture  or  which  would  be  a 
link  in  a  chain  of  evidence  to  convict  him  of  a  criminal  offense. 

Lamsou  vs.  Bpydeu,  160  111.  (3l3;  Miiitcrs  vs.  People,  139  111.  3G3; 
Boone  vs.  People,  148  111.  440;  Taylor  vs.  Mclrwin,  94  111.  488; 
XIV  111.  Notes,  1145,  §  243. 

But  to  entitle  a  witness  to  his  privilege  of  silence,  court  must 
determine  from  circumstances  and  nature  of  required  evidence 
that  there  is  reasonable  ground  to  apprehend  danger  to  witness 
if  he  produces  the  required  evidence. 

Manning  vs.  Securities  Co.,  242  111.  584. 

—  Who  Entitled:    The  privilege  cannot  be  interposed  by  either 

party  to  an  action,  nor  can  either  party  raise  the  objection  on 

behalf  of  the  witness.     It  must  be  claimed  by  the  witness  in  order 

to  be  available,  and  it  lies  with  him  to  claim  it  or  not  as  he  may 

choose. 

N.  Y.  life  Ins.  Co.  vs.  People,  195  111.  430;  Samuel  vs.  People,  164 
111.  379;  Podolski  vs.  Stone,  86  App.  62. 

—  Basis  of  Privilege:  The  constitutional  privilege  that  no  per- 
son shall  be  compelled  to  give  evidence  tending  to  incriminate 
himself  cannot  be  claimed  if,  by  reason  of  an  immunity  statute, 
the  evidence  cannot  be  used  as  a  basis  in  aid  of  a  prosecution 
which  might  result  in  fine,  imprisonment,  penalty  or  forfeiture. 

People  vs.  Butler  St.  Foundry,  201  111.  236. 
Privilege   cannot   be   based   upon   an   alleged   immateriality  of 
testimony  called  for. 

Harding  vs.  Amer.  Glucose  Co.,  182  111.  553. 
If  the  proposed  evidence  has  a  tendency  to  incriminate  the 
witness  or  to  establish  a  link  in  a  chain  of  evidence  which  may 
lead  to  his  conviction,  or  if  the  proposed  evidence  will  disclose 
the  names  of  persons  upon  whose  testimony  the  witness  miglit  be 
convicted  of  a  criminal  offense,  or  expose  him  to  penalties  or  for- 
feitures, he  cannot  be  compelled  to  answer. 

People  vs.  Argo,  237  111.  173;  Bolen  vs.  People,  184  111.  338. 
And  this  rule  is  the  same  in  actions  civil  in  form. 

Eobson  vs.  Doyle,  191  111.  566;   Hayes  vs.  Caldwell,  10  111.  34. 
Mere   disgrace   without  danger   of  punishment  is   not   enough 
to  ground  privilege  upon. 

Moline  Wagon  Co.  vs.  Preston,  35  App.  358;  Weldon  vs.  Burch,  12 
111.  373. 

'But  where  the  criminal  prosecution  to  which  the  answer  of  a 
witness  might  render  him  lialile  has  been  barred  by  the  Statute 
of  Limitations,  he  cannot  claim  his  privilege,  but  must  testify. 
The  bar  of  the  statute  will  secure  the  witness  a  perfect  defense. 
Prussing  vs.  Jackson,  85  App.  324;  Weldon  vs.  Burch,  12  111.  373. 
It  must   affirmatively  appear  that  no   prosecution  is  pending 
against  him  at  the  time  he  is  called. 
Lamsen  vs.  Boyden,  160  111.  613. 


684  lAUVlUNITY 

—  Production  of  Incriminating  Documents:  A  defendant  ex- 
cused from  testifying  cannot  be  compelled  to  produce  criminating 
documents. 

Lanisen  vs.  Boyden,  160  111.  613;  Manning  vs.  Securities  Co.,  242 
111.  584;  People  vs.  Western  Assn.,  40  App.  428. 

Though  papers  and  other  subjects  of  evidence  may  have  been 
illegally  taken  from  the  possession  of  the  party  against  whom  they 
are  offered,  or  otherwise  unlawfully  obtained,  it  is  no  objection 
to  their  admissibility. 

Gindrat  vs.  People,  138  111.  103;  Langdon  vs.  People,  133  111.  381; 
Siebert  vs.  People,  143  111.  571;  Trask  vs.  People,  151  111.  523; 
Jacobs  vs.  People,  117  App.  195;  Gates  vs.  Peo^jle,  14  111.  433. 

—  Waiver  of  Privilege:  The  privilege  being  personal,  wit- 
ness may  waive  same  and  elect  to  testify. 

Mackin  vs.  People,  115  111.  312. 

The  right  of  a  witness  in  a  criminal  case  to  refuse  to  give  evi- 
dence tending  to  criminate  himself  is  not  waived  by  the  fact  that 
he  has  signed  an  affidavit  of  the  truth  of  the  allegations  in  an 
information  upon  which  the  case  is  based, 
Samuel  vs.  People,  164  111,  379. 

A  witness  who,  without  claiming  his  privilege,  understandingly 
discloses  part  of  a  transaction  exposing  himself  to  criminal  prose- 
cution may,  ordinarily,  be  compelled  to  state  the  entire  transac- 
tion, but  his  disclosures  made  long  before  trial  cannot  be  used  for 
such  purpose. 

Samuel  vs.  People,  164  111.  379. 

Offer  of  Immunity: 

The   immunity  offered  must  be  broad   enough   to   protect   the 
witness  against  future  punishment  to  which  the  evidence  relates. 
People  vs.  Butler  Street  Foundry,  201  111.  236;  Peoi^le  vs.  Argo,  237 
111.   173. 

Truthfulness  of  disclosures  cannot  be  made  a  condition. 

People  vs.  Butler  Street  Foundry,  201  lU.  236;  Lamsen  vs.  Boyden, 
160  111.  613. 

An  immunity  order  issued  under  Section  35,  Div.  1  of  Criminal 
Code,  to  compel  a  witness  to  testify  in  a  grand  jury  investigation 
does  not  compel  the  witness  to  answer  questions  tending  to  show 
his  connection  with  oft'enses  other  than  bribery,  and  he  may,  with- 
out being  in  contempt  of  court,  refuse  to  answer  such  questions  even 
though  the  answers  might  also  tend  to  prove  the  offense  of  bribery. 
People  vs.  Argo,  237  111.  173. 

Grand  Jury  Investigations: 

The  grand  jury  constitutes  a  part  of  the  court,  and  their  offi- 
cial acts  in  finding  true  bills  or  ignoring  bills  are  borne  into  the 
records  of  the  court,  and  witnesses  sworn  before  that  body  are 
sworn  in  open  court,  though  not  necessarily  in  the  presence  of 
the  judge. 

Boone  vs.  People,  148  111.  440;  Samuel  vs.  People,  164  111.  379;  Argo 
vs.  People,  237  111.  173. 

Where  a  person  in  custody  is  taken  from  the  jail  before  the 
grand  juty  and  sworn  and  examined  as  to  the  very  matters  on 
which  he  is  afterwards  indicted,  the  indictment  should  be  quashed 
on  motion  of  defendant  without  any  inquiry  whether  his  testi- 
mony so  obtained  influenced  the  obtaining  of  the  indictment  or 


II\rPEACIIMENT^  685 

not,  when  it  does  not  appear  that  the  p^rand  jury  examined  any 
other  witnesses  as  to  his  eomplicity  in  I  he  crime  for  whieh  he  is 
indicted. 

Such  attendance  may  be  sliown  by  affidavit  in  support  of  mo- 
tion. 

Boone  vs.  People,  148  111.  440. 

But  this  does  not  apply  to  one  not  then  accused  of  crime. 
Boone  vs.  People,  148  111.  440. 

Coroner's  Proceedings: 

Privilege  includes  riglit  to  refuse  to  testify  in  coroner's  pro- 
ceedings. 

Lvons  vs.  People,  137  111.  602. 

Creditors'  Bill: 

The  answer  of  a  defendant  to  a  creditors'  bill  to  discover  prop- 
erty fraudulently  concealed  and  disposed  of  to  hinder  and  delay 
creditors  cannot  be  read  in  evidence  against  such  defendant  in 
indictment  for  fraud. 

Mitchell  vs.  Byi-ue,  67  111.  522. 

Gaming  Losses: 

Under  the  statute  upon  bill  filed  for  discovery,  defendants,  when 
called  ui)on  to  make  sworn  answers,  cannot  refuse  upon  ground 
of  immunity. 

Patterson  vs.  Scott,  142  III.  138. 


IMPEACHMENT 

See   Affidavits  for   Continuance,   Hearsay,   Stenographer's 
Notes,  Cumulative  Evidence,  Credibility,  Former  Conviction, 
Bias  and  Hostility,  Cross  Examination,  Adverse  Party. 
In  General: 

]\lere  conflicting  evidence  on  same  subject  does  not  constitute 
impeachment. 

Chi.  City  Ey.  Co.  vs.  Eyan,  225  111.  287 ;  Goodair  vs.  Ham.  Nat.  Bank, 

225  111.  5*72 ;  Baker  vs.  Eobinson,  49  111.  299 ;  City  of  Galesbiirg  vs. 

Higley,  61  111.  287;   Peo|>le  vs.  Landes,  151  App.  181. 

Where  plaintiff's  witness  was  asked  certain  cpiestions  on  cross 

examination,   for  purpose  of  laying   foundation  to   impeach   him, 

and  he  is  again  called  by  plaintiff  in  rebuttal,  after  defendant 

has  closed  his  testimony,  and  asked  as  to  other  matters  merely  in 

rebuttal,  it  is  a  matter  of  discretion  with  the  court  at  that  stage 

of  the  case  to  allow  defendant  to  introduce  evidence  to  impeach 

the  witness. 

Gordon  vs.  Eeynolds,  114  HI.  118. 

Who  May  Be  Impeached: 

—  Own  Wit)icsscs  Generally:  Where  a  party  offers  a  wit- 
ness in  proof  of  his  cause,  he  thereby,  in  general,  represents  him 
as  worthy  of  belief.  He  is  presumed  to  know  the  character  of 
the  witness,  and  having  thus  presented  hira  to  the  court,  the  law 
will  not  permit  him  to  impeach  his  general  reputation  for  truth, 
or  impair  his  credibility  by  general  evidence  tending  to  show  him 
unworthy  of  belief. 

Ramsey  vs.  Whitlieck,  81  App.  210. 


686  IMPEACHMENT 

—  Adverse  Pariy:  Oiio  cannot  attack  the  credibility  of  the 
adverse  party  by  direct  impeachment,  if  he  uses  him  as  a  witness. 

American'  Hoist  Co.  vs.  Hall,  20S  111.  597;   Mitchell  vs.  Sawyer,  11.5 
111.  ()50 ;  Bowman  vs.  Ash,  143  111.  649. 
But  lie  is  not  concluded  by  testimony  nor  bound  by  his  con- 
clusions. 

Amer.  H^oist  Co.  vs.  Hall,  208  111.  597;  Eidshoph  vs.  Kuder,  145 
111.  607;  Highley  vs.  Amer.  Ex.  Bank,  185  111.  565. 

—  Direct  InipeacJinient:  A  party,  having  called  a  v^dtness  and 
had  him  testify,  cannot  thereafter  introduce  wliat  is  known  as 
directly  impeaching  testimony. 

Amer.  H.  &  D.  Co.  vs.  Hall,  208  111.  597;  Wicks  vs.  Walden,  150  App. 
79;  Marugg  vs.  Kells,  140  App.  .'594;  U.S.  Brew.  Co.  vs.  Kuddy, 
104  Apj).  215;  Affd.,  203  111.  306;  Eockwood  vs.  Poundstone,  38  111. 
199;  XW  111.  Notes  1151,  §286. 

And  this  though,  after  testifying,  he  may  have  been  called  by 

the  opposite  party. 

E.  St.  E.  Ey.  Co.  vs.  O'Hara,  150  111.  580. 

—  Incideiital  Impeachment:  While  a  party  may  not  intro- 
duce witnesses  to  impeach  the  general  reputation  of  his  own  wit- 
ness, yet  if  the  latter  has  testified  against  the  interest  and  expec- 
tation of  party  calling  him,  his  testimony  may  be  contradicted 
by  other  witnesses  called  by  the  same  party  for  that  purpose, 
though,  incidentally,  the  effect  of  the  testimony  last  called  may 
be   to   show   that   the   previous   v\^itness   was   unworthy   of   credit. 

People  vs.  Lukosziis,  242  111.  101 ;  Chi.  City  Ey.  Co.  vs.  Gregory,  221 
111.  591:  Highley  vs.  Amer.  Bank,  185  111.  565;  E.  D.  L.  Co.  vs. 
Kuder,  145  111.  007;  Eockwood  vs.  Poundstone,  38  HI.  199;  Pegram 
vs.  Mut.  Ins.  Co.,  159  App.  214;  Briggs  vs.  Keplinger,  159  App. 
265;  Kanfmann  vs.  Johns,  156  App.  426;  People  vs.  Paul,  143 
App.  566;  Waller  vs.  Carter,  8  App.  511;  XIV  111.  Notes  1151,  8  287. 

—  Befreshing  Memory:  If  a  witness  gives  testimony  different 
from  previous  statements,  so  that  liis  testimony  is  a  matter  of 
surprise  to  party  calling  him,  the  party  may  refresh  his  memory 
by  calling  his  attention  to  the  former  statements,  either  to  re- 
iresh  his  memory  or  awaken  his  conscience. 

People  vs.  Cotton,  250  111.  338;  People  vs.  Lukoszns.  242  HI.   101. 
But  he  cannot  prove  the  statements  either  as  independent  evi- 
dence or  for  purpose  of  impeaching  the  witness,  who  denies  hav- 
ing made  them,  or  who  has  not  misrepresented  the  nature  of  his 

intended  testimony. 

Chi.  City  Ey.  Co.  vs.  Gregory,  221  111.  591;  Griffin  vs.  City  of  Chicago, 

57  HI.  317. 

So  when  a  witness  has  not  given  adverse  testimony  the  party 

calling  him  is  not  permitted  to  prove  that  he  had  made  statements 

wliich  if  sworn  to  at  the  trial  would  tend  to  make  out  the  ease  of 

party  calling  him.        r      -•   -•' 

Marugg  vs.  Kells,  146  App.  394. 

—  Witnesses  Whom  Party  is  Gom,pelled  to   Call:     Party  may 

impeach  a  witness  whom  he  is  compelled  to  call. 

In  re  Barry,  219  111.  391;  Thompson  vs.  Owen,  174  111.  229. 

—  Using  Opposite  Party's  Deposition:  Where  a  deposition  is 
introduced  and  read  on  trial  by  the  opposite  party,  the  party 
whose  deposition  is  taken   becomes  the   witness  of  such  opposite 


IMPEACHMENT  687 

party,  and  as  sucli  may  be  impeached  by  the  party  originally  tak- 
ing his  (lei)osiliou. 

^[pCoriiiick  Maeh.  Co.  vs.  Laster,  81  App.  316;  Blooniington  vs. 
Osterly,  139  111.  120. 

—  Co-Plain  fiffs:  In  suit  in  names  of  two  for  the  use  of  one 
of  them,  in  which  the  one  not  having  interest  testified  against  his 
co-plaintiff,  it  is  competent  to  contradict  or  impeach  him  by  other 
witnesses. 

Carey  vs.  Henderson,  61  111.  378. 
r— Absent   Witness:     A  party  to  avoid  a   continuance,  having 
admitted  that  a  witness  wouki  swear  to  the  facts  stated  in  an  affi- 
davit for  continuance,  cannot  on  the  trial  introduce  evidence  of 
admissions  made   outside   of  court  by   the   witnesses   whose   testi- 
mony was  referred  to  in  affidavit,  for  purpose  of  impeachment. 
C.  &  A.  Ey.  Co.  vs.  Lannior,  19  App.  135;  Helbig  vs.  Ins.  Co.,  120  App. 
58;  City  of  Aurora  vs.  Scott,  82  Ai>p.  616;  Ey.  Co.  vs,  Cottinsfhani, 
44  App.  46. 

—  Persons  from  Whom  Witness  Received  Information:  Where 
defendant,  in  action  on  benefit  certilicate,  draws  out,  on  cross  ex- 
amination of  plaintiff,  an  admission  that  she  had  been  told  that  a 
certain  woman  had  reported  having  seen  the  missing  husband  of 
plaintiff  within  seven  years  after  his  disappearance,  plaintiff  is 
entitled  to  call  witnesses  to  prove  the  reputation  of  such  woman 
for  truth  and  veracity  was  bad  and  that  she  had  made  conflicting 
statements  of  the  matter. 

Kennedy  vs.  Modern  Woodmen,  243  111.  560;  Affg.,  149  App.  471. 

Inconsistent  Statements : 

—  In  General:  AVitness  may  be  impeached  by  prior  incon- 
sistent statements. 

Dit'kerson  vs.  Heuryetta  Coal  Co.,  251  111.  292 ;  Brunhild  vs.  Traction 
Co.,  144  App.  198 ;  Dudley  vs.  Ey.  Co.,  153  App.  620 ;  Ilelgesen  vs. 
Chi.  W.  &  L.  Co.,  156  App.  541. 

Statements   outside   of  court,    inconsistent   with  statements   in 

court,  are  competent  by  way  of  impeachment. 

Dudley  vs.  Peoria  Ey.  Co.,  153  App.  620;  Jacobs  vs.  Electric  Coal  Co., 
158' App.  286;  Gedye  vs.  People,  170  111.  284;  Chi.  W.  D.  Ey.  Co. 
vs.  Ingraham,  131  111.  659;  XIV  111.  Notes  1157,  §  325. 

Statements  made  outside  of  court,  and  concerning  a  material 
question,  inconsistent  with  testimony  given  in  court,  are  admis- 
sible for  purposes  of  impeachment. 

Craig  vs.  Trotter,  252  111.  228. 

Contradictory  statements  made  out  of  court  are  competent  only 
by  way  of  impeachment. 

Moore  vs.  A.  E.  &  G.  Ey.  Co.,  150  App.  484. 

Previous  statements  by  a  party  or  a  witness,  particularly  when 
not  made  under  oath,  are  admissible  and  have  force  or  potency 
only  to  impeach  the  party's  or  the  witnesses'  testimony,  or  the 
party's  position  in  the  cause,  and  have  no  assertively  probative 
value  to  prove  or  disprove  the  original  fact  in  issue. 

Johnson  vs.  Fairlmnk  Co.,  156  App.  381;  Peyton  vs.  Village  of  Mor- 
gan Park,  172  111.  102;  Chi.  City  Ey.  Co.  vs.  Manger,  128  App.  512. 
Evidence  as  to  what  a  witness  may  have  sworn  to  on  a  former 
trial,  is  only  competent  for  purpose  of  affecting  his   credibility, 
and  can  not  be  used  to  prove  the  facts  previously  sworn  to. 
Eaflferty  vs.  People,  72  111.  37. 


688  IMPEACHMENT 

Former  inconsistent  statements  affect  credibility  and  not  com- 
petency of  witness. 

Fuhry  vs.  Chi.  City  Ey.  Co.,  239  111.  548. 
Incompetency  of  evidence  as  substantive  proof  does  not  ren- 
der it  irrelevant  for  purposes  of  impeachment. 

Kogers  Grain  Co.  vs.  Jones,  145  App.  4G9.     See  Former  Testimony, 
Stenographer's  Notes. 
—  Preliminary  Proof:     A  foundation  must  be  laid  to  render 

impeaching  evidence  admissible. 

Eedman  vs.  Holly,  10  App.  202;  Benedict  vs.  Dakiu,  148  App.  301; 
Quincy  Ey.  Co.  vs.  Gnuse,  137  111.  264 ;  Winslow  vs.  Newlan,  45  111. 
145. 
Evidence  to  impeach   a  witness  must   be  offered  specially  for 

that  purpose. 

Davis  vs.  Gibson,  70  App.  273. 
Cannot  show  perjury  as  impeaching  a  witness  by  affidavits. 

C.  &  E.  I.  E.  E.  Co.  vs.  Stewart,  104  App.  37. 
To  render  prior  oral  statements  admissible  in  impeachment,  wit- 
ness' attention  must  be  called  to  same,  with  a  specification  of  time 

and  place  where  such  statements  were  made. 

Hirsch  &  Sons  vs.  Coleman,  227  111.  149;  I.  C.  Ey.  Co.  vs.  Wade,  206 
111.  523 ;  A.  T.  &  S.  F.  Ey.  Co.  vs.  Feeban,  149  111.  202 ;  Anneals  vs. 
People,  134  111.  401 ;  Helgesen  vs.  Chi.  W.  &  L.  Co.,  156  App.  541. 

And  in  such  a  way  as  to  give  him  full  opportunity  for  explana-' 

tion. 

Helgesen  vs.  Chi.  W.  &  L.  Co.,  156  App.  541. 

But  strictness  as  to  time,  place  and  words  of  statement  is  not 

required. 

Eitzman  vs.  People,  110  111.  362;  I.  C.  Ey.  Co.  vs.  Wade,  206  111.  523. 

And  words  need  rot  be  verbatim. 

Math  vs.  City  of  Chicago,  243  111.  114. 
A  question  containing  substantially  the  varying  statements  al- 
leged to  have  been  made,  sufficiently  lays  a   foundation. 
Math  vs.  City  of  Chicago,  148  App.  379. 
Where  witness  is  party  to  suit,  prior  statements  are  admissible 
[without  laying  foundation. 

McCoy   vs.    People,   71    111.    Ill;    Common    vs.    People,   39   App.   31; 
Freel  vs.  Amer.  Elec.  Co.,  257  111.  248;  Johnson  vs.  Peterson,  166 
App.  404. 
Next  friend  is  not  a  party  within  the  rule. 

Buck  vs.  Maddock,  167  111.  219. 
Prosecutrix  in  bastardy  proceedings  is  not  party  within  rule. 
Johnson  vs.  People,  140  111.  350;  Overruling  McCoy  vs.  People,  71  111. 
111. 
Contradictory  statement  in  writing  cannot  be  introduced  with- 
out asking  the  witness  if  he  wrote  it. 

P.  F.  Trans.  Co.  vs.  O  'Neal,  41  App.  423 ;  Sekel  vs.  York  Natl.  Bank, 
57  App.  579. 
When  the  supposed  contradictory  statements  are  reduced  to 
w^riting  by  the  witness  or  signed  by  him,  a  sufficient  foundation 
is  laid  by  showing  the  paper  to  the  witness,  allowing  him  to  inspect 
it  and  read  it,  and  proving  by  him  or  others  that  the  signature 
thereto  is  his  genuine  signature. 

I.  C.  Ey.  Co.  vs.  Wade,  206  111.  523. 
Where  it  is  sought  to  impeach  a  witness  by  showing  that  pre- 
viously in  giving  an  account  of  transaction,  he  said  nothing  about 
a  certain  matter  testified  to  by  him,  and  the  only  foundation  laid 


IMPEACHMENT  689 

for  the  contradiction  was  to  ask  witness  whether  he  had  given  the 
same  version  of  the  occurrence  on  both  occasions,  and  his  answer 
that  he  had,  it  was  held  that  the  proper  foundation  was  not  laid, 
that  witness  should  have  been  asked  specifically  whether  he  omit- 
ted the  statement  which  was  offered  to  be  proved,  before  contra- 
dictory evidence  could  be  received. 

N.  W.  R.  R.  Co.  vs.  Hack,  66  111.  238. 
If  the  (luestion  propounded  to  an  impeaching  witness  is  variant 
from  the  one  put  to  the  witness  sought  to  be  impeached,  objec- 
tion should  be  made  thereto  on  that  specific  ground,  so  that  the 
form  of  the  question  may  be  changed  to  suit  the  phraseology  of 

the  first  interrogatory. 

Chi.  West.  Div.  Ry.  Co.  vs.  Ingrahaiii,  131  111.  659. 
Court  may  permit  the  recalling  of  a   witness  for  purpose  of 
laying  foundation  for  impeachment. 

Anneals  vs.  People,  134  111.  401;  Wilson  vs.  Genseal,  113  111.  403. 
Party  cross-examining  witness  does  not  make  him  his  own  by 
recalling  him  to  ask  impeaching  questions. 
Scluiltz  vs.  Reid,  122  App.  420. 
In  common  fairness  to  a  witness  whom  it  is  attempted  to  im- 
peach, by  showing  that  at  another  time  and  place  he  stated  what, 
on  his  exandnation,  he  declares  he  did  not  remember,  the  ques- 
tion put  to  witness  called  to  show  such  statement,  should  be  iden- 
tical, or  at  least  substantially  identical  with  the  original  question. 
Gormley  vs.  Hartray,   105  App.  625. 

—  When  Witness  Does  Not  Recollect:  When  a  witness  is  asked 
whether  he  made  statements  dift'erent  from  his  testimony  on  the 
trial,  and  the  time  and  place  and  language  are  specified,  and  he 
states  he  does  not  recollect  it,  the  other  party  may  call  witnesses 
to  prove  that  he  did  make  such  statements,  and  it  is  error  for 
court  to  reject  such  impeaching  evidence. 

Wood  vs.  Shaw,  48  111.  273;  Ray  vs.  Bell,  24  111.  444. 
Where   witness  does  not   recollect   having   made   prior   alleged 
inconsistent   statements,   his   deposition    containing   alleged   state- 
ments is,  nevertheless,  admissible  in  impeachment. 
Con.  Ice  Machine  Co.  vs.  Keifer,  134  111.  481. 

—  As  Belative  to  3Iaterial  Matters:  The  alleged  inconsistent 
statements  must  be  in  reference  to  a  matter  material  to  the  con- 
troversy. 

Nan  vs.  Standard  Oil  Co.,  154  App,  421 ;  Central  Ry.  Co.  vs.  Allmon, 
147  111.  471. 
The  statement  of  a  witness,  made  out  of  court,  orally  or  in 
writing,  if  contradictory  on  a  material  point,  to  his  sworn  state- 
ment as  a  witness,  may  be  introduced  in  evidence,  not  as  substan- 
tive proof  of  the  truth  of  such  statement,  but  as  tending  to  dis- 
credit the  witness. 

Moore  vs.  Anrora  Ry.  Co.,  150  App.  484. 
It  is  not  proper  practice  to  permit  a  party  to  ask  questions 
touching  irrelevant  matters,  and  then  prove  the  witness  has  made 
different  statements  concerning  them,  for  purpose  of  impeaching 

him. 

Sconce  vs.  Henderson,  102  111.  376, 

Ev.— 4  4  ■'-■' 


690  IMPEACHMENT 

Evidence  elicited  on  cross  examination  upon  qiiestion  not  in 
issue  cannot  be  made  the  foundation  of  contradiction  or  impeach- 
ment. 

C.  &  E.  I.  E.  E.  Co.  vs.  Stewart,  104  App.  37;  L.  E.  &  W.  E.  E.  Co. 
vs.  Morain,  140  111.  117. 

Evidence  offered  for  purpose  of  impeaching  a  v^dtness  on  ground 

that  he  made  statements  out  of  court  contradicting  his  testimony 

is  properly  rejected  where  it  relates  to  matters  wholly  immaterial 

to  issue  being  tried. 

Benedict  vs.  Dakiu,  243  111.  384;   Armstrong  vs.  Van  De  Neste,   132 

App.  601.     _.;  -  -[^  _  ;  ,,,,..,_ 

Declarations  and  statements  of  a  witness,  iVicbii'sistent  with  his 
testimony,  are  not  admissible  in  evidence  to  impeach  him,  unless 
his  testimony  relates  to  matters  material  to  the  issue. 
G-ordon  vs.  Eeynolds,  114  111.  118. 
To  discredit  the  statements  of  a  witness  for  the  petitioner,  as 
to.  depreciation  in  value  of  defendant's  farm,  it  is  not  competent 
to  show  that  the  witness  had  previously  stated  in  a  conversation 
with   a    certain   person   that   he   would   not   have   a   railroad   run 

through  his  farm  for  a  certain  sum  an  acre. 
Prather  vs.  Chi.  Sou.  Ey.  Co.,  221  111.  190. 
Where  a  Mdtness  is  asked,  on  cross  examination,  whether  he  had 
made  a  particular  statement  before  the  trial,  which  is  incompe- 
tent, as  not  relating  to  anything  he  testified  to  on  his  direct  exam- 
ination, and  collateral,  his  answer  must  be  taken  as  conclusive  and 

cannot  be  contradicted  by  other  witnesses. 
C.  E.  I.  .^i  P.  Ey.  Co.  vs.  Bell,  70  111.  102. 
It  is  not  error  to  refuse  to  allow  a  witness  to  testify  to  alleged 
admissions  of  party  to  suit  for  purpose  of  impeachment,  where  it 
does  not  appear  the  denial  was  made  in  manner  indicated  by  ques- 
tions propounded  or  where  the  matters  referred  to  are  not  material. 
N.  Chi.  St.  Ey.  Co.  vs.  Southwick,  165  111.  494. 
It  is  competent  for  a  party  to  produce  testimony  to  contradict 
material  statements  of  adverse  party,  though  such  statements  do 
not  relate,  dii'eetly,  to  the  matter  in  issue  between  the  litigants. 
Chi.  City  Ey.  Co.  vs.  Allen,  169  111.  287.  ni 

In  action  against  street  railway  company  for  personal  injuries, 
it  is  prejudicial  error  to  attempt  to  impeach  witness  for  plaintiff 
by  showing  promise  of  witness  to  go  to  office  of  defendant,  and 
that  he  was  served  with  a  subpoena  issued  from  office  of  defend- 
ant. 

Cairns  vs.  Sampsell,  158  App.  415. 

—  Written  Statements  Generally:  If  contradictory  statement 
is  in  writing,  question  as  to  its  contents,  without  production  of 
the  instrument  itself,  is  ordinarily  inadmissi])le  and  a  cross  exami- 
ation  for  the  purpose  of  laying  foundation  for  its  use  as  impeach- 
ment would  not,  except  in  special  circumstances,  be  allowed  until 
the  paper  was  produced  to  be  shown  to  the  witness  while  under 
examination.  Before  the-  adndssion  in  evidence  of  the  paper  con- 
taining the  previous  statements,  all  the  evidence  adduced  by  either 
party,  touching  its  making,  its  integrity  and  its  admissibility  should 
be  heard,  and  out  of  the  presence  of  the  jury. 

AVhen  the  previous  statement  involved  is  in  writing,  or  is  type- 
written and  signed,  the  necessity  for  a  foundation  upon  which 


IMPEACHMENT  691 

its  admissibility  may  ho  placed  still  remains.  The  impeaching  evi- 
dence not  being-  verbal,  but  written,  the  required  foundation  is 
eonse(iuently  necessarily  somewhat  changed  in  its  character.  The 
genuineness  of  the  written  statement  must  be  established  before 
it  can  be  admitted  in  evidence.  Proof  of  the  handwriting  of  the 
signature  is  but  one  step  in  that  direction.  If  any  changes,  alter- 
ations or  interlineations  appear,  the  party  offering  the  paper  must 
show  that  these  were  made  prior  to  the  signing  of  the  paper  or  with 
the  consent  of  the  witness,  before  the  statement  is  admissible  in 
evidence.  It  is  the  duty  of  the  party  proposing  to  impeach  the 
witness  by  the  introduction  of  such  previous  statements  to  call 
the  witness'  attention  to  that  statement  so  that  in  proper  season 
there  may  be  an  opportunity  for  explanation,  if  any  there  be,  of 

the  inconsistency. 

Helgesen  vs.  Chi.  Sub.  W.  &  I.  Co.,  156  App.  541;  Smith  vs.  Young, 

179  App.  364. 

The  proper  time  for  reading  a  paper  containing  an  inconsistent 

statement  of  witness  for  defendant,  is  when  plaintiff  presents  his 

evidence  in  rebuttal,  and  not  on  cross  examination  of  witness,  but 

the  latter  course  is  not  gi'ound  for  reversal. 

Chi.  City  By.  Co.  vs.  Matthicson,  212  111.  292. 
Writing  containing  statements  of  witness  is  admissible,  though 
he  denies  hearing  some  of  it  read_  oyer  to  him  at  time  of  signing 

same.  ►  -  .   :   » 

Couover  vs.  Harrisbnrg  Coal  Co.,  161  App.  74.  I 

When  witness  repudiates  paper,  introduced  as  containing  incon- 
sistent statements,  and  denies  knowledge  of  contents,  though  ad- 
mitting the  signature,  the  paper  is  not  admissible  in  impeachment 
vrithout  showing  witness  understood  its  contents  and  they  were 

the  same  as  when  signed. 

Belskis  vs.  Bering  Coal  Company,  246  111.  62. 
And  such  paper  is  properly  excluded  in  absence  of  any  coun- 
tervailing  evidence    in   relation    to   same,   and   the    circumstances 

under  which  it  was  signed. 

Belskis  vs.  Dering  Coal  Company,  151  App.  85. 
If  on  cross  examination  of  witness,  he  is  presented  with  a  writ- 
ten statement  and  asked  if  the  signature  thereto  is  not  his,  which 
he  admits,  it  is  proper  for  court  to  refuse  to  allow  inquiry  of  him 
as  to  its  contents.     Party  has  a  right  to  call  attention  of  witness 
to  statement,  for  purpose  of  putting  it  in  evidence  as  a  matter  of 
impeachment,  but  not  to  inquire  as  to  its  contents. 
Momence  Stone  Co.  vs.  Groves,  197  111.  88. 
Refusal    to    admit    a    paper    containing    statements    conflicting 
with  the  testimony  of  a  witness  is  not  prejudicial,  where  the  wit- 
ness admits  that  he  signed  the  paper  and  questions  and  answers 
are  read  from  the  paper  by  counsel  in  presence  of  .iiiry. 

Moore  vs.  A.  E.  &  C.  Ry.  Co.,  246  111.  56;   C.  &  E.  I.  E.  E.  Co.  vs. 
Crose,  214  111.  602. 
Statements  signed  by  a  witness,  which  contradict  his  testimony, 
are  not  admissible  in  evidence  when,   after  being  read  in  detail 
to  the  witness,  he  admits  that  he  made  the  contradictory  state- 
ments therein  set  forth. 

Swift  &  Co.  vs.  Madden,  165  111.  41. 


692  IMPEACHMENT 

A   writing   also   signed   by    others   than   witness   sought   to   be 
impeached  is  incompetent,  and  offer  to  omit  all  signatures  other 
than  that  of  witness  does  not  render  same  admissible. 
Dickirsoii  V8.  Henryetta  Coal  Co.,  158  App.  454. 

Where  a  witness  has  signed  a  statement  out  of  court  in  con- 
flict with  his  testimony  on  the  trial,  and  such  fact  is  relied  upon 
to  impeach  his  credibility,  it  is  proper  to  allow  him  to  explain 
his  signing  of  the  statements,  in  so  far  as  he  states  facts  within 

his  knowledge. 

Hirsch  &  Sons  vs.  Coleman,  227  111.  149;  Chi.  City  Ey.  Co.  vs.  Hast- 
ings, 136  111.  251. 
A  writing  containing  other  matter  than  that  which  relates  di- 
rectly to  the  impeachment  of  the  witness  is  inadmissible. 
Dickirson  vs.  Henryetta  Coal  Co.,  158  App.  454. 
A  general  objection  to  the  admission  in  evidence  of  a  writing 
offered  as  impeaching  proof  does  not  present  for  review  the  ques- 
tion whether  part  of  the  statements  contained  therein  were   in- 
admissible as  being  mere  opinions,  if  the  writing  was  admissible 
for  any  purpose. 

I.  C.  E.  E.  Co.  vs.  Jordon,  206  111.  523. 
The  evidence  of  a  witness,  taken  at  a  coroner's  inciuest  is  com- 
petent by  way  of  impeachment  where  he  signed  same  and  ad- 
mits same  and  admits  such  signing. 

Chi.  City  Ey.  Co.  vs.  Jordan,  116  Apj^.  650. 
While  a  prior  written  statement  of  a  witness  at  variance  with 
his  testimony  on  the  trial  is  proper  to  be  used  and  under  some 
circumstances  may  be  put  in  evidence  after  the  attention  of  the 
witness  has  been  called  thereto,  such  statement  cannot  be  used 
as  affirmative  evidence,  and  where  it  contains  matters  of  opin- 
ion, the  party  against  whom  it  is  used  should  be  protected  from 
harm  by  appropriate  instructions. 

Nelson  vs.  N.  W.  El.  Ey.  Co.,  170  App.  119. 
A  written  statement  which  has  been  used  for  impeaching  pur- 
poses should  not  be  taken  by  the  jury. 

Johnson  vs.  Fairbanks  Co.,   156  App.  381 ;  Dimn  vs.  People,  172  111. 

582;  Eainforth  vs.  People,  61  111.  365;  Smith  vs.  Wise  &  Co.,  58  111. 

141;  Fein  vs.  Cov.  Ben.  Assoc,  60  App.  274. 

—  Effect  of  Admission  or  Denial  of  Statement :    Where  a  proper 

foundation  has  been  laid  for  introduction  of  impeaching  evidence, 

if  witness  admits  he  made  the  contradictory  statements  imputed 

to  him,  as  fully  as  it  is  claimed,  further  proof  of  such  fact  may 

not  be  necessary,  but  if  he  denies  or  does  not  directly  admit  that 

he  made  the  statements,  the  impeaching  proof  should  be  permitted 

to  be  given. 

I.  C.  E.  E.  Co.  vs.  Wade,  206  111.  523. 

And  so,  where  such  admission  is  made  fully  as  to  alleged  state- 
ment, it  is  not  error  to  refuse  to  permit  the  impeaching  evidence. 
Swift  &  Co.  vs.  Madden,  165  111.  41. 

If  a  witness  admits  the  declarations  or  statements  imputed 
to  him,  the  proof  on  the  other  side  becomes  unnecessary,  and  the 
witness  has  the  opportunity  of  giving  such  reason,  explanation, 
or  exculpation  of  his  conduct,  if  there  be  any,  as  the  particular 
transaction  may  happen  to  furnish,  and  thus  the  whole  matter 
is  brought  before  the  court  at  once.     When  the  witness  admits 


IMPEACHMENT  693 

making  the  previous  contradictory  statements,  no   further  proof 

of  that  fact  is  necessary. 

Hirsch  Co.  vs.  Coleman,  227  111.  149;  A.  T.  &  S.  F.  Ey.  Co.  vs.  Feehaii, 
149  111.  202;  Fesseiulen  vs.  Dean,  89  App.  229;  A.  T,  &  S.  F.  li.  K. 
Co.  vs.  Feeban,  47  App.  66. 
Where  a  witness,  when  asked  as  to  making  other  statements 
inconsistent   or  at  variance   with   his   testimony,   neither   directly 
admits  nor  denies  it,  but  states  he  does  not  know  or  recollect,  or 
gives  any  other  indirect  answer  not  amounting  to  an  admission, 
it  is  competent  to  prove  the  affirmative,  by  way  of  impeachment. 
Bressler  vs.  People,  117  111.  422. 
If  a  witness,  in  answer  to  a  question  as  to  what  testimony  he 
gave  on  a  former  trial  neither  directly  affirms  nor  denies  giving 
the  declaration  spoken  of,  it  is  then  competent  for  adversary  to 
prove  the  affirmative,   providing,  however,   the  act  or  statement 
is  relevant  to  the  matter  in  issue. 

CM,  City  Ry.  Co.  vs.  Mattliiesou,  212  111.  292;  Eay  vs.  Bell,  24  111.  444. 
Where  a  witness,  on  cross  examination,  denies  or  does  not  ad- 
mit making,  at  a  set  time  and  place,  a  statement  in  conflict  with 
his  testimony,  a  witness  called  to  impeach  him  in  that  respect 
should  be  asked  directly  whether  at  the  time  and  place  such  wit- 
ness did  so  state,  as  the  entire  conversation  cannot  be  called  for 
by  the  impeaching  party. 

Mauehester  Ins.  Co.  vs.  Ins.  Co.,  91  App.  609. 
Foundation  for  introduction  of  written  statement  having  been 
properly  laid  by  defendants,  the  proper  time  to  offer  the  papers  as 
impeaching  evidence  is  when  it  comes  his  turn  to  offer  evidence. 

Chi.  City  Ey.  Co.  vs.  Manger,  128  App.  512;  I.  C.  E.  E.  Co.  vs.  Wade, 
206  111.  523. 

—  Pleadings:     Pleadings   are  not  admissible   to   contradict   or 

impeach  a  witness  not  a  party  to  the  suit. 
Harrison  vs.  Tliaekaberry,  248  111.  512. 

—  Letters:    Letters  written  by  party  to  suit  to  third  party  are 

admissible  to  impeach  such  party. 
Dick  vs.  Marble,  155  111.  137. 
Letter   of  recommendation  admissible   to   impeach   writer   testi- 
fying against  servant. 

Western  Mf.  Ins.  Co.  vs.  Bonghton,  136  111.  317. 

—  Affidavits:     A   witness  may   be   impeached   by   proof   of   an 

affidavit  containing  contradictory  statements. 

Stone  vs.  Cook,  79  111.  424;  VonGlanz  vs.  YonGlanz,  46  111.  134. 

Impeaching  affidavit  may  be  read  to  witness. 

Fein  vs.  Benefit  Assoc,  60  App.  274. 
Affidavits  of  subscribing  witnesses  in  county  court  may  be  in- 
troduced by  proponents  of  will  to   contradict  their  testimony. 

In  re  Will  of  Barry,  219  111.  391 ;  Thompson  vs.  Ovren,  174  111.  229. 
To   admit  affidavit  of  subscribing  witnesses   to   will,   for   pur- 
pose of  impeachment,  the  affidavit  should  be  produced  and  atten- 
tion of  witness  specifically  called  to  such  parts  of  it  as  is  thought 
his  testimony  contradicts. 

In  re  Noble,  124  111.  266. 


694  IMPEACHMENT 

To  rentier  an  affidavit  of  a  witness  admissible  in  evidence  for 
purpose  of  contradicting-  or  impeaching  his  testimony  given  by 
deposition,  the  affidavit  must  have  been  produced  on  his  exami- 
nation and  his  attention  called  to  such  parts  as  are- claimed  to  be 
contradictory  of  his  testimony.  It  is  not  sufficient  to  ask  him, 
generally,  if  he  has  not  made  certain  contradictory  statements, 
in  re  Matter  of  Noble,  124  111.  2(56. 

In  civil  action  for  assault  and  battery,  an  affidavit  by  defend- 
ant, made  in  a  prior  criminal  trial  for  same  assault,  and  contra- 
dictory of  defense  in  civil  action,  relating  to  same  subject  matter, 
is  admissible  on  cross  examination  of  defendant,  to  impeach  his 

credibility  as  a  witness. 

Wilson  vs.  Genseal,  113  111.  403.   • 
—  Depositions:     Depositions  used   at    former   trial,    containing 
questions  and  answers  similar  to  those  used,  is  admissible. 

Mygreen   vs.   Smith,   162   App.   276;    Bartolletti   vs.    Int.   Bank,    119 
111.  259. 
A  witness  may  be  impeached  by  establishing  an  inconsistency 
between  his  testimony  at  the  trial,  and  the  contents  of  a  deposi- 
tion sworn  to  by  him.     So  the  evidence  of  a  witness,  taken  before 
a  coroner,  may  be  used  to  contradict  the  evidence  of  same  witness, 

subsequently  given. 

Chi.  City  Ry.  Co.  vs.  McLaughlin,  146  111.  353. 
Where  impeaching  evidence  is  given  as  to  a  witness'  statements 
contradictory  to  his  testimony  in  a.  deposition,  he  should  be  per- 
mitted to  be  recalled  and  examined  as  to  such  statements,  although 
his  attention  may  have  been  called  to  them  in  his  deposition,  and 
he  therein  testified  that,  to  the  best  of  his  recollection,  he  made  no 

such  statements. 

Eobertson  vs.  Brost,  83  111.  116. 
.,^, —  Opinions  as  Admissions:  If  a  witness  has  simply  testified 
to  a  matter  of  fact,  his  previous  opinions  as  to  merits  of  the  cause 
cannot  be  regarded  as  relevant  to  the  issue.  Hence,  questions  put 
to  him  on  cross  examination,  with  view  to  laying  foundation  for 
his  impeachment,  should  be  directed  to  matters  of  fact  only,  and 
not  to  mere  opinions  which  he  has  formerly  expressed.  The  latter 
are  inadmissible,  unless  the  case  is  one  where  evidence  of  opinion 

is  material. 

Central  Ey.  Co.  vs.  Allmon,  147  111.  471. 

A  previously  expressed  opinion,  not  necessarily  inconsistent  with 
truth  of  an  assertion  made  in  witness'  testimony,  is  inadmissible, 
Johnson  vs.  Fairbanks  Co.,  156  App.  381. 
Prior  admissions  of  witness,  in  relation  to  questions  of  law,  are 

inadmissible. 

Johnson  vs.  Fairbanks  Co.,  156  App.  381. 

"Where  witness  on  cross-examination,  is  asked  if  he  had  not  had 
certain  conversation  and  he  denies  it,  after  the  impeaching  wit- 
ness has  testified  to  conversation  but  not  embodied  in  language  of 
question,  impeached  witness  should  be  permitted  to  give  in  rebuttal 
his  version  of  conversation. 

aiisholm  vs.  Nat.  Bank  of  Leroy,  176  App.  382. 

—  Bif/ht  to  Explain:  When  witness  admits  making  prior  state- 
ments, he  may  explain  why  his  present  testimony  differs,  but  if 


IMPEACIDIENT  695 

he  denies  that  he  testified  differently,  he  may,  nevertheless,  be  con- 
tradicted. 

Hoge  vs.  People,   117   Til.  ,'5.5. 

—  Competency  of  impeaching  Witnesses:  It  is  competent  to 
prove  by  the  members  of  the  grand  jury  that  a  witness  testiiied 
diflPerently  before  that  body  from  his  testimony  on  the  trial,  where 
proper  foundation  is  tirst  laid. 

Teople  vs.  Nail,  2A'l  111.  284;  Hoge  vs.  People,  117  111.  35;  Bref^slcr 
vs.  People,  117   ill.  422. 
Permitting'  a  witness,  who  remained  in  court  in  violation  of  an 
order  to  exclude  witnesses,  to  testify  in  impeachment  of  a  witness 
who  testified  during  presence  of  impeaching  witness  rests  in  dis- 
cretion of  court. 

Wilson  vs.  Genscal,  ll.S  111.  403;  BuUiner  vs.  People,  95  111.  394. 

Impeachment  by  Reputation: 

—  As  to  General  Rcpuiaiion:     A  witness  is  usually  impeached 
by  proving  by  other  witnesses  that  his  character  for  truth  and  ver-- 
acity  among  his  neighbors  is  so  bad  that  he  is  unworthy  of  belief. 

AVhile  such  is  the  usual  mode  of  impeachment,  yet  a  witness, 
from  his  relationship  to  the  parties,  his  manner  and  appearance 
on  the  stand,  of  his  evident  bias  in  favor  of  one  of  the  parties  may 

warrant  jury  in  the  conclusion  he  is  unworthy  of  belief. 

Corgan  vs.  Frew,  39  111.  31;  Eankin  vs.  Crow,  19  111.  626;  Hansel  vSi 
Erickson,  28  111.  257;  C.  W.  E.  K.  Co.  vs.  Burt,  69  111.  388. 
Impeaching  testimony  should  be  confined  to  general  reputation. 

Doner  vs.  Peojile,  92  App.  43. 
It  is  only  the  general  character  of  a  witness  for  truth  and  ver- 
acity that  should  be  inquired  into  upon  impeachment  of  his  testi- 
mony. ' 
Frye  vs.  Bank  of  Illinois,  11  111.  367 ;  Hansel  vs.  Erickson,  28  111.  257. 
And  the  inquiry  should  be  confined  to  his  general  character  foi^ 
truth  and  veracity  in  all  cases  except  in  prosecutions  for  rape, 
assault  with  intent  to  commit  rape,  and  indecent  assault,  where 
character  of  prosecutrix  for  chastity  may  be  inquired  into. 

People  vs.  Goodrich,  251  111.  558;   Dinunick  vs.-  Downs,  82  111.  570; 
Eobertson  vs.  McGarity,  28  111.  243. 

That  life  of  witness  was  immoral  and  dissolute  does  not  neces^ 
sarily  impeach  his  testimony. 

Painter  vs.  People,   147  111.   444. 
]Mere   fact  that  witnesses  are  not   exemplar}^   citizens   does  not 
justify  discrediting  their  testimony. 
People  vs.  McCann,  247  111.  130. 
>  That  reputation  for  honesty  and  prompt  payment  of  debts  was 

bad  is  inadmissible  to  impeach. 

Eggniaa  vs.  Nutter,  155  App.  391. 

The  general  bad  character  of  witness  cannot  be  shown. 

Corgan  vs.  Frew,  39  111.  31;  Flansborg  vs.  Basin,  3  App.  531. 
Particular  instances  of  falsehood  cannot  be  shown. 

Laclede  Bank  vs.  Keeler,  109  111.  385. 
Opinion  as  to  reputation  must  be  based  solely  on  general  repu- 
tation and  not  on  particular  facts. 

Massey  vs.  Farmers  Bank,  104  111.  327. 


696  IMPEACHMENT 

Expert  testimony  cannot  be  impeached  by  proof  of  expert's  gen- 
eral reputation,  as  a  physician. 

City  of  Beardstown  vs.  Snuth,  52  App.  46. 

—  As  to  Farticular  Acts:     Reputation  cannot  be  impeached  by 

proof  of  particular  acts. 

Massey  ^•s.  Bank,  104  111.  327;  Addison  vs.  People,  193  111.  405; 
Frye  vs.  Bank  of  Illinois,  11  111.  367. 
To  show  an  alibi  in  a  criminal  case,  defendant  called  as  a  wit- 
ness the  former  clerk  of  a  hotel,  and  proved  by  him  that  he  saw 
defendant  at  the  hotel  on  the  morning  after  the  larceny,  between 
four  and  five  o'clock.  The  People  then  introduced  evidence  to 
show  that  witness  was  discharged  as  a  hotel  clerk,  a  day  or  so  be- 
fore the  time  so  spoken  of,  for  drunkenness.  This  was  not  done  to 
contradict  the  witness  by  showing  his  absence,  it  being  conceded 
that  he  was  at  the  hotel  at  the  time,  but  it  was  the  evident  purpose 
thereby  to  impeach  him.  Court  erred  in  admitting  the  evidence, 
as  witness  could  not  have  been  impeached  in  this  way.  If  hie  rep- 
utation for  truth  and  veracity  were  bad,  that  fact  should  have  been 
proved.     Why  his  employer  discharged  him  was  immaterial. 

Hoge  vs.  People,  117  111.  35. 

—  Form  of  Question:  The  regular  mode  of  examining  into  the 
general  reputation  is  to  inquire  of  witness  whether  he  knows  the 
general  reputation  of  the  person  in  question  among  his  neighbors, 
for  truth  and  veracity,  and  what  that  reputation  is. 

Laclede  Bank  vs.  Keeler,  109  111.  385;  Dimmick  vs.  Downs,  82  111.  570; 
Foulk  vs.  Eckert,  61  111.  318. 
The  proper  inquiry  is  whether  witness  knows  the  general  repu- 
tation of  the  persons  sought  to  be  impeached  or  sustained,  among 
his  or  her  neighbors,  for  truth  and  veracity,  which  question  the 
witness  must  answer  in  the  affirmative  before  he  or  she  can  be 
asked  what  that  reputation  is. 

Gifford  vs.  People,  148  111.  173;  Dowie  vs.  Black,  90  App.  167;  Crab- 
tree  vs.  Hageubaugh,  25  111.  233. 
''Are  you   acquainted   with   plaintiff's   general   reputation    for 
truth  and  veracity  among  his  neighbors  and  friends  and  business 
associates  in  the  city  of  Chicago?"     Held  proper. 

Banker  vs.  Ford,  152  App.   12.  ;!iui  I 

It  is  not  compulsoTy  to  ask  of  a  witness,  who  has  testified  to  his 
knowledge  of  general  reputation  of  another  witness,  whether  or 

not  he  would  believe  him  on  oath. 
Bank  vs.  Keeler,  109  111.  385. 
To  ask  of  impeaching  witness  "would  you  believe  him  under 
oath,"  is  improper  and  inadmissible,  where  not  based  upon  rep- 
utation. 

Doner  vs.  People,  92  App.  43. 

After  witness  has  stated  that  he  knows  the  general  reputation 
for  truth  and  veracity,  of  person  sought  to  be  impeached,  and  has 
stated  that  reputation  is  good  or  bad,  the  further  admissible  ques- 
tion is  "from  that  reputation"  or  "judging  by  that  reputation, 
would  you  believe  him  under  oath," 
Doner  vs.  People,  92  App.  43. 

Where  it  is  shown  that  the   general  reputation   of  a  witness 
among  his  neighbors  for  truthfulness  is  bad,  it  is  erroneous  to  re- 


IMPEACHMENT  697 

fuse   to  allow  impeaching  witness   to   answer  whether  he  would 
believe  such  witness  on  oath. 

Easoii  vs.  Chapman,  21  111.  33;  Laclede  Bank  vs.  Keeler,  109  111.  385; 
Massey  vs.  F.  N.  Bank,  104  111.  3l'7. 
But  it  is  optional  with  party  to  ask  such  question. 
Laclede  Bank  vs.  Keeler,  109  111.  385. 

—  As  to  Interest  in  Case:  Evidence  is  not  admitted  of  partic- 
ular facts  and  the  opinion  allowed  to  be  expressed  is  to  be  based 
solely  on  general  reputation  and  not  on  particular  facts.  Opin- 
ions not  founded  upon  general  reputation  alone,  but  which  also 
include  interest  in  the  case  of  the  party  sought  to  be  impeached, 
are  inadmissible.  The  effect  of  interest  upon  the  credibility  of 
testimony  is  solely  for  the  consideration  of  the  jury  and  no  wit- 
ness should  be  allowed  to  pronounce  upon  it.  The  naked  question, 
whether,  from  defendant's  interest  in  the  case,  the  witness  would 
believe  him  on  oath  could  not  be  justified.  There  should  not  be 
given  the  opinions  of  witnesses  upon  the  discrediting  effect  of  in- 
terest in  whole  or  in  part  upon  testimony. 

Dowie  vs.  Black,  90  App.  167. 
In  impeachment  of  party  who  had  testified  in  his  own  behalf, 
witnesses  were  asked,  after  stating  their  knowledge  of  his  reputa- 
tion for  truth  and  veracity,  ''From  that  reputation  would  you, 
or  not,  in  a  case  where  he  was  actually  interested,  believe  him 
under  oath  ? "  to  which,  reply  was  made  that  if  he  were  interested, 
witness  would  hesitate  to  believe  him.     It  was'  held  error  to  allow 

question  to  be  answered  against  objection. 

Massey  vs.  Farmers'  Natl.  Bank,  104  111.  327. 

—  Necessity  of  Ecsidence  at  Place  Where  Reputation  Exists: 
If  a  witness  had  resided  long  enough  in  a  neighborhood  to  mnke  a 
reputation  for  truth  and  veracity  that  is  known  by  his  neighbors, 
it  may  be  shown  by  way  of  impeachment,  although  he  does  not, 
at  the  time,  reside  in  such  neighborhood,  but  elsewhere. 

Blackburn  vs.  Maun,  85  111.  222;  Holmes  vs.  Statler,  17  111.  453. 
Nor  does  the  fact  that  witness  has  not  lived  in  that  neighborhood 
for  years  render  testimony  of  former  neighbors  too  remote. 
Kennedy  vs.  Modern  Woodmen,  243  111.  560. 
Evidence  as  to  general  reputation  for  truth  and  veracity,  of  wit- 
ness who  has  resided  at  a  particular  place  long  enough  to  have 
established  a  reputation,  is  admissible. 
Kirkham  vs.  People,  170  111.  9. 
General  reputation  at  former  period  and  in  another  neighbor- 
hood, admissible. 

Brown  vs.  Leuhrs,  1  App.  74. 
Reputation  not  necessarily  limited  to  immediate  neighborhood 

of  witness. 

Hope  vs.  West  Chi.  St.  Ey.  Co.,  82  App.  311. 

—  Impeaching  Witness'  Knowledge:  A  witness,  to  testify  that 
he  will  not  believe  a  man  under  oath,  must  first  be  shown  to  have 
knowledge  of  the  man's  reputation. 

Spies  vs.  People,  122  111.  1;  Dowie  vs.  Black,  90  App.  167. 


698  IMPEACHMENT 

Impeaching  witness  must  be  able  to  say  what  is  generally  said 
of  person  among  his  associates.     It  is  not  enough  that  he  merely 
state  what  he  has  heard  others  say,  for  they  may  be  few. 
Crabtree  vs.  Kile,  21  ill.  180. 

A  witness,  called  to  impeach  general  character  of  another  for 
truth  and  veracity,  should  be  asked  if  he  is  acquainted  with  general 
reputation  of  such  witness,  in  his  neighborhood,  for  truth  and  ver- 
acity, and  he  nuist  answer  in  the  affirmative  before  he  can  testify 
to  his  character  for  truth;  but,  although  he  may  be  asked  as  to 
his  character  before  he  has  stated  he  knew  it,  there  can  arise  no 
harm  when  he  answers  he  does  not  know  how  the  neighbors  regard 
the  witness  in  regaixl  to  his  truthtulness. 
Foulke  vs.   Eckert,  61   HI.   318. 

The  good  reputation  of  a  witness  may  be  known  without  his 
being  discussed. 

Overstreet  vs.  Dunlap,  .56  App.  486;  Hays  vs.  Johnson,  92  App.  80. 
'Evidence  that  witness  was  not   acquainted   with   rei)utation  of 
person  sought  to  be  impeached,  but  he  had  never  heard  it  assailed, 
cannot  be  considered. 

Magee  vs.  People,  139  111.  138. 

Where  a  witness  is  called  to  impeach  another,  and  states  he  is 
acquainted  with  the  witness  sought  to  be  impeached,  it  is  error 
to  refuse  to  allow  the  witness  to  answer  the  question  that  he  is 
acquainted  with  the  general  reputation  of  the  witness  for  truth 
and  veracity  among  his  neighbors,  and  those  with  whom  he  asso- 
ciated. It  is  not  essential  for  impeaching  witness  to  say  he  has 
heard  the  majority  of  the  neighbors  speak  of  his  character  for 
truth  and  veracity.  The  question  is  proper,  and  if  witness  states 
he  is  so  acquainted,  and  the  reputation  is  bad,  then  the  party  may 
incjuire  into  the  extent  of  the  impeaching  witness'  information 
and  means  of  knowledge  on  the  cross  examination. 

Crabtree  vs.  Hagenbaugh,  25  111.  233 ;  Dowie  vs.  Black,  90  App.  167. 

A  witness  cannot  be  impeached  by  proof  of  the  individual  knowl- 
edge of  a  witness  of  his  or  her  character,  but  must  be  by  proof  of 
general  reputation. 

Gifford  vs.  People,  148  111.  173 ;  Chicago  vs.  Giirncll,  137  App.  377. 

And  if  witness  voluntarily^  expresses  his  opinion  thereon,  same 

should  be  stricken  out. 

Gifford  vs.  People,  148  111.  173;  Foiilke  vs.  Eckert,  61  111.  318. 
—  Competency   of  Impeaching    Witnesse.^:     It   is   not   essential 
that  impeaching  witness'  knowledge  be  as  to   the  reputation  at 

exact  time  of  trial. 

Hope  vs.  West  Chi.  St.  Ey.  Co.,  82  App.  311. 
AVhen  witness  has  established  a  new  domicile,  and  resided  there 
long  enough  to  establish  a  reputation,  impeaching  witnesses  living 
at  place  of  his  former  domicile  may  testify  as  to  his  general  rep- 
utation. 

^       Kirkhain  vs.  People,  170  111.  9. 
Eeputation  of  person  may  be  shown  by  persons  acquainted  in 
the  community  in  which  he  is  known,   though  such  persons  are 

not  his  innnediate  neighbors. 

Banker  vs.  Ford,   1.52  App.  12. 


INCEST  6&9 

Impeachment  of  Impeaching  Witness: 

As  a  general  rule,  tlie  general  character  of  an  iiiipeachiug  wit- 
ness cannot  be  attacked. 

Kictor  vs.  Kictor,  S  111.  105;  Dimick  vs.  Downs,  82  111.  570. 

Cross  Examination: 

^Vlleu  an  impeaching  witness  has  testified  to  general  reputation 
the  adverse  party  may  cross  examine  him  as  to  his  means  of  knowl- 
edge and  the  grounds  of  his  opinion.  i, 

Dowie  vs.  I'.luck,  '.)()  App.   Uil. 

Conviction  of  Infamous  Crimes : 

That  witness  was  convicted  of  an  infamous  crime  may  be  shown 
as  affecting  his  credibility. 

Baily  vs.  Bcall,  251  111.  577;  People  vs.  Blevins,  251  111.  381;  Mc- 
Keavitt  vs.  People,  208  111.  460;  XIV  111.  Kotes  1153,  §303.  See 
Former  Conviction. 

A  witness  cannot  be  impeached  by  showing  that  he  has  been  ar- 
rested or  that  he  has  been  charged  with  crime.  It  may  be  shown 
that  he  has  been  convicted  of  a  felony,  but  not  that  he  had  been 
indicted,  only.  And  cross  examination  as  to  indictment  and  arrests 
is  error. 

People  vs.  Newman,  261  111.  11. 

INCEST 

Corpus  Delicti: 

—  Consent  of  Female:  Is  not  essential  to  constitute  the  crime 
of  incest  in  the  male. 

David  vs.  People,  204  111.  479. 

—  Legitimacy:  JMarriage  to  the  mother,  or  legitimacy  of  the 
child  is  not  of  the  gist  of  the  inquiry. 

Bersjen  vs.  People,  17  111.  426. 

Admissibility  of  Evidence: 

Admission  of  the  accused  that  the  person  witli  whom  he  had 
sexual  intercourse  was  his  daughter  by  a  former  wife  is  competent. 
Bergen  vs.  People,   17  111.  426. 

It  is  competent  for  a  daughter  of  the  accused  to  testify  as  to  her 
mother's  name,  that  her  father  and  motlun'  always  treated  each 
other  as  though  they  were  married,  and  as  to  tlie  age  of  her  father 
and  prosecutrix. 

Bolen  vs.  People,  184  111.  338. 
Proof  of  complaint  by  the  victim  is  inadmissible. 
People  vs.  Turner,  260  111.  84. 

Acts  between  the  same  parties, 'other  than  those  charged,  may  be 
proven. 

David  vs.  People.  204  111.  479;  Bolen  vs.  People,  184  111.  338;  Cf. 
Janzeu  vs.  People,  159  111.  440.  rv 

Though  occurring  through  a  course  of  years. 
People  vs.  Turner,  260  111.  84. 

Proof  of  three  acts  on  same  date  does  not  require  a  further  elec- 
tion of  offenses. 

People  vs.  Turner,  260  111.  84. 

Accomplice : 

An  accomplice  is  one  who  is  associated  with  another  in  the  com- 
mission of  a  crime,  and  the  test  whether  a  person  is  an  accomplice 
is  whether  he  or  she  could  be  indicted  for  the  offense.  Daughter 
is  not  accomplice  and  instruction  as  to  care  and  caution  in  re- 
ceiving her  testimony  is  improper. 
People  vs.  Turner,  260  111.  84. 


700  INFANTS 

INFANTS 

See  Adoption,  Parent  and  Child,  Age,  Trusts,  Deeds,  Dom- 
icile. 

INFANTS  AS  WITNESSES. 
Age  No  Test  of  Competency: 

Intelligence,    ability   to    comprehend    the   meaning   of   an   oath, 

and  the  moral  obligation  to  speak  the  truth,  and  not  age,  are  the 

tests  by  which  to  determine  the  competency  of  a  child  to  testify. 

Shanuou   vs.   Swanson,   208   IlL   52;    Draper   vs.   Dra])er,   68   111.    17; 

Epstein  vs.  Berkowski,  64  App.  498;   McLean  vs.  Chicago,  127  App. 

489;  XIV  111.  Notes  1113,  §  25. 

If  the  preliminary  examination  of  a  child  shows  that  she  at- 
tends school,  knows  the  difference  between  truth  and  falsehood, 
and  that  the  oath  binds  her  to  tell  the  truth  and  that  she  would 
be  punished  if  she  failed  to  do  so,  it  is  not  error  to  admit  her 
testimony,  the  weight  thereof  being  a  matter  for  the  jury. 
Sokel  vs.  People,  212  111.  238. 

Allowing  a  child  of  nine  years  of  age  to  testify  is  not  error. 

She  testified  on  her  voir  dire  that  she  "understood  the  nature  of 

an  oath,  and  that  if  she  did  not  swear  the  truth  she  would  get 

into  hell  fire,"  it  was  held  that  the  intelligence  and  not  the  age 

was  the  test  of  competency  of  a  witness  of  tender  years,  and  that 

the  witness  was  competent  according  to  the  most  rigid  rules. 
Draper  vs.  Draj^er,  68  111.  17. 

That  a  boy  six  years  old  was  allowed  to  testify  in  a  criminal 
case  is  not  error  if  his  preliminary  examination  shows  that   he 
understood  the  nature  and  meaning  of  an  oath,  but  it  is  for  the 
jury  to  say  what  weight  shall  be  given  his  testimony. 
Featherstone  vs.  People,  194  111.  325. 

FACT  OF  INFANCY. 
Presumptions  and  Burden  of  Proof: 

—  Civil  Actimi:  Where  a  party  files  a  plea  of  infancy,  he  as- 
sumes the  burden  of  proving  his  plea  by  a  preponderance  of  the 

evidence. 

Goodwin  vs.  Acton,  97  App.  11;  Peak  vs.  Pricer,  21  111.  164. 

—  Criminal  Action:  If  defendant  asserts  infancy  as  a  defense, 
he  is  required  to  prove  it,  and  an  averment  of  age,  being  surplusage, 
need  not  be  proven. 

People  vs.  Sclniltz,  260  111.  35;  Sutton  vs.  People,  145  111.  279;   Cf., 
Mark  vs.  Peoj.le,  204  111.  248. 

Admissibility  of  Evidence: 

See  Age. 
CAPACITY. 

Presumptions : 

—  Civil:     The  presumption  is  that  infants  do  not  know  their 

rights. 

Tearney  vs.  Fleming,  48  App.  507. 
Against  an  infant,  nothing  will  be  intended. 

Preston  vs.  Hodgen,  50  111.  56. 

A   boy   thirteen   years   old,   who    is   attending   school,    must   be 

presumed  to  be  of  ordinary  intelligence  for  one  of  his  age. 
Heimann  vs.  Kinnare,  190  111.  156. 


INFANTS  701 

—  Criminal:  Between  the  ages  of  ten  and  fourteen  years  infant  is 
prima  facie  incapable  and  during  this  period  the  same  burden  is  on 
People  to  prove  his  capacity  as  to  prove  any  other  material  fact.  It 
must  be  proven  beyond  a  reasonable  doubt.  The  fact  can  no  more 
be  inferred  Avithout  evidence  than  any  other  material  fact.  At  the 
age  of  fourteen  the  law  presumes  capacity,  without  proof  of  knowl- 
edge of  good  and  evil,  but  between  these  ages  the  evidence  of  that 
malice  which  is  to  supply  age  must  be  strong  and  clear  beyond  all 
reasonable  doubt  and  contradiction,  as  the  prima  facie  presump- 
tion is  that  the  party  is  doli  incapax. 
Angelo  vs.  People,  96  111.  209. 

Upon  proof  of.  defendant  being  under  age  of  fourteen  the 
question  will  then  arise  whether  he  knew  right  from  wrong  and 

perhaps  as  to  his  physical  ability  to  commit  the  crime. 

Sutton  vs.  People,   145  111.  279. 

INJURY  TO  PERSON  OF  INFANT. 
Contributory  Neg-ligence : 

Up  to  the  age  of  seven  years  a  child  is  incapable  of  such  con- 
duct as  will  constitute  contributory  negligence,  and  court  may  so 
declare  as  a  matter  of  law  in  its  instructions. 

Chi.  City  Ey.  Co.  vs.  Tuohy,  196  111.  410;   Chi.  City  Ey.  Co.  vs.  Wil- 
cox,  138   111.    370;    Hackett   vs.   Chi.   City   Ey.   Co.,   235   111.    116; 
Eiehardson  vs.  Nelson,  221  111.  254;  Chi.  City  Ey.  Co.  vs.  Gregory, 
58  111.  226;  XIII  111.  Notes  948,  §  96. 
Nor  can  the  negligence  of  an  eight  year  old  boy  in  caring  for 
his  four  year  old  brother  upon  the  street  be  imputed  to  the  lat- 
ter so  as  to  defeat  a  recovery  against  one  who  negligently  injures 
him. 

Perryman  vs.  Chi.  City  Ey.  Co.,  242  111.  269;  Chi.  W.  D.  Ey.  Co.  vs. 
Eyan,  131  111.  474. 

Above  the  age  of  seven  years,  evidence  may  be  introduced  as 
to  capacity,  discretion  and  judgment  of  infant  and  jury  may  con- 
sider his  capacity. 

Kerr  vs.  Fogue,  54  111.  482;  C.  E.  I.  &  P.  Ey.  Co.  vs.  Eininger,  114 
111.  79;  Chi.  City  Ey.  Co.  vs.  Tuohy,  196  111.  410;  City  of  Pekin  vs. 
McMahon,  154  111.  141. 

Misrepresentation  as  to  Age: 

The  fact  that  a  child  employed  by  a  manufacturing  company 
falsely  represents  himself  to  be  over  fourteen  years  of  age  does 
not  preclude  him  from  maintaining  an  action  to  recover  for  his 
injury  resulting  from  his  unlawful  employment,  nor  furnish  a 
defense  for  his  employer. 

Amer.  Car  Co.  vs.  Armentraut,  214  111.  509. 

Employer  cannot  prove  that  if  child  had  correctly  stated  his 
age  he  would  not  have  been  employed. 

Amer.  Car  Co.  vs.  Armentraut,  214  111.  509. 
But  anything  the  child  might  say  about  its  age  would  be  com- 
petent evidence  to  be  considered  by  the  jury  in  connection  with 
all   the   evidence,   as  bearing  upon   the   question   of   age,   in   suit 
wherein  such  child  was  party. 

Swift  &  Cc.  vs.  Eennard,  119  App.  173. 


702  INFANTS 

Damages : 

Where  deceased  is  a  minor  and  leaves  a  father  entitled  to  his 
services,  law  presumes  there  has  been  a  pecuniary  loss  from  his 
death. 

C.  &  E.  T.  R.  R.  Co.  vs.  Huston,  19G  111.  480;  Savage  vs.  Hayes  Bros., 
142  App.  316. 

But  where  next  of  kin  are  collateral  kindred  of  the  deceased 
and  have  not  been  receiving  from  him  pecuniary  assistance  and 
are  not  in  a  situation  to  re(iuire  it,  it  is  immaterial  how  near  the 
relationship  may  be ;  only  nominal  damages  can  be  given. 

Ehoads  vs.  C.  &  A.  E.  R.  Co,.  227  HI.  328;  Romeo  \s.  Western  Coal 
Co.,  157  App.  67. 

A  minor  whose  parents  are  dead  and  to  whom  no  one  stands 
in  loco  parentis,  and  who  has  been  injured  by  the  negligence  of 
another,    is    entitled    to    recover    damages    for    loss    of    time    and 
diminution  of  earning  capacity  during  minority. 
Mfg.  Fuel  Co.  vs.  White,  228  111.  187. 

LIABILITY  FOR  TORTS. 

Liability  of  Infant: 

An  infant  is  liable  for  his  torts  the  same  as  an  adult. 

Wilson  vs.   Garrard,  59  111.  51. 
As  for  assault  and  battery. 

Hildreth  vs.  Hancock,  156  111.  618. 
Or  trespass. 

Davidson  vs.  Young,  38  111.  145. 

Where  a  minor  makes  a  pretense  of  purchase  and  obtains  the 
delivery  by  fraud,  he  will  be  liable  as  in  tort. 

Mathews  vs.   Cowan,   59   111.   341;    Ashlock  vs.    Vivill,   29   App,   388; 
Davidson  vs.  Young,  38  111.   145. 

Liability  of  Parent: 

A  parent  is  not  liable  for  the  torts  of  his  children  committed 
without  his  knowledge  or  consent,  and  not  in  the  course  of  his 
employment  or  by  his  direction. 

Wilson  vs.  Garrard,  59  111.  51;   Paulin  vs.  Howser,  63  111.  312;  Dick 
vs.  Swinsou,  137  App.  68;   Malenberg  vs.  Bartos,  S3  App.  481. 

In  order  to  render  a  parent  liable  for  the  tort  of  his  infant 
son,  it  is  essential  that  it  should  appear  from  the  evidence  that 
he  might  reasonably  have  anticipated  injury  as  a  consequence  of 
permitting  such  son  to  emjDloy  the  agency  which  produced  the 
injury. 

Palmer  vs.  Ivorson,  117  App.  535. 

LIABILITY  FOR  NECESSARIES. 
Necessaries  Defined: 

There  is  no  positive  rule  by  which  it  may  be  determined  what 
are  necessaries.  Court  should  instruct  the  jury  as  to  classes  and 
general  description  of  articles  for  which  an  infant  is  bound  to 
pay.  They,  the  jury,  must  determine  whether  they  fall  within  any 
of  the  classes  and  whether  they  are  actually  necessary  and  suit- 
able to  the  estate  and  condition  of  the  infant. 

Maloney  vs.  Perks,  169  App.  227;  McKanua  vs.  Merry,  61  111.  177. 

Improvement  of  property  is  not.  ' 

McCarty  vs.  Carter,  49  111.  53. 

Nor  horse. 

Tuqua  vs.  Sholeni,  60  App.  140. 


INFANTS  703 

Presumptions  and  Burden  of  Proof: 

An  inl'ant  may  make  a  himling  contract  for  necessary  food, 
clothing  and  medical  aid  and  education,  and  if  unable  to  pro- 
cure them,  others  may  furnish  tliem  and  charge  a  reasonable 
price   therefor. 

Jolinsou  vs.  Maples,  49  Til.  101. 

The  implied  contracts  of  an  infant  for  necessaries  are  binding 
upon  him. 

Cole  vs.  Pennoyer,  14  111.  158;  Hunt  vs.  Thompson,  4  111.  179. 
But  the  general  rule  is  that  if  parents  or  a  guardian,  in  good 
faith,  acting  for  the  best  interest  of  minor,  furnishes  means  suit- 
able to  age,  and  infant's  station  in  life,  and  with  reference  to  es- 
tate, then  the  infant  would  not  be  liable. 
MeKamia  vs.  Merry,  61  111.  177. 

Liability  of  Father: 

—  Froiiiisc:  An  express  promise  must  be  proven,  or  circum- 
stances from  which  a  promise  by  the  father  can  be  inferred,  to  hold 
him  liable  for  necessaries  furnished  his  infant  child  by  a  third 
person. 

Sehnuekle  vs.  Burnian,  89  111.  454;  Murphy  vs.  Ottenheimer,  84  111. 
39;  GoHs  vs.  Clark,  78  111.  229;  McMulIen  vs.  Lee,  78  111.  443; 
Dumser  vs.  Underwood,  68  App.  121;  Allen  vs.  Jacob,  14  App.  279; 
XIII  111.  Notes  1038,  §18. 

—  Burden  of  Proof:  Where  a  third  person  furnishes  means 
for  the  support  of  the  child,  he  must  take  the  burden  of  showing 
that  the  parent  expressly  promised  to  pay  for  same,  or  such  facts 
and  circumstances  bearing  upon  the  question  of  the  parent's  neg- 
lect, and  his  evident  intentions  and  purposes  regarding  the 
necessities  of  the  child  and  provision  therefor,  as  that  a  promise 
can  be  properly  inferred  therefrom. 

Clark  vs.  Gotts,  1  App.  454. 

But  where  a  father  and  mother  separate  by  mutual  consent, 

and  the  father  permits  the  mother  to  take  the  children  with  her, 

then  the  father  constitutes  the  mother  his  agent  to  provide  for 

his  children,  and  is  bound  by  her  contracts  for  necessaries  for 

them. 

McMillen  vs.  Lee,  78  111.  443. 

Where  a  wife  leaves  the  husband  without  his  consent,  and 
against  his  wishes,  without  fault  or  misconduct  of  the  husliand,  he 
will  not  be  liable  for  necessaries  furnished  by  a  third  person  to 
the  wife  or  child  at  her  request. 

Sehnuekle  vs.  Burman,  89  111.  455. 

Wliere  a  minor  son  bought  clothing  without  consent  of  father, 
who  knew  nothing  of  purchase  until  goods  were  brought  home, 
but  allowe'd  the  son  to  keep  them,  and  plaintiff  testified  to  fa- 
ther's promise  to  pay,  which  the  latter  on  oath  denied,  it  was 
held  that  jury  were  authorized  to  find  the  father  liable  for  the 
price  of  the  goods. 

.lohnsou  vs.  Smallwood,  88  111.  73. 

Liability  of  Step-father: 

A  person  is  not  bound  to  maintain  the  children  of  his  wife  by 

a  former  husband. 

Attridge  vs.  Billings,  57  111.  490. 


704  INFANTS 

But  if  a  man  take  the  children  of  his  wife  by  a  former  mar- 
riage into  his  family,  he  stands  in  loco  parentis  as  to  them  and  is 
bound  by  his  wife's  contract  made  for  their  maintenance  and  edu- 
cation. 

Chi.  Man.  T.  S.  Oo.  vs.  Scott,  159  App.  350. 

AFFIRMANCE  AND  AVOIDANCE  OF  CONTRACTS  AND 
DEEDS. 

Contracts : 

Infant  may  repudiate  contract  not  for  necessaries,  same  being 

not  void  but  voidable. 

Shaffer  vs.  Kennington,  61  App.  59;  Fuqua  vs.  Sholem,  60  App.  140; 
Curry  vs.  St.  John  Plow  Co.,  55  App.  82. 
If  an  infant,  after  coming  of  age,  does  any  act  clearly  showing 
an  intention  to  affirm  a  contract  made  by  him  during  his  minority, 
he  cannot  afterwards  repudiate  it. 

Curry  vs.  St.  John  Plow  Co.,  55  App.  82. 
In  action  against  a  person  for  the  price  of  property  sold  him 
while  an  infant,  it  is  competent  to  show  that  the  defendant  dis- 
posed of  the  property  after  the  suit  was  brought  as  tending  to 
throw  light  upon  the  question  of  ratification  or  affirmance. 
Curry  vs.  St.  John  Plow  Co.,  55  App.  82. 
In  order  to  constitute  a  ratification  of  acts  done  in  infancy, 
the  act  relied  upon  as  a  ratification  must  be  performed  with  full 
knowledge  of  its  consequences  and  with  the  express  intent  to  rat- 
ify what  is  known  to  be  voidable. 

Sayles  vs.  Christie,  187  111.  420;  Davidson  vs.  Young,  38  111.   145. 
A  note  given  by  a  minor  for  articles  not  necessaries  is  voidable 
and  may  be  repudiated  by  him,  but  if  he  has  in  his  possession  or 
control  the  articles  for  which  such  note  was  given,  he  may  be 
required  to  restore  them  as  a  condition  precedent  to  such  repudia- 
tion ;  the  rule  is  different,  however,  where  he  has  parted  with  such 
possession  and  the  articles  are  no  longer  under  his  control. 
Fuqua  vs.  Sholem,  60  App.  140. 
Where,  however,  a  party  has  wasted  or  squandered  the  consid- 
eration received  by  him  during  infancy,  a  different  rule  prevails 
and  the  adult  party  is  without  remedy. 

Bruschke  vs.  Wright,  166  111.  183;  Brandon  vs.  Brown,  106  111.  519; 
Bennett  vs.  McLaughlin,  13  App.  349. 

Where  an  infant  disaffirms  his  contract  because  of  infancy,  the 

rights  of  parties  are  governed  by  the  law  and  not  by  the  contract. 
Myers  vs.  Kehkopf,  30  App.  209.     (See  Katification.) 

Deed: 

A  deed  made  by  an  infant  is  not  void  but  voidable. 

Burnham  vs.  Kidwell,  113  111.  425;  Keil  vs.  Healey,  84  111.  104;  Cole 
vs.  Pennoyer,  14  111.  158. 
The  time  in  which  to  disaffirm  is  three  years. 

Sayles  vs.  Christie,  187  111.  420;   Tunison  vs.  Chamblin,  88  111.   378; 
Keil  vs.  Healey,  84  111.  104;  111.  Land  Co.,  vs.  Bonner,  75  111.  315. 
Declarations  by  the  grantor  in  a  voluntary  conveyance  executed 
during  infancy,  m.ade  to  strangers  in  the  absence  of  the  grantee 
in  the  deed,  do  not  amount  to  a  ratification. 
Sayles  vs.  Christie  187  111.  420. 


INFANTS  705 

Mere  declarations  or  promises  to  make  a  deed  of  affirmance  will 

not  constitute   an  afiinnanee. 

Sayles  vs.  Christie  187  ill.  420. 
Silence  is  not  ratification. 

D:ivi(lstin  vs.  Youi)>r,  :\s  111.  145. 

SERVICES  OF  INFANTS. 
Part  of  Term: 

An  infant  agreeing  to  work  for  a  certain  length  of  time,  but 
quitting  before  the  end  of  the  time,  may  recover  for  the  value  of 

his  services  for  the  time  worked ;  he  is  not  bound  by  his  contract. 
Bay  vs.  Haines,  52  111.  485. 

Right  of  Action: 

Is  in  parent  or  guardian. 

Duffield  vs.  Cross,  12  111.  397. 

The  mother  becomes  the  head  of  the  family  on  the  death  of 
the   father  and  is  entitled  to   the  seiwices  and  earnings   of  her 

minor  children. 

Bradley  vs.  Sattler,  156  111.  603. 
If  step-father  stands  in  loco  parentis  to  his  step-children,   he 
is  entitled  to  their  earnings  while  that  relation  continues. 
Capek  vs.  Cropik,  129  111.  509. 

Emancipation : 

Parent  may  relinquish  his  right  to  earnings  of  child,  and  that 
he  has  done  so  may  be  inferred  from  conduct  of  parent. 
Chi.  Screw  Co.  vs.  Weiss,  203  111.   536. 

Before  a  recovery  could  be  had  in  the  name  of  the  infant,  it 

is  necessary  for  him  to  show  by  express   arrangement  or  from 

such  circumstances  as  that  it  might  be  inferred,  that  the  father 

had  given  the  son  his  time  so  as  to  entitle  him  to  receive  his  own 

earnings. 

Ford  vs.  MeVey,  55  111.  119. 

"Where  a  minor  worked  for  defendant,  and,  after  he  became  of 
age,  brought  suit  for  his  wages,  and  the  father  was  called  as  a 
witness  on  behalf  of  his  son,  making  no  claim  to  the  wages,  and 
spoke  of  the  transaction  as  his  son's,  the  presumption  was  that  he 
had  emancipated  his  son  at  the  time  the  services  were  rendered, 
and  a  recovery  under  these  circumstances  by  the  son  would  be 
a  bar  to  any  claim  by  the  father  for  the  son's  wages. 

Scott  vs.  White,  71  111.  287 ;  Aulgier  vs.  Badgley,  29  App.  336. 

]\Iarriage   emancipates,   though   not   of  age,   and   entitles   child 

to  earnings. 

Yaiiatta  vs.  Carr,  229  111.  47. 

ADMISSIONS  OF  INFANTS. 

Infants  are  not  bound  by  mere  admissions  adverse  to  their  in- 
terests, for  they  can  neither  make  them  themselves  nor  authorize 

other  parties  to  do  so  for  them. 

Knights  Templar  vs.  Crayton,  209  111.  550;  Cochran  vs.  McDowell,  15 
111.  10;   Sayles  vs.  Christie,  187  111.  420;   Severns  vs.  Broffey,  155 
App.  10. 
Alleged   admissions  of  a  child  of  tender  years  should  be  re- 
ceived with  greater  caution  than  admissions  of  adults. 
Chi.  City  Ey.  Co.  vs.  Tuohy,  196  111.  410. 
Ev.— 4  5 


706  INJURY  TO  PERSON 

And  the  jury  should  weigh  them  with  reference  to  his  age  and 

understanding. 

Chi.  City  Ry.  Co.  vs.  Tuohy,  196  111.  410. 

CUSTODY  OF  INFANT. 

A  father  is  presumed  to  be  entitled  to  custody  of  child. 

Sullivan  \s.  People,  224  111.  468. 
A  parent  has  the  right  of  custody  of  his  child  as  against  the 
world,  unless  he  has  forfeited  his  right  or  the  welfare  of  the  child 
demands  he  should  be  deprived  of  its  custody. 
Hohenadel  vs.  Steele,  237  111.  229. 
Parents'  right  of  custody  of  child  is  paramount, 

Cornmeh  vs.  Marshall,  211  111.  519. 
Declarations  of  child  as  to  its  preference  and  wishes  may  be 
heard  but  not  necessarily  allowed  to  prevail. 

Hewitt  vs.  Long,  76  111.  399;  People  vs.  Porter,  23  App.  196. 


INJURY  TO  PERSON 

See  Ordinances,  Habits,  Simii^^r  Facts,  Repairs  After 
Accidents,  Promise  to  Repair,  Pecuniary  Circumstances, 
Rules  op  Employer,  Pain  and  Suffering,  Res  Gestae,  Admis- 
sions, Expert  and  Opinion,  Medical  and  Surgical  Services, 
Sidewalks,  Experiments,  Physical  Examination,  Coroner's  In- 
quest, Ownership,  Wages  and  Earning  Capacity,  Domestic  Re- 
lations, Photographs,  Release,  Custom  and  Usage,  Presump- 
tions. Burden  op  Proof,  Representative  Capacity,  Witnesses, 
Speed,  Demonstrative  Evidence,  Safer  Method. 


INNKEEPERS 

Defined: 

He  must  be  a  person  keeping  a  house  publicly  open  for  the 
lodging  and  entertainment  of  persons  in  general,  for  a  reason- 
able consideration.  If  a  person  lets  lodgings  only  and  upon  a  pre- 
vious contract  with  every  person  who  comes,  and  does  not  offer 
entertainment  for  the  public  at  large,  indiscriminately,  he  is  not 

the  keeper  of  a  common  inn. 

Pullman  Palace  Car  Co.  vs.  Smith,  73  111.  360;  Bullock  vs.  Adair,  63 
App.  30. 
One  who  runs  a  lodging  house  and  contracts  with  guests  for 
a  definite   time,   and   price,   does  not  become   an   inn-keeper   and 
under  duty  to  care  for  goods  and  property  of  lodgers. 
Clifford  vs.  Stafford,  145  App.  247. 

Rights  and  Liabilities: 

Baggage  Received  Outside  of  Inn:  An  inn-keeper  is  respon- 
sible for  baggage  received  by  his  agents  outside  of  the  inn. 

AVilliams  vs.  Moore,  69  App.  618 ;  Eden  vs.  Drey,  75  App.  102. 

-^When  Responsibility  Attaches:  Where  baggage  is  delivered 
to  the  inn-keeper  as  the  baggage  of  an  intended  guest  who,  within  a 
reasonable  time,  becomes  a  guest,  the  responsibility  of  the  inn- 


INNKEEPERS  707 

keeper  for  the  safe  keeping  of  the  baggage  relates  back  to  the 
time  when  the  baggage  was  delivered. 

Fliut  vs.  111.  Hotel  Co.,  149  App.  404. 

Actions : 

—  Hight  of  Action:  No  prosecution  can  be  maintained  under 
the  act  relating  to  inn-keepers  for  a  refusal  to  pay  for  something 
which  has  not  been  obtained.  There  is,  thus,  no  obtaining,  within 
the  meaning  of  the  statute,  of  a  meal  where  supper  and  lodging 
alone  are  received,  and  these  are  paid  for,  though  at  the  time  of 
payment  breakfast  is  served,  and  under  the  known  rules  of  the 
house  the  departing  guest  is  required  to  pay  for  a  meal  in  readi- 
ness. 

Siindmacher  vs.  Bloch,  39  App.  553. 
Failure  of  a  guest  to  ask  for  baggage  for  several  days  after  its 
reception  by  the  inn-keeper  is  not  necessarily  negligence. 
Eden  vs.  Drey,  75  App.  102. 

—  Question  of  Law  and  Fact:  Under  the  proviso  to  the  Inn- 
keepers' Act,  that  nothing  contained  in  the  act  shall  apply  to  such 
an  amount  of  money  and  valuables  as  is  usual,  common  and  pru- 
dent for  a  guest  to  retain  in  his  room  or  about  his  person,  the  ques- 
tion whether  the  valuables  retained  by  a  guest  in  his  room  in  a 
particular  case  comes  within  such  proviso  is  one  of  fact,  and  is  not 
raised  by  a  demurrer  to  the  evidence  in  a  suit  to  recover  for  the 

loss  of  such  valuables. 

Eoekhill  vs.  Congress  Hotel  Co.,  237  111.  98, 

—  AdmissiMlity  of  Evidence:  Bailee  may  show  that  the  sev- 
eral employees  who  were  intrusted  with  the  property  alleged  to 
have  been  lost  were  competent  and  were  so  considered  by  bailee 

when  employed. 

Miles   vs.   Inter.   Hotel   Co.,    167   App.   440;    Gray   vs.   Drexel  Arms 

Hotel,  146  App.  604. 

Where  a  restaurant  proprietor  seeks  to  exonerate  himself  from 

liability  for  loss  of  chattels  given  into  the  hands  of  a  waiter,  on 

the  ground  that  there  was  a  rule  of  the  house  forbidding  w^ait- 

ers  to  receive  property  from  a  guest,  evidence  of  such  rule  is  not 

admissible  unless  it  is  first  shown  that  the  guest  had  notice  thereof. 

LaSalle  E.  &  O.  Hou.  vs.  McMasters,  85  App.  677. 

—  'Weight  and  Sufficiency  of  Evidence:  Proof  that  a  person 
refused  or  neglected  to  pay  for  accommodations  at  an  inn  or  hotel 
on  demand,  is  only  proof  that  he  refused  or  neglected  to  pay  a 
debt,  without  showing  either  that  it  was  fraudulently  incurred  or 
the  neglect  or  refusal  to  pay  was  in  any  way  fraudulent. 

Hutcliinson  vs.  Davis,  58  App.  358. 
"Where  the  only  evidence  as  to  how  property  was  stolen  from 
a  room  in  an  inn,  is  by  plaintiff  who  claimed  he  locked  the  door 
with  a  key  which  he  took  out  of  the  door  after  locking,  that  he 
thinks  no  one  could  have  entered  the  door  after  he  had  taken  the 
key  out,  that  he  remembers  nothing  about  the  thumb-bolts  on  the 
door,  and  that  he  saw  the  cards  on  the  door  directing  guests  to 
leave  valuables  at  the  office,  a  verdict  against  the  inn-keeper  can- 
not be  sustained. 

Hulbert  vs.  Hartman,  79  App.  289. 


708  INNOCENCE 

—  Presumptions  and  Burden  of  Proof:  To  constitute  a  prima 
facie  case  under  Section  2  of  the  Act  to  define  and  punish  frauds 
upon  hotel,  inn,  lodging  and  eating  house  keepers,  there  must  be 
proof  that  the  person  surreptitiously  removed  or  attempted  to 
remove  his  baggage  or  of  one  or  more  of  the  conditions  required 

by  said  section. 

Hutchinson  vs.  Davis,  58  App.  358.    • 
A  presumption  of  negligence  arises  when  baggage  is  handed  to 
an   authorized   employe   or   agent   of  the   hotel   for   custody   and 
cannot  afterward  be  found  or  heard  of. 

Gross  vs.  Saratoga  Hotel  Co.,  176  App.  160. 
An  inn-keeper  owes  the  duty  and  assumes  the  obligations  of 
safely  keeping  the  property  of  his  guests,  and,  if  the  property  is 
lost,  all  that  is  necessary  to  make  out  a  prima  facie  case  is  to  show 
the  relation  of  inn-keeper  and  guest  and  the  loss,  when  the  bur- 
den is  then  east  upon  the  inn-keeper  to  exonerate  himself. 

Eockhill  vs.  Congress  Hotel  Co.,  237  HI.  98 ;  Metcalf  vs.  Hess,  14  HI. 
129;    Johnson    vs.    Richardson,    17    111.    302;    Eden    vs.    Drey,    75 
App.  102. 
In  case  of  the  loss  of  his  guest's  property,   an  inn-keeper  is 
prima  facie  guilty  of  negligence,  but  he  may  repel  such  presump- 
tion by  showing  an  absence  of  iiegligence  on  his  part,  or  of  his 
employees  or  servants,  and  by  showing  negligence  on  the  part  of 

the  guest. 

Hulbert  vs.  Hartman,  79  App,  289. 

Proof  by  the  bailor  that  he  placed  property  in  the  care  of  the 
inn-keeper  and  that  the  same  was  not  returned  upon  demand, 
imposes  on  the  inn-keeper  the  burden  of  showing  that  he  exer- 
cised such  care  as  was  required,  the  law  presuming  negligence  for 

the  failure  to  return. 

Miles  vs.  Int.  Hotel  Co.,   167  App.  440. 
—  Witnesses:     In  an  action  by  an  inn-keeper  for  board,  proof 
that  he  is  absent  the  greater  part  of  the  time,  and  that  in  his  ab- 
sence his  wife  manages  the  inn  for  him  is  enough  to  permit  her 

to  testify  as  his  agent. 

Mitchell  vs.  Hughes,  24  App.  308. 


INNOCENCE 

See  Presumption,  Homicide. 

INQUEST 

See   Coroner's  Inquest,  Wills,  Insurance,   Sanity  and   In- 
sanity. 

INSANITY 

See  Sanity  and  Insanity,  Expert  and  Opinion,  Wills,  Mental 
and  Physical  States. 


INSOLVENCY  709 

INSOLVENCY 

Defined: 

A  general  inability  to  answer  in  the  course  of  business,  the  lia- 
bilities existing  and  capable  of  being  enforced. 

Martin  vs.  Herz,  224  111.  84;  Best  vs.  Fuller,  1S5  111.  4.3.  _     j 

As  applied  to   a  person,  firm  or  corporation  in  trade,   is  ina- 
bility to  pay  debts  as  they  fall  due  in  usual  course  of  business. 
Atwater  vs.  Amer.  Bank,  152  111.  605. 

Presumptions : 

It  is  not  presumed  that  a  person  is  insolvent.     Such  fact  must 

be  alleged  and  proven. 

State  Bank  vs.  Barnett,  250  111.  312;  Bittinger  vs.  Kasten,  111  111. 
2(i0;  Timison  vs.  Chamblin,  88  111.  378;  Kogers  vs.  Dimon,  106 
App.  201. 

Admissibility  of  Evidence: 

■  — Conclusion  of  Witness:  An  active  managing  partner  of  a 
mercantile  business,  familiar  with  its  affairs,  is  to  be  considered 
a  competent  witness  to  testify  regarding  its  insolvency,  and  he 
may,  upon  direct  examination,  testify  that  the  firm  is  either  sol- 
vent or  insolvent,  leaving  to  the  other  side,  if  dissatisfied  with  such 
evidence,  an  opportunity  to  examine  him  as  to  assets  and  liabilities 
of  such  firm  and  the  knowledge  he  has  from  which  he  makes  his 

statement. 

Su-an  vs.  Gilbert,  67  App.  236;  Aflfd.,  175  111.  204. 
Compare :  ' '  Counsel  made  offer  to  prove  by  a  witness,  a  mem- 
ber of  the  firm,  that  the  firm  was  insolvent.  Court  says,  'The 
question  of  the  solvency  of  the  firm  may  depend  upon  many  facts 
and  circumstances,  such  as  the  amount  of  liabilities  and  the  time 
of  their  maturity,  and  the  amount  of  the  assets  and  the  value 
thereof.  Hence,  the  offer  to  prove  insolvency  was  an  offer  to 
prove  a  mere  conclusion,  and  should  not  be  allowed  against  ob- 
jection. The  offer  should  be  to  prove  facts  tending  to  show 
insolvency,  that  the  court  might  see  whether  or  not  the  facts  of- 
fered in  proof  have  any  relevancy  to  the  question.'  " 

Martin  vs.   Herz,   224  111.   84. 

—  Reputation:  Where  the  question  of  the  insolvency  is  directly 
in  issue,  and  does  not  come  up  incidentally,  evidence  of  finan- 
cial reputation  is  inadmissible. 

It  might  be  proven  by  facts  tending  to  show  such  insolvency, 
connected  v/ith  general  reputation  as  to  that  point,  and  in  such 
event  it  must  be  his  reputation  in  the  neighborhood  and  among 
those  with  whom  he  associates  and  does  business. 
Graff  vs.  Brown.  85  111.  89. 

Weight  and  Sufficiency: 

In  a  suit  by  the  assignee  against  the  assignor  of  a  note,  an  alle- 
gation of  the  insolvency  of  the  maker,  as  an  excuse  for  want  of 
diligence  by  suit,  is  prima  facie  established  by  the  return  of  the 
executions,  in  other  cases  against  the  maker,  ''nulla  bona." 
Phillips  vs.  Webster,  85  HI.  146. 

It  is  no  evidence  that  a  firm  is  insolvent  because  if  forced  to 

wind  up  its  business  at  a  particular  time,  it  would  be  unable  to 

pav  all  its  liabilities. 

Blow  vs.  Gage,  44  111.  208. 


710  INSPECTION  BY  JURY 

Evidence  that  a  partnership  made  an  assignment  for  creditors 
about  six  months  after  a  replevin  action  was  begun,  and  that  the 
assets  paid  about  thirty  cents  on  the  dollar,  is  not  admissible  to 
show   insolvency   of   the   partnership   at   time   replevin   suit   was 

begun. 

Martin  vs.  Herz,  224  111.  84. 
Proof  of  a  return  of  an  execution  nulla  bona  is  not  indispensa- 
ble to  establish  that  a  suit  against  the  maker  of  a  note  would 
have  been  unavailing.  Insolvency  may  be  shown  in  different  ways. 
It  may  be  shown  that  the  maker  had  no  property  whatever  and 
hence  was  insolvent,  or  that  all  property  owned  by  the  maker  was 
mortgaged  for  more  than  it  was  worth,  or  that  different  creditors 
had  procured  judgments  against  the  maker,  issued  executions, 
placed  them  in  the  hands  of  the  sheriff  and  that  the  sheriff'  had 
not  been  able  to  find  property  and  had  returned  the  executions 
unsatisfied,  or  that  deficiency  decree  in  foreclosure  remained  un- 
satisfied.    There  may  be  other  modes  in  which  insolvency  may  be 

shown. 

Springer  vs.  Puttkamer,   159  111.  567. 
In  an   action   to    dissolve   an   insolvent   corporation,    the    insol- 
vency of  those  owing  a  stock  liability  may  be  established  prima 
facie  by  a  return  nulla  bona  for  the  purpose  of  determining  the 
propriety   of   additional   assessments    against    solvent   subscribers. 

Leman  vs.  Teter,  169  App.  503. 
To  prove   the  insolvency  of  a  corporation  no  better  evidence 
need  be  introduced  than  a  return  null-a  bona  made  by  sheriff  upon 
execution  issued  against  it. 

Wheelock  vs.  Kost,  77  111.  296. 

Solvency : 

—  WJien  Court  SJionld  Require  Proof  of:  Where  a  party  has 
a  right  to  demand  indemnity  of  a  party  against  loss  or  injury 
before  paying  him  money  or  surrendering  his  security,  and  the 
court  so  decrees,  and  a  bond  of  indemnity  is  presented,  which  is 
objected  to  on  account  of  the  insolvency  of  the  makers,  it  is  error 
in  the  court  to  refuse  to  admit  evidence  to  show  insolvency. 

Daly  vs.  Wilkie,  111  111.  382. 

—  Direct  Testimony  bij  Witucss:  On  question  of  solvency,  a 
witness  may  be  asked  if  he  is  the  owner  of  property. 

Corgan  vs.  Frew,  39  111.  31. 


'  &' 


INSPECTION  BY  JURY 

See  Age,  View  by  Jury. 

INSTRUCTIONS 

Former  Trial: 

Instructions  given  on  a  former  trial  in  different  cause  between 
the  same  parties  cannot  be  read  to  jury. 
Harris  vs.  Miner,  28  111.  135. 


INSURANCE  711 

INSURANCE  rroT-  n 

See  Burden  of  Proof,  Presumptions,  Parol,  Suicide,  Assump- 
sit. 

BENEFIT  SOCIETY. 
Membership  and  Good  Standing: 

—  PresuNiption:  The  certificate  is  evidence  of  good  standing 
of  member  at  time  of  its  issue,  and  such  good  standing  is  pre- 
sumed to  continue  until  tiie  contrary  is  shown. 

Eoyal   (Jiicle   vs.    Achterrath,    204   111.    549;    Independent    Order   vs. 
Zak,   13G  in.   185. 

—  Lapsed  Membership:  Evidence  that  member  attempted  to 
change  beneficiary  does  not  tend  to  show  he  dropped  his  member- 
ship. 

Jones  vs.  Knights  of  Honor,  236  111.  113. 

—  Burden  of  Proof:  Tlie  burden  of  showing  that,  before  his 
death,  insured  lost  his  good  standing  as  a  beneficial  member,  is 
upon  society. 

U.  B.  of  C.  &  J.  vs.  Fortin,  107  App.  306;   Independent  Order  vs. 
Zak,  136  111.  185. 
And  likewise  upon  transferee  company. 

.    Brown  vs.  Mutual  Life  Ins.  Co.,  224  111.  576;  Bolles  vs.  Mutual  Life 
Ins.  Co.,  220  111.  400. 

—  Suspension:     Burden  is  upon  soci-ety  to  show  suspension. 

Tourville  vs.  B.  of  L.  F.,  54  App.  71. 
The  proper  way  to  show  suspension  of  member  is  by  the  books 
and  records  of  the  branch  order  to  which  he  belongs.  A  failure 
to  pay  an  assessment  may  be  shown  by  financial  officer  to  whom 
payment  should  have  been  made.  The  making  of  assessments 
should  be  shown  by  the  records  of  the  body  authorized  to  make 
assessments.  '' 

Supreme  Council  vs.  O'Neill,  108  App.  47. 
Evidence  that  deceased,  at  time  of  expulsion,  was  sick  of  the 
disease  of  M'hich  he  died,  is  properly  excluded,  where  no  offer  is 
made  to  show  such  expulsion  was  for  purpose  of  avoiding  pay- 
ment of  certificate. 

Croak  vs.  Order  of  Foresters,  162  111.  298. 

—  Be-instatement:  Refusal  to  admit  proof  of  declarations  to 
witness  by  insured,  as  to  condition  of  his  health  in  the  last  few 
months  of  his  life,  is  not  reversible  error,  even  though  the  evi- 
dence is  competent,  where  defendant  was  allowed  great  latitude 
in  the  matter,  and  proved  by  several  witnesses  the  condition  of 
health  of  insured,  covering  a  period  of  two  years  prior  to  his 
death. 

Court  of  Honor  vs.  Dingee,  221  111.  176. 

Condition   of  health  at  time  of   re-instatement  is   question   of 

fact. 

Court  of  Honor  vs.  Dingee,  221  111.  176. 

—  Forfeiture:  Burden  is  upon  society  to  show  forfeiture  was 
in  accordance  with  its  constitution  and  by-laws. 

Polish  Cath.  Union  vs.  Warczak,  182  111.  27. 
If  society  is  fully  advised  by  beneficiary,  after  member's  death, 
of  alleged  false  representations  in  member's  application  for   re- 
instatement,  and  the   society   does   not   then   insist  on   forfeiture 


712  INSURANCE 

on  that  ground,  but  recognizes  the  validity  of  the  insurance  by 

requiring  beneficiary  to  prepare  proofs  of  death,  an  intention  to 

waive  right  of  forfeiture  follows  as  a  legal  result. 
Traders  M.  L.  lus.  Co.  vs.  Johnson,  ^00  111.  359. 

Where  party  claims  right  based  on  a   forfeiture,  it  is  incum- 
bent upon  such  party  to  show  that  a  forfeiture  has  taken  place. 
Supreme  Council  vs.  O'Neill,  108  App.  47. 

Notice  of  Death: 

Plaintiff  who  proves  giving  of  notice  to  person  acting  as  sec- 
retary of  society,  and  in  possession  of  the  office  and  performing  its 
duties,  need  not  prove  the  legal  election  of  such  person  as  sec- 
retary, by  the  records  of  his  election. 

Supreme  Lodge  vs.  Matejowsky,  190  111.  142. 

Proofs  of  Death: 

—  Caicse  of  Death:    Proofs  of  death  are  admissible  in  evidence. 

M.  W.  of  A.  vs.  Davis,  184  111.  230. 
"Satisfactory  proofs  of  death,"  within  the  meaning  of  a  bene- 
fit certificate,  means  satisfactory  proof  that  the  insured  is  dead, 
and  a  reasonable  proof  of  cause  of  death ;  but  such  proofs  are  not 
binding  upon  either  the  society  or  the  beneliciaries  when  the  cause 
of  death  becomes  a  disputed  question  between  them. 
Kniolits  Templar  vs.  Crayton,  209  111.  550. 

—  Physician's  Statements:  A  beneficiary  is  not  estopped  from 
denying  the  truth  of  the  physician's  affidavit  as  to  cause  of  death, 
required  by  the  rules  of  the  society  to  be  filed  with  proofs  of  death. 

The  physician's  affidavit  as  to  cause  of  death  is  admissible  in 
evidence  with  other  papers  constituting  proofs  of  death. 
M.  W.   of  A.  vs.  Davis,   184  111.  236. 
Proof  taken  by  plaintiff  and  adopted  and  approved  by  defend- 
ant are  admissible  in  behalf  of  defendant. 

Lnndliolm  vs.  Mystic  Workers,  164  App.  472. 

Acts  of  President  as  Binding  Society: 

A  benefit  society  is  bound  by  the  acts  of  its  president,  in  ab- 
sence of  proof  that  his  ordinary  powers  as  president  were  abridged 

by  the  by-laws  of  the  society. 

Traders'  M.  L.  Ins.  Co.  vs.  Johnson,  200  111.  359. 

Suicide : 

—  Defined:  The  word  suicide  means  voluntary,  intentional  self- 
destruction  and  not  self-destruction  by  one  who,  at  the  time,  is 
incapable,  by  reason  of  unsoundness  of  mind,  of  resisting  an  in- 
sane impulse  to  take  his  own  life,  or  to  understand  the  general 
nature  or  consequences  and  effects  of  his  act. 

Supreme  Lodge  vs.  Pels,  209  111.  33. 

—  Burden  of  Proof  and  Presumptions:  If  defendant  files  spe- 
cial plea  alleging  insured  committed  suicide,  in  violation  of  terms 
of  benefit  certificate,  defendant  has  burden  of  establishing  such 
fact,  notwithstanding  the  proofs  of  death  introduced  by  plaintiff 
contain  an  admission  to  that  effect,  making  a  prima  facie  case  of 
suicide,  which  plaintiff  seeks  to  overcome  by  introducing  contra- 
dictory proof. 

Supreme   Lodge   vs.    Stensland,    206    111.    124;     Eumbold    vs.     Royal 
League,  206  111.  513. 


INSURANCE  713 

In  absence  of  proof  of  cause  of  death,  natural  causes  or  acci- 
dental causes  presumed. 

Amer.  Home  Circle  vs.  Schneider,  134  App.  601;  Knights  Templar 
vs.  Crayton,  209  111.  550. 

The  existence  of  a  fact  which  must  be  affirmatively  shown  is 
never  presumed  from  mere  absence  of  facts  showing  a  negative. 
Riimbold  vs.  Royal  League,  206  111.  513. 

—  What  Tends  to  Prove:  Proof  that  the  dead  body  of  plain- 
tiff's husband  was  found  hanging  by  a  rope  around  the  neck,  to- 
gether with  proofs  of  deatli  ott'ered  by  plaintiff .  herself,  where  it 
is  stated  that  the  immediate  cause  of  death  was  ''strangulation 
by  hanging  himself,"  tends  to  prove  averments  of  defendant  that 
death  of  insured  resulted  from  his  own  act. 

Kieswetter  vs.  K.  of  M.,  227  111.  48. 

—  Coroner's  Verdict:  The  verdict  rendered  by  a  coroner's 
jury  is  admissible  in  suit  to  recover  upon  certificate  of  insurance 
held  by  deceased. 

Grand  Lodge  vs.  Wieting,  168  111.  408;  Limdholm  vs.  Mystic  Work- 
ers, 164  App.  472. 
Verdict  of  coroner's  jury,  attached  to  proofs  of  death,  may  be 
considered  by  jury  in  determining  cause  of  insured's  death,  but 
neither  proofs  of  death  nor  testimony  taken  upon  inquest  can 
be  considered  on  that  question. 

Knights  Templar  vs.  Crayton,  209  111.  550. 

Is  not  conclusive  evidence  of  the  fact. 

Peckham  vs.  Modem  Woodmen,  151  App.  95. 

—  Admissions  and  Declarations  of  Insured:     Statements  made 

by  assured  are  competent  evidence  against  beneficiary.     Rule  in 

benefit  societies  is  different  from  ordinary  life  insurance,  where 

assured  ceases  to  be  a  party  in  interest  and  vested  interest  passes 

to  the  beneficiary.     Therefore  presence  or  absence  of  beneficiary 

is  immaterial. 

Towne  vs.  Towne,  191  111.  478;  Treat  vs.  Merchants  Life  Assoc,  198 
111.  431;  Lundholm  vs.  Mystic  Workers,  164  App.  472;  Brown  vs. 
Mystic  Workers,  151  App.  517;  Court  of  Honor  vs.  Dinger,  123 
App.  406;  Van  Frank  vs.  U.  S.  Ben.  Association,  158  111.  560; 
XII  111.  Notes  1203,  §  889. 

—  Opinion  of  Physician:  Where  insured  was  found  dead  with 
bullet  wound  in  his  head,  it  is  proper  to  refuse  to  permit  physician 
to  express  opinion  whether  wound  was  accidentally  or  purposely 
inflicted;  neither  is  it  competent  to  prove  there  was  no  hue  and 
cry  after  death,  nor  any  attempt  to  apprehend  his  supposed  mur- 
derer. 

Treat  vs.  Merchants  Life  Assn.,  198  111.  431. 

Damages : 

—  Presumption :  Amount  of  recovery  presumed  to  be  full  amount 

of  certificate. 

C.  M.  L.  Assn.  vs.  Kentner,  188  111.  431;  Met.  Ace.  Assn.  vs.  Wind^- 
dover,  137  111.  417. 

—  Parol:  Where  policy  contains  provision  to  pay  insured  or 
his  legal  representative  one  dollar  for  each  member  of  society  of 
same  division  or  divisions  "at  time  of  payment,"  parol  evidence 


•714  INSURANCE 

is  admissible  to  show  number  of  members  at  time  payment  should 
be  made,  in  order  to  arrive  at  measure  of  damages. 
St.  Clair  Co.  Soc.  vs.  Fietsam,  97  111.  474. 

—  State  Reports  of  Defendant:  Where  defendant  fails  to  pro- 
duce its  books  upon  notice,  plaintiff,  in  attempting  to  prove 
amount  belonging  to  defendant's  guaranty  fund,  may  show,  from 
sworn  reports  of  defendant  to  various  states,  the  cost  of  insur- 
ance, the  estimated  or  expected  mortality  based  upon  standard 
tables  in  general  use,  and  the  actual  mortality  as  reported  tosuch 
states,  and  may  prove  admission  of  defendant's  general  officers 
that  the  actual  mortality  had  never  exceeded  the  estimated  mor- 
tality. 

Provident  Sav.  Co.  vs.  King,  216  111.  416. 

Release  Under  Seal: 

Where  a  release  under  seal  is  pleaded,  plaintiff  is  not  entitled 
to  impeach  the  release  for  fraudulent  representations  as  to  col- 
lateral matters  not  going  to  the  execution  of  the  release,  nor  to 
prove  that  there  was,  in  fact,  no  bona  fide  .compromise. 

Jackson  vs.  Security  Ins.  Co.,  233  111.  161;  Cf.,  P.  &  M.  Ins.  Go.  vs. 
Caine,  224  111.  .599. 

Constitution  and  By-Laws: 

—  Knowledge  Inj  Member:  Members  of  a  benefit  society  are 
conclusively  presumed  to  know  the  laws  of  such  society  which 
enter  into  and  form  part  of  contract  of  insurance. 

Benes  vs.  Supreme  Lodge,  231  111.  134. 

—  Amendment:  The  burden  is  upon  the  society  to  show  that 
the  constitution  has  been  amended  in  accordance  with  its  provi- 
sions, before  the  amendment  offered  becomes  competent  evidence. 

U.  B.  of  C.  &  J.  vs.  Fortin,  107  App.  306;   M.   S.  F.  A.  Assn.  vs. 
Windover,  137  111.  417. 

Witnesses : 

—  Competency  of  Member  against  Administrator:  A  mem- 
ber of  a  benefit  society  is  incompetent  to  testify  in  behalf  of  a 
society  in  suit  on  benefit  certificate  by  the  personal  representa- 
tive of  the  beneficiary. 

Cronin  vs.  Supreme  Lodge,  199  111.  228. 

Application : 

—  Examiner:  False  Statements  By:  False  answers  inserted 
by  medical  examiner  in  application  for  insurance,  to  questions 
which  applicant  answered  truthfully,  do  not  invalidate  the  in- 
surance, although  the  application  stipulates  that  examiner  is  ap- 
plicant's agent. 

Eoyal  Neighbors  vs.  Boman,   177  111.   27. 

—  Course  of  Conduct:  Where  application  showed  assured  drank 
no  alcoholic  liquors  at  all,  and  the  validity  of  the  policy  depended 
upon  the  truth  or  falsity  of  the  representations  in  such  appli- 
cation, opinion  or  conclusion  of  medical  expert  of  the  association 
issuing  the  certificate,  whether  the  application  would  have  been 
favorably  passed  upon  if  it  had  been  shown  that  applicant  drank 
liquor,  is  inadmissible,  the  real  issue  being  whether  the  state- 
ments in  the  application  were  true  or  false. 

Mutual  Aid  Assn.  vs.  Hall,  118  111.  169. 


INSURANCE  715 

—  Truth  of  Statements:  Plaintiff  is  not  required,  in  first  in- 
stance, to  prove  truth  of  statements  in  application  for  member- 
ship, since  falsity  of  statements  or  non-compliance  with  the  rules 

is  a  matter  of  defense. 

Supreme  Lodge  vs.  Matejowsky,  190  111.  142. 

Contract : 

-^No)i  Est  Factum:  In  action  of  assumpsit,  defendant  pleaded 
general  issue  and  nun  est  factum,  and  offered  to  prove  that  the 
lodge  had  not  been  properly  organized,  although  it  had  received 
its  charter  and,  as  a  body,  was  acting  under  it  witli  knowledge 
and  sanction  of  defendant  association.  Such  testimony  was  not 
pertinent  to  the  issues,  under  the  pleas,  and  was  irrelevant,  as 
not  tending  to  show  any  defense  to  the  action. 
Order  of  Mutual  Aid  vs.  Paine,  122  111.  (525. 

—  Performance  of  Condition:  It  is  not  incuml)ent  upon  bene- 
ficiary to  prove  compliance  by  insured  with  all  conditions  of  cer- 
tificate of  membership  and  the  fundamental  laws  of  the  society, 
where  such  j)erformance  is  not  put  in  issue  by  special  plea. 

M.  W.  of  A.  vs.  Davis,  184  111.  236. 
Where   express   condition   that  member   should   faithfully   keep 
his  pledge  of  total  abstinence,  parol  evidence  of  his  having  vio- 
lated such  pledge  before  his  death  is  admissible.     Trial  and  con- 
viction by  order  for  such  offense  need  not  be  shown. 
Royal  Templars  vs.  Curd,  111  111.  284. 

—  Beneficiary :  Burden  is  upon  society  to  show  that  beneficiary 
is  not  one  who  can  take  under  restrictive  laws  of  society. 

Rizzo  vs.  Foresters,  176  App.  165. 
Parol   evidence   is  admissible   to   connect  beneficiary    with   the 

contract. 

Hogan  vs.  Wallace,   166  111.   328;   Conductors  Assn.  vs.  Loomis,   142 

111.  560. 

Fact  that  heirs  have  introduced  parol  proof  of  their  heirship 

and   proof  of   by-laws   of   society   showing    their   eligibility,    does 

not  make  contract  partly  oral  within  statute  of  limitations,  and 

is  competent. 

Jones   vs.  Supreme  Lodge,  236   111.    113. 

In  determining  whether  deceased  knew  and  acquiesced  in  mis- 
take made  by  clerk  in  names  of  beneficiary  when  making  out  new 
certificate,  conduct  of  deceased  in  retaining  certificate  without 
objection  is  competent  evidence;  but  also  are  his  declarations 
tending  to  show  he  did  not  know  of  the  mistake.  The  competency 
of  declarations  by  a  member  of  a  benefit  society,  tending  to  show 
he  did  not  know"  a  mistake  had  been  made  in  the  certificate,  does 
not  depend  upon  the  presence  of  beneficiary  when  such  declara- 
tions were  made. 

Towne  vs.  Towne,  191  111.  478. 

Assessment : 

—  Fact  of:    Making  of  assessment  should  be  shown  by  records 

of  body  authorized  to  make  it. 

Supreme  Council  K.  &  L.  Assn.  vs.  O'Neill,  108  App.  47. 

—  Levy:  Burden  is  upon  society  to  show^  default  in  payment 
of  an  assessment,  and  such  burden,  likewise,  extends  to  the  show- 
ing that  the  assessment  was  regularly  levied  in  accordance  with 


716  INSURANCE 

its  own  laws  providing  therefor.  Such  proof  can  be  made,  in  the 
first  instance,  by  the  society  by  introduction  of  its  own  records, 
or  else  be  established  by  direct  and  affirmative  testimony. 

N.  W.  T.  M.  Assn.  vs.  Schaus,  148  111.  304;  Supreme  Lodge  vs.  Haas, 
116  App.   587. 

—  Prima  Facie  Against  Members:  The  levy  of  an  assessment 
for  dues  in  a  mutual  insurance  association  is  prima  facie  evidence 
against  members,  where  the  record  of  the  assessment  contains  the 
necessary  data  for  computing  the  amount,  and  recites  the  resolution 
ordering  the  assessment  was  "unanimously  adopted  by  the  direct- 
ors as  a  board  and  by  the  executive  committee." 

Anderson  vs.  E.  F.  Life  Assn.,  171  111.  40. 

—  Delinquency:  Evidence  of  a  custom  to  extend  leniency  with 
respect  to  payment  is  immaterial  upon  question  of  delinquency. 

Dillon  vs.  National  Council,  148  App.  121;  Benev.  Society  vs.  Baldwin, 
86  111.  479. 

—  Service  of  Notice:  When  contract  provides  that  assessments 
shall  be  due  a  certain  time  after  a  particular  notice  has  been 
given,  the  society,  before  it  can  claim  that  a  member  has  been 
suspended  for  failure  to  pay  assessment,  must  show  affirmatively 
that  it  has  given  the  notice  of  the  assessment  which  the  contract 
requires. 

Farmers'  Confederation  vs.  Croney,  106  App.  423. 
Where  secretary  testified  that  while  he  had  no  recollection  of 
putting  a  particular  notice  for  an  assessment  into  an  envelope 
and  addressing  it  to  a  particular  member,  he  followed  his  usual 
custom  of  mailing  a  notice  to  each  and  every  member,  and  that 
the  one  sent  to  each  member  showed  the  amount  of  the  assess- 
ment, and  was  on  the  blanks  of  the  secretary,  such  evidence  was 

prima  facie  evidence  of  service  of  notice  upon  deceased  member. 
National  Union  vs.  Hunter,  99  App.  146. 

—  Avtkority  For:    The  death  of  the  member  of  a  benefit  society 

is  sufficiently  proven,  to  authorize  call  for  assessment,  by  record 

of  board  of  directors. 

Van  Frank  vs.  U.  S.  M.  B.  Assn.,  1,58  111.  560. 

—  Failure  to  Pay:  Where  society  claims  deceased  has  for- 
feited membership  by  default  in  payment  of  assessment,  bur- 
den of  establishing  such  default  by  competent  evidence  will  lie 

upon  society. 

N.   W.   T.  M.   Assn.  vs.   Schauss,   148   111.   304;   Supreme   Council  vs. 
Haas,  116  App.  587. 
The  burden  of  showing  legality  of  assessment  on  a  member  of 
benefit  society,   when   forfeiture   is   claimed,   caused  by  non-pay- 
ment, is  upon  party  seeking  to  establish  same. 

Chi.  G.  L.  Assn.  vs.  Wilson,  91  App.  667;  C.  M.  L.  Assn.  vs.  Tuttle,  87 
App.  309 ;  P.  K.  Co.  Union  vs.  Warkezak,  82  App.  351. 
And  clear  intention  to  declare  a  forfeiture  must  be  shown,  or 
it  will  be  held  not  to  have  taken  place. 

C.  B.  Assn.  vs.  Tucker,  157  111.  194;  C.  M.  L.  Assn.  vs.  Harahan,  98 
App.  22;  King  vs.  Eadke,  175  111.  72. 

—  Waiver  of  Payment:  Where  defendant  denied  liability  on 
ground  of  failure  of  deceased  to  pay  certain  assessment,  and  his 
rights  forfeited,  a  notice  from  the  subordinate  lodge,  that  assess- 
ment must  be  paid  by  date  later  than  that  first  given,  is  admis- 


INSURANCE  717 

sible  as  tending  to  show  waiver  of  provision  for  immediate  for- 
feiture. 

Grand  Lodge  vs.  Lackniann,  199  111.  140. 

—  Attitude  of  Society:  Proof  that  cheek  for  overdue  assess- 
ment was  sent  after  member's  death,  to  the  financial  officer  of 
subordinate  lodge,  which  check  was  returned  later  on,  after  officer 
had  learned  of  member's  death,  is  competent  to  show  that  at 
time  check  was  received,  the  society  did  not  regard  certificate  as 

having  been  forfeited. 

Jones  vs.  Knights  of  Honor,  236  111.   113. 

—  Records  of  Society:  The  records  made  by  society  are  proper 
evidence  against  members  for  purpose  of  showing  forfeiture  of 
rights  of  insurance  for  non-payment  of  assessments;  and  when 
such  member  has  the  right  to  change,  at  his  option,  at  any  time, 
the  beneficiary  in  his  certificate,  the  person  named  in  such  certifi- 
cate having  no  vested  right  in  same,  he  or  she  will  be  bound  by 
the  records  of  such  association,  the  same  as  the  deceased  mem- 
ber himself. 

If  forfeiture  occurs  in  life  of  member,  no  right  will  ever  vest 
in  beneficiary  named  in  certificate.  Such  records  are  at  least 
prima  facie  evidence  in  respect  to  rights  of  member  of  society. 

Letters  and  statements  and  opinions  of  officers  of  association, 
in  regard  to  law  and  facts  involved  in  suit,  made  in  absence  of 
-opposing  party,  are  not  admissible.     The  court  does  not  permit 
a  person  to  make  evidence  for  himself. 
Bagley  vs.  Grand  Lodge,  131  111.  498. 
Records  are  best  evidence  to  show  non-payment, 
K.  of  L.  Assn.  vs.  O  'Neill,  108  App.  4 (. 

—  Declaratio7is  of  Assured:  Where  assured  has  power  to  change 
beneficiary  at  pleasure,  and  pay  assessment  or  drop  membership 
as  he  pleased,  his  declarations  that  he  would  no  longer  pay  the 
assessments  may  be  shown  in  connection  with  fact  that  he  failed 

to  pay. 

VanFrank  vs.  U.   S.  Ben.  Assn.,  158  111.  560;   Hansen  vs.  Supreme 
Lodge,  140  111.  301. 
The  admissions  of  a  deceased  member,  as  to  his  acts  of  omis- 
sion or  commission,  in  relation  to  certificate  of  membership,  are 
admissible  in  evidence  in  suit  by  beneficiary  against  association. 
National  Union  vs.  Hunter,  99-  App.   146. 

—  Receipts:  For  assessment  paid,  are  admissible  though  an  ap- 
parent alteration  in  dates  is  not  explained. 

Young  vs.  Grand  Lodge,  149  App.  603. 

ACCIDENT. 
The  Policy: 

—  Parol:     The  contract  having  been  reduced  to  writing,  parol 

is  inadmissible  to  vary  its  terms. 

Com.  Aec.  Ins.  Co.  vs.  Bates,  176  111.  190. 
Declarations  of  assured  are  competent  on  question  of  his  con- 
clusions as  to  continuance  of  payment  of  premium. 
Kearney  vs.  Aetnae  Life  Ins.  Co.,  109  App.  609. 

—  Delivery:     Conditional  delivery  cannot  be  shown  by  parol. 

Com.  Ace.  Ins.  Co.  vs.  Bates.  176  111.  190. 


718  INSURANCE 

—  Presumptions:     Where   a   policy   reciting   payment   of   first 

premium  is  found  in  hands  of  assured,  presumed  to  have  been 

duly  delivered. 

Mass.    Ins.   Co.  vs.   Sibley,   158  111.  411;   Ins.  Co.  vs.  Anderson,   77 

ill.  ;JS4. 
Manner  of  Death: 

—  Burden  of  I'roof:  Death  by  accident  insured  against  being 
proved,  it  devolved  upon  company  to  prove  a  violation  of  condi- 
tion  by  insured,   or  rather  that  by  his  act  he   brought  himself 

within  the  exception  in  the  policy  relied  on  to  avoid  payment. 

Fidelity  Ins.   Co.  vs.   Sittig,   181   111.   111. 

Where  it  is  admitted  insured  died  as  result  of  injury  effected 
by  violent  and  external  means,  plaintiff  has  burden  of  proving 

injuries  were  accidental  and  not  self-inflicted. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205;   F.  &  C.  Co.  vs.  Weise, 
182  111.  496. 

—  Presumption:  Where  evidence  shows  insured  suffered  in- 
jury which  caused  his  death,  and  there  is  no  proof  in  the  record 
from  which  it  can  be  determined  whether  injury  was  accidental 
or  self-inflicted,  presumption  is  that  injury  was  accidental. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205;   F.  &  C.  Co.  vs.  Weise, 
182  111.  496. 

-^Question  for  Jury:  The  rebuttable  presumption  of  law  that 
all  men  are  sane  and  have  a  natural  desire  to  avoid  personal  in- 
juries or  death  may,  when  taken  with  an  admission  that  the  inju- 
ries causing  the  death  of  insured  were  caused  by  external  means, 
and  when  not  rebutted  by  proof  or  the  circumstances  in  evidence 
surrounding  the  death,  be  sufficient  to  require  the  court  to  sub- 
mit to  the  jury  the  ciuestion  whether  or  not  the  injuries  were 
accidental. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205. 

—  Competency  of  Habits' and  Temperament  of  Insured:  Hab- 
its and  temperament  of  assured  are  competent  on  question  whether 
the  injuries  received  by  him  were  accidental  or  intentionally  in- 
flicted ;  and  if  defendant  files  a  plea  presenting  the  defense  of 
suicide,  it  is  not  error  to  permit  proof  of  such  habits  and  tempera- 
ment as  evidence  in  chief. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205. 

—  Circumstanticd:  It  is  not  necessary  that  eye-witnesses  tes- 
tify that  death  was  accidental,  but  such  fact  may  be  proven  by 
circumstantial  evidence. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205. 

Due  Care: 

—  Question  for  Jury:  In  action  on  accident  policy  insuring  a 
person  who  met  his  death  by  drowning  when  attempting  to  cross 
a  river  on  a  cable  ferry,  the  question  whether  he  was  exercis- 
ing due  diligence  for  his  safety  is  one  of  fact  for  the  jury,  where 
the  facts  and  circumstances  in  evidence  are  not  such  that  all  rea- 
sonable minds  would  necessarily  agree  that  an  ordniarily  pru- 
dent man  would  not,  at  the  time,  have  tried  to  cross. 

Tinsman  vs.  I.  C.  M.  Assn.,  235  111.  635. 


INSURANCE  719 

LIFE. 

The  Policy: 

—  Farul  to  Prove  Contents:  Admissible  where  policy  is  not  in 
possession  of  plaintiff,  or  is  mislaid,  so  it  cannot  be  produced. 

Protection  Ins.  Co.  vs.  Dill,  91  III.  174. 

And  upon  such  proof  it  is  competent  for  company  to  intro- 
duce book  of  company  showing  substantial  copy  of  policy,  made 
by  authorized  officer  of  company. 

Protection  Ins.  Co.  vs.  Dill,  91  111.  174. 

—  Delivery:  Actual  delivery  of  policy  is  not  essential  unless 
made  so  by  contract. 

Devine  vs.  Federal  Ins.  Co.,  250  HI.  203. 

May  be  proved  by  policy  holder,  and  that  he  paid  premium  to 
agent. 

Helbig  vs.  Cit.  Ins.  Co.,  234  lU.  251. 
— •Fraud:    Burden  is  upon  defendant  to  prove  falsity  of  state- 
ments of  insured  which  vitiate  the  policy. 

Globe  Mut.  Ins.  Co.  vs.  Ahem,  191  111.  167. 

A  charge  of  fraud  sufficient  to  avoid  life  insurance  policy  can- 
not be  based  upon  examining  physician's  opinion,  when  accom- 
panied by  a  correct  statement  of  facts  upon  which  the  opinion 
rested. 

Security  Trust  Co.  vs.  Tarpley,  182  111.  52. 

The  fact  that  insured  was,  shortly  after  issuance  of  insurance, 
stricken  with  disease  which  ultimately  caused  his  death,  may  or  may 
not,  according  to  other  proof,  afford  evidence  of  fraud  in  repre- 
senting him  to  be  in  good  health.  Taken  in  connection  wuth  other 
evidence  tending  to  show  that  the  disease  existed  when  policy  was 
applied  for,  it  would  be  material,  but  standing  alone,  or  in  connec- 
tion with  evidence  of  previous  good  health,  it  is  insufficient  to  raise 
even  a  presumption  of  fraud. 

Eclectic  Ins.  Co.  vs.  Fahienkrug,  68  111.  463. 

Certified  transcript  of  lunacy  proceedings  in  county  court  is 
admissible  to  show  insured  made  false  answers  to  questions  con- 
cerning his  sanity. 

Samuels  vs.  Life  Assn.  of  America,  152  App.  245. 

Right  of  Recovery: 

—  Matters  to  he  Proven:  Plaintiff  must  prove  the  making  of 
the  policy,  its  terms,  payment  of  premium,  death  of  insured,  giv- 
ing notice  and  making  proof  thereof  to  the  company  as  required 
by  the  policy. 

Cont.  Ins.  Co.  vs.  Rogers,  119  111.  474. 

Plaintiff  must  allege  and  prove  insurable  interest  in  life  of  as- 
sured. 

G.  M.  L.  Ins.  Co.  vs.  Hogan,  80  111.  35. 

Cause  of  Death: 

—  Presumption:  Presumption  is  that  it  was  from  natural 
causes,  and  not  an  act  of  self-destruction,  and  so  it  is  where  the 
evidence  as  to  whether  it  was  by  suicide  or  not,  is  equally  bal- 


720  INSURANCE 

anced,  but  no  such  presumption  arises  merely  from  the  fact  that, 
under  the  evidence,  there  may  be  a  doubt  as  to  whether  the  death 
was  caused  by  suicide. 

G.  M.  L.  Ins.  Co.  vs.  Hogan,  80  111.  35. 

—  Opinions:  Where  assured  was  found  dead  with  bullet  wound 
in  his  head,  it  is  proper  to  refuse  to  permit  physician  to  express 
opinion  whether  wound  was  accidentally  or  purposely  inflicted. 

Treat  vs.  Merchants  Life  Assn.,  198  111.  431. 

—  Hearsay:  It  is  proper  to  permit  witness  who  found  de- 
ceased's revolver  to  state  that  the  latter 's  daughter  told  him  where 
to  find  it,  but  not  to  prove  by  him  her  statements  as  to  how  the 
revolver  came  there. 

Treat  vs.  Mer.  Life  Assn.,  198  111.  431. 

—  Proof  of  Death:  Proofs  of  death  competent  to  show  plaintiff 
complied  with  requirements  of  policy,  or  by  defendant  that  they 
did  not  meet  the  requirements  thereof,  but  are  not  competent  for 
either  party  upon  question  whether  the  cause  of  death  was  such  as 
to  charge  defendants  with  liability  or  relieve  them  therefrom. 

Knights  Templar  vs.  Crayton,  209  111.  550. 

Pajrment  of  Premium: 

—  Intention:  With  what  intention  an  insurance  premium  was 
paid  may  be  shown  to  rebut  inference  of  waiver  of  condition  of 
policy. 

Mut.  Ins.  Co.  vs.  Amermann,  119  111.  329. 

—  Readiness  to  Pay:  Sufficiently  proven  by  offers  to  pay,  un- 
til plaintiff  was  notified  no  further  payments  would  be  received. 

Travelers'  Ins.  Co.  vs.  Pulling,   159  111.   G03. 
■^-^  Waiver:     Evidence  that  company,  by  its  dealings  with  in- 
sured, who  was  also  its  agent,  waived,  from  time  to  time,  prompt 
payments  of  installments  of  premiums,  sometimes  deducting  same 
from  his  commissions,  tends  to  show  waiver  of  prompt  payment 
of  note  of  insured  for  an  overdue  installment. 
111.  Life  Assn.  vs.  Wells,  200  111.  445. 
A  circular  slip  issued  and  put  in  circulation  by  company,  stat- 
ing  that   certain   days   of   gi-ace   are   allowed   on   all   policies,   is 
admissible  against  it  to  show  waiver,  as  against  a  forfeiture  of 
policy,  for  non-payment  of  a  premium  at  time  specified. 
U.  S.  Life  Ins.  Co.  vs.  Eoss,  159  111.  476. 

—  Custom:  Upon  issue  of  payment,  evidence  of  payment  of 
insured  upon  a  certain  day  of  certain  dues,  assessments  and  pre- 
miums having  no  relation  to  the  policy  in  question,  is  incom- 
petent; likewise  incompetent  to  permit  evidence  that  insured,  at 
time  in  question,  had  money  and  was  a  man  who  paid  his  obligations. 

Ballah  vs.  Peoria  Life  Assn.,  159  App.  222. 

Admissions  and  Declarations: 

—  General  Officer:     Competent. 

Prov.  S.  L.  A.  Assn.  vs.  King,  216  111.  416. 

—  Agent:  What  agent  said  at  time  of  receiving  application  is 
competent  as  part  of  res  gestae,  but  casual  conversations  after- 
wards are  competent  only  by  way  of  impeachment. 

Cov.  Mut.  Ben.  Assn.  vs.  Conway,  10  App.  348. 


INSURANCE  721 

—  State  Reports:  Admissions  made  in  reports  to  state  are 
competent  where  company  fails  to  produce  books  on  notice. 

Prov.  8.  L.  A.  Asyn.  vs.  King,  216  111.  41G. 

—  Insured:  Rule  is  that  statements  and  declarations  of  one 
whose  life  has  been  insured  for  the  benefit  of  another  are  compe- 
tent when  they  relate  to  the  health  of  insured  or  bodily  infirm- 
ity or  disease,  provided  such  statements  and  declarations  were 
made  at  a  time  prior  to  and  not  remote  from  time  of  examination 
of  insured  by  physicians  of  insurer  and  provided  there  is  an 
issue  as  to  the  knowledge  of  the  insured  of  such  infirmity  or  dis- 
ease. The  ground  of  admissibility  being  that  they  are  closely  enough 
connected  with  the  representations  of  the  insurer  to  be  a  part  of 
the  res  gestae. 

Schwartz  vs.  Berkshire  Life  Ins.  Co.,  91  App.  494. 

So  remarks  made  after  signing  application,  but  before  deliv- 
ery of  policy,  indicating  a  suicidal  intent,  are  admissible. 
Treat"  vs.  Mer.  Life  Assn.,  19S  111.  431. 

FIRE. 

Presumptions  and  Burden  of  Proof: 

Where  insured  fails  to  testify  positively  that  he  gave  notice  of 

additional  insurance,  presumption  is  he  did  not  give  it. 
111.  M.  F.  Ins.  Co.  vs.  Malloy,  50  111.  419. 

Burden  is  on  company  to  show  that  property  was  so  classified  in 
other  policies  as  to  relieve  it  in  wdiole  or  in  part  from  its  lia- 
bility. 

M.  &  M.  Ins.  Co.  vs.  Schroeder,  18  App.  216. 

Burden  is  on  company  to  show  notice  of  withdrawal  of  author- 
ity of  agent. 

Watertown  Fire  Ins.  Co.  vs.  Rust,  141  111.  85. 

Existence  of  insurance  agency  being  established,  as  against 
person  dealing  with  agent  the  relation  is  presumed  to  continue 
until  notice  of  termination  of  same  is  communicated  to  him. 

Clark  vs.  Natl.  Fire  Ins.  Co.,  159  App.  256 ;  Mer.  Ins.  Co.  vs.  Oberman, 
99  App.  357. 

Introduction  of  policy  and  proofs  of  loss  do  not  make  out  a  prima 

facie  case. 

Lancashire  Ins.  Co.  vs.  Lyon,  124  App.  491. 

Proof  of  execution  and  delivery  of  a  policy,  destruction  of 
property  insured,  and  furnishing  of  proper  proof  of  loss  within 
time  prescribed  by  policy,  establishes  prima  facie  a  right  of  re- 
covery. 

Ins.  Co.  vs.  Cox,  138  App.  14. 

"Where  policy  provided  that  in  case  of  loss  the  money  should 
be  paid  in  sixty  days  after  notice  and  proof  of  loss,  the  company, 
by  receiving  and  retaining  notice,  affidavit  of  loss  and  other  papers, 
and  making  no  objection,  must  be  regarded  as  admitting  that 
they  Avere  properly  made  and  presented.  And  assured  is  not  re- 
quired to  introduce  in  evidence  the  notice  of  loss,  but  may,  by 
proof  that  he  has  delivered  the  notice  and  other  papers,  and  that 

Ev. — 4  6 


722  INSURANCE 

company   interposed  no  objection  to  their  regularity,   raise  pre- 
sumption that  he   complied  with  requirements  of  policy   in  that 

regard. 

Hartford  Ins.  Co.  vs.  Walsh,  54  111.  164. 
Party  seeking  to  recover  for  loss  under  policy  of  insurance  need 
not  produce  application  and  prove  the  representations  therein  con- 
tained  are  correct.     If  any   material   representation  by   assured 
was  false,  this  is  a  matter  for  defense  to  show. 

Grange  Mill.  Co.  vs.  West  Ins.  Co.,  118  111.  396. 

Admissibility  of  Evidence: 

—  In  General:  Policy  is  admissible  w^ithout  proof  of  execu- 
tion, unless  denied  by  verified  plea,  though  providing  not  valid 
unless  countersigned  by  certain  agent,  where  it  purports  to  be 

so  countersigned. 

Firemen's  Ins.  Co.  vs.  Barnsche,  161  111.  629. 
Under  general  issue  evidence  is  admissible  to  show  breach. 

Western   Ins.   Co.  vs.   Mason,  5  App.   141;   Amer.  Cent.   Ins.  Co.  vs. 
Birds  B.  &  L.  Assn.,  81  App.  258. 

For  which  party  a  broker  acted,  may  be  shown  by  parol,  not- 
withstanding the  statements  of  the  policy. 

Lumberman's  M.  I.  Co.  vs.  Bell,  166  111.  400. 
On  issue  of  change  of  title,  parol  evidence  is  admissible  to  show 

that  deeds  are  mortgages. 

N.  A.  Co.  vs.  Building  Assn.,  198  111.  474. 
Surrounding  circumstances  tending  to  show  construction  par- 
ties placed  on  contract  are  competent  to  show  meaning  and  ef- 
fect of  ambiguous  contract. 

Williamson  vs.  Pratt,  136  App.  168. 
Offer  of  settlement  is  not  admission  of  liability. 

Allemania  F.  I.  Co.  vs.  Peck,  133  111.  220;   Milhim  vs.  Hawkeye  Ins. 
Co.,  171  App.  262. 
It  is  competent  for  plaintiff  to  prove  that  president  and  secre- 
tary of  company  promised  to  pay  the  loss. 
Aurora  Ins.  Co.  vs.  Eddy,  55  111.  213. 
Assignments  of  a  policy,  and  consent  thereto  by  agent  of  com- 
pany are  admissible  without  proof  of  execution,  in  suit  by  person 
originally   assured,  for  use  of  assignees,  as  it  does  not  concern 
the  company  that  the  suit  is  so  brought. 

Firemen's  Ins.  Co.  vs.  Barnseh,  161  111.  629;  Helbig  vs.  Citizens  Ins. 
Co.,  120  App.  58;  111.  Mut.  Ins.  Co.  vs.  Mfg.  Co.,  6  111.  236. 
Amount  for  which  assured  sold  a  policy  after  a  loss  by  fire  is 
not  admissible  as  evidence  of  amount  of  loss. 
Com.  Ins.  Co.  vs.  Friedlander,  156  111.   595. 
Evidence   offered   by   defendant   of  listing  of  plaintiff's  prop- 
erty for  taxation,  and  amendment  thereof,  is  properly  rejected, 
the  issue  being  the  amount  of  plaintiff's  damages. 

Knickerbocker  Ins.  Co.  vs.  McGinnins,  87  111.  70;  Kelly  vs.  Peoples 
Nat.  Fire  Ins.  Co.,  262  111.  158. 
Plaintiff  introduced  in  evidence  generally  his  own  affidavit  of 
loss  made  to  company,  which  showed  that  the  house  had  become 
vacant  some  three  weeks  before  the  loss.  There  was  no  attempt 
to  limit  the  effect  of  this  evidence  to  the  fact  that  the  preliminary 
proofs  had  been  made.  The  effect  of  such  evidence  could  not  be 
limited,  but  was  to  be  considered  in  all  its  parts,  and  effect  given 


INSURANCE  723 

to  all  it  proved  or  tended  to   prove,   even  though  it  defeated 

plaintiff's  right  to  recover. 

N.  A.  Ins.  Co.  vs.  Zaneger,  63  111.  464. 

As  means  of  proving  amount  of  loss  in  consequence  of  re- 
moval of  goods  from  store,  it  is  proper  for  insured  to  offer  any 
evidence  such  as  his  invoice,  bills  of  purchase,  books  of  account, 
amount  of  sales,  inventories  of  stock  taken  immediately  after  the 
loss,  together  with  such  facts  as  may  be  established  by  his  clerks. 

Insurers  may  show  goods  were  carelessly  removed  or  wantonly 
and  unnecessarily  exposed. 

Case  vs.  Hartford  Ins.  Co.,  13  111.  676. 

Company  attempted  to  prove  policy  was  cancelled  before  loss, 
and  that  no  payment  had  been  made  for  policy.  Plaintiffs  called 
as  witness  one  of  the  firm  of  insurance  brokers  who  testified  he 
delivered  the  policy  to  plaintiffs  and  they  paid  him  the  premium. 
There  was  evidence  tending  to  show  the  broker  firm  had  authority 
to  receive  the  premium,  from  the  agents  of  the  company.  The 
proof  of  the  delivery  of  policy,  and  of  all  the  facts  and  circum- 
stances in  connection  with  payment  was  proper  for  the  jury. 
Newark  Ins.  Co.  vs.  Sammons,  110  111.  106. 

On  question  of  notice  of  cancellation  of  policy  prior  to  loss, 
company  claiming  notice  to  have  been  given  to  agents  of  assured, 
assured  may  prove  he  received  no  notice  of  such  cancellation.  In 
such  case  it  is  proper  to  show  assured  had  received  no  such  notice, 
as  well  as  to  prove  the  agents  had  no  notice. 
Newark  Ins.  Co.  vs.  Sammons,  110  111.  166. 

Policy  prohibiting  the  taking  of  further  insurance  without  con- 
sent indorsed  thereon,  general  agent  wrote  that  company  could 
not  consent  to  second  insurance,  of  which  he  had  been  informed, 
without  further  information.  The  desired  information  was  given, 
to  which  no  reply  was  made,  and  agent  retained  the  policy  with- 
out cancelling  it,  until  after  the  loss.  Such  facts  tended  to  prove 
waiver  of  prohibition  against  further  insurance. 
Phoenix  Ins.  Co.  vs.  Johnston,  143  111.  106. 

—  Parol:  A  policy  of  insurance  must  be  taken  as  embodying 
the  contract  of  the  parties,  and  its  terms  cannot  be  chauged  by 

parol. 

Schmidt  vs.  P.  M.  &  F.  Ins.  Co.,  41  111.  293. 
Typewritten  rider  will  prevail  over  printed  terms  of  policy  where 

conflicting. 

Morris  &  Co.  vs.  E.  I.  Ins.  Co.,  181  App.  500. 
Whether  an  insurance  broker  acted  as  agent  of  assured  or  of 
company  is  a  mixed  question  of  law  and  fact,  to  be  determined  by 
the  jury,  under  proper  instructions,  from  all  the  evidence. 
'Lumbermen  's  Mut.  Ins.  Co.  vs.  Bell,  166  111.  400. 
It  is  competent  to  prove  by  parol  that  assured  had  obtained  in- 
surance in  other  companies  on  same  property. 
Knickerbocker  Ins.  Co.  vs.  Gould,  80  111.  388. 
Evidence  of  other  policies  taken  out  at  same  time  admissible. 

Miller  Natl.  Ins.  Co.  vs.  Milling  Co.,  60  App.  224. 
A  w^aiver  of  right  to  rebuild,  made  by  parol,  may  be  shown,  not- 
withstanding a  subsequent  w^ritten  submission  to  arbitrators,  its 


724  INSURANCE 

admission  not  being  a  violation  of  the  rule  that  parol  evidence  will 
not  be  received  to  vary  the  terms  of  a  writing. 

Piatt  vs.  Aetnae  Ins.  Co.,  153  111.  113. 
A  party  made  application  in  writing,  signed  by  him,  for  insur- 
ance upon  property,  gave  his  note,  payable  to  insurance  company, 
to  agent  of  the  company  for  the  premium,  and  took  from  the  agent 
a  receipt  showing  the  giving  of  the  note,  and  stating  that  in  case 
the  policy  should  not  be  issued,  the  note  was  to  be  returned.  These 
papers  were  regarded  as  the  contract  of  the  parties,  which  could 
not  be  varied  or  explained  by  parol. 

Winneshiek  Ins.  Co.  vs.  Holzegraf,  53  111.  516. 
Where  the  application  provided  that  policy  should  bear  date 
and  take  effect  the  day  the  application  should  be  approved,  it  was 
not  competent  for  party  making  application  to  i)rove  by  parol 
that,  at  the  time,  and  prior  to  the  execution  of  the  contract,  the 
agents  represented  to  him  that  he  would  receive  a  valid  policy  of 
insurance  from  the  company,  to  take  effect  and  be  in  force  from 
the  date  of  the  application,  and  that  it  was  the  usual  and  custom- 
ary practice  of  the  company  to  issue  policies  upon  such  applica- 
tions, to  bear  date  and  take  effect  from  the  date  of  the  application. 
The  terms  of  the  written  contract  could  not  be  thus  changed  by 
parol  evidence. 

Winneshiek  Ins.  Co.  vs.  Holzegraf,  53  111.  516. 
An    insurance    company   cannot   contradict    the    receipt   of   the 
premium  contained  in  the  policv,  for  purpose  of  avoiding  it. 

I.  C.  Ins.  Co.  vs.  Wolf,  37  111.  355;  Helbig  vs.  Cit.  Ins.  Co.,  120  App. 
58;  Teutonic  Ins.  Co.  vs.  Anderson,  77  111.  384;  Spence  vs.  Central 
Ins.  Co.,  236  111.  444;  XII  111.  Notes  1152,   §357. 

But  where  policy  is  cancelled  and  agent  held  return  premium 
for  insured,  same  may  be  shown  in  defense. 
M.  Y.  Ins.  Co.  vs.  Bennoud,  45  App.  22. 

—  Opinion  Evidence:  Evidence  of  insurance  experts  as  to  mean- 
ing of  term  "net  receipts,"  as  the  same  is  understood  in  Cook 
county  is  not  admissible,  for  the  reason  that  the  meaning  of  the 
term  is  a  question  of  law  and  statute  is  applicable  to  entire  state 
and  not  to  Cook  County  alone. 

Natl.  Fire  Ins.  Co.  vs.  Hanberg,  215  111.  378. 

Testimony  of  experts,  as  a  general  proposition,  that  the  age  of 
a  building  is  material  to  the  risk,  is  inadmissible,  in  absence  of 
proof  that  the  risk  on  the  particular  building  covered  by  the  policy 
was  increased  by  a  misrepresentation  as  to  its  age. 

Manufacturers'  Ins.   Co.  vs.   Zeitinger,   168   111.   286. 

Defendant's  secretary  was  asked  to  state  upon  what  proportion 
of  the  total  value  of  personal  property  his  company  granted  insur- 
ance. Such  question  was  properly  refused.  What  in  fact  was  done 
in  the  case,  not  what  was  usually  done, — was  important. 

Witness  was  asked  "You  may  state  if,  after  the  policy  was  issued 
by  your  company,  you  ascertained,  at  any  time  before  or  after 
loss,  that  insured,  in  his  application,  misrepresented  value  of  the 
property?"  Such  question  was  improper,  as  calling  for  an  opin- 
ion or  conclusion  of  the  witness,  from  the  facts,  instead  of  calling 

for  the  facts  themselves. 

German  Fire  Ins.   Co.  vs.  Grunert,   112   111.  68. 


INTENT  725 

Opinions  of  experts  as  to  increase  of  risk  are  admissible. 

Traders'  Ins.  Co.  vs.  Catlin,  163  111.  256;  German  Anier.  Ins.  Co.  vs. 
Steiger,  109  111.  254. 
Insurance  agents,  merely  because  they  are  insurance  agents,  are 

not  necessarily  experts. 

Schmidt  vs.  Peoria  M.  &  F.  Ins.  Co.,  41  111.  295. 

—  Report  of  Risks:     Report,  after  policy  had  been  issued,  by 

an  agent,  not  the  one  taking  the  application,  is  not  admissible  as 

part  of  the  res  gestae,  to  prove  that  assured  had  represented  the 

property  as  unincumbered,  when  in  fact  there  was  an  incumbrance 

upon  it. 

Phoenix  Ins.  Co.  vs.  LaPointe,  118  111.  384. 

Proofs  of  Loss: 

Proofs  of  loss  are  properly  admissible  to  show  compliance  with 
terms  of  policy,  but  not  to  be  considered  in  ascertaining  the  amount 

of  damages. 

Milwaukee  Ins.  Co.  vs.  Sehallman,   188  HI.  213. 
Policy  nor  preliminary  proofs  of  loss  are  not  evidence  of  value. 
Knickerbocker  Ins.  Co.  vs.  Gonld,  80  111.  388;   Standard  Ins.  Co.  vs. 
Wren,  11  App.  242. 
In  case  of  defects  in  proof  of  loss,  required  to  be  made,  it  is  the 
duty   of  the   company   to   point   out   such   defects   and   afford   all 
reasonable  facilities  to  assured  to  obviate  them.    An  unwillingness 
or  refusal  of  the  company  to  afford  reasonable  facilities  to  assured 
to  prepare  and  serve  amended  proofs  of  loss,  is  evidence  for  jury, 
as  tending  to  show  a  waiver  of  defects. 

Ins.  Co.  of  N.  A.  vs.  Hope,  58  111.  75 ;  G.  W.  Ins.  Co.  vs.  Staaden,  2G 
111.  360. 

Witnesses : 

Any  witness  acquainted  with  the  property,  and  its  value,  or  the 
value  of  like  property,  is  competent  to  prove  its  worth,  in  suit  to 
recover  loss  against  insurance  company. 

Lycoming  Fire  Ins.  Co.  vs.  Jackson,  83  111.  302. 


INTENT 

See  Separate  and  Similar  Offenses,  Thre-\ts,  Accomplice,  Pen- 
alities, Identity,  Advancements,  Alterations  and  Erasures, 
Fraud,'  Fraud  and  Deceit,  Fraudulent  Conveyances,  Abandon- 
ment, Dedication,  Delivery,  Deeds,  Similar  Facts,  Contracts, 
Letters,  Penalties,  Timber,  Fixtures,  Divorce,  Wills,  Res 
Gestae,  Agency,  Adverse  Possession,  Libel  and  Slander,  False 
Imprisonment,  Gambling  Contracts,  Gifts,  Intoxication,  Par- 
ticular Offenses  by  Title. 
In  Civil  Actions: 

—  Admissihilitu  of  Evidence :  Both  in  civil  and  criminal  suits, 
where  the  intent  of  the  party  becomes  a  material  issue  in  the  case, 
that  partv  may  be  asked  the' direct  question  what  his  intention  was 
at  the  particular  time,  or  with  respect  to  the  particular  act  in  ques- 
tion. 

In  civil  cases,  however,  where  there  is  no  evidence  that  such  in- 
tention was  communicated  to  the  opposite  party,  and  no  circum- 


726  INTENT 

stances  from  which  it  might  be  fairly  submitted  to  the  jury  as  a 
question  of  fact  that  the  other  party  had  notice  of  the  particular 
intent,  then  the  evidence  should  be  excluded;  not,  however,  on 
the  grounds  of  incompetency  but  on  that  of  inmiateriality. 

Dunbar    vs.    Armstrong,    115    Ajjp.    549;    Partridge    vs.    Cutter,    104 

App.  89 ;  Odin  Coal  Co.  vs.  Denman,  84  App.  190 ;  Kerting  vs.  Stur- 

tevant,  181  App.  53  7. 
—  WJien  Party  May  Testify  Directly:     The  owner  of  land  may 
testify  as  to  what  his  intention  actually  was  in  alleged  dedication, 
and  this  testimony  is  to  be  considered  in  connection  with  all  the 

other  facts  and  circumstances  in  the  case. 

Township  of  Lovington  vs.  Adkins,  232  111.  510;  Town  of  Bethel  vs. 
Pruett,    215   111.    162;    Town    of   Antioch   vs.    Seidschlag,    207    111. 
280;  City  of  Chicago  vs.  C.  E,  I.  &  P.  Ry.  Co.,  152  111.  561. 
So  on  issue  of  fraud  party  may  be  asked  direct  question  as  to 
sale  being  made  in  good  faith.     Adverse  party  has  right  on  cross- 
examination  to  ascertain  details. 
Miner  vs.  Phillips,  42  111.  123. 
Where  an  act  is  performed  by  an  officer,  in  the  course  of  his 
official  duty,  he  cannot  be  allowed  to  change  the  legal  consequences 
resulting,  by  giving  his  private  intentions. 
Town  of  Dayton  va.  Rutland,  84  111.  278. 
The  intention  of  the  parties  when  making  a  contract,  if  not 
mutual,  is  immaterial  and  cannot  be  shown. 
Ryan  vs.  Potwein,  60  App.  637. 
Nor  is  the  testimony  of  parties  as  to  what  they  understood  their 
contract  as  meaning,  or  their  motives  in  its  creation,  competent  to 
affect  its  construction  as  between  themselves  or  a  third  person. 
Williams  vs.  Fletcher,  30  App.  219. 
Circumstances  may  be  shown  to  ascertain  intent  of  parties  to  con- 
tract providing  for  liquidated  damages. 

Ludlow  Mfg.  Co.  vs.  City  of  Chicago,  181  App.  388. 
A  witness  may  testify  to  his  own  intention  in  doing  an  act,  but 
it  is  not  competent  for  him  to  testify  to  another's  intention. 

Odin  Coal  Co.  vs.  Denman,  84  App.  190;  Cihak  vs.  Klerk,  117  111.  643. 
Where  defense  is  that  transaction  was  a  gambling  contract,  the 
right  to  testify  as  to  intention  depends  upon  whether  facts  and 
circumstances  in  the  record  so  far  connect  the  parties  with  the 
intent  as  to  make  it  a  fair  question  for  the  jury  to  determine  from 
all  the  evidence  whether  it  was  the  expressed  or  implied  under- 
standing between  the  parties  that  no  delivery  was  to  be  made,  but 
settlement  was  to  be  made  by  differences  only. 

Semler  vs.  Fyffe,  127  App.  514;  Pardridge  vs.  Cutler,  104  App.  89. 
A  party  should  not  be  permitted  to  state  what  his  intention  was, 

where  it  is  not  disclosed  to  the  other. 

Scanlon  vs.  Warren,  169  111.  142;  Dunbar  vs.  Armstrong,  115  App. 
549;  Benson  vs.  Morgan,  26  App.  22.  See  Fraudulent  Con- 
veyances. 

Criminal  Actions  in  General: 

.  A  criminal  oft'ense  consists  in  a  violation  of  a  public  law  in  the 
commission  of  which  there  shall  be  a  union  or  joint  operation  of 
act  and  intention,  or  criminal  negligence. 

Story  vs.  People,  79  App.  562 ;  Upstone  vs.  People,  109  111.   169. 


INTENT  727 

A  criminal  offense  consists  in  a  violation  of  a  public  law,  in  the 
commission  of  which  there  must  be  a  union  or  joint  operation  of 
act  and  intention,  or  criminal  negligence,  and  the  intention  is  man- 
ifested by  the  circumstances  comiected  with  the  perpetration  of 
the  offense,  and  the  sound  mind  and  discretion  of  the  person  ac- 
cused. 

Slattery  vs.  People,  76  111.  217. 

Law  implies  criminal  intent  from  doing  criminal  act,  when  de- 
fendant fails  to  prove  justification. 
Scott  vs.  People,  141  111.  195. 

A  sane  man  is  presumed  to  contemplate  the  natural  and  prob- 
able consequences  of  his  own  acts. 

Crosby  vs.  People,  137  111.  325.     See  Motive. 

Statutory  Offenses: 

—  In  General:  The  defense  of  ignorance  or  mistake  of  fact  in 
a  criminal  case  may  be  admissible  where  the  act,  if  done  knowingly 
would  be  malum  in  se.  But  when  the  statute  commands  that  an 
act  be  done,  or  omitted  which,  in  absence  of  such  statute,  might 
have  been  done  without  culpability,  ignorance  of  the  fact  or  state 
of  things  contemplated  hy  the  statute,  it  seems,  will  not  excuse  its 
violation. 

People  vs.  Nylin,  236  111.  19. 

Where  the  intent  is  mentioned  as  an  element  of  the  offense,  cre- 
ated by  law,  it  should  be  proven ;  but  where  it  is  silent  as  to  motive, 
no  intent  need  be  established. 

MeCutcheon  vs.  People,  69  III.  601. 

Where  provision  of  statute  is  without  limitation,  it  is  not  neces- 
sary to  prove  a  guilty  intent. 

Baekhans  vs.  People,  87  App.  173. 

It  is  undoubtedly  the  general  rule  that  individuals  charged  with 
disobedience  to  penal  laws  cannot  exonerate  themselves  on  the 
ground  of  good  faith  or  error  of  judgment,  and  it  has  been  held 
that  no  excuse  of  this  kind  will  avail  against  the  peremptory  words 
of  a  statute  imposing  a  penalty.  If  the  prohibited  acts  have  been 
done,  the  penalty  must  be  paid. 
Gilbert  vs.  Bone,  64  111.  518. 

In  acts  mala  in  se  the  intent  governs,  but  in  those  mala  proJiihitaf 

the  only  inquiry  is  has  the  law  been  violated. 
Schneider  vs.  Turner,  27  App.  220. 
"As  a  general  proposition,  intent  must  be  shown  before  a  con- 
viction of  a  criminal  offense  will  be  sustained.  To  this  general  rule 
there  are  some  exceptions  under  provision  of  the  statute,  such  as 
selling  or  giving  intoxicating  liquor  to  minors;  a  banker  receiv- 
ing deposits  when  insolvent ;  conversion  of  proceeds  of  sale  by  com- 
mission merchant ;  attorneys  and  others  failing  to  pay  over  money 
collected ;  loaning  public  funds  by  public  officers.  In  none  of  these 
cases  is  the  act  unlawful  except  by  virtue  of  the  statute.  And  in 
neither  of  these  sections  is  there  any  qualifying  words  such  as 
'wilfully,  knowingly,  fraudulently,  unlawfully,  with  intent  to  de- 
fraud.'    While  a  penal  statute  must  be  strictly  construed,  it  is 


728  INTENT 

the  duty  of  the  court  to  seek  to  ascertain  the  will  of  the  legis- 
lature. ' ' 

Siegel,  Cooper  &  Co.  vs.  People,  85  App.  301.    See  also,  Nicholson  vs. 
People,  29  App.  57. 

Daxaiibekler  vs.  People,  93  App.  553 :  Information  charging 
dram  shop  with  keeping  a  common  nuisance.  C.  M.  &  St.  P.  Ry. 
Co.  vs.  People,  132  App.  531,  Story  vs.  People,  79  App.  562: 
Complaints  for  allowing  Canada  Thistles  to  mature  seed.  Note: 
In  neither  of  the  offenses  is  intent  or  wilfuUness  a  part  thereof, 
but  in  each  conviction  for  violation  of  statute  reversed  because 
intention  not  shown. 

But  in  IMaguire  vs.  People,  219  111.  16,  in  felony  prosecution  for 
permitting  female  under  age  of  eighteen  years  to  stay  in  the  house, 
and  in  Franklin  Life  Ins.  Co.  vs.  People,  200  111.  594,  N.  Y.  Life 
Ins.  Co.  vs.  People,  95  App.  136,  del)t  for  penalty  for  discriminat- 
ing between  insurants,  and  I.  &  St.  L.  R.  R.  Co.  vs.  People,  91  111. 
452,  an  action  to  recover  penalty,  the  statute  not  making  wilfuU- 
ness or  intention  a  part  thereof,  proof  of  intent  held  immaterial. 
See  also  People  vs.  Zito,  237  111.  434,  debt  for  penalty. 

—  Intoxicating  Liquors:  The  intent  or  good  faith  of  the 
accused  is  not  material,  in  prosecution  for  selling  intoxicating 
liquors  outside  of  the  limits  of  an  incorporated  city  in  quantities 
of  less  than  five  gallons. 

People  vs.  Nylin,  236  111.  19. 
Upon  indictment  for  selling  intoxicating  liquor  to  a  minor  with- 
out authority  from  his  parents  or  guardian,  it  does  not  matter  that 
the  defendant  did  not  know  that  such  person  was  a  minor.     lie 

is  bound  to  know  whether  such  person  is  a  minor  or  not. 

Gaul  vs.  People,  135  App.  445;   Fariner  vs.  Peoi^le,  77  111.  322;  Mc- 
Cutcheon  vs.  People,  69  111.  601  ;  XIII  111.  Notes  16,  §  91. 

And  it  is  not  necessary  either  to  aver  or  prove  a  guilty  intent. 
Backhaus  vs.  People,  87  App.  173.  iii!  ^i 

Admissibility  of  Evidence: 

—  Good  Faith  of  Defendant:  In  prosecution  against  keeper  of 
house  of  prostitution,  for  permitting  an  unmarried  female  under 
eighteen  years  of  age  to  stay  in  the  house,  the  people  are  not  bound 

to  prove  knowledge  by  the  keeper  of  the  age  of  such  inmate. 
Magiure  vs.  People,  219  111.  16. 

In  prosecution  for  selling  liquor  in  less  quantity  than  five  gal- 
lons, proof  as  to  belief  of  defendant  is  immaterial. 
People  vs.  Nylin,  236  111.   19. 

The  statute  makes  a  sale  of  liquor,  to  a  person  in  the  habit  of 
getting  intoxicated,  a  crime,  and  that,  too,  without  regard  to  the 
question  whether  the  vendor  had  knowledge  of  the  habits  of  the 
person  to  whom  sale  was  made,  or  not,  and  testimony  of  defend- 
ant that  he  did  not  know  that  such  person  was  in  the  habit  of 
getting  intoxicated,  is  inadmissible. 

Hanipler  vs.  People,  92  111.  400;  Mapes  vs.  Peo]ile,  69  111.  523. 

A  question  to  defendant  as  to  whether  or  not  he  honestly  be- 
lieved that  during  the  time  in  question  he  was  complying  with  all 
the  liquor  laws  of  the  state,  is  improper,  and  objection  should  be 
sustained. 

Backhaus  vs.  People,  87  App.  173. 


INTENT  729 

—  Violation  of  Instructions  h\j  Agent  or  Employe:  Proof,  iu 
debt  for  penalty  against  life  insurance  company,  for  discriminat- 
ing  between   insurants,    that   agent   had   violated   instructions,    is 

inadmissible. 

I'liinklin  Life  Ins.  Co.  vs.  People,  200  IU.  594;  New  York  Life  Ins. 
, .  Co.  vs.  Peoi)le,  95  App.  136. 

So,  in  debt  for  penalty  against  railroad  company,  proof  that  em- 
ployes had  violated  instructions,  inadmissible. 
I.  St.  L.  E.  E.  Go.  vs.  People,  91  111.  452. 
Where  defendant  keeps  intoxicating  liquor  for  sale,  he  will  be 
responsible  for  sale  thereof  by  his  clerks,  no  matter  what  may  have 
been  his  instructions  to  them,  and  therefore  such  instructions  are 
not  admissible  in  evidence  on  his  part,  when  indicted  for  selling 

such  liquor. 

Noeoker  vs.  People,  91  111.  494. 

Acts  and  Declarations: 

Intent  may  be  inferred  from  the  acts  of  the  person  charged  with 
crime,  as  well  as  by  words  and  declarations.  The  intent  with  which 
the  act  is  done,  is  a  question  of  fact,  either  to  be  shown  by  the  dec- 
larations of  party,  or  to  be  inferred  from  the  character,  manner 

and  circumstances  of  the  act. 

Newman  vs.  People,  223  111.  324;  Lathrop  vs.  People,  197  111.  169; 
Crosby  vs.  People,  137  111.  325. 
The  intent  may  be  inferred  from  the  criminality  of  the  act  itself. 
Where  an  act,  in  itself  indifferent,  becomes  criminal  if  done  with 
a  particular  intent,  there  the  intent  must  be  proven  and  found ; 
but  where  the  act  is  in  itself  unlawful,  the  proof  of  justification 
or  excuse  lies  on  defendant,  and  in  failure  thereof  the  law  implies 

a  criminal  intent. 

People  vs.  Spoor,  235  111.  230;  Scott  vs.  People,  141  111.  195. 

When  Defendant  May  Testify  Directly: 

When  intent  is  of  the  essence  of  the  offense,  or  an  important 
element  constituting  the  offense,  defendant  had  the  right  to  testify 
to  what  his  intention  was  in  the  commission  of  the  act  with  which 

he  is  charged. 

Wohlford  vs.  People,  148  111.  299  (assault  with  intent  to  inflict  bodily 
injury)  ;  Mettler  vs.  People,  135  111.  410  (cutting  timber)  ;  Lane 
vs.  People,  142  App.  571  (obtaining  property  under  false  pre- 
tenses) ;  Lynch  vs.  People,  137  App.  444  (malicious  mischief)  ; 
People  vs.  Eudorf,  149  App.  215  (prosecution  for  unlawful  sale  of 
liquor). 

Opinions  of  Witnesses: 

Opinion  of  witness  as  to  intention  of  another  person  is  inad- 
missible. 

Walker  vs.  People,   133  111.  110. 

Similar  Offenses: 

AVhenever  in  a  conspiracy  or  other  similar  case  it  is  necessary 
to  prove  a  particular  intent,  and  the  evidence  in  regard  to  the 
crime  charged  tends  to  show  two  intents  as  to  one  or  more  of  the  de- 
fendants, one  intent  being  an  innocent  or  other  intent  than  the 
one  charged,  and  the  other  intent  being  the  corrupt  intent  charged, 
evidence  of  other  similar  offenses  is  admissible  as  to  such  defend- 
ants for  the  sole  purpose  of  proving  such  corrupt  intent,  if  such 
evidence  tends  to  prove  such  intent. 


730  INTEREST 

Generally  speaking,  evidence  of  other  crimes  is  admitted  to  prove 
the  specific  intent  charged  when  it  tends  to  establish  (1)  motive; 
(2)  intent;  (3)  the  absence  of  mistake  or  accident;  (4)  a  com- 
mon scheme  or  plan  embracing  the  commission  of  two  or  more 
crimes  so  related  to  each  other  that  proof  of  one  tends  to  estab- 
lish the  others;  (5)  the  identity  of  the  person  charged  with  the 
commission  of  the  crime  on  trial. 

People  vs.  Pouchot,  174  App.  4.     (See  Separate  and  Similar  Of- 
fenses.) 

INTEREST 

See  Usury,  Foreign  Law. 
Defined : 

Interest  is  the  compensation  which  is  paid  by  the  borrower  of 
money  to  the  lender,  for  its  use;  and,  generally,  the  debtor  to  his 
creditor,  in  recompense  for  the  detention  of  the  debt. 

Sorenson   vs.   Central  Lbr.   Co.,   98   App.   581. 

Presumptions : 

Where  no  specific  agreement  was  entered  into,  the  law  will  pre- 
sume the  legal  rate  w'as  intended. 

■i'.U\:   jr  Knohbloch  vs.  Eomeis,  34  App.  577;   Prevo  vs.  Lathrop,   2  111.  304; 
XII  111.  Notes,  1212,  §35. 

Contract  to  pay  interest  may  be  implied  from  custom  and  usage, 
but  such  usage  must  be  uniform,  long  established  and  generally 
acquiesced  in  and  so  well  known  as  to  induce  belief  that  the  parties 
contracted  with  reference  to  it  when  nothing  was  said  to  the  con- 
trary. 

Turner  vs.  Dawson,  50  111.  85 ;  Ayers  vs.  Metealf,  39  111.  307. 

Legal  implication  from  words  used  in  the  notes,  viz,  ''interest 
at  six  per"  is  that  they  were  to  bear  interest  at  the  rate  of  six  per 
cent  per  annum. 

FitzGerald  vs.  Lorenz,  181  111.  411. 

So  interest  will  be  implied  if  word  interest  is  abbreviated. 

Gramer  vs.  Joder,  65  111.  314;  Thompson  vs.  Houghland,  65  111.  310. 

Or  from  other  abbreviations. 

Belford  vs.  Beatty,  46  App.  539;  Williams  vs.  Baker,  67  111.  238. 

Admissibility  of  Evidence: 

—  Kate  Usually  Paid:  "Where  there  is  a  question  as  to  the 
amount  of  the  interest  agreed  upon,  evidence  of  the  rate  usually 
paid  at  the  time  of  the  transaction  is  admissible. 

Knobbloch  vs.  Eomies,  34  App.  577. 

—  Circumstantial  Evidence :  Implied  agreement  may  be 
proven  by  circumstantial  evidence. 

Turner  vs.  Dawson,  50  111.  85;  Ayers  vs.  Metealf,  39  111.  307. 

Weight  and  Sufficiency: 

—  Vexatious  and  Unreasonahle  Delay:    To  justify  the  allowance 

of  interest  for  unreasonable  and  vexatious  delay,  the  debtor  must 

have  in  some  way  thrown  obstacles  in  the  way  of  the  collection  of 

the  claim,  or  by  some  circumvention  or  management  of  his  own 

have  induced  the  creditor  to  delay  proccQclings  far  collection  longer 

than  he  would  otherwise  have  done. 

Whittemore   vs.   People,   227   111.   453;   Co.   of  Franklin   v£.   Layman, 
145  111.   138;   XII  111.  Notes  1210,  §24. 


INTEREST  73] 

Delay  in  payment  in  order  to  justify  allowance  of  interest  must 
be  both  unreasonable  and  vexatious. 
Keinpton  vs.  People,  139  App.  .563. 
Something  more  than  mere  delay  and  appearing  and  defending 
an  action  is  essential  to  establish  unreasonable  and  vexatious  delay. 
Espcrt  vs.  Ahlsehlager,   117  App.   484. 
Evidence  which  tends  to  show  a  refusal  to  pay  until  the  creditor 
shall  do  something  in  law  he  is  not  required  to  do,  establishes  un- 
reasonable and  vexatious  delay. 

Amer.  F.  &  M.  Co.  vs.  Lindsay  Chair  Co.,  129  App.  548. 
Unreasonable  and  vexatious  delay  of  payment  such  as  will  justify 
the  allowance  of  interest  appears  as  to  an  amount  in  suit,  which, 
both  prior  and  subsequent  to  the  suit,  was  conceded  to  be  due  ancl 

was  w^ithheld  merely  to  enforce  settlement  of  the  amount  disputed. 
Borden  Co.,  vs.  Frazer  Co.,  118  App.  655. 
Something  more  than  mere  delay  of  payment  must  be  shown. 

Maynard  vs.   Eichards,   166   111.   466;    Devine   vs.   Edwards,   101   111. 
138 ;  Hill  vs.  Allen,  13  111.  592. 

Is  a  question  of  fact. 

Union   El.  Ky.  Co.   vs.   Nixon,   99   App.   502 ;    Davis  vs.   Kenega,   51 
111.  170;   Kennedy  vs.  Gibbs,  15  111.  406. 
Where  interest  is  allowable  by  virtue  of  statute,  it  is  not  essen- 
tial to  allowance  that  claim  therefor  be  made  in  bill  of  particulai:s. 
Myers  vs.  Johnson,  122  App.  87. 

Laws  of  Sister  State: 

Court  will  not  take  judicial  notice  of  interest  laws  of  another 
state.     They  must  be  established. 

Dearlove  vs.  EdAvards,  166  111.  619;  Morris  vs.  Wibaux,  159  111.  627; 
Hall  vs.  Kimball,  58  111.  58;  Eobinson  vs.  Holmes,  75  App.  203. 

Interest  is  allowed  at  the  rate  fixed  by  the  law  of  state  in  action 
on  judgment  had  in  sister  state. 

Britton  vs.   Chamberlain,  234   111.   246;    Morris  vs.   Wibaux,    159   111. 
627;  "\^'arreu  vs.  McCarty,  25  111.  95. 
Where  contract  made  in  another  country  and  payable  therein 
is  silent  as  to  rate  of  interest,  the  lex  loci  will  determine  the  rate 
to  be  followed,  if  any,  in  absence  of  law  of  the  place  of  the  con- 
tract, and  payment  being  pleaded  and  proven. 

Where  the  rate  of  interest  sought  to  be  recovered  is  greater  than 
that  provided  by  statute  where  the  remedy  is  sought  to  be  enforced; 
and  the  law  of  the  place  of  payment  is  pleaded  and  proven  as 
allowing  a  greater  interest  than  that  where  the  remedy  is  sought, 
then  the  lex  loci  may  be  invoked  to  show  the  contract  is  legal  and 
the  true  interpretation  of  the  parties  framing  it. 

Morris  vs.  Wibaux,  159  111.   627;   Sherman  vs.  Gassett,  9  111.  521. 
The  burden  of  proving  a  note  or  contract  to  be  usurious  un,der 
the  law  of  a  sister  state  is  upon  party  alleging  it.  ''^  ^^'''' 

Walker  vs.  Lovett,  250  111.  543;  Dearlove  vs.  Edwards,  166  111.  619; 
Raid  vs.  North  Lumber  Co.,  146  App.  371. 


INTERLINEATIONS 

See  Alterations  and  Erasures. 


732  INTERESTED  WITNESS 

INTERESTED  WITNESS 

See  Parties  and  Persons  Interested  as  Witnesses. 

INTERPRETATION  OF  WRITINGS 

See  Parol. 


INTERPRETER 

Right  to  Call: 

Under  the  provision  of  the  constitution  requiring  all  judicial 
proceedings  to  be  conducted  in  the  English  language,  courts  should 
require  witnesses  to  testify  in  English  if  it  is  possible,  and  it  should 
be  shown  that  a  witness  is  unable  to  testify  in  English  before  an 
interpreter  is  permitted  to  be  called. 

Hackart  vs.  Decatur  Coal  Co.,  243  111.  49. 

Whether  or  not  an  interpreter  for  a  witness  should  be  called  is 
in  the  discretion  of  the  trial  court. 

Brzozowski  vs.  Natl.  Box  Co.,  104  App,  338. 

Where  the  trial  court  refused  to  swear  a  person  to  interpret 
the  testimony  of  a  witness  unable  to  speak  our  language,  and 
refused  to  allow  counsel  to  state  the  facts  he  expected  to  prove 
by  such  witness,  error  may  be  assigned  upon  such  refusal  without 
the  party  being  required  to  show  the  materiality  of  the  testimony 
thus  lost. 

C.  &  A.  E.  E.  Co.  vs.  Schenck,  131  111.  283. 

When  a  foreigner  not  conversant  with  our  language,  testifies, 
and  it  appears  that  the  facts  can  better  be  elicited  by  the  use  of 
an  interpreter,  a  competent  interpreter  should  be  used,  even  at  the 
expense  of  some  loss  of  time.  It  is  not  desirable  that  the  court, 
jury  and  counsel  should  guess  at  the  meaning  of  what  a  witness 
is  saying,  or  that  a  witness  should  guess  at  the  meaning  of  ques- 
tions asked  of  him. 

Hickey  vs.  CM.  City  Ey.  Co.,  148  App.  197. 

Competency: 

—  Province  of  Court:  Some  degree  of  discretion  must  be  vested 
in  the  trial  court  as  to  who  shall  be  employed  as  an  interpreter, 
but  it  is  not  to  be  exercised  so  as  to  deprive  a  party  altogether  of 
the  testimony  of  his  witness  so  long  as  an  interpreter  is  offered 
against  whom  there  is  no  legal  objection. 

C.  &  A.  Ey.  Co.  vs.  Schenck,  131  111.  283. 

An  interpreter  should  not  be  appointed  who  would  reasonably 
be  expected  to  be  unfair  and  biased  in  his  translation  of  testimony ; 
a  degree  of  discretion  must  be  necessarily  vested  in  the  trial  court. 
People  vs.   Eardin,   2.55  111.   9. 

—  Where  Interpreter  Witness:  There  is  no  legal  presumption 
that  because  a  person  has  been  called  as  a  witness  by  one  of  the 
parties  to  the  suit,  and  has  testified  in  his  behalf,  he  is  thereby  so 
far  biased  or  prejudiced  in  favor  of  the  party  calling  him  as  not 


INTERPRETER  733 

to  be  trusted  to  fairly  and  impartially  interpret  between  the  court 

and  another  witness  called  by  the  same  party. 

C.  &  A.  E.  K.  Co.  vs.  Schenk,  131  111.  283. 
Where  a  person  offered  to  interpret  the  testimony  of  a  witness 
unable  to  speak  the  English  language  is  otherwise  qualified,  and 
there  is  no  objection  to  be  urged  against  him  except  that  he  has 
been  called  and  examined  as  a  witness  by  the  party  offering  him, 
he  should  not  be  rejected. 

C.  &  A.  R.  R.  Co.  vs.  Schenk,  131  111.  283. 

—  Relationship  to  Witness:  The  fact  that  the  interpreter 
secured  to  interpret  the  testimony  of  a  prosecutrix  is  distantly 
related  to  such  witness  does  not  render  him  incompetent. 

People  vs.  Rardin,  255  111.  9.  ^ 

—  Prelifninary  Examination:  For  the  purpose  of  a  preliminary 
examination  to  enable  the  court  to  determine  whether  a  witness 
and  her  interpreter  can  understand  each  other  sufficiently,  it  is 
not  necessary  that  either  be  sworn,  and  if  no  objection  is  made  to 
the  presence  of  the  jury  or  to  the  fact  that  the  parties  were  not 
sworn,  the  action  of  the  court  in  permitting  them  to  state  that  the 
defendants  assaulted  and  raped  the  witness  cannot  be  reviewed, 
even  though  the  question  calling  forth  such  statements  was  ob- 
jected to. 

People  vs.  Westou,  236  111.  104. 

—  M cabling  of  Word:  Where  evidence  is  given  through  an  in- 
terpreter and  there  is  a  dispute  as  to  the  meaning  of  any  word  in 
a  foreign  language,  it  is  proper  to  require  the  interpreter  to  give 
the  primary  meaning  of  all  the  words  used  in  connection  with  the 
word  in  dispute,  so  that  the  jury  may  be  enabled  to  determine  its 
meaning  in  case  of  a  disagreement  between  interpreters,  and  other 
witnesses  versed  in  the  language  may  also  testify  as  to  the  meaning 

of  an  important  word. 

Schnier  vs.  People,  23  lU.  11. 

Deposition: 

A  deposition  taken  abroad,  the  answers  of  which  are  written 

down  in  the  words  of  the  witness  in  a  foreign  tongue,  when  offered 

in  evidence,  stands  as  the  testimony  of  the  witness,  and  may  be 

interpreted  in  the  same  way.     But  the  translation  may  be  shown 

to  be  erroneous.  - 

Christman  vs.  Ray,  42  App.  111. 

Deceased  Witness: 

The  objection  that  the  interpreter  through  whom  deceased  wit- 
ness testified  was  not  produced  must  be  specifically  made  at  the 
trial,  and  will  come  too  late  when  first  made  in  a  court  of  review. 
Leutgert  vs.  Voelker,  153  111.  385. 

Best  Witness: 

If  conversation  has  been  had  with  a  person  with  the  aid  of  an 
interpreter,  such  interpreter  is  the  best  witness  as  to  what  conver- 
sationally took  place. 

Szczeck  vs.  Chi.  City  Ry.  Co.,  157  App.  150. 

Witness'  Statement  as  Exhibit: 

Where  witness  testifying  through  interpreter  is  unable  to  ex- 


734  INTESTACY 

press  clearly  the  fact  to  which  he  is  testifying,  a  writing  prepared 
by  him  to  make  himself  understood  is  incompetent  as  an  exhibit. 
Poreba  vs.  111.   M.   Cool  Co.,  156  App.  140. 

Document  in  Foreign  Language: 

A  document  in  foreign  language  is  improper  as  evidence  when 
unaccompanied  by  translation. 

Stone  vs.  Evan.  Lutheran  Cliurcli,  92  App.  77. 


INTESTACY 

Presumption : 

—  In  General:     As  a  general  rule,  sub,ject  to  a  few  exceptions, 

a  party  is  not  required  to  prove  a  negative  fact.     Testacy  is  an 

affirmative  and  intestacy  is  a  negative  fact.     Where,  therefore,  an 

ancestor's  death  is  proven,  it  will,  in  the  absence  of  proof  to  the 

contrary,  be  presumed  that  he  diad  intestate,  and  that  the  title  to 

his  land  has  passed  to  his  heirs  by  descent.     If  other  persons  than 

the  heirs  claim  as  devisees,  it  devolves  upon  them  to  establish  their 

right,  and  the  heir  need  not  prove  that  no  one  holds  as  devisee  or 

grantee  from  his  ancestor. 

Sielbeek  vs.  Grothman,  248  111.  435;  Lyon  vs.  Kain,  36  111.  362;  Schmidt 
vs.  Brown,  226  111.  590;  Whitman  vs.  Ellsworth,  259  111.  243. 

—  Where  Will  Established:  It  will  be  presumed  that  when  a 
person  dies  testate  he  intended  by  his  will  to  dispose  of  all  his 
property  and  leave  no  part  as  intestate  estate. 

Eyer  vs.  Williamson,  256  111.  541;  Karsten  vs.  Karsten,  254  111.  480; 
Felkel  vs.  O'Brien,  231  111.  329;  Lewis  vs.  Sedgewiek,  223  111.  213; 
Northern  Trust  Co.  vs.  Wheaton,  249  111.  606. 
This  is  only  a  presumption  and  cannot  be  permitted  to  overcome 

the  express  language  of  the  will. 

Thomas  vs.  Thomas,   229  111.  277;   Wixon  vs.  Watson,  214  111.  158; 
Jacobs  vs.  Ditz,  260  111.  98. 


INTOXICATION 

Opinion  and  Expert: 

—  In  General:  Intoxication  or  drunkenness  is  a  fact  which  may 
be  proven  as  other  facts  are  proven.  A  witness,  by  observation 
and  by  the  exercise  of  his  perceptive  faculties,  his  five  senses,  can 
learn  and  know  facts,  and  such  facts  he  may  state.  He  would 
not  be  confined  to  a  detail  of  the  combination  of  minute  appear- 
ances that  have  enal)led  him  to  ascertain  the  fact  of  intoxication. 
The  details  of  conduct,  attitude,  gesture,  words,  tones  and  expres- 
sion of  eye  and  face  may  be  stated  by  him,  or  he  may  state  the 
fact  of  intoxication,  a  fact  which  he  can  ascertain  by  personal 
observation,  as  he  ascertains  other  facts.  So,  also,  a  witness  may 
state  whether  or  not  a  person  had  the  appearance  of  being  intox- 
icated, and  such  statement  of  appearance  would  be  the  statement 
of  a  fact.  Facts  which  are  latent  in  themselves,  and  only  discover- 
able by  way  of  appearances  more  or  less  symptomatic  of  the  exist- 


INTOXICATION  735 

ence  of  the  main  fact,  may,  from  their  very  nature,  be  shown  by 
the  opinions  of  witnesses  as  to  the  existence  of  such  appearances 
or  symptoms.     Sanity,  intoxication,  the  state  of  health  or  of  the 

affections  are  facts  of  this  character. 

City  of  Aurora  vs.  Hillaiuu,  90  111.  Gl;   Chi.  City  Ey.  Co.  vs.  Wall, 
93  App.  411. 
Whether  a  person  is  nervous,  excited  or  cahn,  or  whether  drunk 
or  sober,  are  facts  patent  to  the  observation  of  all,  and  their  com- 
prehension requires  no  particular  scientilic  knowledge,  and  may  be 
testified  to  by  any  one  who  knows  the  facts. 

Dininiiek  vs.  Downs,  82  111.  570. 

Any  one  may  express  opinion  as  to  whether  another  was  intox- 
icated. 

Parker  vs.  Parker,  52  App.  333. 

The  fact  that  a  person  is  admitted  to  institution  for  treatment 
does  not  alone  raise  presumption  that  such  person  is  addicted  to 

excessive  use  of  intoxicants. 

Marreu  vs.  N.  A.   V.,  145  App.  375. 
A  party  may  testify  that  he  was  not  under  the  infiuence  of  in- 
toxicating liiiuor  at  a  certain  time,  and  it  is  not  necessary  to  con- 
fine his  testimony  to  the  quantity  of  liquor  he  had  consumed. 
Ward  vs.  Chi.  City  Ky.  Co.,  237  111.  633. 
But  one  seeking  to  show  intoxication  is  not  precluded  by  denial. 
Intoxication  may  be  evidenced  by  the  personal  conduct,  by  predis- 
posing circumstances.  ..   . 
Miller  vs.  People,  216  111.  309.  "' 
Non-expert  may  testify  that  matter  vomited  contained  whiskey. 

Marschall  vs.  Laughran,  47  App.  29. 
Opinions  that  intoxication  alleged  in  suit  was  the  same  as  that 
for  which  suit  had  already  been  brought,  are  incompetent. 
Maloney  vs.  Daily,  67  App.  427. 
Where  witnesses  are  able  to  speak  from  own  personal  observa- 
tion, they  may  state  that  another  was  in  habit  of  becoming  intox- 
icated. 

Gallagher  vs.  People,  120  lU.  179. 

—  Form  of  Question:  "How  did  he  appear  to  you,  with  refer- 
ence to  whether  he  had  been  drinking?"  In  action  for  personal 
injury.     Held  error  to  sustain  objection  to  question. 

Chi.  City  Ey.  Co.  vs.  Wall,  93  App.  411. 
"State  whether  or  not,  from  what  you  saw  at  this  time,  if  the 
parties,  or  either  of  them,  was,  in  your  opinion,  under  the  influence 
of  liquor!"  Court  says,  "Question  called  for  a  mere  expression 
of  opinion  from  what  witness  saw,  and  his  opinion,  if  stated,  might 
have  been  one  derived  not  from  personal  appearance  and  conduct 

of  the  men." 

City  of  Aurora  vs.  Hillman,  90  111.  61. 

As  a  Defense  in  Civil  Action: 

—  Negligence:  Proof  of  intoxication  at  time  of  injury  is  com- 
petent as  tending  to  show  want  of  ordinary  care. 

Keeshan  vs.  E.  A.  &  S.  Trac.  Co.  229  111.  533;  City  of  Aurora  vs. 
Hillman,  90  111.  61;  I.  C.  E.  E.  Co.  vs.  Cragin,  71  111.  177;  City  of 
Eoek  Island  vs.  Vanlandschoot,  78  111.  485;  Ward  vs.  Chi.  City 
Ey.  Co.,  237  111.  633;  Chi.  City  Ey.  Co.  vs.  Lewis,  5  App.  242; 
E  &  B.  Trac.  Co.  vs.  Brown,  129  App.  62;  L.  E.  &  W.  Ey.  Co.  vs. 
Zoffinger,  107  111.  199;   XIII  111.  Notes  949,  §  103. 


736  INTOXICATION 

Voluntary  intoxication  does  not  constitute  negligence  in  law, 
but  proof  of  the  fact  is  competent  to  be  considered  in  determining 
whether  the  person  was  taking  that  care  for  his  safety  which  a 
person,  reasonably  prudent,  would  take  under  the  same  circum- 
stances.    (Person  injured  not  a  passenger.) 

S.  Chi.  St.  By.  Co.  vs.  Dufresne,  200  111.  456 ;  C,  E.  I.  &  P.  Ey.  Co.  vs 
Bell,  70  111.  102;  T.  P.  &  W.  Ey.  Co.  vs.  Eiley,  47  111.  514. 
If  a  passenger  is  known  to  be  in  any  manner  affected  by  a  dis- 
ability, physically  or  mentally,  whereby  the  hazards  of  travel  are 
increased,  a  degree  of  attention  should  be  bestowed  to  his  safety 
beyond  that  of  an  ordinary  passenger,  in  proportion  to  the  liabil- 
ity to  injury  from  the  want  of  it. 

Burke  vs.  C.  &  X.  W.  Ey.  Co.,  108  App.  565. 
Evidence  that  plaintiff  had  taken  one  glass  of  beer  during  the 
evening  of  the  accident,  and  was  accustomed  to  drink  a  "little 
beer, ' '  is  not  sufficient  upon  which  to  base  an  instruction  as  to  ques- 
tion of  want  of  ordinary  care  from  intoxication. 
Marech  vs.  City  of  Chicago,  89  App.  358. 

Habits : 

—  Negligence:  "Where  there  are  no  eye-witnesses  to  the  killing 
of  a  person,  proof  that  deceased  was  of  careful  habits  is  competent, 
and  in  such  case  proof  that  deceased  was  a  sober,  industrious  man 
tends  to  prove  that  he  was,  at  time  of  accident,  in  exercise  of 
proper  care. 

StoUery  vs.   Cicero   St.  Ey.   Co.,   243  111.   290 ;    I.  C.  E.   E.   Co.  vs. 
Nowicti,  148  111.  29;  I.  C.  E.  E.  Co.  vs.  Cozby,  174  111.  109. 

But  evidence  of  habits  of  deceased  with  reference  to  temperance 
is  inadmissible  in  action  for  damages  for  his  death,  where  the  fact 
whether  he  was  under  the  influence  of  liquor  at  the  time  of  his 
death  is  capable  of  direct  proof  by  witnesses  who  saw  him  at  and 
just  before  the  time  of  the  accident. 

C.  &  A.  E.  E.  Co.  vs.  Pearson,  184  111.  386. 

Defense  in  Criminal  Action: 

—  I)h  General:  Voluntary  intoxication  furnishes  no  excuse  for 
crime  committed  under  its  influence,  even  if  the  intoxication  is  so 
extreme  as  to  make  the  author  of  the  crime  unconscious  of  what 
he  is  doing,  or  to  create  a  temporary  insanity. 

Upstone  vs.  People,  109  111.  169;  Dunn  vs.  People,  109  111.  635;  Fitz- 
Patrick  vs.  People,  98  111.  269;  XI  111.  Notes  1233,  §  22. 

—  Intent:  Where  it  is  necessary  to  prove  a  specific  intent  be- 
fore a  conviction  can  be  had,  it  is  competent  to  prove  and  it  may 
be  shown  in  defense  that  accused  was  at  time  of  act,  so  intoxicated 
as  to  be  incapable  of  forming  the  intent. 

Bruen  vs.  People,  206  111.  417;  Addison  vs.  People,  193  111,  405; 
Schwabacker  vs.  People,  165  111.  618. 
On  a  charge  of  larceny,  it  may  be  shown  that  at  the  time  of  the 
taking,  and  for  some  time  afterwards,  defendant  was  under  the 
influence  of  intoxication  caused  by  the  fraud  or  contrivance  of  some 
other  person,  for  the  purpose  of  inducing  him  to  commit  or  aid  in 
committing  the  larceny. 

Bartholomew  vs.  People,  104  111.  601. 


INTOXICATION  737 

Wlien  without  intoxieatiou,  the  hiw  would  impute  to  the  act  a 
criminal  intent,  as  in  the  ease  of  wanton  killing  without  provoca- 
tion, drunkenness  is  not  available  to  disprove  such  intent. 

Upstone  vs.  People,   109  111.    169;   Rafferty  vs.   People,   66   111.   118; 
Doyle  vs.  People,   147  111.  394. 

When  the  nature  and  essence  of  the  ofifense  is  by  law  made  to 
depend  upon  the  state  or  condition  of  mind  of  accused  at  the  time 
and  with  reference  to  the  acts  done,  drunkenness  as  a  fact  affect- 
ing the  control  of  the  mind  is  proper  for  consideration  of  jury. 
Crosby  vs.  People,  137  111.  325. 

—  Admissibility  of  Evidence:  Intoxication  may  be  evidenced 
by  the  person's  conduct,  by  predisposing  circumstances, — that  is, 
by  the  drinking  of  intoxicating  liquors  or  by  the  condition  of  in- 
toxication prior  or  subsequent  to  the  time  in  question,  but  within 
such  time  as  that  the  condition  might  be  supposed  to  continue. 
Miller  vs.  People,  216  111.  309. 

If,  on  the  trial  of  a  person  for  shooting  another,  it  is  claimed 
by  the  defense  that  accused  was  hopelessly  drunk,  it  is  not  im- 
proper to  allow  witness  for  the  People  to  testify  they  made  a 
test  of  the  revolver  offered  in  evidence  as  the  one  with  which  shot 
was  fired,  and  as  to  the  number  of  pounds  pressure  on  the  trigger 

it  required  to  discharge  it. 

Collins  vs.  People,  194  111.  506. 
On  trial  for  murder,  court  is  justified  in  refusing  to  permit  thir- 
teen-year-old daughter  of  accused  to  express  opinion  as  to  whether 
her  father's  condition  on  night  of  crime  was  such  as  to  render  him 
unconscious  of  his  acts  and  surroundings. 

Collins  vs.  People,  194  111.  506. 

Of  Witness: 

Intoxication  to  a  degree  that  it  affects  the  capacity  of  the  wit- 
ness to  see,  understand  and  remember  what  was  transpiring  may 
always  be  proven. 

Miller  vs.  People,  216  111.  309. 

Cross-examination  to  show  excessive  use  of  intoxicants  is  legiti- 
mate with  a  view  to  affecting  credibility  of  witness. 

Woods  vs.  Daily,  211  111.  495;   McCauley  vs.  Chi.  City  Ey.  Co.,  163 
App.  176. 

Evidence  as  to  whether  the  witness,  even  though  it  be  the  ac- 
cused testifying  in  his  own  behalf,  was  intoxicated,  at  time  of  oc- 
currence as  to  which  he  is  testifying,  is  competent  as  tending  to 
show  his  ability  to  see,  understand  and  remember  what  was  trans- 
piring. 

One  entitled  to  prove  that  a  witness  or  party  was  intoxicated  at 
a  particular  time  is  not  concluded  by  the  denial  of  such  witness  or 
party  that  he  was  drunk,  but  may  show  the  drinking  of  intoxi- 
cants by  the  witness  or  party  so  recently  before  the  time  in  ques- 
tion, and  in  such  quantities  as  would  most  probably  produce 
intoxication. 

Miller  vs.  People,  216  111.   309. 


JEOPARDY 


See  Former  Jeopardy. 

Ev.— 4  7 


738  JUDGE'S  DOCKET  AND  mNUTES 

JUDGE'S  DOCKET  AND  MINUTES 

Admissibility : 

—  To  Show  Judgment:  The  minutes  of  the  judge  are  not  evi- 
dence of  a  judgment. 

Guinea  vs.  Seeley,  66  111.  500;   Trodgen  vs.  Cleveland  Stone  Co.,  53 
App.  206;  Sattler  vs.  People,  59  111.  68;  XII  111.  Notes  490,  §  112. 

—  Not  a  Record:  The  minutes  or  memoranda  which  the  judge 
makes  upon  his  own  docket,  and  which  the  law  does  not  require 
him  to  make,  but  which  are  merely  kept  by  him  for  his  own  con- 
venience, and  to  enable  him  to  see  that  the  clerk  accurately  makes 
up  the  record,  do  not  constitute  a  record. 

McCormick  vs.  Wheeler,  36  111.  114. 

They   cannot  be  substituted  for  the  record  of   the   court.     It 

alone  is  competent  to  prove  that  which  is  required  to  be  proved  by 

the  record. 

McGuire  vs.  Goodman,  31  App.  420.     (See  Eecords.) 

—  To  Amend  Record:  The  judge's  minutes  are  competent  evi- 
dence upon  which  record  of  a  judgment  may  be  amended. 

Gillett  vs.  Booth,  95  111.  183;  Milliard  vs.  Cooper,  10  App.  47. 
Such  minutes  must  be  proven  by  the  production  of  the  proper 
docket,  and  showing  by  inspection  that  there  is  a  minute,  and  it 
cannot  be  explained  or  enlarged  by  parol  evidence. 
Gillett  vs.  Booth,  95  111.  183. 
The  memorial  paper  or  minute  must  be  official  or  quasi  official 
note  or  memorandum  paper  remaining  in  the  files  of  the  cause. 
Hubbard  vs.  People,  197  111.  15. 
It  must  be  made  and  preserved  as  a  part  of  the  record.     A 
private  docket  or  memorandum  of  a  witness  is  not  sufficient. 
Wesley  Hospital  vs.  Strong,  233  111.  153. 
The  rule  in  this  respect  is  the  same  in  chancery  as  at  law. 

Tosetti  Brew.  Co."  vs.  Koehler,  200  111.  369;  Towne  vs.  Howieson,  175 

111.  85;  Culver  vs.  Cougle,  165  111.  417. 

Although  these  minutes  are  a  proper  means  of  amending  the 

record,  still,  until  the  amendment  is  made,  the  public  can  act  upon 

no  other  means  of  information  than  the  official  records  of  the 

court,  as  kept  by  an  officer  appointed  by  the  law  for  that  purpose. 

McCormick  vs.  Wheeler.  36  111.  114. 

—  To  SJmw  Probate  of  Will:  On  bill  to  contest  will,  the  ad- 
mission of  minutes  of  a  judge  of  probate,  endorsed  on  will,  show- 
ing that  it  was  proved  and  admitted  to  probate  is  error. 

W^eston  vs.  Teufel,  213  111.  291. 


JUDGMENTS 

See  Records,  Best  and  Secondary,  Judge's  Docket  and  Min- 
utes,   Former    Adjudication,    Former    Conviction,    Identity, 
Service,  Coroner's  Inquest,  Wills,  Insurance,  Foreign  Judg- 
ments. 
Admissibility  in  Evidence: 

—  Between  Same  Parties:     A  judgment  or  decree  is,  in  general, 


JUDGMENTS  739 

evidence  only  in  suit  between  the  same  parties  thereto  or  their 
privies. 

Gage  vs.  Goudy,  141  111.  215;  Whitaker  vs.  Wheeler,  4-4  111.  440;  Clay- 
ton vs.  Clayton,  250  111.  433. 

But  otherwise  where  it  is  not  introduced  as  binding  the  party  but 
merely  as  tending  to  establish  a  link  in  a  chain  of  title. 
Gage  vs.   Goudy,   141   111.   215. 
And  is  admissible  where  party  justifies  thereunder. 
Hanna  vs.  Drovers  Natl.  Bank,  194  111.  252. 

Or  to  show  what  was  claimed  and  the  bringing  of  suit  therefor. 

Miller  vs.  Chrisman,  25  111.  2(59. 

Decree  may  be  admissible  notwithstanding  prosecution  of  writ 
of  error  and  granting  of  supersedeas. 
Brown  vs.  Scbintz,  203  111.   136. 

Where  record  is  offered  to  establish  a  collateral  fact,  only  so 
much  as  tends  to  establish  the  same  need  be  introduced. 
Mayer  vs.  Brensinger,  180  111.  110. 

A  creditor  instituted  proceedings  by  attachment  against  three; 
judgment  in  personam  was  obtained  against  one,  and  a  judgment 
in  rem  against  the  others.  On  scire  facias  to  make  the  latter  parties 
to  the  personal  judgment,  to  which  plea  of  non-assumpsit  was  in- 
terposed, going  back  to  the  original  cause  of  action,  neither  the 
judgment  in  personam  against  the  other  party,  nor  the  judgment 
in  rem  against  defendant  in  scire  facias  was  evidence  against  the 
latter,  in  that  proceeding,  as  to  amount  due. 
Conwell  vs.  Thompson,   50  111.  330. 

—  Strangers:     The  record  of  a  judgment  is  always  admissible, 
even  between  stranger  to  it,  to  prove  that  the  judgment  was  ren- 
dered and  for  what  sum,  but  it  is  not  admissible  to  prove  the 
truth  of  any  fact  upon  which  the  judgment  was  founded. 
Feitl  vs.  Chi.  City  Ry.  Co.,  211  111.  279. 

Records  of  courts  are  not  competent  to  show  that  facts  pleaded 
are  generally  known. 

Howard  vs.  111.  T.  &  S.  Bank,  189  111.  568. 

The  record  of  a  former  suit  is  not  admissible  as  against  a  stran- 
ger to  it,  to  prove  mental  incapacity  of  complainant  in   former 

suit. 

Bollnow  vs.  Eoach,  210  lU.  364. 
The  reversal  of  a  confirmation  judgment  has  no  effect  upon  the 
judgment  as  to  other  property,  the  owners  of  which  did  not  ap- 
peal, and  the  record  of  the  appealed  case  is  inadmissible  upon  ap- 
plication for  judgment  of  sale  against  the  other  property,  for  the 
purpose  of  showing  that  the  ordinance  upon  which  such  special 

assessment  was  founded  was  held  invalid  by  the  supreme  court. 
Goldstein  vs.  Milford,  214  111.  528. 
A  decree  against  a  corporation,  finding  its  liability  and  the 
amount  of  its  indebtedness  is  inadmissible  in  evidence  against  a 
stockholder  of  such  corporation  who  was  not  a  party  to  the  decree, 
either  actually  or  consti'uetively. 

Chestnut  vs.  Peunell,  92  111.'  55, 
The  record  of  a  judgment  of  the  county  court,  approving  an 
executor's  report  is  not  admissible  against  a  stranger  to  the  pro- 


740  JUDGMENTS  BY  CONFESSION 

ceedings,  in  order  to  charge  him  with  notice  of  facts  claimed  to 
have  been  shown  by  such  report. 
Lang  vs.  Metzger,  20G  111.  475. 

A  decree  in  a  suit  for  partition  of  land  by  heirs,  which  finds  the 
allegations  of  the  petition  true,  among  which  is  that  of  the  death 
of  a  person  and  the  heirship  of  the  parties,  is  prima  facie  evidence 
of  the  death  and  heirship,  against  the  party  in  ejectment,  though 
he  was  not  a  party  or  privy  to  the  partition  suit. 
Delano  vs.  Bennett,  90  111.  533. 

—  Principal  and  Surety:  Where  a  person  is  responsible  over 
to  another,  and  he  is  notified  of  the  pendency  of  a  suit  involving 
the  subject  matter  of  indemnity,  his  liability  will  be  fixed  and 
determined  by  the  judgment  rendered  therein,  and  notice  to  him 
will  be  implied  where  he  has  knowledge  of  the  pendency  of  the 
suit  and  participates  in  the  defense  thereof. 

Meyer  vs.  Purcell,  214  111.  62;  Drennan  vs.  Bimn,  124  111.  175. 
A  judgment  against  a  principal,  where  the  surety  has  been  noti- 
fied and  had  opportunity  to  defend,  is  prima  facie  evidence  as  to 
amount  of  damages  in  suit  against  surety. 

Henry  vs.  Heldmaier,  226  111.  152. 

A  judgment  of  the  probate  court,  upon  final  settlement  of  guar- 
dian, asserting  the  balance  due  the  ward,  is  conclusive  upon  the 
questions  and  upon  his  sureties,  in  action  upon  his  bond. 

Eyan  vs.  People,   165  111.   143;   Cattleman  vs.  Guthrie,   142  111.  357; 
Gillette  vs.  Wylie,  126  111.  310;  XII  111.  Notes  880,  §92. 

A  judgment  against  an  executor,  finding  the  amount  due,  by 
the  executor,  as  such,  to  the  estate,  is  binding  on  the  sureties  upon 
collateral  attack  in  suit  on  bond. 

Neavitt  vs.  Woodborn,  160  111.  209. 

—  Master  and  Servant:  The  record  of  a  judgment  against  the 
master  for  negligence  of  his  servant,  is  admissible  in  subsequent 
suit  by  the  master  against  the  servant  to  prove  the  fact  that  such 
judgment  had  been  recovered  against  the  master  for  such  amount, 
and  upon  such  and  such  allegations,  but  not  to  prove  that  either 
of  these  allegations  are  true,  unless  in  certain  cases  where  the  ser- 
vant or  agent  has  undertaken  the  defense,  or  being  bound  to  in- 
demnify, has  been  required  to  assume  it. 

Feitl  vs.  Chi,  City  Ry.  Co.,  211  111.  279. 

—  Tort  Feasors:  A  judgment  against  one  of  several  joint  tort 
feasors  is  not  a  defense  in  a  suit  against  the  others,  when  not  sat- 
isfied. 

Eoodhonse  vs.  Christian,  158  111.  137. 

—  Criminal  Judgment:     A  criminal  judgment  is  inadmissible 

in  a  civil  suit. 

Gorbley  vs.  Wilson,  71  111.  209. 

JUDGMENTS  BY  CONFESSION 

See  Default. 
Vacation  of: 

—  In  General:  On  motion  to  vacate  a  judgment  confessed  by 
authority,  and  for  leave  to  plead,  the  question  is  not  whether  the 
judgment  should  be  set  aside  because  of  errors  of  law,  but  whether 


JUDICIAL  NOTICE  741 

there  exists  any  equitable  reason  for  opening  the  judgment  to  let 

in  a  defense. 

Mojses  vs.  Schendorf,  238  111.  232;  Pearce  vs.  Miller,  2U1  111.  188; 
Mumford  vs.  Tolman,  157  111.  258. 

—  Counter  Affidavits:     Are  admissible. 

Moyses  vs.  Schendorf,  238  111.  232;  Pitts  vs.  Magie,  24  111.  610;  Lake 
vs.  Cook,  15  111.  353;  Heney  vs.  Alcoek,  9  App.  431;  Contra,  McCor- 
mick  vs.  Liimis,  165  Apji.  214. 

"If  the  case  is  involved  in  doubt  or  the  testimony  is  so  contra- 
dictory that  the  truth  cannot  be  ascertained  with  reasonable  cer- 
tainty, an  issue  should  be  directed  to  try  the  question ;  in  other 
words,  the  defendant  should  be  let  into  a  defense  on  the  merits." 
Lake  vs.  Cook,  15  111.  353. 

The  only  question  is  whether  such  a  case  was  presented  by  the 
affidavits  read  on  both  sides  as  should  be  submitted  to  the  decision 
of  a  jury. 

Pitts  vs.  Magie,  24  111.  610. 

"If  the  affidavits,  when  considered",  should  disclose  a  clear  and 
equitable  reason  for  opening*  the  judgment  and  allowing  defend- 
ant to  plead,  then  it  would  be  the  duty  of  the  court,  in  the  exercise 
of  such  equitable  powers,  to  so  order.  Affidavits  are  considered 
altogether. ' ' 

Pearce  vs.  Miller,  201  111.  188. 

"Court  cannot  try  issues  on  affidavits.  If  the  affidavit  of  defend- 
ant showed  a  prima  facie  case  of  a  good  defense,  it  is  the  duty  of 
the  court  to  open  up  the  judgment  and  allow  such  defense  to  be 

made,  and  the  issue  to  be  tried  by  a  jury. ' ' 

Dionne  vs.  Matzenbaugh,  49  App.  527;  Bertman  vs.  Thompson,  136 
App.  621. 
Note :  Foregoing  cases  are  those  of  judgments  by  confession. 
Following  cases,  Gilchrist  Trans.  Co.  vs.  Nor.  Grain  Co.,  204  111. 
510;  Hartford  Life  Ins.  Co.  vs.  Rossiter,  196  111.  177;  Hafling  vs. 
VanZandt,  162  111.  162;  Palmer  vs.  Harris,  98  111.  507;  Boyle  vs. 
Levi,  73  111.  175;  Swigart  vs.  Holmes,  96  App.  43;  Holiday  vs. 
Tuthill.  94  App.  424,  are  motions  to  set  aside  default,  and  not 
to  vacate  judgments  by  confession.  Counter  affidavits  held  admis- 
sible. In  Gilelirist  Trans.  Co.  vs.  Northern  Grain  Co.,  supi'a,  Court 
says:  "Counter  affidavits  are  admissible.  It  is  necessary  for 
defendant  to  show  a  defense  prima  facie  on  the  merits,  but  the 
court  is  not  authorized  to  try  merits  of  case  on  affidavits." 

JUDICIAL  NOTICE 

See  Legislative  Acts  and  Journals,  Foreign  Law,  Customs 
AND  Usages,  Abbreviations,  Interest. 
MATTERS  RELATING  TO  COUNTIES. 
Boundaries : 

Courts    nuist    take    notice    of    statutes    defining    boundaries    of 

counties. 

Ross  vs.  Reddick,  2  111.  7.3. 

Names : 

Court  will  take  judicial  notice  of  the  names  of  the  counties  in 

this  state. 

Higgins  vs.  Bullock,  66  111.  37. 


742  JUDICIAL  NOTICE 

Population : 

And  population  of  a  county  according  to  the  preceding  United 

States  census. 

Worchester  Natl.  Bank  vs.  Chenev,  94  111.  430;  Peoi>le  vs.  I.  C.  E.  E. 
Co.,  237  111.  324. 
Judicial  notice  will  be  taken  that  few  counties  in  the  state  have 

a  population  of  over  fifty  thousand. 
Klokke  vs.  Dodge,  103  111.  125. 

County  Seat: 

Courts  will  take  judicial  notice  of  the  result  of  an  election  on 

the  question  of  the  removal  of  the  county  seat,  as  a  fact  connected 

with  the  organization  of  counties,  where  the  question  is  drawn  in 

issue  collaterally. 

Andrews  vs.  Knox,  70  111.  65. 

Support  of  Poor: 

That,  by  public  statutes,  the  duty  of  supporting  the  poor  is  im- 
posed upon  the  counties  of  the  state,  except  as  otherwise  pro- 
vided by  special  or  public  law. 
People  vs.  Hill,  163  111.  186. 

Org-anization : 

That  a  particular  county  is  or  is  not  acting  under  township 

organization. 

Gilbert  vs.  Natl.  Cash  Eer^.  Co.,  176  111.  288 ;  Jones  vs.  Town  of  Lake 
View,  151  111.  663;  Brinier  vs.  Madison  County,  111  111.  11;  People 
vs.   Suppiger,   103  111.  434;   Myers  vs.  Wiltshire,  92  111.  395;   XII 
111.  Notes,  474,  §  9. 
And  that  a  county  has  adopted  township  organization. 

Phillips  vs.   Town   of   Scales  Mound,   195   111.   353;    County   of  Eock 
Island  vs.  Steele,  31  111.  543. 

Geographical  Facts: 

Of  the  division  of  the  state  into  counties. 

Dickison  vs.  Breeden,   30  111.   279;    Higgins  vs.  Bullock,   66   111.  37; 
Gooding  vs.  Morgan,  70  111.  275. 
And  that  a  particular. town  is  in  a  certain  county. 

Harding  vs.  Strong,  42  111.  148;   People  vs.  Suppiger,  103  111.  434. 

And  of  the  relative  locations  of  such  towns  with  respect  to  each 

other. 

Gunning  vs.  People,  189  111.  165. 

Judicial  notice  is  taken  of  county  in  which  incorporated  town 

is  located. 

Gilbert  vs.  Natl.  Cash  Eeg.  Co.,  176  111.  288. 

And  so  it  will  notice  that  a  particular  city  of  the  state  is  in  a 

certain  county. 

Sullivan  vs.  People,  122  111.  385;  Linch  vs.  Litchfield,  141  111.  469. 

And  the  location  of  townships  within  the  state. 

Town  of  Eeading  vs.  Wedder,  66  111.   80;   Cornshoek  vs.  People,  56 
App.  467. 
That  a  section  of  a  certain  number  in  a  certain  township  and 

range  is  in  a  particular  county. 

Eoss  vs.  Eeddiek,  2  111.  73;  Smith  vs.  Stevens,  82  111.  554;  Dickinson  vs. 
Hendryx,  88  111.  66. 
Where  real  property  is  shown  to  be  located  in  a  city,  the  court 
will  take  judicial  notice  of  the  county  in  which  same  is  situated. 
Linck  vs.  Litchfield,  141  111.  469. 


JUDICIAL  NOTICE  743 

And  that  there  are  several  sections  of  the  same  number  in  a 

county. 

People  vs.  Dragston,  100  111.  286. 

Officers  and  Courts : 

—  Courts:  The  court  will  take  judicial  notice  that  a  particu- 
lar county  is  not  one  of  a  class  entitled  to  a  probate  court. 

Morris  vs.  Morris,  12  App.  68. 

And  of  the  establishment  of  a  separate  probate  court  in  a  cer- 
tain county. 

Co.  of  La  Salle  vs.  Milligan,  143  111.  321. 

—  Civil  Officers:  Court  will  take  judicial  notice  of  the  civil 
officers  of  the  county  in  which  it  holds  its  sittings. 

Dire  vs.  Flint,  21  111.  80. 

—  Justice  of  Peace:  Courts  will  judicially  notice  who  are  the 
justices  of  the  peace  in  the  county  where  the  court  is  sitting,  and 
also  their  official  acts;  but  where  the  official  acts  of  a  justice  are 
offered  in  evidence  in  a  county  other  than  that  in  which  he  re- 
sides, they  must  be  accompanied  by  a  certificate,  from  the  proper 

officer,  of  the  official  character  of  the  justice. 

Gilbert  vs.  Natl.  Cash  Eeg.  Co.,  176  111.  288;  Chambers  vs.  People, 
5  111.  352;   Shattuck.vs.  People,  5  111.  478. 

—  Judges:     The  supreme  court  will  take  judicial  notice  of  who 

are  the  county  judges. 

Fisher  vs.  Citv  of  Chicago,  213  111.  268. 

MATTERS  RELATING  TO  CITIES. 
Incorporation  Under  General  Law: 

The  courts  will  take  judicial  notice  of  the  existence  of  all  vil- 
lages and  cities  organized  under  the  general  law;  the  statute  ex- 
pressly so  provides. 

Welsh  vs.  Shumway,  232  111.  54;  Citv  of  Eoek  Island  vs.  Cuinely,  126 
111.  408;  Harmon  vs.  City  of  Chicago,  110  111.  400;  Potwm  vs. 
Johnson,  108  111.  70;  Canal  Comrs.  vs.  E.  Peoria,  75  App.  450;  XII 
111.  Notes,  474,  §  10. 

If  it  appear  from  the  record  that  a  municipality  has  exercised 

corporate  powers  under  a  general  law,  courts  may  take  notice  of 

its  organization  without  proof  that  all  the  requirements  of  the 

statute  have  been  complied  with. 

Doyle  vs.  Bradford,  90  111.  416. 

—  Change:     The  court  is  required  to  take  judicial  notice  of 

the  change  of  organization  of  any  town  or  city  from  the  original 

organization  to  organization  under  the  general  incorporation  act 

for  cities. 

Jones  vs.  Town  of  Lake  View,  151  111.  663. 

Charter : 

Courts  will  take  notice  of  provisions  of  charter  of  municipal 

corporations. 

People  vs.  Knopf,  186  111.  457;  City  of  Rock  Island  vs.  Cuinely,  126 
111.  408;  Gormley  vs.  Day,  114  111.  185;  People  vs.  Wilson,  3  App. 
368. 

Ordinances : 

Judicial  notice  will  not  be  taken  of  ordinances  of  cities. 

People  vs.  Bvisse,  248  111.  11;  People  vs.  Heidleberg,  233  111.  290; 
Stott  vs.  City  of  Chicago,  205  Til.  281;  O 'Hare  vs.  Lieb,  66  App. 
549;  Weaver  vs.  Sno\Y,  60  App.  624. 


744  JUDICIAL  NOTICE 

Nor  of  tlie  repeal  of  ordinances. 

Hanna  vs.  Kankakee,  3-4  App.  186. 
Whether  office  of  city  attorney  is  created  by  ordinance  for  a 
certain  city  is  a  matter  of  proof,  as  courts  do  not  take  judicial 
notice  of  what  offices  have  been  established  by  city  ordinances. 
Condon  vs.  City  of  Chicago,  249  111.  596. 
But  the  municipal  court  of  Chicago  is  authorized  to  take  judicial 

notice  of  the  ordinances  of  that  city. 

City  of  Chicago  vs.  Baker,  157  App.  130. 
Courts  do  not  take  judicial  notice  of  the  city  ordinances,  and 
if  the  relator  in  an  information  of  quo  warranto  to  test  the  valid- 
ity of  a  dramshop  license  relies  upon  special  ordinance  obtaining 
only  in  the  locality  vv^here  the  respondent  is  conducting  the  dram- 
shop, such  ordinance  must  be  pleaded. 

People  vs.  Heidleberg  Garden  Co.,  233  111.  290. 

Alleys  and  Sidewalks: 

Courts  will  take  judicial  notice  that  alleys  are  not  provided  with 
sidewalks,  but  not  that  a  particular  alley  has  none. 

Burton  Co.  vs.  Chicago,  236  111.  383. 

Business  Improvements: 

Of  the  common  knowledge  of  all  men  who  have  watched  the 
character  of  business  improvements  made  in  the  business  center 
of  Chicago,  and  that  many  buildings  are  erected  under  long  time 

lORSGS- 

Denegre  vs.  Walker,  214  111,  113. 

Disconnection  of  Territory: 

Of  the  laws  of  1901,  repealing  the  laws  of  1879,  authorizing  the 
disconnection  of  territory  from  cities  and  villages  on  petition  to 
the  city  council  or  village  trustees,  without  the  filing  of  a  formal 

supplemental  plea,  as  such  is  a  public  act. 

Vance  vs.  Eankin,   194  111.   625;    City  of  Charleston  vs.   Moore,   195 
111.  221. 

Chicago  City  Railway  Company : 

Of  the  statute  chartenng  and  granting  power  to  the  Chicago 

street  railway  company. 

McArdel  vs.  Chi.  City  Ey.  Co.,  141  App.  59. 

Chicago  River: 

That  the  Chicago  River  at  Erie  Street  is  within  the  municipal 
domain  of  Chicago. 

City  of  Chicago  vs.  Kubler,  133  App.  520. 

Organized  Fire  Department: 

Judicial  notice  will  not  be  taken  of  existence  of  organized  fire 

department. 

Van   Inwagen  vs.   City  of  Chicago,  61   111.   31. 

Boundaries : 

A  city  court  may  take  judicial  notice  of  the  boundaries  of  cities 

and  towns. 

Gunning  vs.   People,   189   111.    165;    Foster   vs.   E.   St.    L.   E.   E.   Co., 
158  App.  478. 

Streets : 

Judicial  notice  will  be  taken  of  the  territorial  distances,  in  a 
municipality  within  the  jurisdiction  of  the  court. 
Chrystal  vs.  Level,  144  App.  533. 


JUDICIAL  NOTICE  U5 

But  not  that  certain  streets  were  in  a  certain  city. 

Gunning  vs.  People,  189  111.  165;  Dougherty  vs.  People,  118  111.  160.; 

Foster  vs.  E.  St.   L.  &  S.  Ey.  Co.,   158  App.  478. 
Nor  of  the  municipal  location  of  streets. 

People  vs.  Wilkerson,   162   App.   76;   Cf.  Foster  vs.   E.   St.   L.   &   S. 

Ey.  Co.,  158  App.  478. 

Nor  will  courts  notice  judicially  the  point  of  intersection  of  a 
given  street  and  a  railroad  track,  or  relative  localities. 
Penn.  Co.  vs.  Frana,  13  App.  91. 

The  court  cannot  take  judicial  notice  of  the  distances  between 

one  street  and  another  in  the  city  in  which  the  court  sits,  nor  of  the 

length  of  a  street,  whether  one  or  more  miles  or  a  fraction  of  a 

mile. 

North  Chi,  St.  Ey.  Co.  vs.  Cheetham,  58  App.  318. 

Pavement : 

The    court   will    take    judicial    notice    that    there    are    holes    in 
wooden  block  pavements  near  to  street  car  tracks. 
Chi.  U.  Traction  Co.  vs.  Case,  129  App.  451. 

Lot  in  Certain  Town : 

But  not  of  plats  of  subdivisions  of  urban  lands  or  of  the  sub- 
divisions themselves,  with  reference  to  c^uestions  of  the  location 
of  different  lots  and  blocks. 

Gunning  vs.  Peoj)lo,  189  111.  165. 

LANDS  AND  SURVEYS. 
Description : 

—  Abbreviations:  The  court  will  take  judicial  notice  of  abbrevi- 
ations used  in  describing  lands. 

Hull  vs.  Croft,  132  App.  509. 

And  of  the  meaning  of  initial  letters  in  conveyances,  levies  of 

execution,  surveys,  etc.,  used  in  the  description  of  land. 

Kyle  vs.  Town  of  Yellowhead,  80  111.  208 ;  Paris  vs.  Lewis,  85  111.  597. 

—  Existence   of   Town:     And  where  in   description   of  land  a 

particular  township  is  named  without  indicating  whether  north 

or  south,  that  there  is  no  to-vraship  of  that  number  south,  in  the 

county  wherein  the  land  described  is  lying. 
Kyle  vs.  Town  of  Yellowhead,  80  111'.  208. 

—  Section  Lines:     The   court   will   also   notice   that  the   south 

line  of  certain  section  and  the  south  line  of  the  township  are  one 

and  the  same  line. 

Kyle  vs.  Town  of  Yellowhead,  80  111.  208. 

—  Ambiguity  in  Will:  Where  description  of  land  devised  in 
a  will  is  apparently  unambiguous,  but  the  township,  county,  range, 
and  state  are  not  specified,  the  court  will  take  judicial  notice,  from 
its  knowledge  of  governmental  surveys,  that  the  apparently  unam- 
biguous description  is  in  fact  uncertain,  and  may  permit  defects 

to  be  supplied  by  extrinsic  evidence. 
Graves  vs.  Eose,  246  111.  76. 

Grants : 

Courts  will  take  judicial  notice  of  the  fact  that  the  United 
States  was  the  proprietor  of  land  granted  by  it  to  the  state  of  Illi- 
nois, and  that  such  grant  was  made,  and  of  the  location  of  such 

land. 

Smith  vs.  Stevens,  82  111.  554. 


746  JUDICIAL  NOTICE 

And  also  of  land  granted  for  canal  purposes,  when  same  is  sub- 
ject of  litigation  in  ejectment,  and  plaintiff  need  not  trace  title 

further  back  than  the  state. 

C.  &  A.  E.  R.  Co.  vs.  Keegan,  185  111.  70. 
And  also  that  section  16  in  each  township  was  granted  for  school 
purposes;  and  that  in  fractional  townships  for  which  no  land  was 
appropriated,   certain  quantities  of  land,   to   be  selected  by   the 
Secretary  of  State,  were  granted  to  the  state. 

Black  vs.  C.  B.  &  Q.  R.  E.  Co.,  237  111.  500. 

Location : 

Courts  will  judicially  notice  that  city  property  is,  as  a  rule, 

subdivided  into  lots  and  blocks. 
Sever  vs.  Lyon,  170  111.  395. 

But  not  where  each  block  or  lot  is  located. 

Gunning  vs.  People,  189  111.  165. 
Nor  whether  land  located  under  script  is  in  a  lake  which  is 
navigable  water,  and  hence  not  subject  to  location. 

Wilcox  vs.  Jackson,  109  111.  261. 

Exemption : 

Where  a  person  entitled  to  a  homestead'  exemption  is  the  owner 
of  more  than  one  lot,  court  will  take  judicial  notice  of  subdivision 
of  property  into  separate  lots  and  blocks,  for  purpose  of  deter- 
mining what  land  is  covered  by  the  exemption. 

Sever  vs.  Lyon,  170  111.  395 ;  Gardner  vs.  Eberhardt,  82  111.  316. 

Survey: 

—  Congressional:    "Where  the   proof  in   ejectment  locates   the 

land  in  suit  with  reference  to  congressional  surveys,  court  will 

take  notice  in  what  county  the  land  lies. 
Dickinson  vs.  Hendryx,  88  111.  66. 

—  System  of  Survey:  Court  will  take  judicial  notice  of  the 
acts  of  Congress  in  regard  to  disposal  of  public  lands,  and  of 
kind  of  evidence  furnished  to  a  purchaser,  and  of  the  system  of 
surveys  adopted  for  those  lands  by  Congress.     Court  also  takes 

notice  of  division  of  state  into  counties. 

Gooding  vs.  Morgan,  70  111.  275;  Dickinson  vs.  Breeden,  30  111.  279. 
Judicial  notice  will  be  taken  of  government  system  of  surveys. 

Gardner  vs.  Eberhardt,  82  111.  316. 
And  of  making  or  not  making  of  government  survey. 
White  vs.  Hermann,  51  111.  243. 

—  Subdivisions:     Courts  will  take  notice  of  the  subdivisions  of 

land  of  such  surveys. 

Gardner  vs.  Eberhardt,  82  111.  316. 
And  the  divisions  of  sections  of  land  into  halves  and  quarters, 

with  well  defined  boundaries. 

Hill  vs.  Bacon,  43  111.  477;  Meacham  vs.  Sunderlands,  10  App.  123. 

—  Longitude:     That  by  a  governmental  survey,  all  land  in  a 

certain  county  in  the  state  lies  east  or  west  of  a  certain  principal 

meridian. 

O'Brien  vs.  Kroekinski,  50  App.  456. 

LEGISLATIVE  ACTS  AND  JOURNALS. 

Journals : 

Notwithstanding  the  journals  of  the  legislature  are  public 
records,  courts  will  not  take  judicial  notice  of  their  contents,  but 
they  must  be  introduced  in  evidence  like   any   other  record  and 


JUDICIAL  NOTICE  747 

public  document.     When  offered,  however,  they  prove  their  own 
authenticity. 

People  vs.  Braun,  246  111.  428 ;  Erf ord  vs.  City  of  Peoria,  229  111.  546 ; 
Grob  vs.  Cushman,  45  111.  119. 
One  contending  that  the  title  of  an  act  was  changed  after  pass- 
ing both  houses,  and  before  signed  by  the  governor,  must  make 
proof  of  such  fact,  since  courts  do  not  take  judicial  notice  of 
contents  of  legislative  journals,  and  will  presume  that  law  certi- 
fied to  by  the  secretary  of  state  is  in  same  form  as  passed  by  the 

legislature. 

Erf  ord  vs.  City  of  Peoria,  229  111.  546;   I.  C.  K.  R.  Co.  vs.  Wren. 
43  111.  77. 
Courts  may  look  to  such  journals  to  see  whether  statutes  are 

so  enacted  as  to  have  legal  existence. 

Prescott   vs.   Canal   Trustees,    19   111.   324;    Larrison  vs.   P.   A.   &   D. 
Eailroad  Co.,  77  111.  11. 
But  supreme  court  will  not,  at  suggestion  of  counsel,  undertake 
to  search  journals  of  legislature  to  ascertain  whether  a  certain  act 

was  regularly  passed. 

People  vs.  Braun,   246   111.  428. 

Public  Acts: 

—  In  General:     Courts  will  take  judicial  notice  that  an  act  is 

found  in  the  statutes. 

People  vs.  Braun,  246  111.  428. 
And  of  all  acts  of  the  legislature  which  are  declared  to  be  pub- 
lic acts,  without  other  proof. 

People  vs.  Hill,  163  111.  186;  People  vs.  Peoria,  R.  E.  Co.,  116  111. 
410;  Potwein  vs.  Johnson,  108  111.  70;  E.  I.  &  St.  L.  R.  R.  Co.  vs. 
Lynch,  67  111.   149;   Klein  vs.  Reinhardt,  163  App.  257. 

Will  judicially  notice,  in  construing  a  statute,  the  mischief  in- 
tended to  be  remedied  by  its  enactment. 

Harrison  vs.  People,  195  111.  466;  Lehigh  Cement  Co.  vs.  McLean,  149 
App.  360. 

—  Order  of  Enactment:     Courts  will  not  take  judicial  notice  of 

order  in  which  bills  are  actually  passed  by  the  legislature  at  same 

session. 

Cantrell  vs.  Seaverns,  168  111.  165. 

—  Constitutional  Amendment :  But  may  take  notice  of  the 
history  of  constitutional  amendments. 

Blake  vs.  People,  109  111.  504. 

—  Railwaij  Regulations:  An  act  requiring  railway  companies  to 
ring  a  bell  or  sound  a  whistle  before  passing  over  a  highway  with 
a  train,  is  a  public  statute,  of  which  the  courts  will  take  judicial 
notice.     The  rule  is  different  in  respect  to  private  statutes. 

C.  &  A.  R.  E.  Co.  vs.  Dillon,  123  111.  570. 

—  Appeal  Pending:  If  a  public  act,  relating  to  subject  mat- 
ter of  a  suit,  is  passed  while  an  appeal  is  pending,  the  court  will 
take  judicial  notice  of  such  act  without  a  formal  supplemental 

plea. 

Vance  vs.  Eankin,  194  HI.  625. 

—  Appropriations  Existing:  Court  will  take  judicial  notice  that 
at  certain  time  the  General  Assembly  had  exhausted  its  powers 
and  that  there  was  no  money  in  the  State  Treasury  which  could 
be  legally  applied  to  indebtedness. 

People  vs.  Stewart,  97  111.  123. 


748  JUDICIAL  NOTICE 

FOREIGN  COUNTRIES. 

Political  Organization: 

Courts    will    take    judicial    uotice    of    the    organization    of    the 

Dominion  of  Canada — that  the  Province  of  Ontario  is  a  part  of 

the  Dominion. 

Calhoun  vs.  Eosse,  60  App.  309. 

Usag-es : 

But  not  of  statutes  and  usages  of  foreign  countries. 
Deiii]>ster  vs.  Stevens,  63  App.  126. 

FOREIGN  LAW. 

Statutes : 

Judicial  notice  will  not  be  taken  of  statutes  of  another  state. 

Coates  vs.  C.  E.  I.  &  P.  Ev.  Co.,  239  111.  154;  Leatlie  vs.  Thomas,  218 
111.  246;  Close  vs.  Stnyvesant,  132  111.  607;  Bonnell  vs.  Holt,  89  111. 
71;  Crouch  vs.  Hall,  15  111.  264;   Eeid  vs.  Northern  Lbr.  Co.,  146 
App.  371;  XII  111.  Notes,  473,  §  7. 
Laws  of  foreign  states  are  matters  of  fact  which  the  court  can- 
not judicially  notice. 

Eoyal  League  vs.  Kavanaugh,  233  111.  175;  Forsythe  vs.  Barnes,  131 
App.  467;  Assets  Eealty  Co.  vs.  Heiden,  215  111.  9;  Shannon  vs. 
Wolfe,   173   111.   253. 

And  whether  as  ground  of  action  or  defense,  must  be  proven 
like  any  other  fact. 

Hakes  vs.  Bank  of   Terre  Haute,   164  111.   273;    Shannon  vs.   Wolfe, 
173   111.  253;   Miller  vs.   Wilson,   146   111.   523;    Mason  vs.  Dousay, 
35  111.  424 ;  C.  &  N.  W.  Ey.  Co.  vs.  Johnson,  27  App.  351. 
Rule  applies  to  statutes  of  foreign  country. 

Dean  &  Son  vs.  W.  B.  Coukey  Co.,  180  App.  162^ 

—  Construction:  Courts  will  take  judicial  notice  of  the  con- 
struction of  foreign  statutes  by  foreign  courts,  and  for  that  pur- 
pose will  look  to  the  reports  of  the  decisions  of  those  courts. 

Morris  vs.  Wibaux,  159  111.  627;  McUeed  vs.  McDeed,  67  111.  545. 

The  law  of  a  sister  state  is  a  question  of  fact  to  be  proven  the 
same  as  any  other  fact,  by  introduction  of  evidence,  and  construc- 
tion of  such  law  may  be  proven  by  printed  reports  of  adjudged 

cases. 

Hayward  vs.  Sincebaugh,  141  App.  395. 

—  Foreign  Judgment:  In  action  on  judgment  rendered  in  an- 
other state,  judicial  notice  will  be  taken  of  the  laws  of  such  state 
so  far  as  it  is  necessary  to  ascertain  the  faith  and  credit  to  be 

given  to  the  judgment. 

Hull  vs.  Webb,  78  App.  617;  Newman  vs.  Greeley  State  Bank,  92 
Apj).  638;  Kuowlton  vs.  KnowUou,  51  App.  71;  Koppell  vs.  Nagy, 
37    App.    23;    Eay   vs.    Hulbert,    17    111.    572. 

Common  Law: 

Courts  will  take  judicial  notice  of  construction  of  laws  of  for- 
eign country  by  its  tribunals,  and  to  become  informed  of  such 
construction,  will  receive  testimony  of  witnesses  learned  in  the 

foreign  law. 

Canale  vs.  People,  177  111.  219;  Hoes  vs.  VanAlstyne,  20  111.  201. 

But  do  not,  as  a  rule,  take  judicial  notice  of  the  laws  of  an- 
other state  or  country,  and  their  statutes  or  local  usages  must  be 
averred  and  proven  when  relied  upon  to  aid  in  sustaining  the 
cause  of  action  in  this  state.  Such  is  not  the  case,  however,  with 
reference  to  the  common  law.     On  a  common  law  question,  courts 


JUDICIAL  NOTICE  749 

will  assume  that  common  law  is  in  force  in  a  sister  state  unless 

proof  to  contraiy  is  made. 

Foisytlie  vs.  Barnes,  228  111.  326;   Scholton  vs.  Barber,  217  111.  148; 
Ho^ue  vs.   Steele,   207   111.   340. 
The  unwritten  or  common  law  of  another  state  may  be  proven 
by  the  testimony  of  competent  witnesses  instructed  in  its  laws. 
M.  &  St.  L.  Ky.  Co.  vs.  Smith,  74  111.  197. 
Courts  will  not  take  judicial  notice  of  statutes  of  other  states 
changing  the  common  law,  but  will  presume  the  common  law  to 

be  in  force. 

Tinkler  vs.  Cox,  68  111.  119, 

COURTS  AND  OFFICERS. 
Courts : 

—  Superior:     Courts  will  take  judicial  notice  that  there  is  but 
one  court  in  this  state  entitled  the  Superior  Court. 

Beardsley  vs.  Gosling,  86  111.  58. 

—  Criminal  Court:     That  there  is  no  criminal  court  in  certain 

counties. 

Petty  vs.  People,  118  111.  148. 

—  Original  Jurisdiction:     That  a  number  of  courts  of  original 

jurisdiction  are  held  in  a  particular  city  of  the  state,  and  in  as 

many  different  court  rooms. 

Hierson  vs.  Graudine,  87  111.  115. 

—  Rules:     Appellate  court  will  not  take  notice  of  rules  of  cir- 
cuit court. 

Bonney  vs.  McClelland,  235  111.  259. 

But  may  of  IMunicipal  Court  of  Chicago. 

Sixby  vs.   Clii."  City  Ey.  Co.,   178  App.   218;    Northern   Coal  Co.   vs. 
Mueller  Bros.  171  App.  342. 
One    court    cannot   take    judicial    notice    of   the   rules   of    an- 
other. 

Gudgeon  vs.  Casey,  62  App.  599;  Harrigan  vs.  Turner,  53  App.  292. 

Officers : 

—  In  General:     Courts  take  notice  of  own  officers  and  when 

terms  expire. 

Glos  vs.  Greiner,  226  111.  546;  Dire  vs.  Last,  51  111.  179. 

—  Attorneys:     Licensed  to  practice  in  a  court,  are  judicially 

recognized  by  it. 

Ferris  vs.  Com.  Natl.  Bank,  158  111.  237;  Weber  vs.  Powers,  114  App. 
411;  Kuehne  vs.  Goit,  54  App.  596. 

—  Sheriff:     Judicial  notice  will  be  taken  that  the  sheriff  is  the 

jail  keeper  of  county  jail. 

Feld  vs.  Loftus,  140  App.  531. 

—  Civil:     A  court  will  take  notice  of  the  civil  officers  of  the 

county  in  which  it  sits. 

Dire  vs.  Flint,  21  111.  80;  Thompson  vs.  Haskell,  21  111.  215;  Thielman 
vs.  Berg,  73  111.  293 ;  Wakott  vs.  Gibbs,  97  111.  118 ;  City  of  Eockford 
vs.  Mower,  259  111.  604. 
And  of  the  official  duties  of  such  officers. 
Lynn  vs.  People,  170  111.  527. 

And  their  official  seals. 

Cox  vs.  Stern,  170  111.  442. 
And  who  are  authorized  to  administer  oaths  in  the  county. 

Dyer  vs.  Flint,  21  111.  80;  Thompson  vs.  Haskell,  21  111.  215. 


750  JUDICIAL  NOTICE 

Upon  application  for  judgment,  on  special  assessment,  will  notice 
official  character  of  person  to  whom  warrant  was  directed  for  col- 
lection. 

Brackett  vs.  People,  115  111.  29. 

Courts  are  presumed  to  know  who  are  the  civil  officers  of  the 
state,  and  will  take  judicial  notice  that  one  taking  an  acknowledg- 
ment as  a  commissioner  of  deeds  was,  at  that  time,  such  officer. 

Fisk  vs.  Hopping,  169  111.   105. 

—  Judges:     Court  will  take  judicial  notice  as  to  who  are  county 

judges. 

Village  of  Hinsdale  vs.  Shannon,  182  111.  312;  Strieher  vs.  Kubusky, 

35  App.  159. 
That  the  acting  judge  who  tried  the  question  of  benefits  in  spe- 
cial assessment  in  place  of  regular  judge  was  county  judge  of  an- 

other  county  of  the  state  at  that  time. 

Fisher  vs.  City  of  Chicago,  213  111.  268. 
Of  personnel  of  circuit  judges,  circuits  presided  over  and  law 

authorizing  interchanging. 

Eeitz  vs.  People,  77  111.  518. 
And  upon  application  for  mandamus  against  a  judge,  that  he 
has  resigned  pending  application. 

People  vs.  MeConnell.  155  111.  192. 
The  court  will  also  take  judicial  notice  of  who  are  the  judges 
of  the  various  courts  of  record  in  the  state,  and  what  are  their 

terms  of  office. 

Vahle  vs.  Braekenseik,  145  111.  231 ;  Village  of  Hinsdale  vs.  Shannon, 
182  111.  312. 

When  the  term  of  office  of  one  judge  expires  and  that  of  an- 
other, his  successor,  begins. 

Vahle  vs.  Braekenseik,  145  111.  231. 

Appellate  court  takes  notice  of  the  persons  who  are  judges  of 

the  circuit  court. 

Russell  vs.  Sargent,  7  App.  98. 

—  Master  in  Chancery:     Court  of  chancery  will  take  judicial 

notice  of  expiration  of  master's  term  of  office  and  appointment  of 

successor. 

Glos  vs.  Greiner,  226  111.  546. 

—  Clerh:  Circuit  courts  will  take  notice  of  its  own  officers,  as 
for  instance,  the  clerk.  So  where  3urat  attached  to  affidavit  of 
non-residence  was  signed  in  the  name  of  one  person,  by  another 
as  deputy,  without  any  designation  of  official  character  of  prin- 
cipal or  deputy,  the  court  will  take  judicial  notice  that  the  per- 
son whose  name  was  signed  to  the  jurat  was  clerk  of  that  court. 

Dyer  vs.  Last,  51  111.  179. 
The  court  will  take  judicial  notice  of  the  official  capacity  of  the 
signer  of  an  ofiicial  document,  even  though  such  official  capacity 

is  not  indicated  by  the  writing. 

People  vs.  Paulson,  146  App.  534. 
Courts  of  Illinois  will  take  judicial  notice  that  the  law  author- 
izes the  appointment  of  a  deputy  clerk  for  the  circuit  court  of 

the  United  States. 

Sullivan  vs.  Ahlgren,  157  App.  123. 


JUDICIAL  NOTICE  751 

—  Grand  Jury:     Judicial  notice  will  not  be  taken  of  voluntary 

report  of  grand  jury. 

Chi.  W.  &  V.  Coal  Co.  vs.  People,  214  111.  421. 

—  Justice  of  Peace:  As  to  who  are  justices  of  the  peace  in  a 
county  is  a  matter  of  which  the  court  will  take  judicial  notice  un- 
less that  is  a  question  particularly  in  issue. 

Gilbert  vs.  Natl.  Cash  Eeg.  Co.,  176  111.  288;  Grimm  vs.  Anderson, 
42  111.  514;  McFarland  vs.  People,  13  111.  9;  Irving  vs.  Brownell, 
11  111.  403;  XII.  Notes,  472,  §  2. 

But  not  that  a  person  is  a  justice  of  the  peace  or  a  sheriff  un- 
less he  assumes  to  act  as  such,  when  a  presumption  is  raised  that 

he  is  the  officer  he  pretends  to  be. 

Weber  vs.  Mick,  131  111.  520;  Chambers  vs.  People,  5  111.  351. 

Nor  that,  by  the  laws  of  another  state,  a  justice  of  the  peace 

has  authority  to  take  acknowledgments  to  deeds. 
Buckmaster  vs.  Job,  15  III.  328. 

Nor  will  circuit  court  of  one  county  take  judicial  notice  of  the 

official  character  of  justice  of  peace  of  other  counties. 
Weber   vs.   Mick,    131    111.   520. 

—  Notary  Piihlic:     Courts  will  take  judicial  notice  of  notaries 

public  within  own  county. 

Cox  vs.  Stern,  170  111.  442;  Schaefer  vs.  Kienzel,  123  111.  430. 

Where  acknowledgments  are  taken  by  notary  public   using  a 

seal,  proof  of  official  character  and  authority  is  not  required. 
Eamsey  vs.  People,  197  111.  594;  Harding  vs.  Curtis,  45  111.  252. 
The  official  seal  and  jvrat  of  a  foreign  notary  are  not  prima 
facie  evidence  of  his  authority  to  administer  oaths,  if  jurat  con- 
tains nothing  as  to  such  authority. 

Desnoyers  Shoe  Co.  vs.  Natl.  Bank,  188  111.  312;   Trevor  vs.  Colgate, 
181  111.  129;  Ferris  vs.  Com.  Natl.  Bank,  158  111.  237. 
County   court  will   take   judicial   notice   that   a  notary   before 
whom  a  certificate  of  publication  of  delinquent  list  is  sworn  to  is 
a  notary  of  the  county,  no  venue  being  stated  in  the  jurat. 
Hertig  vs.  People,  159  111.  237. 

—  Signatures:  In  some  cases  courts  will  take  notice  of  the  sig- 
natures of  the  civil  officers  in  the  county  in  which  it  sits. 

Dire  vs.  Flint,  21  111.  80. 

The  signature   of  a  public  officer  in  official  capacity  will  be 

officially  noticed,  though  such  official  capacity  not  indicated  by 

the  writing. 

People  vs.  Paulson,  146  App.  534. 

Proof  of  execution  of  official  instruments  is  not  always  neces- 
sary. As  a  general  rule,  courts  take  judicial  notice  of  the  pub- 
lic'officers,  and  in  some  cases  of  their  signatures,  within  their 
respecive  jurisdictions,  and  when  the  trial  court  in  such  cases  acts 
upon  such  judicial  notice,  this  court  will  presume,  in  absence  of 
evidence  to  contrary,  that  it  acted  properly. 
Walcott  vs.  Gibbs,  97  111.  118. 

Records : 

Courts  will  take  notice  of  their  o-wn  records. 

Waterbury  Natl.  Bank  vs.  Eeed,  231  111.  246;  Bank  of  Eau  CTaire  vs. 
Eeed,  232  111.  238;  Taylor  vs.  Adams,  115  111.  570;  XII  111.  Notes, 
473,  §  4. 
And  this  though  one  cause  is  in  equitj''  and  the  other  at  law. 
Taylor  vs.  Adams,  115  111.  570. 


752  JUDICIAL  NOTICE 

So  a  court  will  take  judicial  notice  of  a  bond  on  file  in  the 
court  in  which  action  was  being  prosecuted. 
People  vs.  Ackennan,  146  App.  'M)l. 

In  consideration  of  a  petition  which  refers  to  a  former  order 
of  the  court,  recites  the  steps  taken  to  carry  it  into  effect,  and 
prays  for  a  further  step  in  its  enforcement,  it  will  be  presumed,  on 
appeal,  that  the  court  took  notice  of  its  own  records,  in  regard 
to  what  had  previously  been  done,  and  that  such  records  were  be- 
fore the  court  at  the  hearing. 

Bailey  vs.  Kerr,  ISO  111.  412;  Eobinson  vs.  Brown,  82  111.  279. 

The  court  will  not  go  outside  the  record  in  a  case  and  refer  to 
the  record  or  its  memory  of  a  former  litigation  to  the  prejudice 

of  the  parties. 

Magloiighlin  vs.  Clark,  35  App.  251. 

A  petition  on  file  for  removal  of  a  cause  to  Federal  Court  may 
be  judicially  noticed. 

McNulty  vs.  Lockeriflge,  32  App.  86. 
Court  will  take  judicial  notice  of  its  own  records  to  ascertain 
whether  error  assigned  was  assigned  on  a  former  appeal. 
Jackson  vs.  Glos,  240  111.  3S8. 
And  upon  motion  to  strike  from  the  files  a  certificate  of  evi- 
dence, that  it  was  never  presented  or  filed. 
Sochrist  vs.  Petty,  109  111.  188. 
Courts  will  take  judicial  notice  of  the  various  steps  which  have 

been  taken  in  a  cause. 

Bailey  vs.  Kerr,  180  111.  412. 

Judicial  notice  will  be  taken  of  matters  constituting  a  part  of 

the  record  in  a  cause. 

Pavlisek  vs.  Roessler,  121  App.  219. 

And  of  the  records  in  a  particular  cause  on  trial,  but  not  of  a 

judgment  in   another  cause  or  of  an  execution  and  its  return, 

until  produced. 

Bank  of  Montreal  vs.  Taylor,  86  App.  388. 

Judicial  notice  is  taken  by   Appellate   Court   of  condition   of 

record  filed  in  that  court  in  former  appeal. 
World's  Col.  Exp.  vs.  Lehigh,  94  App.  433. 

Orders  and  Actions: 

Court  will  take  notice  of  its  own  orders  and  actions. 

Ferriman  vs.  People,  128  App.  230. 
And  of  its  own  official  acts  in  the  progress  of  a  cause. 

Dines  vs.  People,  39  App.  505. 
But  it  is  only  of  such  acts  as  properly  may  go  upon  the  record ; 
such  acts  only  as  can  be  recorded  as  official.     Tne  court  cannot 
thus  take  notice  that  a  certain  person  was  present  when  a  par- 
ticular order  was  made  and  so  must  have  known  its  conditions, 
such  knowledge  being  personal  and  not  judicial. 
Dines  vs.  People,  39  App.  565. 
And  cannot  judicially  notice  orders  where  party  to  be  bound  is 

not  party  to  record. 

Sachs  vs.  Sachs,  181  App.  342. 
The  court  cannot  take  notice  that  parties  to  a  certain  proceed- 
ing have  been  divorced,  although  itself  the  court  that  pronounced 

the  decree. 

Streator  vs.  Streator,  43  111.  155. 


JUDICIAL  NOTICE  753 

The  regular  terms  of  the  circuit  court  are  fixed  by  law,  and 
judicial  notice  may  be  taken  thereof  to  ascertain  whether  an  act 
was  done  in  term  or  vacation. 

Buckles  vs.  Northern  Bank.  08  111.  208. 
Appellate  Court  will  take  .judicial  notice  of  jurisdictional  de- 
fects in  transcript  from  municipal  court. 
Hasselgren  vs.  Esser,  152  App.  7. 
The  municipal  court,  as  custodian  of  the  records  of  justice  of 

peace,  will  take  judicial  notice  thereof. 

Joerg  vs.  A.  T.  &  S.  F.  Ry.  Co.,  152  App.  229. 

Counties  Composing-  Judicial  District : 

Judicial  notice  will  be  taken. 

Moutrav  vs.    People,   162   111.   194. 

MISCELLANEOUS. 

Abbreviations : 

Court  will  not  take  judicial  notice  of  meaning  of  C.  0.  D. 

A.  M.  IT.  Express  Co.  vs.  Wolfe,  79  111.  4.".0. 
Nor  of  "f.  0.  b.,"  but  parol  may  be  permitted  to  explain  mean- 
ing. 

Con.  Coal  Co.  vs.  Schneider,  163  111.  393. 

But  may  of  "pt. "  for  part,  etc.,  in  judicial  proceedings  for  sale 

of  real  estate  for  taxes. 

Blakely  vs.   Bestor,   13   111.   709. 

Also  "c,"  "ct."  or  ^'cts."  for  cents,  ''m."  for  mills,  "tx." 
for  tax,  "vl."  for  valuation,  and  ''$"  for  dollars. 
Jackson  vs.  Cunnnings,  15  111.  449. 
And  "W.  side"  as  meaning  west  side  of  a  piece  of  land. 

Taylor  vs.  Wright,  121  111.   455. 
So  "pt.  S.  E.  1/4  S.  of  T.  P.  &  W.  R.  R."  has  been  held  to  mean 
''all  that  part  of  the  South  east  Quarter  lying  south  of  the  To- 
ledo, Peoria  and  Western  Railroad." 
Sholl  Bros.  vs.  People,  194  111.  24. 
And  of  meaning  of  "Sec."  and  numbers  in  real  estate   con- 

yeyances. 

McChesney  vs.  City  of  Chicago,   173  111.  75;   Kile  vs.  Town  of  Yel- 
lowhead,  80  111.   208;   Paris  vs.  Lewis,   85  111.   597. 
And  in  fee  bill,  abbreviations  as  "app.,"  "atty.,"  "fil.,"  "doc," 

"ret,"  "sat.,"  "tind." 

Myers  vs.   Shoneman,  90  111.  80. 
"Int.  a.  6%  p.  a."  has  been  held  to  mean  "interest  at  6  per 

cent  per  annum." 

Belford   vs.   Beatty,   145   111.   414. 
Judicial  notice  has  been  taken  that  "ads."  meant  "ad  sect  am" 

or  "at  the  suit  of." 

Bowen  vs.   Wilcox,   86   111.   11. 

That  "N.  P."  are  characters  in  common  use  and  mean  "No- 
tary Public." 

Eowley  vs.  Berrian,  12  111.  198. 

That  "J.  P."  is  an  abbreviation  for  "Justice  of  the  Peace." 

Shattuck  vs.  People,  5  111.  478. 
That  "b.  of  e."  in  connection  in  which  used,  meant  "bill  of 

exceptions." 

Metzger  vs.  Motley,  197  111.  208. 

Ev.— 4  8 


754  JUDICIAL  NOTICE 

But  not  as  to  meaning  of  abbreviations   in   entry   of   alleged 

judgment. 

stein  vs.  Myers,  253  111.  199;  City  of  Chicago  vs.  Mitchell,  256  111. 
236. 

Accidents : 

Evidence  is  not  necessary  to  prove  that  the  breaking  of  harness 

or  vehicles  is  an  accident  liable  to  occur,  it  being  a  matter  of 

common  knowledge. 

City  of  Joliet  vs.  Shufeldt,  144  lU.  403. 

Animals : 

Court   has  taken   judicial   notice   of  frightening   of   cattle   by 

sight  and  sound  of  train. 

St.  L.  V.  &  T.  H.  Ey.  Co.  vs.  Hurst,  25  App.  181. 
But  has  declined  to  judicially  notice   management  of  horses, 

refractory  or  otherwise. 

Chi.  St.  Ry.  Co.  vs.  Smith,  54  App.  415. 

Apartment  Houses: 

A  building  of  several  stories,  and  called  "flats,"  occupied  by 
several  tenants,  having  a  passenger  elevator,  a  janitor,  an  engi- 
neer and  an  elevator  boy  may  be  assumed  to  be  an  apartment 

house. 

Fisher  vs.  Janseu,  30  App.  91. 

Brokers : 

There  is  no  statute  requiring  a  license  of  real  estate  brokers, 
and  courts  can  only  take  notice  that  there  is  an  ordinance  re- 
quiring such  license,  by  pleading  or  proof  of  such  fact. 

Munsen  vs.  Fenno,  87  App.  655. 

Business  Usages: 

—  Banks:  The  court  will  take  judicial  notice  of  some  com- 
mon customs,  while  others  must  be  proven  as  matters  of  fact. 
Where  a  custom  is  so  universal  and  of  such  antiquity  that  all 
men  must  be  presumed  to  know  it,  courts  will  take  judicial  notice 
of  it.     Of  such  is  the  custom  of  bankers  in  allowing  depositors  to 

check  out  their  funds  in  parcels. 
Munn  vs.  Birch,  25  111.  35. 

And  that  banks  close  before  a  certain  hour  in  the  afternoon. 
Barton  vs.  People,  35  App.  573. 

But  not  of  the  time  stores  and  offices  close  in  small  village. 

Markey  vs.  Griffin,  109  App.  212. 

—  Travelling  Salesmen :  The  court  will  take  notice  of  the  gen- 
eral course  of  business,  that  when  one  is  employed  as  a  travelling 

salesman,  some  provision  is  made  as  to  travelling  expenses. 
Berriman  vs.  Marvin,  59  App.  440. 

.  — Market  Priee:     That  wholesale  price  is  less  than  retail. 

Wenrlnagel  vs.  Houston,  155  App.  664. 

That  in  purchase  of  grain,  the  last  available  quotation  gov- 
erns. 

Nash  vs.  Classen,  163  111.  409. 

Calendar : 

Courts  take  judicial  notice  of  the  calendar  and  of  the  course 

of  heavenly  bodies. 

Fuller  vs.  P.  &  P.  TJ.  Ey.  Co.,  164  App.  385. 
And  of  the  day  of  week  on  which  particular  date  fell. 
Hines  Lbr.  Co.  vs.  Eeam,  64  App.  608. 


JUDICIAL  NOTICE  755 

Cement : 

Courts  will  take  judicial  notice  of  the  chemical  and  mechanical 

construction  of  cement. 

City  of  Chicago  vs.  Gage,  237  111.  328. 

Census : 

Of  the   Federal   Census,   in   determining   a  question   involving 
the  number  of  inhabitants  in  cities  within  their  jurisdiction. 
C.  &  A.  Ey.  Co.  vs.  Baldiidge,  177  111.  1^29. 

And  of  the  counties  of  the  state. 

People  vs.  I.  C.  R.  E.  Co.,  237  111.  324;  Worchester  Bank  vs.  Cheney, 
9-4  111.  430. 

Chicago  City  Directory: 

Appellate  court  will  take  judicial  notice  that  Chicago  city  direc- 
tory is  never  published  before  IMay  each  year. 

Brown  vs.  Follett,  88  App.  489. 

Church  Societies: 

Court  will  take  judicial  notice  that  there  are  church  societies 

in  existence  that  are  unincorporated. 

Alden  vs.  St.  Peter's  Parish,  158  111.  631. 

But  not  of  the  existence  or  non-existence  of  local  religious  so- 
cieties— such  facts,  in  order  to  be  entitled  to  consideration,  must 

be  proven. 

St.  Paul's  Parish  vs.  E.  St.  Louis,  245  111.  470. 

It  is  a  matter  of  common  knowledge  that  most  all  religious 
denominations  maintain  missions  or  missionary  societies  for  the 
advancement  of  the  cause  of  religion. 

Hitchcock  vs.  Bd.  of  Home  Missions,  259  111.  288. 

Cigarettes : 

Court  will  take  notice  that  cigarettes  are  made  of  tobacco  rolled 

with  small  pieces  of  tissue  paper. 

Kappes  vs.  City  of  Chicago,  119  App.  436. 

Common  Carrier: 

The  court  will  take  notice  that  the  owner  of  an  omnibus  line  is 
a  common  carrier  of  passengers  and  their  baggage. 
Parnielee  vs.  McNulty,  19  111.  556. 

Common  Knowledge: 

Judicial  notice  will  be  taken  of  matters  of  common  knowledge. 

Pierce  vs.  Coryn,  139  App.  445. 
Courts  will  take  notice  of  whatever  ought  to  be  generally  known 
within  the  limits  of  their  jurisdiction. 

Stein  vs.  Myers,  253  111.  199. 
And  take  judicial  notice,  as  judges,  of  what  is  known  as  men. 

Richie  vs.  Waynian,  244  111.  509. 

Concrete : 

Of  meaning  of  term  ''concrete"  as  used  with  reference  to  im- 
provements. 

Gage  vs.  City  of  Chicago,  201  111.  93. 

Corporations : 

—  Puhlic:     Judicial  notice  will  be  taken  of  incorporation  by 

public  statute. 

Spaulding  vs.  People,  172  111.  40. 

—  Private:     A  court  cannot  take  judicial  notice  that  a  private 

corporation  has  a  seal. 

I.  C.  E.  E.  Co.  vs.  Johnson,  40  111.  36. 


756  JUDICIAL  NOTICE 

Where   charter  of  a  private  eoi-poration   is  declared  to  be  a 
public  act,  the  court  will  take  judicial  notice  of  its  provisions. 
P.  D.  &  E.  Ry.  Co.  vs.  People,  116  111.  401. 

—  Foreign :     Judicial  notice  will  not  be  taken  as  to  state  in 

which  party  to  suit  was  incorporated. 

Leigh  vs.  N.  H.  B.  Co.,  131  App.  106. 
Court  will  take  judicial  notice  that  prior  to  1897  many  cor- 
porations were  organized  outside  the  state,  with  intent  of  doing 
business  in  this  state,  thus  depriving  the  state  of  its  fees  and 

power  to  control  them. 

Lehigh  Cement  Co.  vs.  McLean,  149  App.  360. 

Crops : 

Court  will  not  take  notice  of  the  time  when  particular  crops 
mature,  as  they  do  not  mature  at  the  same  time  in  all  places,  nor 
at  the  same  time  at  the  same  places  in  different  seasons. 
Dickison  vs.  Nichols,  39  111.  372. 
Court  will  take  judicial  notice  that  the  rental  value  of  land 
which   is   cropped   does   not  accrue  until   its   crops   mature,   and 
that  the  time  of  maturity  is  later  than  June. 
Dunbar  vs.  Dunbar,  168  App.  142. 

Customs : 

—  Old  mid  General:  Where  a  custom  is  so  old  and  general  that 
all  men  are  presumed  to  know  it,  courts  will  notice  it  judicially. 

Munn  vs.  Birch,  25  111.  3.5. 

—  Purchase  of  Grain:  The  court  will  take  notice  of  the  usual 
and  customary  manner  in  which  general  commercial  business  is 
carried  on,  and  that  in  the  purchase  of  grain  or  other  commodity, 
the  purchaser,  as  a  rule,  is  governed  by  the  last  available  quota- 
tion. 

Nash  vs.  Classem,  163  111.  409. 

Drainage : 

May  take  notice  of  such  inferences  or  presumptions  raised  from 
facts  proved  or  admitted,  as  are  warranted  by  uniform  experience. 
Hicks  vs.  Silliman,  93  111.  255. 

May  notice  consequences  known  to  result  from  the  laws  that 
govern  matter.  It  may  thus  notice  that  surface  water,  collected 
by  ditches  and  embankments  on  the  land  of  one  person,  and  de- 
posited upon  the  lower  land  of  another,  will  flow  upon  the  sur- 
rounding heritage  in  undue  and  unnatural  quantities. 

And  where  it  appears  that  the  land  upon  which  the  water  is 

thus  thrown  is  already  so  wet  as  to  be  barely  fit  for  cultivation, 

and  is  without  drainage,  court  will  notice  that  the  land  will  be 

thereby  injured. 

Hicks  vs.  Silliman,  93  111.  255. 

Dynamite : 

That  explosions  of  dynamite  are  dangerous. 

Chicago  vs.  Murdock,  212  111.  9;  FitzSimmons  vs.  Braun,  199  111.  390. 

Exchange : 

The  court  cannot  take  judicial  notice  of  the  rate  of  exchange 

between  certain  places. 

Lowe  vs.  Bliss,  24  111.  168. 


JUDICIAL  NOTICE  757 

Foreign  Court: 

It  is  the  duty  of  the  court  to  take  same  notice  that  the  supreme 
court  of  another  state  has  jurisdiction  of  subject  matter  and  of 
the  regularity  of  its  proceedings,  that  it  would  take- of  a  domestic 
judgment. 

Bay  vs.  Hubert,  17  111.  572. 

Former  Testimony: 

Judicial  notice  may  be  taken  by  court  of  testimony  given  by 
witness  on  former  trial,  whose  absence  is  made  basis  for  motion 
for  continuance. 

Stringam  vs.  Parker,  159  111,  304. 

Gaming- : 

A  building  or  yard  used  for  purpose  of  book-making  or  pool- 
selling  is  used  for  purpose  of  gaming,  and  court  will  take  judicial 
notice  of  that  fact. 

Swiffart  vs.  People,  50  App.  181. 

Geographical  Facts: 

—  In  General:  Courts  will  take  judicial  notice  of  the  geo- 
graphical features  of  Illinois,  and  other  states,  so  far  as  the  same 
may  be  fairly  presumed  to  be  within  the  general  knowledge  of 
persons  of  ordinary  intelligence  living  in  Illinois. 

Sublette  Bank  vs.  FitzGerald,  168  App.  240. 

—  Division  of  State  into  Counties:  Court  will  take  notice  of 
the  division  of  state  into  counties. 

Gooding  vs.  Morgan,  70  111.  275 ;  Harding  vs.  Strong,  42  111.  148. 

And  that  a  particular  town  is  in  a  certain  county. 

People  vs.  Suppiger,  103  111.  434. 

That  a  particular  city  of  the  state  is  in  a  certain  county. 

Sullivan  vs.  People,  122  111.  385. 

—  Residence  of  Litigants:  Court  will  take  judicial  notice  of 
the  geography  of  the  country  and  of  the  distance  of  the  residence 
of  a  party  to  place  of  holding  court, 

Brusou  vs.  Clark,  151  111.  495. 

"Where  notice  is  given  the  day  before  the  trial  to  produce  a 
paper  which  is  eighty  miles  distant,  in  the  control  of  anotlier  per- 
son, court  will  not  take  judicial  notice  that  the  paper  could  not 

have  been  obtained  and  so  exclude  secondary  evidence. 
Cody  vs.  Hough,  20  111.  43. 

Geological  Formations: 

That  the  veins  of  coal  in  its  jurisdiction  are  immediately  over- 
laid with  a  stratum  of  slaty  rock. 

Con.  Coal  Co.  vs.  Seheller,  42  App.  619. 

Government  Regulations : 

Courts  will  take  judicial  notice  of  government  regulations. 
Wabash  E.  E.  Co.  vs.  Campbell,  219  111.  312. 

History : 

—  Boer  War:  Judicial  notice  will  be  taken  of  the  years  dur- 
ing which  the  Boer  war  progressed. 

Dowie  vs.  Sutton,  227  111.  193. 

—  World's  Fair:  That  "World's  Columbian  Exposition,"  was 
held  in  Chicago,  need  not  be  proven,  since  that  fact  is  historical 

and  of  such  notoriety  that  the  court  will  take  judicial  notice  of  it. 

McCoy  vs.  Columbian  Exposition,  186  111.  356. 


758  JUDICIAL  NOTICE 

Horse  Racing: 

The   court  will  take  notice  judicially   that  horse-racing  is  an 
exhibition,  a  performance  and  an  entertainment. 

Weber  vs.  City  of  Chicago,  50  App.  HO. 

Injury  and  Pain: 

No  proof  is  necessary  that  the  loss  of  an  arm  will  interfere  with 

ordinary  business  and  cause  pain. 

Fisher  vs.  Jansen,   128  111.  549:    Chi.  City  Ey.  Co.  vs.  Warner,  108 
111.  538. 
Court  will  take  judicial  notice  that  pain  and  suffering  follow 
serious  surgical  operation. 

Pratt  vs.  Davis,  224  111.  300. 

Laboring  Class: 

Court  will  take  judical  notice  that  employees  in  mines  and  fac- 
tories compose  but  part  of  laboring  class. 
Frorer  vs.  People,  141  111.  171. 

Law  Merchant: 

The  law  merchant  is  a  part  of  the  common  law  and  as  such 
it  will  be  judicially  noticed  by  the  courts. 
Cook  vs.  Eenuick,  19  111.  598. 

Life  Tables: 

Courts  take  judicial  notice  of  standard  life  tables. 

Marshall  vs.  Marshall,  252  111.  568 ;  Wain  vs.  C.  C.  C.  &  St.  L.  Ey.  Co., 
239   111.   132;    Henderson  vs.   Harness,   184  111.   520. 

Market  Value: 

It  is  a  matter  of  common  knowledge  of  which  court  must  neces- 
sarily notice  that  there  is  probably  no  article  of  merchandise 
bought  and  sold  in  the  market  in  both  large  and  small  quantities 
but  that  the  price  is  less  when  purchased  in  larger  quantities.  _  The 
line  of  demarcation,  however,  between  the  lesser  and  higher 
prices,  is  not  a  matter  of  common  knowledge. 
Weudnagel  vs.  Houston,  155  App.  664. 

Names : 

The  court  cannot  judicially  notice  the  equivalents  of  names  of 

persons  in  another  language. 

Becker  vs.  German  Fire  Ins.  Co.,  68  111.  412. 
It   cannot,    for   instance,   know   that   Wilhelm    is   the    German 

equivalent  for  AA^illiam. 

Becker  vs.  German  Fire  Ins.  Co.,  68  111.  412. 

Nor  that  Bart,  is  a  contraction  for  Bartholomew. 

Rives  vs.  Mars,  25  111.  33  5. 
May   take   notice   of   the   ordinaiy   abbreviations   of    Christian 
names,  as  Jos.  as  a  common  abbreviation  for  Joseph. 

Feia  vs.  Loftns,  240  111.  3  0.5. 
But  not  of  sex  from  use  of  initials. 

People  vs.  Martin,  180  App.  578. 

Nuisance : 

The  courts  will  take  notice  that  residence  property  is  rendered 
less  valuable  by  the  erection  of  coal  sheds  in  the  neighborhood, 
filling  the  air  with  dust  and  smoke,  disturbing  the  quiet  with  the 
noise  of  machinery,  ears,  steam  whistles,  and  the  like,  and  increas- 
ing the  risk  of  fire  by  the  accumulation  of  large  quantities  of 

combustible  substances. 

Wylie  vs.  Elwood,  34  App.  244. 


JUDICIAL  NOTICE  759 

Odors  and  Smells: 

The  court  will  take  judicial   notice  of  the  laws  of  nature,  as 

that  odors  dift'use  themselves  in  the  cireuuiarnbient  atmosphere. 
Fairbanks  vs.  Nicholai,  66  App.  637, 

Quarantine  Law: 

And  of  requirements  of  Federal  quarantine  law. 
Wabash  E.  K.  Co.  vs.  Campbell,  117  App.  630. 

Physics : 

Judicial  notice  taken  of  matters  of  science  such  as  the  laws  of 
gravitation,  h,ydraulics  and  mechanics. 
Hicks  vs.  Silliman,  93  111.  255. 

Post  Offices: 

—  licguhition:  The  court  will  take  notice  of  general  postal 
regulations. 

Buehler  vs.   Gait,  35  App.   225. 

—  /;;   Certain  Places:     But  not  that  a  post  office  is  or  is  not 

established  in  a  particular  place. 

Malaer  vs.  Damron,  31  App.  572. 

—  Mail  Transportation:'  The  court  will  take  judicial  notice  of 
ordinary  course  of  post  and  time  in  which  a  letter  mailed  will 
reach  destination. 

Katl.  Ace.  Assu.  vs.  Seed,  95  App.  43. 

Race  Prejudice: 

Will  not  take  judicial  notice  that  there  is  an  existing  prejudice 
against  the  Hebrew  race. 

Hoxie  vs.  Pfalzer,  167  App.  79. 

Railroads : 

—  Existence :  The  existence  of  a  railroad  is  not  a  fact  of 
which  courts  take  judicial  notice,  but  when  such  fact  is  brought 
in  issue,  it  must  be  averred  and  proven. 

Goodman  vs.  People,  228  111.  154;  Cf.  Sublette  Bank  vs.  FitzGerald, 
168  App.  240. 

—  Fencing:  Court  will  not  take  judicial  notice  that  railroads 
are  fenced  as  built. 

C.  &  M.  Elec.  Co.  vs.  Diver,  213  111.  26. 

—  Route:     Nor  of  the  route  of  a  railroad. 

L.  P.  &  B.  Ey.  Co.  vs.  Cald^vell,  38  111.  280. 

—  Transportation  of  Grain:  Courts  will  take  judicial  notice 
that  railroad  method  of  transportation  of  grain  is  in  cars. 

A.  T.  &  S.  F.  Ey.  Co.  vs.  People,  128  App.  38. 

And  that  grain  coming  to  Chicago  by  any  railroad  may  be 
readily  switched  by  means  of  belt  roads  to  any  warehouse  in  any 
part  of  the  city. 

People  vs.  I.  C.  E.  E.  Co.,  233  111.  378. 

—  Management  and  Conduct:  And  the  manner  in  which  ordi- 
nary railroad  business  is  conducted,  and  that  a  "clearance"  as  the 
term  is  commonly  used  by  railroad  men  is  a  letter  given  to  an  em- 
ploye on  quitting  the  service  of  the  company,  showing  voluntary 
quittance,  or  the  cause  of  discharge,  his  length  of  service,  capacity, 
etc.,  and  that  it  is  not  necessarily  a  letter  of  recommendation. 

McDonald  vs.  I.  C.  E.  E.  Co.,  187  111.  529;  P.  Ft.  W.  &  C.  Ey.  Co.  vs. 
Callaghan,  50  App.  676. 

Courts  will  take  judicial  notice  of  the  way  in  which  ordinary 


760  JUDICIAL  NOTICE 

railroad   business   is   conducted,   and   of   the   every-day   practical 

operation  of  the  road. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Jenkins,  174  111.  398. 
That  freight  cars  belonging  to  different  companies  are  inter- 
changeably used  on  the  principal  railroads  in  the  United  States. 
State  vs.  I.  C.  E.  E.  Co,  246  111.  188. 
And  a  more  or  less  of  an  oscillating,   jerking  motion   is  inci- 
dent to  the  running  of  trains. 

C.  B.  &  Q.  Ey.  Co.  vs.  Hazard,  26  111.  37.3. 
And  of  necessity  for  fast  trains  on  through  lines. 
C.  &  N.  W.  Ey.  Co.   vs.  Weeks,   99   App.  .518. 

—  Ownership:     Of  the  initials  of  the  operating  railroad  com- 
panies. 

Eyan  vs.  B.  &  O.  Ey.  Co.,  60  App.  612. 

—  Trespassers:     Judicial  notice  not  taken  that  a  brakeman  has 

authority  to  eject  a  trespasser. 

I.  C.  E.  E.  Co.  vs.  King,  179  111.  91. 

—  Freight  Bates:     Judicial  notice  not  taken  of  official  classi- 
fication  of   freight   rates   made   under  the   Interstate    Commerce 

Act. 

Warren  vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  156  App.  111. 

Seal  of  State: 

Judicial  notice  will  be  taken  of  seal  of  state. 
C.  &  A.  Ey.  Co.  vs.  Keegan,  152  111.  413. 

Seasons : 

Courts  take  judicial  notice  that  in  certain  seasons  of  the  year, 
and  in  certain  localities  there  is  a  heavy  rainfall  and  a  liability  to 

freshets. 

Elzer  vs.   Gross  Point,   223   Til.   241;    Contra,   Dixon   vs.   Nicholl,   39 
111.   372. 
That  5  o'clock,  July  23  is  about  two  hours  before  sunset. 

Falkinau  Cons.  Co.  vs.  Gihley,  131  App.  399. 
And  of  the  absence  of  daylight  at  a  given  time  of  day  in  a 
particular  month. 

Lacon  vs.  So.  Side  El.  Ey.  Co.,  148  App.  268. 
That  the  sun  sets  later  at  a  point  west  than  one  further  east, 
is  a  fact  of  which  the  court  may  take  judicial  notice. 
People  vs.  Town  of  Bishop,  11   111.  124. 
The  court  will  take  judicial  notice  of  the  seasons  and  that  in 

winter  the  days  are  comparatively  short. 

Pritchart  vs.  Walker,  22  App.  286;  C,  B,  &  Q.  Ey.  Co.  vs.  Kennedy, 
22  App.  308. 

Soil  Conditions: 

Judicial  notice   will  be  taken  of  soil  conditions  within  terri- 
torial jurisdicton. 

City  of  Chicago  vs.  Duffy,  117  App.  261. 

Streams : 

—  Navigable :     A  court  of  equity  will  take  judicial  notice  of 

a  navigable  river  and  its  tributaries  and  feeders,  and  of  the  fact, 

notwithstanding  such  river  is  the  natural  outlet  for  drainage  from 

surrounding  territory,   and  receives  large  quantities  of  sediment 

and  debris  from  its  tributaries,  its  navigability  is  not  necessarily 

destroyed  thereby. 

Canal  Comrs.  vs.   E.  Peoria,   179   111.   214;    Cf.   People  vs.   Board  of 
Supervisors,  122  App.  40. 


JUDICIAL  NOTICE  761 

That  the  Chicago  River  is  situated  in  the  midst  of  the  city 
where  a  dense   popidalion   exists,   and  near   which  much  of  the 

business  of  the  city  is  transacted. 

Harmon  vs.  City  of  Chicago,  110  111.  400. 
That  the  north  branch  of  the  Chicago  River,  across  which  ex- 
tends the  bridge  at  or  near  Kinzie  Street,  is  a  navigable  stream. 
Wice  vs.  C.  &  N.  W.  Ey.  Co.,  93  App.  266. 
—  Flotv   and  Effect:     That  a  particuLar  creek,   in  its  natural 
channels,  flows  into  a  particular  river  in  the  state  at  a  particular 

place. 

Canal  Conirs.  vs.  E.  Peoria,  75  App.  450. 

And   that   there   it   empties   its   waters   and   the  waters   of   its 

tributaries,   with   all   the   accompanying  sand   and  other   alluvial 

matters. 

Canal  Comrs.  vs.  E.  Peoria,  75  App.  450. 
And  that  the  deposit  there  of  all  such  matter,  as  in  the  natural 
course  of  facts,  never  totally  prevents  navigation. 
Canal  Comrs.  vs.  E.  Peoria,  75  App.  450. 

Sunday : 

Courts  cannot  take  judicial  notice  that  Sunday  is  specially  ob- 
served in  another  state. 

Zipp  vs.  Uhlaud  Ilaiu,  30  App.  280. 

Telegraph  Message: 

Judicial  notice  will  be  taken  that  telegraph  messages  are  writ- 
ten. 

People  vs.  West.  Union  Tel.  Co.,  166  111.  15. 

Value : 

The  court  will  take  judicial  notice  that  property  consisting  of 

real  estate  and  chattels  has  a  value. 

Seliroeder  vs.  Traders'  Ins.  Co.,  109  111.  157. 

Of  general  rise  in  the  value  of  farm  lands  in  the  state. 
Zinzer  vs.  San.  Dist.,  175  App.  9. 

Weapon : 

Notice  will  be  taken  that  a  pistol  or  a  hoe,  used  for  the  purpose 
of  assault,  is  a  deadly  w'eapon. 

Hamilton  vs.  People,  113  111.  34. 

Whiskey : 

Courts  will  take  judicial  notice  that  whiskey  is  both  spirituous 

and  intoxicating. 

IlitcdicoL-k  vs.  Village  of  Princeville,  84  App.  59. 

JUDICIAL  NOTICE  DEFINED. 

The  duty  or  power  of  the  court  to  accept,  for  the  purposes  of  the 
trial,  the  truth  of  certain  well  known  facts,  without  requiring  proof. 

That  judicial  knowledge  of  a  fact  as  a  rule  of  evidence  which  dis- 
penses with  the  necessity  of  offering  proof  as  to  such  fact. 

Citv  of  Chicago  vs'.  Williams,  254  111.  360. 

NECESSITY  OF  PROOF. 

Facts   of   which   the    courts   take   judicial   notice   need   not   be 

proved.     The  court  of  its  own  motion  will  advise  itself,  so  as  to 

verify  matters  of  which  it  is  required  to  take  judicial  notice. 

Vahle  vs.  Brackenseik,  145  111.  231 ;  Seehrist  vs.  Petty,  109  111.  188. 


762  JURORS 

JURORS 

See  New  Trial,  Former  AdjudiCx\.tion,  Former  Testimony, 
Grand  Jurors,  GrxUs^d  Jury. 

JUSTICES  OF  PEACE 

Judicial  Notice: 

Courts  will  not  take  judicial  notice  of  who  are  justices  of  the 

peace  beyond  the  county  where  court  is  held. 

Michaels  vs.  People,  208  111.  603 ;  Weber  vs.  Mick,  131  111.  520. 

But  will  take  notice  of  who  are  justices  of  the  peace  in  the 
county,  unless  that  question  is  particularly  in  issue. 

Gilbert  vs.  Natl.  Cash  Eegister  Co.,  176  111.  288 ;  Grimm  vs.  Anderson, 
42  111.  514;  McFarland  vs.  People,  13  111.  9;  Irving  vs.  Brownell, 
11  111.  4n.T;  XIT  111.  Notes,  472,  §  2. 

Admissibility  of  Record: 

—  Original  Docket:  The  docket  of  a  justice  of  the  peace  being 
a  book  provided  to  be  kept  by  law,  is  competent  evidence  to  es- 
tablish facts  properly  recited  therein  pursuant  to  law,  and  the 
entries  therein  made  in  the  course  of  a  suit  before  such  justice 

constitute  a  record  which  cannot  be  contradicted  by  parol. 

Downey  vs.  People,  117  App.  591. 
The  statute  which  declares  that  copies  of  proceedings  and 
judgments  before  justices  of  the  peace,  certified  to  by  them,  shall 
be  received  as  evidence  of  such  proceedings  or  judgments,  em- 
braces as  well  proceedings  and  judgments  before  police  magis- 
trates, and  while  the  statute  declares  copies  to  be  evidence,  the 
original  docket,  duly  proven  to  be  such,  is  also  competent  evi- 
dence. 

Willoughby  vs.  Dewey,  54  111.  266;  Comstock  vs.  Gage,  91  111.  328; 
Payne  vs.  Taylor,  34  App.  491. 

A  plea  of  mil  tiel  record  is  technically  inappropriate  to  ques- 
tion the  existence  of  a  justice  court  record. 
Feld  vs.  Loftus,  140  App.  530. 

—  Jurisdiction:     Jurisdiction  of  person  need  not  be  first  shown. 

Willoughby  vs.  Dewey,  54  111.  266 ;  Payne  vs.  Taylor,  34  App.  491 ; 
Cf.  People  vs.  Koehler,  146  App.  541. 

But  jurisdiction  of  subject  matter  must  be  first  shown  to  ren- 
der competent  docket  of  justice  of  the  peace  of  foreign  state. 

Trader  vs.  McKee,  2  111.  558 ;  Cavanaiigh  vs.  Morris,  160  App.  55. 

Where  a  docket  shows  that  the  justice  has  jurisdiction  of  the 
person  and  subject  matter,  nothing  Avill  be  intended  to  be  out 

of  his  jurisdiction  which  does  not  affirmatively  appear  so. 

Thatcher  vs.  Maaek,  7  App.  635. 

—  Parol:  Parol  evidence  is  not  competent  to  show  defendant 
was  not  served  with  summons  in  original  action  before  justice  of 
the  peace. 

Payne  vs.  Taylor.  34  App.  491 ;  Garfield  vs.  Douglas,  22  111.  100. 

But  same  may  be  shown  by  the  original  summons. 
Pardon  vs.  Dwire,  23  111.  572. 

Parol  is  incompetent  to  show  alteration  or  correction  of  record 
of  justice  of  the  peace. 

Saterlee  vs.  Hickman,  38  App.  139;   Thatcher  vs.  Maack,  7  App.  635. 
It  is  not  competent  to  show  by  parol  proof  that  a  justice  of  the 


KIDNAPPING  763 

peace  intended  to  enter  a  different  judgment  than  the  one  he 

recorded  in  his  docket. 

Zimmermann  vs.  Zimmermann,  15  111.  85 ;  Birma  vs.  Muir,  152  App.  505. 

—  Competency  of  Justice:  A  justice  of  the  peace  is  competent 
witness  to  prove  his  docket  and  explain  entries  upon  it,  as  also 

to  identify  causes  and  parties. 

Haven  vs.  Green,  26  111.  252;  People  vs.  Ham,  73  App.  533;  Greenberg 
vs.  People,  125  App.  626. 

—  Notes  of  Magistrate:     The  notes  of  a  magistrate,  taken  on 

the  hearing  of  a  criminal  charge,  and  never  read  to  nor  signed  by 

the  party,  are  not  depositions  and  are  not  evidence  to  impeach 

or  contradict  such  party. 

Schoonover  vs.  Myers,  28  111.  308. 

—  Transcript:  A  recital  in  the  transcript  of  a  replevin  suit 
before  a  justice,  that  an  affidavit  for  the  writ  was  filed  is  evidence 
that  an  affidavit  of  some  sort  was  filed,  and  though  such  recital  is 
not  sufficient  of  itself  to  show  that  the  justice  had  jurisdiction  to 
issue  the  writ,  the  transcript  is  admissible  to  show  an  affidavit  was 
filed,  which  the  justice  held  to  be  sufficient, 

Feld  vs.  Loftus,  240  111.  105. 
On  appeal  from  a  justice,  in  a  proceeding  against  a  garnishee, 
the  transcript  of  proceedings  before  the  justice  is  not  competent 
evidence  to  show  an  indebtedness  from  garnishee. 
C.  &  St.  L.  Co.  vs.  Killenberg,  92  111.  142. 
A  seal  is  not  essential  to  a  valid  transcript  of  a  justice  of  the 

peace. 

Feld  vs.  Loftus,  140  App.  530;  Foster  vs.  People,  121  App.  165. 

A  transcript  of  a  justice  of  the  peace  which  is  not  under  seal  is 
competent  where  such  justice  appears  and  testifies  that  the  same 
was  a  transcript  of  his  docket  and  bears  his  signature, 
Greenberg  vs.  People,  125  App.  626,     (See  Kecords.) 

Certified  Copy  of  Record: 

Eecord  of  a  justice  of  another  county,  to  which  is  attached  a 
certificate  of  justice  of  the  peace,  but  to  which  is  not  attached 
certificate  of  county  clerk  that  officer  was  at  that  time  duly  com- 
missioned justice  of  the  peace,  is  inadmissible. 

Gilbert  vs.  Natl.  Cash  Eegister  Co.,  176  111.  288;  Crossett  vs,  Owens, 
110  111.  378. 

Weig-ht  and  Sufficiency  of  Record : 

An  entry  of  payment  of  a  judgment,  made  by  a  justice  of  the 

peace  who  entered  such  judgment,  is  conclusive  proof  of  the  fact 

of  payment. 

Downey  vs.  People,  117  App.  591. 

KIDNAPPING 

Weig-ht  and  Sufficiency: 

It  will  be  sufficient  to  show  that  the  mind  was  operated  upon 
by  falsely  exciting  the  fears,  by  the  use  of  threats  or  other  undue 
influence  amounting  substantially  to  a  coercion  of  the  will,  as  a 

substitute  for  violence. 

Moody  vs.  People,  20  111.  316. 
It  is  not  necessary  to  prove  some  act  done  toward  obtaining 
ransom  or  circumstances  tending  to  prove  such  act  done. 

People  vs.  Harrison,  261  111.  517. 


764  KNOWLEDGE 

KNOWLEDGE 

See  Fraud,  Fraud  and  Deceit,  Wills,  Intent,  Separate  and 
Similar    Offenses,    Custom    and    Usage,    Animals,    Receiving 
Stolen  Property,  Homicide,  Rewards. 
Presumptions : 

—  In  General :     A  person  cannot  presume  facts  against  his  own 

knowledge. 

Collison  vs.  I.  C.  R.  R.  Co.,  239  111.  5.32. 

—  Of  Law:     Every  person  is  presumed  to  know  the  general  laws 

of  the  state  in  which  he  resides. 

Russell  vs.  Runisey,  35  111.  362 ;  Marshall  vs.  Cook,  38  111.  44. 

And  such  presumption  is  conclusive. 
Kessler  vs.  Kedzie,  106  App.  1. 

—  ^YilJs:     A   testator  is  presumed   to  have  understood   nature 
and  contents  of  his  will. 

Jones  vs.  Abbott,  235  111.  220;  Todd  vs.  Todd,  221  111.  410;  Conipber  vs. 
Browning,  219  111.  429;  Wombacker  vs.  Barthelme,  194  111.  425. 

Irrespective  of  his  ability  to  write. 

Doran  vs.  Mullen,  78  111.  342 ;  Wombaeher  vs.  Barthelme,  194  Til.  425. 

In  construing  a  will,  it  must  be  presumed  that  the  testator  knew 

the  law. 

Nangle  vs.  Mullanny,  113  App.  457. 
And  that  he  had  knowledge  of  the  fact  that  marriage  would 

invalidate  his  will. 

Sloniger  vs.  Sloniger,   161   111.  270. 

—  Contracts:     Law  presumes  possessor  of  document  has  knowl- 
edge of  its  contents. 

Eogan  vs.  Arnold,  135  App.  281. 

—  Promissory  Notes:     Presumption  that  a  party  signing  a  note 
knew  its  contents  before  signing  is  not  conclusive. 

Kingman  vs.  Reinemer,  166  111.  208. 

—  Customs:    Where  a  general  custom  exists,  the  presumption  is 
that  parties  to  a  contract  had  knowledge  of  it  and  contracted  with 

reference  to  it 

Steidtm'an  vs.  Lay  Co.,  234  111.  84;   Taylor  vs.  Bailey,  169  111.  181;. 
Chisholm  vs.  Beaman  Mach.  Co.,  160  111.  101 ;  Dyer  vs.  Sutherland,  75 
111.  583. 
Contracts  are  presumed  to  be  made  with  knowledge  of  and  refer- 
ence to  an  existing  custom  relating  to  trade  in  which  they  were 
made,  if  made  in  ordinary  course  of  business,  without  stipulations 

which  exclude  such  custom. 

Chisholm  vs.  Beaman  Mach.  Co.,  160  111.   101;   Contra,  Corrigan  vs. 
Herrin,  44  App.  363. 
A  party  dealing  in  a  particular  market  is  presumed  to  know 
all  the  customs  of  such  market  bearing  upon  the  transaction  in 

which  he  is  engaged. 

Cothran  vs.  Ellis,  107  111.  413. 
An  alleged  particular  custom  and  method  in  relation  to  the  pre- 
sentation of  drafts,  receipt  of  checks  therefor,  and  retention  of 
same  until  the  following  day,  contrary  to  the  general  custom,  being 
a  particular  or  special  custom,  in  order  to  be  binding,  must  have 
been  actually  known  when  the  draft  was  sent  for  collection. 

Bank  of  Commerce  vs.  Miller,  105  App.  224;  Strong  vs.  King,  35  111.  9. 
(See  Custom  and  Usage.) 


KNOWLEDGE  765 

—  Local  Terms  and  Phrases:     It  will  be  presumed  that  partii^s 

understood  their  meaning  and  employed  them  according  to  tlieir 

local  significance. 

Myers  vs.  Walker,  24  111.  134. 

—  Particideir  Trade:  One  engaged  in  a  particular  trade  is  pre- 
sumed to  know  the  prevalent  customs  of  that  trade. 

Descliler  vs.  Beers,  32  111.  368. 

—  Of  Carrier:  Where  a  caiTier  has  an  established  custom,  one 
who  has  been  in  the  habit  of  shipping  over  the  road  of  such  car- 
rier will  be  presumed  to  have  knowledge  of  the  custom. 

I.  B.  &  Q.  By.  Co.  vs.  Murray,  72  111.  128. 

—  Servant:  Law  does  not  presume  that  servant  has  knowledge 
of  dangers  or  perils  not  obvious  to  the  senses,  and  arising  solely 
out  of  extraordinary  or  exceptional  circumstances. 

McCulloeh  vs.'  111.  Steel  Co.,  243  111.  464. 

—  Memher  Benefit  Society:     Is  conclusively  presumed  to  know 

laws  of  such  societv. 

Benes  vs.  Knights  of  Honor,  231  111.  134. 

How  Shown: 

—  Adverse  Possession:  Proof  that  grantor,  who  had  conveyed 
but  remained  in  possession  of  the  property,  and  was  generally  re- 
puted to  be  the  owner,  is  competent  to  show  notoriety  of  possession, 
knowledge  thereof  by  grantee,  and  that  the  possession  was  under 

claim  of  title. 

Knight  vs.  Knight,  178  111.  553. 

—  Competeneij  of  Employe :     Evidence  of  reputation  of  employe 

is   admissible  to  show   employer   had   knowledge   of   character   of 

employe  as  to  competency. 

Met.  El.  Ey.  Co.  vs.  Fortin,  203  111.  454;  Con.  Coal  Co.  vs.  Seniger,  179 
111.  370;"  Western  Stone  Co.  vs.  Whalen,  151  111.  472;  C.  &  A.  E.  E. 
Co.  vs.  Sullivan,  63  111.  293;  XIII  111.  Notes,  481,  §637. 

And  such  proof  of  general  reputation  is  not  confined  to  method 

in  which  employe  usually  performed  acts  similar  to  one  causing 

injury. 

Met.  El.  Ey.  Co.  vs.  Fortin,  203  111.  4.54. 

—  Dangerous  Cliaracter  of  Machinery:  In  action  to  recover 
damages  caused  by  explosion  of  certain  locomotive  engine,  testi- 
mony of  employees  of  company  using  it,  that  among  them,  such 
engine  had  always  been  considered  unsafe,  is  competent,  for  pur- 
pose of  showing  that  person  having  care  of  the  machinery  of  the 
road  knew  or  might  have  known,  by  reasonable  diligence,  that  it 

was  unsafe. 

C.  &  A.  Ey.  Co.  vs.  Shannon,  43  111.  338. 

—  Fraud:  Similar  transactions  are  competent  to  show  knowl- 
edge of  fraud. 

Allen  vs.  Millison,  72  111.  201. 

—  Defect  of  Animals:  On  question  of  negligent  handling  of 
blind  horse,  proof  that  person  had  been  informed  of  blindness 
admissible. 

Eaney  vs.  Un.  Stock  Yards  Co.,  240  111.  602. 

—  Notice:  Manifestation  of  surprise  on  learning  facts  admis- 
sible where  want  of  notice  in  issue. 

Vigus  vs.  O'Bannon,  118  111.  334. 


766  LARCENY 

Evidence  of  general  understanding  and  of  posters  inadmissible 

to  show  notice  by  railroad  of  crowd  on  excursion. 
C.  &  A.  Ey.  Co.  vs.  Fisher,  31  App.  36. 


LARCENY 

See  Separate  and  Similar  Offenses,  Embezzlement,  Robbery, 
Receiving  Stolen  Property,  Intent,  Possession. 
Defined: 

—  In  General:     It  is  an  essential  element  that  property  of  owner 

has  been  wrongfully  taken  and  carried  away,  or  that  person  accused 

of  larceny  had  knowingly  aided,  abetted,  encouraged  and  advised 

such  wrongful  taking  before  the  actual  theft  of  the  property,  or  at 

the  time  thereof. 

Watts  vs.  People,  204  111.  233 ;  Keating  vs.  People,  160  111.  480, 

Where,  with  intent  to  steal,  a  person  sets  in  motion  any  agency, 
animate  or  inanimate,  with  the  desigTi  of  effecting  a  transfer  of  the 
possession  of  goods  of  another  to  him,  in  order  that  he  may  felon- 
iously convert  the  same  to  his  own  use,  and  which  design  is  success- 
fully accomplished,  a  conviction  may  be  had  upon  a  common  law 
indictment  charging  a  felonious  taking  and  carrying  away  of  the 

goods. 

Aldrich  vs.  People,  224  111.  622. 

—  Accessory  After  Fact:  One  indicted  for  larceny  cannot  be 
convicted  of  being  an  accessory  after  the  fact. 

Watts  vs.  People,  204  111.  233;  Eeynolds  vs.  People,  83  111.  479; 
Gutchins  vs.  People,  21  111.  641. 

—  Infamous  Crime:     Petit  larceny  is  infamous  crime. 

People  vs.  Russell,  245  111.  268;  McLain  vs.  City  of  Chicago,  127  App. 
481. 

—  Receiving  Stolen  Property:  The  offense  of  receiving  or  buy- 
ing stolen  property,  or  aiding  in  concealing  same  for  gain  or  to 
prevent  the  owner  from  repossessing  himself  thereof,  with  the 
knowledge  that  it  has  been  stolen,  is  made  a  substantive  crime  sub- 
ject to  punishment  without  reference  to  trial  or  conviction  of  the 

person  committing  the  larceny. 

Watts  vs.  People,  204  111.  233 ;  Huggins  vs.  People,  135  111.  243. 

—  Private  Stealing:  As  distinguished  from  larceny  from  the 
person,  the  gist  of  robbery  is  the  force  or  intimidation  and  the  tak- 
ing from  the  person,  against  his  will,  a  thing  of  value  belonging  to 
the  person  assaulted.  The  only  difference  between  private  stealing 
from  the  person  of  another,  and  robbery,  lies  in  the  force  or  intim- 
idation used. 

Hall  vs.  People,  171  111.  540;  Burke  vs.  People,  148  111.  70;  XIII  111. 
Notes,  283,  §  16. 

Corpus  Delicti : 

The  corpus  delicti  cannot  be  established  by  extra-judicial  con- 
fessions or  admissions  of  accused  alone. 

Johnson  vs.  People,  197  111.  48;  Gore  vs.  People,  162  111.  259;  Williams 
vs.  People,  101  111.  382;  May  vs.  People,  92  111.  343.  (See  Corpus 
Delicti.) 

Character  of  Taking: 

—  As  Involving  Trespass:     The  crime  of  larceny  includes  the 


LARCENY  767 

taking  and  conversion  of  property  without  consent  of  owner.  It 
involves  trespass,  and  there  can  be  no  larceny  where  there  is  con- 
sent to  taking  of  the  property,  with  intention  that  possession  and 
title  should  pass.  Where  the  owner  voluntarily  parts  with  the 
possession  and  title,  the  crime  of  larceny  is  not  coniniitted. 

People  vs.  Hoban,  240  111.  303;  Stewart  vs.  People,  173  111.  4G4; 
Johnson  vs.  People,  113  111.  99. 

—  Possession  Knowingly  Surrendered:  Where  the  owner  of 
goods  voluntarily  parts  with  possession  of  property,  but  retains 
title,  expecting  the  goods  to  be  returned  to  him  or  disposed  of  in 
certain  manner,  the  subsequent  felonious  conversion  of  the  property 
will  relate  back  and  make  the  taking  and  conversion  larceny. 

Aldrich  vs.  People,  236  111.  622;  Bergman  vs.  People,  177  111.  244; 
Doss  vs.  People,  158  111.  660;  Phelps  vs.  People,  55  111.  334;  Murphy 
vs.  People,  104  111.  528;  Stimson  vs.  People,  43  111.  397;  Farrell  vs. 
People,  16  111.  506. 

—  Frauduknf  Legal  Process:    Larceny  may  be  committed  where 

legal  process  is  fraudulently  and  feloniously  used  for  purpose  of 

securing  possession  of  goods  bv  thief. 

People  vs.  Frankenberg,  236  111.  408;  Luddy  vs.  People,  219  111.  413. 

—  Similar  Offenses:  It  is,  under  no  circumstances,  admissible 
for  prosecution  to  put  in  evidence  defendant's  general  bad  char- 
acter, or  his  tendency  to  commit  the  particular  offense  charged, 
nor  is  it  admissible  to  prove  independent  crimes  even  though  of  the 
same  general  character,  nor  his  willingness  to  commit  a  similar 

offense  at  the  time. 

Bishop  vs.  People,  194  111.  365. 

—  Subsequent  Acts:     The  acts  and  conduct  of  defendant  with 

relation  to  the  property  subsequent  to  his  taking  it,  are  admissible 

to  show  intent. 

Quinn  vs.  People,  123  111.  333;  Williams  vs.  People.  101  111.  383. 

But  previous  improper  relations  between  prosecuting  witness 

and  defendant  are  inadmissible. 

People  vs.  Goodrich,  251  111.  558. 

—  Flight:  An  attempt  to  escape,  after  indictment  found,  or 
before,  is  a  circumstance  against  the  prisoner,  if  unexplained. 
Evidence  is  admissible  to  show  that  accused  gave  "straw  bail"  and 
forfeited  his  recognizance  and  passed  under  various  aliases. 

Barron  vs.  People,  73  111.  256;  People  vs.  Warfield,  172  App.  1;  Cf. 
Fox  vs.  People,  95  111.  71. 

Identity  of  Property: 

—  Burden  of  Proof:  The  burden  is  upon  prosecution  to  estab- 
lish identity  of  subject  of  larceny  beyond  reasonable  doubt. 

Bishop  vs.  People,  194  111.  365. 

—  Money:  The  indictment  should  describe  goods  with  accuracy, 
and  a  variance  in  this  particular  will  be  fatal.     The  prosecution  is 

bound  to  prove  it  substantially  as  laid. 
Williams  vs.  People,  101  111.  382. 
Testimony  that  the  owner  of  property,  described  in  an  indict- 
ment for  larceny  as  treasury  notes,  national  bank  bills,  greenbacks 
and  gold  and  silver  coin,  had  "130"  consisting  of  "two  fifties  and 
three  tens,"  is  insufficient  to  identify  the  money  as  that  charged  to 

have  been  stolen. 

Vale  vs.  People,  161  111.  309. 
A  charge  that  defendants,  "for  their  own  gain,  knowingly  and 


768  LARCENY 

feloniously  received  one  gold  coin  of  the  value  of  $10,  one  bill  pur- 
porting to  be  issued  by  the  Monmouth  National  Bank,  of  the  value 
of  $10,  and  one  bill,  purporting  to  be  issued  by  some  National 
Bank,  of  the  value  of  $5, ' '  knowing  them  to  have  been  stolen,  is  not 
sustained  by  the  testimony  of  a  witness  that  he  found  on  one  of 
the  defendants,  $10,  and  on  the  other  $15,  and  some  small  change,  as 
it  does  not  show  it  was  of  the  kind  and  character  of  money  described 

in  the  indictment. 

Williams  vs.  People,  101  111.  382. 

Proof  of  the  theft  of  a  gold  certificate,  silver  certificate  and  of 
national  bank  bills,  called  by  the  witness  "State  Bank  notes,"  is 
not  a  variance  from  an  indictment  charging  the  theft  of  treasury 
notes,  national  bank  bills  and  greenbacks. 
Keating  vs.  People,  IGO  111.  480. 

Genuineness  must  be  proven ;  if  forged  or  counterfeited,  and  had 

no  intrinsic  or  artificial  value,  they  would  not  be  subject  of  larceny. 
■-.  Collins  vs.  People,  39  111.  233;  Hiklreth  vs.  People,  32  111.  36. 

The  opinions  of  a  banker  are  admissible  as  to  genuineness  of  a 

bank  note. 

Keating  vs.  People,  160  111.  480. 

—  Prod}ictwn.  of  Property:     IMay  be  made  before  the  jury. 

Miller  vs.  People,  229  111.  376;  Keating  vs.  People,  160  111.  480. 

—  Substituted  Property:  A  roll  of  paper  with  a  dollar  bill 
wrapped  around  it,  substituted  for  a  roll  of  money  stolen  from  the 
person  of  its  owner,  may  be  exhibited  in  presence  of  jury,  in  con- 
nection with  his  evidence  that  he  found  such  roll  in  his  pocket  in 

place  of  his  money. 

Keating  vs.  People,  160  111.  480, 

Ownership : 

—  Possession  in  General:  The  same  general  evidence  of  property 
is  admissible  and  is  sufficient  in  criminal  cases  as  in  civil  cases. 
Possession  with  general  acts  of  o\vnership  over  the  property  are 
sufficient  where  there  is  no  evidence  offered  to  rebut  or  contradict 

the  right  of  property. 

Barnes  vs.  People,  18  111.  52;  Cf.  Brunk  vs.  Hutmacher,  165  App.  295. 

—  Sufficiency  of  Evidence  to  Show  Possession:  Hogs  shown  to 
be  of  a  lot  purchased  by  the  person  named  in  the  indictment  as  the 
owner,  individually,  with  intent  that  if,  upon  shipment  the  venture 
proved  profitable,  his  partner  should  share  the  profits,  are,  for  the 
purposes  of  a  prosecution  for  the  larceny  of  such  hogs,  the  individ- 
ual property  of  such  purchaser,  it  appearing  that  such  partner  had 

never  assented  to  the  purchase  or  become  vested  with  an  interest. 
Hix  vs.  People,  157  111.  382. 

—  From  Whom  Purchased:  There  is  no  error  in  refusing  to 
allow  prosecuting  witness,  on  cross  examination,  to  state  the  names 
of  the  firms  from  whom  he  purchased  goods,  as  this  could  throw  no 

light  on  question  of  defendant's  guilt  or  innocence. 
Sahlinger  vs.  People,  102  111.  241. 

—  Corporate  Existence :  In  absence  of  countervailing  evidence, 
proof  of  actual  exercise  and  enjoyment  of  corporate  powers  and 
functions  sufficiently  supports  an  allegation  that  owner  of  articles 
alleged  to  have  been  stolen,  was  a  corporation  organized  under  the 


LARCENY  769 

laws  of  the  state  of  Illinois,  as  proof  of  user  is,  by  statute,  made 

pnma  facie  evidence  of  corporate  existence. 

Waller  vs.  People,  175  ill.  221  ;  Sykes  vs.  People,  132  111.  32. 

This  applies  to  corporations  of  other  states  doing  business  in  this 

state. 

Kinkaid  vs.  People,  139  111.  213;  Kossakowski  vs.  People,  177  111.  563. 

But  coiiDorate  existence  must  be  averred. 
People  vs.  Brauder,  244  111.  26. 

And  oral  proof  as  to  fact  of  being  a  corporation  is  improper. 
People  vs.  Burger,  259  111.  284. 

—  Unincorporated  Body:     Property  vested  in  a  body  of  persons 

ought  not  to  be  laid  as  property  of  that  body,  unless  such  body  be 

incorporated,  but  should  be  described  as  belonging  to  individuals 

composing  the  company. 

Wallace  vs.  People,  63  111.  451. 

—  Name :  Where  names  in  ordinary  enunciation  are  not  dis- 
tinguishable, the  doctrine  of  id  en  so  nans  will  apply. 

Barnes  vs.  People,  18  111.  52. 

Or  that  the  owner  was  as  well  known  by  a  certain  name,  may  be 

sufficient. 

Hix  vs.  People,  157  111.  382. 

—  When  Owner  Never  in  Possession:     Larceny  at  common  law 

does  not  lie  where  the  prosecuting  witness  never  had  possession  of 

converted  articles. 

MeElroy  vs.   People,   202   111.   473;    Qiiinn  vs.   People,   123    111.   333; 
Kibs  vs.  People,  81  111.  599. 

—  Property  in  Custody  of  Lata:     One  whose  property  has  been 

seized  under  an  execution  against  other  persons  has  such  general 

ownership  in  the  property  as  will  support  an  indictment  for  larceny 

against  anyone  who  feloniously  steals  it  while  it  is  in  the  custody 

of  the  law  under  execution. 

People  vs.  Frankenberg,  23 G  111.  408. 

Identity  of  Accused: 

The  bare  fact  that  accused  removed  the  property  to  another 
county,  and  there  sold  it.  is  not  enough  to  warrant  a  conviction. 
Graff  vs.  People,  134  111.  380. 

—  Ability  and  Facility:  Where  the  larceny  is  of  jewels,  and  is 
effected  by  the  substitution  of  imitations,  imitations  substituted  by 
accused  in  other  instances  are  admissible  to  show  guilt,  as  tending 
to  show  abilitv  or  means  of  committing  the  crime. 

Gindrat  vs.  People,  138  111.  103. 

—  Circumstantial  Evidence:  In  prosecution  for  larceny  of  a 
buggy,  where  circumstantial  evidence  is  relied  upon,  witness  may 
testify  that  on  the  night  the  buggy  was  taken  from  a  store  in  a 
certain  town,  he  met  a  team  drawing  two  cannages,  going  from  tlie 
town  in  the  directions  of  defendant's  home,  although  he  could  not 
recognize  anyone  or  tell  how  many  persons  were  in  the  carriage. 

Miller  vs.  People,  229  111.  376. 

Possession  of  Stolen  Property: 

—  Presumption  :  Possession  of  property  recently  stolen  is  prima 
facie  evidence  that  person  in  possession  committed  the  larceny. 

People  vs.  Everett,  242  111.  628;  People  vs.  Deluce,  237  111.  541 
Williams  vs.  People,  196  111.  173 ;  McGee  vs.  People,  139  111.  138 
Langford  vs.  People,  134  111.  444;  Smith  vs.  People,  103  111.  82 
Sahlinger  vs.  People,  102  111.  241;  Comfort  vs.  People,  54  111.  404 
XIII  111.  Notes,  284,  §  33. 
Ev.— 49 


770  LARCENY 

But  possession  of  stolen  property  immediately  after  the  tlieft, 
iu  order  to  be  prima  facie  evidence  of  guilt,  must  be  exclusive  and 
such  as  to  indicate  that  possessor  took  the  property.  If  the  place 
where  the  goods  were  found  was  accessible  to  others  capable  of  steal- 
ing, the  inference  cannot  be  drawn,  though  the  fact  is  entitled  to 
consideration  in  connection  with  other  facts  in  the  case.  The  pre- 
sumption arising  from  the  possession  of  recently  stolen  property 
may  be  overcome  by  proof  of  any  facts  inconsistent  with  the  theory 
of  guilt,  such  as  the  good  character  of  accused,  or  his  conduct  at 
time  he  was  found  in  possession.  The  presumption  of  guilt  which 
arises  from  possession  of  goods  recently  stolen  may  be  rebutted  by 
any  explanation  or  account  given  b}^  accused  as  to  how  he  acquired 
possession,  and  the  burden  is  not  upon  accused  to  satisfactorily 
explain  such  recent  possession. 

Miller    vs.    People,    229    111.    376;    Watts    vs.    People,    204    111.    233; 

Conkwright  vs.  People,  35  111.   204;    Cf.   Fadfield  vs.   People,   146 

III.  660. 

—  Explanation  of  Possession:  Where  acts,  conduct  and  pro- 
posal to  pawn  article  stolen  is  proven  it  is  competent  for  the  accused 
to  prove  all  that  was  said  by  him,  when  he  first  approached  the 
pawnbroker,  in  connection  with  the  subject,  and  as  to  the  manner 
in  which  he  obtained  the  article, — not  only  as  part  of  the  res  gestae, 
but  as  part  of  the  conversation, — to  be  given  such  weight  by  the 

jury  as,  from  all  the  evidence  in  the  case,  it  might  seem  entitled. 
Comfort  vs.  People,  54  111.  404. 

—  Character:  The  previous  good  character  of  accused  may,  in 
such  case,  if  shown  to  be  good,  repel  all  presumption  of  guilt. 

Conkwright  vs.  People,  35  111.  204;  Watts  vs.  People,  204  111.  233. 

Value : 

—  Inclispensahle:  Proof  of  value  of  thing  stolen  is  indis- 
pensable. 

People  vs.  Silbertrust,  236  111.  144;  Thompson  vs.  People,  125  111.  256; 
Tobin  vs.  People,  104  111.  565;  Williams  vs.  People,  44  111.  478; 
Collins  vs.  People,  39  111.  233. 

—  Must  Be  Market  Value:  Averment  of  value  in  larceny  must 
mean  market  value.  Evidence  that,  it  was  worth  a  certain  amount 
to  owner  and  nothing  to  any  body  else,  does  not  show  market  value. 
To  be  of  a  certain  market  value,  it  must  be  capable  of  being  sold 
for  that  sum  at  a  fairly  conducted  sale,  conducted  with  reasonable 
care  and  diligence  in  respect  to  time,  place  and  circumstances  for 
purpose  of  obtaining  the  highest  price. 

People  vs.  Silbertrust,  236  111.  144. 

Allegations  and  proofs  must  agree,  and  proof  of  value  is  in- 
effectual in  absence  of  any  allegation  of  value  in  indictment. 
Brown  vs.  People,  1*73  111.  34. 

Testimony  as  to  value  of  stolen  property,  given  in  answer  to  the 
question,  "How  much  is  it  worth,"  is  sufficient  to  warrant  a  find- 
ing by  the  jury  of  such  value. 

Little  vs.  People,  157  111.  153. 

—  Of  Gas:  The  selling  price  of  gas  to  consumers  in  vicinity 
where  defendant  wrongfully  converted  the  gas  to  his  own  use,  and 
not  the  cost  value  of  the  material  from  which  the  gas  was  made. 
And  it  is  not  necessary  that  the  value  of  gas  consumed  at  any  one 


LEADING  QUESTIONS  771 

particular  time  shall  exceed  the  value  of  $15,  provided  the  amount 
consumed  from  day  to  day  at  any  one  continuous  period  of  taking 

exceeds  such  value. 

Woods  vs.  People,  222  III.  293. 
—  Money:     Value  of  U.  S.  Treasury  notes  need  not  be  proven. 

Collins  vs.  People,  39  111.  233. 

Treasur}^  notes  are  legal  tender  for  payment  of  debts  and  are 
therefore  worth  their  face  value.  National  bank  notes,  being 
redeemable  in  U.  S.  Treasury  notes,  with  ample  security  behind 
them,  must  be  regarded  in  law  as  worth  their  face  value,  and  silver 
certificates,  though  not  legal  tender,  are  receivable  for  all  public 
dues.  Their  value  is  fixed  by  law  and,  if  genuine,  their  produc- 
tion in  evidence  authorizes  the  jury  to  infer  their  value. 

KeatinsT  vs.   People,   160  111.  480;    Cf.   Meadowcroft  vs.  People,   163 
111.  56. 
It  is  not  sufficient  statement  of  value  to  allege  property  stolen 
was  so  many  dollars  in  money,  and  proof  that  it  was  current  money 
of  the  United  States  cannot  aid  defect  in  indictment. 

Brown  vs.  People,  173  111.  31.     See  People  vs.  Clark,  256  111.  11. 

LAW 

See  Foreign  Law,  Legislative  Acts  and  Journals,  Statutes. 

LAW  BOOKS 

See  Books,  Foreign  Law. 


LAWYERS 

See  Attorneys,  Privileged   Communications,  Legal  Conclu- 
sions. 


LEADING  QUESTIONS 

Defined : 

—  Indicating  Answer:  A  question  is  leading  when  it  indicates 
to  witness  the  real  or  supposed  fact  which  examiner  expects  and 
desires  to  have  confirmed  by  the  answer. 

Peebles  vs.  O  'Gara  Coal  Co.,  239  111.  370;  Reeves  vs.  Railway  Company, 
164  App.  611. 
A  question  is  leading  which  puts  into  the  mouth  of  the  witness 
the  w^ords  to  be  echoed  back  or  plainly  suggests  answer  desired. 
Beggs  vs.  Postal  Tel.  Co.,  176  App.  406. 

—  Assuming  Unproved  Facts:    Interrogatories  that  assume  an 

unproved  fact  are  leading. 

E.  &  P.  Dispatch  Co.  vs.  Cecil,  112  111.  ISO;  Carpenter  vs.  Ambroson, 
20  111.  170. 

—  Alternative:  Examiner  using  the  term  ''whether  or  not" 
does  not  necessarily  keep  the  question  from  being  leading,  as  it  may 
still  suggest  to  witness  the  answer  desired. 

Peebles  vs.  O  'Gara  Coal  Co.,  239  111.  370. 


772  LEADING  QUESTIONS 

—  Reforming  Question:  AVhere  a  question  is  predicated  upon 
information  volunteered  by  witness  over  sustained  objection  to  a 
question,  an  objection  to  tlie  latter  may  be  sustained  as  leading. 

Chi.  City  liy.  Co.  vs.  Shaw,  220  111.  5:12. 

—  Answer  Yes  or  No:  But  question  is  not  necessarily  leading 
because  it  can  be  answered  by  yes  or  no.  If  it  also  suggests  the 
desired  answer  or  leads  the  witness  to  the  answer,  then  it  is  leading. 

Schloisinpfor  vs.  Eogers,  80  App.  420. 

Right  to  Propound: 

—  In  General:  As  a  general  rule  the  party  calling  a  witness  has 
no  right  to  put  to  hira  what  are  termed  leading  questions. 

Bradshavv  vs.  Combs,  102  111.  428;   Flynn  vs.  Fogarty,  106  111.  263; 

Smith  vs.  Hays,  23  App.  244;  Harper  vs.  Black  Diamond  Co.,  142 

App.  594. 

It  is  true  that  leading  questions  cannot  be  put  on  the  examination 

in  chief,  but  it  has  its  exceptions.     Some  of  these  exceptions  are, 

leading  questions  of  introductory  matter,  leading  and  directing  the 

mind  of  the  witness  to  the  main  question ;  to  the  witness  hostile  to 

the  party  calling  him,  and  evidently  adverse  to  him,  or  evasive,  and 

such  like.     But  they  are  only  permitted  under  the  exercise  of  a 

careful  supervision  and  sound  discretion  of  the  court,  where  it 

appears  essential  to  promote  justice. 

Williams  vs.  Jarrott,  6  111.  120;  Chambers  vs.  People,  5  111.  351. 

—  VnwiUing  Witness:  Leading  questions  may,  in  the  discre- 
tion of  the  court,  be  put  to  an  unwilling  and  evasive  witness. 

Cassam  vs.  Galvin,  158  111.  30;  Bradshaw  vs.  Combs,  102  111.  428; 
Doran  vs.  Mullen,  78  111.  342;  C.  &  A.  Ey.  Co.  vs.  Walker,  118  App. 
397;  McDonald  vs.  People,  49  App.  357;  Doner  vs.  People,  92 
App.  43;  XIV  111.  Notes,  1136,  §189. 

—  Willing  Witness:  Where  strong  bias  or  interest  in  favor  of 
cross  examining  party  is  shown,  court  may  refuse  to  allow  leading 
questions  to  be  put.  Even  with  an  impartial  witness  under  cross 
examination,  the  words  cannot  be  put  into  the  mouth  of  the  wit- 
ness to  echo  back  again. 

ClinsTman  vs.  Irvine,  40  App.  606;  Deming  vs.  Prudential  Ins.  Co., 
169  App.  96. 

—  Hostile    Witness:    Leading   questions   are   proper  on   direct 

examination  where  witness  is  hostile. 

Con.  Coal  Co.  vs.  Seniger,  179  111.  370;  Meixsell  vs.  Feasor,  43  App. 
180;   Williams  vs.  Jarrott,  6   111.   120. 

And  may  be  put  to  an  evasive  wntness. 

Doran  vs.  Mullen,  78  111.  342 ;  Doner  vs.  People,  92  App.  43. 

— 'Adverse  Party:    AA^here  adverse  party  is  called  as  a  witness, 
he  may  be  examined  in  such  a  way  as  to  elicit  the  facts  even  though 
the  examination  partakes  of  the  character  of  cross  examination. 
N.  A.  Eestaurant  vs.  McElligott,  227  111.  317. 
Or  where  witness  is  required  to  testify  against  his  own  interest. 
Flynn  vs.  Fogarty,  106  111.  264. 

—  Ignorant  Witness:  Leading  questions  may  be  asked  of  an 
ignorant  person,  and  a  fair  administration  of  justice  requires  in 
such  case  that  such  questions  should  be  allowed. 

Doran  vs.  Mullen,  78  111.  342. 

—  Ageel  or  Infirm  Witness:  Witness  was  quite  old,  and  it  was 
apparent  that  the  infirmities  of  old  age  made  it  difficult  to  get  his 
testimony  of  the  real  matters  involved  without,  to  some  extent, 


LEADING  QUESTIONS  773 

resorting  to  direct  and  pointed  interrogatories:     Held,  not  error 

to  do  so. 

Funk  vs.  Babbitt,  15G  111.  408. 

—  Refreshing  Memory:  Where  witness  states  he  does  not  rec- 
ollect a  part  of  a  conversation  the  party  interrogating  him  is  en- 
titled to  refresh  his  recollection  but  not  by  putting  in  the  mouth 
of  the  witness  the  exact  words  which  he  desires  him  to  employ. 
Detailing  of  the  conversation  should  be  left  to  the  witness. 

DeniinjT  vs.  Prud.  Ins.  Co.,  1(39  App.  96. 

—  Child:  The  court  has  some  discretion  in  the  matter  of  allow- 
ing leading  questions  to  be  put  to  a  witness  of  tender  years,  and 
it  is  only  where  such  discretion  is  abused  that  a  court  of  review 

will  reverse  for  that  cause. 

Johnson  vs.  People,  202  111.  53 ;  Coon  vs.  People,  99  111.  368. 

—  Mentally  Defective  Witness:  Where  witness  is  mentally 
defective  or  from  physical  infirmity  is  unable  to  articulate  dis- 
tinctly, he  may  be  examined  by  the  propounding  of  leading  ques- 
tions. 

Selenak  vs.  Selenak,  150  App.  399. 

—  Deaf  Witness:  IMay  be  examined  by  whatever  _  means  are 
necessary  and  best  adapted  to  the  case,  in  the  discretion  of  trial 

court. 

Harrison    vs.    Thackaberry,   248    111.    512;    Selenak   vs.   Selenak,    150 
App.  399. 

—  To  Contradict:    When  a  litigant  has  testified  to  certain  facts, 

the  adverse  party,  or  a  witness,  may  be  asked  leading  questions  to 

contradict  the  former  witness. 

Beeves  vs.  Peoria  Ey.  Co.,  164  App.  611. 

—  Neiv  Matter:  In  re-direct  examination,  leading  questions 
may  be  allowed  for  purpose  of  explaining,  developing  or  modify- 
ing new  matter  brought  out  on  cross  examination. 

Chicago  vs.  Sutton,  136  App.  221. 

—  Directing  Attention:  On  direct  examination,  _  if  the  object 
be  merely  to  direct  the  mind  of  the  witness  to  a  particular  point  in 
controversy,  question  is  not  improper,  though  leading  in  form. 

Peebles  vs.  O 'Gara  Coal  Co.,  239  111.  370;  Swartout  vs.  Evans,  41  111. 
376;  North  Chi.  St.  Ey.  Co.  vs.  Balhatchett,  86  App.  60. 
Or  where  question  is  merely  introductory. 
Greenup  vs.  Stoker,  8  111.  202. 

—  Identifying  Person:  For  the  purpose  of  identifying  a  per- 
son, witness  may  be  asked  whether  a  person  in  court  or  the  prisoner 

at  the  bar  is  that  person. 

Chambers  vs.  People,  5  111.  351. 

—  Repeating    Previous    Answer:     Questions    although    leading 

may  be  permitted  where  but  a  mere  statement  or  repetition  in  the 

form  of  an  interrogatory  of  what  the  witness  had  more  fully  stated 

in  a  preceding  answer. 

Dempsey  vs.  Whiteside,  31  App.  32. 

—  Negative  Pi^rpose:  As  a  general  rule,  a  party  to  a  suit  is 
prohibited  from  asking  leading  questions  of  his  own  witness;  but 
when  the  evident  purpose  of  his  inquiry  is  to  merely  negative  a 
fact  or  circumstance,  a  leading  question  is  sometimes  proper,  and 
forms  an  exception  to  the  general  rule ;  as,  where  a  witness  is  called 
to  contradict  another  who  had  stated  that  such  and  such  expres- 


774  LEADING  QUESTIONS 

sions  were  used,  or  the  like,  counsel  are  sometimes  permitted  to  ask 
whether  some  particular  expressions  were  used,  or  things  said, 
instead  of  asking  the  witness  to  state  what  was  said. 

C.  &  A.  E.  R.  Co.  vs.  Eaton,  96  App.  570;  Reeves  vs.  Peoria  Ev.  Co., 
164  App.  611. 

—  Uncontroverted  Fact:  "Witness  was  asked  "Was  he  (the  de- 
ceased) killed  in  this  county  and  state?"  and  answered  "He  was." 
The  question  was  objected  to  as  leading,  and  this  was  the  only- 
testimony  of  the  venue :  While  question  was  objectionable,  but  as 
the  evidence  was  upon  a  point  practically  conceded,  and  about 
which  there  could  be  no  possible  controversy,  the  leading  form  of 
the  question  was  not  prejudicial  or  substantial  error. 

Cannon  vs.  People,  141  111.  270. 

—  Be-Emphnsvi:  After  a  witness  for  the  people  has  identified 
the  accused  as  the  person  who  fired  the  shots,  it  is  improper  to 
allow  counsel  for  the  People  to  induce  the  witness  to  emphasize 
his  former  statements  by  asking  the  leading  question,  "Are  you 
positive  that  he  is  the  man  that  shot"  the  deceased? 

Briggs  vs.  People,  2] 9  111.  330. 

—  Conclusions  of  Witnesses:     Questions  which  are  leading  and 

suggestive  in  form  and  call  for  conclusions  upon  material  points 

are  improper. 

Devine  vs.   Tazewell   Coal  Co.,   161  App.   547;    Spring.   Con.   Ey.   Co. 
vs.  Welsh,  155  111.  511. 

—  Anticipating  Defense:  A  leading  question  asked  upon  the 
direct  examination  of  a  witness  for  the  purpose  of  anticipating 
a  defense  is  improper  and  an  objection  thereto  is  properly  sus- 
tained. 

Hayward  vs.  Seott,  114  App.  531. 

—  By  the  Court:  Court  may,  in  its  discretion,  of  its  own  motion 
ask  questions  in  leading  form. 

•Swartout  vs.  Evans,  41  111.  376. 

—  Cross  Examination:  A  party  has  a  right  to  propound  lead- 
ing questions. 

Phares  vs.  Barber,  61  111.  271. 

In  the  examination  of  witnesses,   counsel  are  prohibited,  even 
upon  cross  examination,  from  assuming  any  material  facts  in  issue, 
and  which  are  to  be  found  by  the  jury,  or  from  assuming  that  par- 
ticular answers  have  been  given  contrary  to  the  facts. 
Haisli  vs.  Mnnday,  12  App.  539. 

— ■  Rebuttal:  There  is  no  rule  that  allows  the  asking  of  sug- 
gestive questions  of  one's  own  witness  on  rebuttal  different  from 

the  examination  in  the  first  instance. 

Eobisliaw  vs.  Schiller  Piano  Co.,  179  App.  163. 

Discretion  of  Court : 

The  allowance  of  leading  questions  calling  the  attention  of  the 

witness  to  the  subject  with  reference  to  which  his  testimony  is 

desired  rests  largely  in  the  discretion  of  the  trial  court,  and  will 

not  call  for  a  reversal  in  absence  of  clear  abuse  of  such  discretion. 

Mayville  vs.  French,  246  111.  434;   McCann  vs.  People,  226  111.  562; 

McGuire  vs.  People,  219  111.  16;  Crean  vs.  Hourigan,  158  111.  301; 

Dumerski  vs.  Coal  Co.,  149  App.  513;  Selenak  vs.  Selenak,  150  App. 

399;   XIV  111.  Notes,  1136,  §187. 


LEGAL  CONCLUSIONS  775 

It  is  not  an  abuse  of  discretion  to  permit  a  question  otherwise 
proper  to  be  put  in  leading  form. 
Day  vs.  Porter,  IGl  111.  2;55. 

It  is  only  where  such  discretion  is  abused  and  substantial  injury 

done  that  a  court  of  review  will  reverse  for  that  cause. 

Peebles  vs.  O'Gara  Coal  Co.,  239  111.  370;  Johusou  vs.  People,  202 
111.  53 ;  Crean  vs.  Hourigan,  158  111.  301 ;  Eiordin  vs.  Chi.  City  Ev. 
Co.,  178  App.  323. 

The  allowance  of  a  leading  question  upon  trial  without  a  jury 

is  not  cause  for  reversal  where  it  appears  that  no  injury  was  done 

to  the  objecting  party,  as  where  substantially  the  same  question 

by  him  on  cross  examination  elicited  the  same  answer. 

Fox  vs.  Steever,  156  111.  622 ;  Weber  Wagon  Co.  vs.  Kehl,  139  111.  644. 

And  it  is  not  sufficient  ground  for  reversal  that  a  leading  ques- 
tion was  asked  plaintiff  in  rebuttal,  the  objection  at  the  time  being 

general. 

Denipsey  vs.  Whiteside,  31  App.  32. 

Objections : 

An  objection  must  be  specific.     A  general  objection  to  a  question 
will  not  reach  the  objection  of  its  being  leading. 

Ruddy  vs.   McDonald.   244  111.   494;   Dunn  vs.   People,   172  111.   582: 

Funk  vs.  Babbitt,  156  111.  408;  Hilton  vs.  Santelman,  129  App.  109. 

One  cannot  complain  of  a  leading  question  which  does  not  injure 

him. 

Dougherty  vs.  Heekard,  189  111.  239;  Funk  vs.  Babbitt,  156  111.  408; 
Bulson  vs.  People,  31  111.  409;  Gibson  Co.  vs.  Glizozinski,  76  App. 
400. 


LEGAL  CONCLUSIONS 

See  Conclusions  of  Witnesses,  Delivery,  Insolvency,  Wills, 
Title. 
Expert  and  Opinion : 

—  In  General:     Interrogatory  asking  a  witness  to  testify  to  a 
matter  which  is,  in  part,  a  question  of  law,  is  improper. 

Hoener  vs.  Koch,  84  111.  408;  Thomlin  vs.  Hilyard,  43  111.  300;  C.  & 
A.  R.  R.  Co.  vs.  S.  &  N.  W.  R.  Co.,  67  111.  142;  Herrick  vs.  Gary, 
83  111.  85;  Huftalin  vs.  Misner,  70  111.  55;  XII  111.  Notes,  524, 
§384. 

An  opinion  as  to  whether  prescribing  medical  device  as  a  cure 

for  rheumatism  "would  be  regarded  as  practicing  medicine"  as 

the  witness  understood  the  term,  incompetent. 
People  vs.  Lebr,  196  111.  361. 

An  opinion  as  to  whether  title  was  good  or  bad  is  incompetent. 

Mead  vs.  Altgelt,  136  111.  298;  Evans  vs.  Gerry,  174  111.  595. 

Opinion  as  to  whether  particular  employment  is  extra-hazardous 
within  meaning  of  statute,  incompetent. 
Swift  &  Co.  vs.  Miller,  139  App.  193. 

Whether  an  instrument  was  delivered  or  not  is  a  question  of 
fact,  and  the  statement  of  a  witness  that  it  was  is  a  mere  legal 
conclusion,  and  therefore  incompetent. 
Burnap  vs.  Sharpstein,  149  111.  225. 

Opinion  as  to  whether  certain  train  was  a  regular  passenger  train 
within  meaning  of  statute,  incompetent. 
I.  C.  R.  R.  Co.  vs.  People,  143  111.  434. 


776  LEGISLATIVE  ACTS  AND  JOURNALS 

—  Legal  Effect  of  Documents:     A  witness  cannot  give  his  opin- 
ion as  to  construction  of  contract. 

A.  M.  c;.  &  N.  A.  Ky.  Co.  vs.  Northeott,  3  5  111.  49. 
Nor  as  to  meaning  of  condition,   the  understanding  of  which 
requires  no  course  of  previous  study. 
Lord  vs.  Owen,  35  App.  382. 

Or  the  constiniction  of  a  will. 

McFaiiand   vs.    MeFarland,    177   111.    208. 

Cannot  give  opinion  as  to  effect  of  a  mortgage. 
Phares  vs.  Barber,  61  111.  271.       "''"' 

Or  whether  a  deed  had  heen  drawn  on  hack  of  a  patent. 

Charter  vs.   Graham,  56  111.  19. 

And  as  to  words  in  deed  and  what  thev  include. 

Hutchinson  vs.  Ulrieh,  145  111.  336;  Sanford  vs.  Eawlings,  43  111.  92. 

Witness  cannot  state,  without  giving  facts,  that  assignment  of 

note  and  mortgage  was  full  assignment. 
Barrett  vs.  Hinckley,  124  111.  32. 

The  legal  sufficiency  of  a  document  is  a  question  for  the  court, 

and  is  not  a  subject  for  expert  testimony  by  attorneys  or  other 

witnesses. 

Eankin  vs.  Sharpless,  206  111.  301. 

Nor  may  attornevs  testifv  as  to  sufficiency  of  legal  proceedings. 
Massure  vs.  Noble,  11  ill.  531. 


LEGISLATIVE  ACTS  AND  JOURNALS 

See  JuDicLA_L  Notice  Statutes. 
Journals : 

—  Presumption:     Silence  of  journals  as  to  matter  required  to 

be  shown,  is  evidence  of  its  non-existence. 

People  vs.  Bowman,  247  111.  276;  Eyan  vs.  Lynch,  68  111.  160;  XIV 
111.  Notes,  615,  §  20. 

—  AelmissihUity  in  Evidence:  Journals  of  either  branch  of  the 
legislature  are  admissible  to  show  that  an  act  was  not  passed  in 
the  manner  prescribed  by  the  constitution,  and  in  such  case  the 
journals  must  be  accepted  as  containing  a  true  record  of  proceed- 
ings of  the  legislative  body. 

Neiberger   vs.   McGiillough,    253    111.    312;    People   vs.    Bowman,    247 
111.  276;  XIV  Notes,  649,  §  277. 

Parol  evidence  is  admissi])le  to  establish  the  identity  of  journals. 
People  vs.  McCulloiigh,  210  111.  488. 

Journals  must  be  introduced  in  evidence  like  any  other  record. 

Erford  vs.  City  of  Peoria,  229  111.  546;  Grob  vs.  Cushmau,  45  111.  119. 

"Wlien  offered,  they  prove  their  own  authenticity. 

Grob  vs.  Cuphmau,  45  111.  119. 
A  dulv  authenticated  copy  of  original  is  competent. 

i.  C.  E.  E.  Co.  vs.  Wren,  43  111.  77. 

Acts  of  Legislature: 

— •  Pre  sum  pi  ion  of  Validity:  Every  presumption  will  be  in- 
dulged in  favor  of  the  validity  of  an  act,  as  no  act  is  presumed 
beyond  the  power  of  the  legislature  unless  there  is  no  reasonable 

doubt  that  it  is. 

People  vs.  McCiillough,  254  111.  9;  People  vs.  Joyce,  246  111.  124. 


LEGITIMACY  777 

An  act  found  in  the  office  of  Secretary  of  State,  duly  authenti- 
cated, is  presumed  to  have  been  duly  passed. 
People  vs.  McCullough,  210  111.  488. 
So  a  vetoed  bill  found  in  the  office  of  Secretary  of  State,  with 
proper  record  entries  showing  filing  of  same,  accompanied  by  veto, 
affords  presumption  that  same  did  not  become  a  law. 
People  vs.  McCullough,  210  111.  488. 

And  will  be  presumed  that  a  law  certified  to  by  the  _  Secretary 
of  State  is  in  the  form  in  which  it  was  passed  by  the  legislature. 
Erford  vs.  City  of  Peoria,  229  111.  546. 
—  Parol:     Courts  can  never  receive  oral  proof  that  a  law  has 
been  adopted  or  that  an  act  essential  to  its  validity  has  been  per- 
formed. 

People  vs.  McCullough,  210  111.  488;  People  vs.  Rose,  254  111.  332. 


LEGITIMACY 

See  Pedigree. 
Presumptions : 

A  child  born  in  lawful  wedlock  is  presumed  legitimate. 

Smith  vs.  Heulein,  174  111.  184;  Eobiiisou  vs.  Rupiecht,  191   111.  424; 
Metheny  vs.  Bohu,  160  111.  263;  Orthwein  vs.  Thomas,  127  111.  554; 
Zackmann  vs.  Zackmann,  201  111.  380;  People  vs.  Griffin,  142  App. 
588 ;  XI  111.  Notes,  557,  §  2. 
Even  though  parents  are  living  apart  by  mutual  consent. 

Diehiian  vs.  Douglas,  102  111.  341. 
And  if  a  child  bom  fifteen  days  after  her  mother's  marriage  is 
treated  and  cared  for  by  the  husband  as  his  child,  the  presumption 
of  its  legitimacy  is  not  overcome  by  the  fact  that  the  mother  was 
divorced  from  a  former  husband  only  twenty  days  before  such 
marriage,  particularly  where  the  divorce  was  obtained  by  publica- 
tion. 

Zaekmaim  vs.  Zackmann,  201  111.  380. 

Ante-nuptial  conception   does  not  weaken  the  presumption   of 

legitimacy  from  post-nuptial  birth. 

Zackmann  vs.   Zackmann,   201   111.   380. 

The  presumption  that  legal  husliand  of  a  woman  is  the  father 

of  her  children  cannot  prevail  when  it  appears  from  the  evidence 

that  in  the  course  of  nature  he  could  not  have  been  the  father  of 

them, 

Eobinson  vs.  Eupveeht,  191  111.  424. 

Where  mother  an  Indian  presumption  of  legitimacy  is  not  over- 
come by  proof  that  child  is  colored. 

111.  Land  &  Loan  Co.  vs.  Bonner,  75  111.  315. 
Presumption  that  husband's  child  is  child  of  wife  is  not  con- 
clusive. 

Stone  vs.  Salisbury,  209  111.  56. 

Burden  of  Proof: 

The  burden  of  proof  is  on  the  party  alleging  illegitimacy. 

Zackmann  vs.  Zackmann.  201  111.  380;  Metheny  vs.  Bohn,  160  111.  263; 
Orthvv-ein  vs.  Thomas,  127  111,  554. 


778  LEGITIMACY 

Admissibility  of  Evidence : 

—  Aoii-acccss:     Non-access  may  be  proven, 

Kobiiison  vs.  Euprecht,  191  111.  424;   McCuUough  vs.  Murphy,  45  111. 
256. 

—  Declarations:  Declarations  of  supposed  parent  and  deceased 
members  of  her  family  may  be  proven  to  establish  parentage  where 
relationship  is  illegitimate.  Declarations  of  third  parties  are  in- 
admissible. 

Champion  vs.  McCarthy,  228  111.  87. 

—  Doubts  and  Rumors:  Evidence  of  doubts,  rumors  and  the 
like  as  to  the  paternity  of  a  child  when  he  appeared  in  the  family 
is  inadmissible  upon  the  question  of  his  parentage. 

Metheuy  vs.  Bohn,  KiO  ill.  263. 

—  Opinion  of   Witnesses :     Incompetent  to  prove  paternity  of 

child. 

Metheny  vs.  Bohn,  160  111.  263. 

—  Competency  of  Mother:     A  married  woman  cannot  say  that 

her  off-spring  is  spurious. 

Vetten  vs.  Wallace,  39  App.  390. 

Weight  and  Sufficiency: 

The  evidence  against  the  legitimacy  of  a  child  born  in  wedlock 

must  be  strong  and  conclusive. 

Orthwein  vs.  Thomas,  127  111.  554;  Wallace  vs.  Rappleye,  103  111.  229. 

—  Marriage :  The  law  does  not  require  an  acknowledged  and 
conceded  child  to  prove  an  act  of  marriage  to  maintain  his  legit- 
imacy. 

Orthwein  vs.  Thomas,  127  111.  554. 

—  Acknowledgment:     Under   section   15   of  the   Bastardy   act, 

where  there  has  been  a  judicial  finding  as  to  the  paternity  of  the 

child,  the  subsequent  marriage  of  the  mother  and  the  reputed  father 

renders  the  child  legitimate  without  acknowledgment,  wiiile  under 

section  3  of  the  statute  of  Descent,  subsequent  marriage  of  the 

parents  and  acknowledgment  of  the  child  by  the  father  renders 

the  child  legitimate. 

Miller  vs.  Pennington,  218  111.  220. 

The  provisions  of  section  2  and  3  of  the  statute  of  Descent,  relat- 
ing to  illegitimates,  apply  to  all  illegitimate  children,  even  those 
born  to  parents  who,  at  the  time  of  conception  and  birth  of  such 
children,  were  living  in  a  state  of  adultery,  in  violation  of  their 

marriage  vows  and  the  laws  of  the  state. 
Eobinson  vs.  Euprecht,  191  111.  424. 

There  being  no  provisions  of  the  Illinois  statutes  relating  to 
illegitimates  which  excludes  the  children  who  are  the  result  of 
adulterous  intercourse  from  the  benefits  of  such  statutes,  that 
fact  makes  no  difference  in  determining  whether  children  have  been 
rendered  legitimate. 

Miller  vs.  Pennington,  218  111.  220. 

An  oral  acknowledgment  by  the  father,  of  his  paternity  of  a 
child,  coupled  with  the  fact  of  his  marriage  to  the  mother,  is  suffi- 
cient, if  clearly  proven,  to  fix  the  legitimacy  of  the  child  and  its 
right  to  inherit,  regardless  of  what  the  purpose  of  acknowledgment 

was,  or  of  what  the  father  might  afterwards  have  declared. 
Miller  vs.  Pennington,  218  111.  220. 


LETTERS  779 

LETTERS 

See  Best  and  Secondary,  Immunity,  Copies,  Privileged  Com- 
munications, Production  of  Documents. 
Mailing  and  Receipt : 

If  a  letter,  properly  stamped  and  addressed,  is  deposited  in  the 
postoffice,  the  presumption  is  that  it  was  received  by  the  person 
to  w^hom  it  was  directed,  if  living  at  the  place  and  usually  receiv- 
ing letters  there, 

Clark  vs.  People,   224  111.   554;    Ashley  Wire   Co.   vs.   111.   Steel  Co., 

164  111.    149;    Equit.   Life   Ins.   Co.   vs.   Frommhold,   75   App.   43; 

XII  111.  Notes,  478,  §  39. 

But  there  is  no  presumption  of  the  delivery  of  a  single  letter 

to  both  of  two  parties  to  whom  it  is  directed,  unless  it  be  a  delivery 

by  way  of  partnership  or  other  agency. 
Dennison  vs.  Taylor,  142  111.  45. 

The  presumption  of  delivery  may  be  rebutted  by  proof  that  such 

letters  w^ere  not  received. 

Young  vs.  Clapp,  147  111.  176;  Meyer  vs.  Krohn,  114  111.  574. 

The  recital  in  a  letter  that  it  was  in  answer  to  one  received  by 

the  writer,   cannot  be  admitted   for  purpose  of  establishing  that 

fact,  as  against  the  person  addressed. 
Eazor  vs.  Eazor,  149  111.  621. 

The  contents  of  a  postal  card,  duly  sent  by  mail,  are  competent 

without  proof  of  affixing  the  stamp. 

Boening  vs.  North  Amer.  Union,  155  App.  528. 

Court  will  take  judicial  notice  that  by  ordinary  course  of  post, 

a  letter  mailed  in  this  state  will  reach  adjoining  state  in  a  reasonable 

time. 

Natl.  Mas.  Assn.  vs.   Seed,  95  App.  43. 

Admissibility : 

—  As  Admission:     It  is  always  proper  to  show  the  voluntary 

statement  or  admission  of  a  party  to  the  suit,  against  his  interest, 

even  though  made  to  one  not  a  party  to  the  suit,  and  a  letter  to  a 

third  person,  containing  such  admission,  is  admissible  against  the 

writer. 

Freet  vs.  Amer.  Elec.  Co.,  257  111.  248. 

—  Illegally  Ohiained:  Although  letters  and  papers  may  be  un- 
lawfully, or  by  artifice  and  deceit,  obtained  from  the  possession  of 
the  party  charged  with  crime,  this  will  aflford  no  objection  to  their 
admissibility  in  evidence  against  him,  if  they  are  otherwise  com- 
petent and  j>ertinent. 

Siebert  vs.  People,  143  111.  571;  Langdon  vs.  People,  133  111.  382; 
IMossroan  vs.  Thorson,  118  App.  574. 

—  Ansivcrs  Need  Not  Be  Introduced:  It  is  iwt  necessary  that 
letter  should  be  put  in  evidence  before  the  answer  thereto  can  be 

admitted. 

Barnes  vs.  Northern  Trust  Co.,  169  111.  112. 

—  Authority  of  Writer:  In  action  to  recover  alleged  indebted- 
ness, a  postal  card  by  the  casihier  of  a  bank,  reporting  upon  a 
draft,  containing  the  statement,  ''Parties  promise  adjustment  of 
matter  in  a  few  days, ' '  is  incompetent,  such  post  card  being  written 


780  LETTERS 

without  the  nnthority,  direction  or  knowledg:e  of  party  sought  to 

be  charged  with  the  debt. 

James  vs.  Couklin  &  Hill,  158  App.  640. 
Letters  from  the  vice-president  of  a  corporation  are  admissible 
against   the    corporation    where   it    appears    that    the    corporation 
approved  of  and  directed  the  negotiations  being  carried  on  by  him 

in  the  letters. 

Union  Surety  Co.  vs.  Tenny,  200  111.  349. 

—  Whole  of  Letters: 

( See  Whole  op  Utterance.  ) 

—  Offers   of    Compromise:     Letters    containing   offer   of    com- 
promise, are  inadmissible. 

Harrison   vs.   Trickett,   57   App.   515;    O'Mara  vs.   Cardiff   Coal   Co., 
154  App.  321. 

—  To  Show  \Vhereabouts  of  Person:  It  is  not  competent  to 
prove  the  whereal)outs  of  a  party  at  a  particular  time  by  testimony 
as  to  the  fact  that  a  letter  had  been  received  from  him  at  a  par- 
ticular place  at  such  time.     The  letter  itself,  with  the  envelope 

and  post  mark,  should  be  introduced. 
Hunter  vs.  Hanson,  151  Ajip.  446. 

—  To  Show  Mental  Condition: 
(See  Wills.) 

—  To  Shoiv  Adultery: 
(See  Adultery.) 

—  To  Show  Competeney  of  Employe:  Letters  of  recommenda. 
tion,  to  show  competency  of  employe,  are' inadmissible 

Staunton  Coal  Co.  vs.  Bub,  21 S  111.  125. 

—  To  Prove  Agency:  Letters  written  by  principal  are  admis- 
sible to  prove  agencv  as  as-ainst  him. 

Case  vs.  Lym'an,   66   111.   229. 

—  To   Show   Revocation   of  License:     A   letter   containing   an 

alleged  revocation  of  a  license  is  not  competent  unless  relied  upon 

in  the  pleadings. 

Granneniann  vs.  Meyer,  169  App.  291. 

—  To  Impeach  Witness:  Where  there  was  a  question  whether 
a  party  pursued  a  certain  line  of  action,  and  he  denies  it,  a  letter 
from  him  to  a  third  person,  tending  to  show  that  he  has  pursued 

it,  is  admissible. 

Stewart  vs.  Butts,  45  App.  512. 

A  portion  of  a  letter  is  admissible  in  evidence  against  the  writer, 
to  prove  an  admission  therein,  where  there  is  no  spoliation  or 
mutilation  and  no  suspicion  of  wilful  suppression  of  the  residue, 
the  portion  offered  being  an  entire  sheet  beginning  and  ending 
with  matter  not  relevant  to  the  matter  in  issue,  and  the  writer 
having  a  letter-press  copy  of  the-  whole  letter  which  he  might  pro- 
duce if  he  chose. 

Cramer  vs.  Gregg,  40  App.  442;   Heinsen  vs.  Lamb,  117  111.  549. 

Letter  written  by  party  is  admissible  to  impeach  writer's  testi- 
mony. 

Dick  vs.  Marble,  155  111.  137;  Fisher  vs.  Meek,  38  111.  92;  Doyle  vs. 
Doyle,  257  111.  229. 

—  To  Show  Motive:  Where  a  conspiracy  to  obtain  money  from 
a  bank  by  false  pretenses  is  charged,  the  whole  series  of  trans- 
actions leading  up  to  the  final  consummation  of  the  conspirators' 


LETTERS  781 

purpose,  both  before  and  after  organization  of  the  bank,  may  be 
shown ;_  and  the  fact  that  a  letter  from  one  defendant  to  another, 
indicating  their  fradulent  purpose,  was  written  before  the  bank 
had  started  in  business,  does  not  render  it  inadmissible. 
People  vs.   Kail,   242   111.   284. 

In  action  for  slander,  the  court  admitted  in  evidence  a  letter 
purporting  to  have  been  written  by  defendant  to  plaintiff,  to 
show  a  motive  for  the  utterance  of  the  slanderous  words,  as,  that 
the  defendant  had  been  a  suitor  of  plaintiff,  and  had  been  discarded 
by  her  shortly  before  the  publication  of  the  slanderous  words ;  held 
proper. 

Ransom  vs.  McCurley,  140  111.  626. 

—  To  Show  Immoral  Relations:  In  bastardy  proceedings,  let- 
ters from  defendant,  to  relatrix,  showing  intimacy  and  relation 
between  them,  are  admissible  in  corroboration  of  complainant's 
testimony. 

Sebarf  vs.  People,  34  App.  400. 

—  Undelivered  Letter:  On  trial  of  a  man  for  the  murder  of  a 
young  woman  by  poison,  letters  found  in  his  possession,  addressed 
to  the  deceased,  and  shown  to  be  in  the  handwriting  of  defendant, 
tending  to  prove  the  relations  existing  between  them,  and  thus 
tending  to  prove  the  motive,  are  admissible  in  evidence  against  the 
defendant,  without  direct  proof  that  the  letters  had  been  delivered 
to  deceased. 

Simons  vs.  People,  150  111.  66. 

—  Letters  of  Third  Persons:  Letters  received  from  third  per- 
sons, being  ex  parte  statements  of  the  witness  not  under  oath,  are 
inadmissible  as  evidence,  and  are  mere  hearsay. 

Capen  vs.  DeSteiger,  105  111.  185;  I.  C.  E.  R.  Co.  vs.  Cobb,  72  111.  148; 
Express  Co.  vs.  Hutchins,  67  Til.  348;  Winslow  vs.  Newlin,  45  Til. 
145;  Iving  vs.  Bush,  36  111.  142;  Inglohart  vs.  Jernagan,  16  111. 
513;  Delia  Bag  Co.  vs.  Kearn,  112  App.  269;  XII  111.  Notes,  496, 
§164. 

Letter  containing  an  ex  parte  unsworn  statement  of  one  not  a 
party  to  a  suit,  is  hearsay  and  incompetent. 
Kiiek  vs.  Boost,  145  App.  411. 

Letters  written  to  a  water  tunnel  contractor  by  agent  paid  by 
him  to  examine  the  work  and  report  their  conclusions  as  to 
whether  it  was  properly  done,  are  not  admissible  in  evidence  in 
favor  of  the  contractor  in  litigation,  growing  out  of  the  contract 
under  which  the  work  was  done. 

Letters  or  reports  written  to  a  public  contractor  by  agents  whom 
he  has  himself  employed  and  paid,  are  not  rendered  admissible  in 
his  favor,  in  litigation  against  the  city,  by  the  fact  that  he  showed 
them  to  the  commissioner  of  public  works,  who  read  them  without 
comment. 

City  of  Chicago  vs.  McKetchney,  205  111.  372. 

In  an  action  on  a  benefit  certificate,  letters  and  correspondence 
between  the  Grand  Master  of  the  association  and  members  of  the 
Judiciaiy  committee,  in  reference  to  the  standing  of  the  member 
upon  which  plaintiff's  claim  is  based,  are  inadmissible  in  evidence, 
being  statements  of  the  officers  or  defendant  association,  made  in 


782  LETTERS 

the  absence  of  the  opposing  party,  and  the  law  does  not  permit 

a  party  to  a  suit  to  make  evidence  for  himself. 
Bagley  vs.  Grand  Lodge,  131  111.  498. 

In  an  action  for  criminal  prosecution,  a  letter  by  state's  attorney 

to  defendant,  written  some  time  before  the  publication  chargecl, 

is  inadmissible  on  issue  of  guilt  or  innocence  of  defendant. 

People  vs.  Straueh,  153  App.  544. 

In  action  against  labor  union  for  so  contracting  wdtli  railroad 

company  as  to  work  discharge  of  plaintiff,  letter  from  company 

to  plaintiff  is  inadmissible. 

Sutton  vs.  Worknieister,  164  App.  105. 

A  letter,  unsigned  and  written  in  an  unknown  hand,  received 

by  a  witness,  which  states  that  the  writer  has  heard  the  adverse 

party  say  he  will  give  the  witness  a.  reward  if  he  will  not  appear 

to  testify,  is  not  admissible. 

Burnett  vs.  Lutterell,  52  App.  19. 

A  letter  written  by  a  guardian,  narrative  of  past  transactions, 

is  not  competent  testimony  against  his  ward  or  his  successor  in 

office,  on  a  settlement  of  his  guardianship. 
Cheny  vs.  Eoodhouse,  135  111.  257. 

—  Genuineness:     Letter  received  in  reply  to  others  proved  to 

have  been  sent  to  a  party,  are  admissible  in  evidence  without  proof 

of  writer's  handwriting, 

Grayville  Waterworks  vs.  Burdick,  109  App.  520. 

Where  a  letter,  purporting  to  have  been  written  many  years 
before  the  trial,  having  the  appearance  of  having  been  written 
at  its  date,  is  found  in  the  possession  of  the  person  to  whom  it  is 
addressed  and  resembles  the  handwriting  of  the  person  alleged  to 
have  signed  it,  the  fact  of  his  denial  of  its  execution,  when  it  is 
evident  that  he  is  in  doubt  as  to  having  written  same,  will  not  be 
sufficient  to  reverse  the  finding  of  genuineness  of  such  letter, 
Rogers  vs.  Tyley,  144  111.  652. 

An  objection  to  the  admission  of  a  letter  in  evidence,  that  it  is 
"incompetent  and  immaterial,"  does  not  raise  the  question  of  its 
genuineness,  where  it  is  shown  to  be  written  on  the  letter-head  of 
the  party  who  signs  it,  and  to  have  been  received  in  the  due  course 
of  mail  by  party  offering  it  in  evidence. 
Franklin  vs.  Krum,  171  111.  378. 

Self  Serving  Letters : 

—  In  General:     Letters  written  to  a  party  and  not  replied  to, 
which  are  mere  self-serving  declarations,  are  incompetent  in  behalf 

of  writer. 

Howard  vs.  Anderson,  162  App.  256;   Bagley  vs.  Grand  Lodge,   131 
111.  498 ;  Law  vs.  Woodruff,  48  111.  399. 

Letters  containing  self-serving  statements  are  inadmissible. 
O'Meara  vs.  Cardiff  Coal  Co.,  154  App.  321. 

So  in  suit  by  an  employe  of  railroad  company,  to  recover  money 
paid  by  him  to  the  company,  letters  written  by  plaintifif  to  the 
officers  of  the  company,  are  not  admissible  as  evidence  in  his  favor. 
St.  L.  &  T.  H.  Ey.  Co.  vs.  Thomas,  85  111.  464. 

Self-serving   statements   contained   in   a  letter  are   incompetent 

where  the  effect  would  be  to  give  such  party  the  benefit  of  what  is 

claimed  other  parties  would  testify  to,  who  are  not  witnesses, 
Eeigel  vs.  Des  Moines  Ins.  Co.,  165  App.  448. 


LETTERS  783 

Letters  written  in  connection  with  a  proposition  of  compromise, 
which  contain  self-serving  statements,  are  incompetent  for  party- 
making  them. 

Barnett  vs.  Noble,  155  App.  129. 
A  letter  to  fire  insurance  adjuster,  in  reply  to  one  written  to 
insured,  consisting  largely  of  self  serving  declarations,  is  inadmis- 
sible in  an  action  on  a  policy  of  insurance. 

Milium  vs.  Hawkeye  Ins.  Co.,  171  App.  272. 

Letters  written  by  a  joliber  to  a  manufacturer,  stating  the  job- 
ber's claims  as  to  defectiveness  of  goods  purchased,  and  what 
customer  had  said  about  the  quality,  are  not  evidence  that  the 
goods  were  defective,  and  not  admissible  as  proof  of  such  fact,  in 
action  by  jobber  against  manufacturer  to  recover  price  paid,  such 
letters  being  mere  declarations  of  claims  of  plaintiiif. 
Jewell  Co.  vs.  Hamilton  Co.,  257  111.  238. 

—  To  Shoiv  Notice:  A  letter  written  by  a  party  is  not  admis- 
sible in  evidence  in  his  favor  except  to  show  notice  or  demand,  and 
the  fact  that  such  letter  remained  unanswered  does  not  tend  to 
show  acquiescence  on  part  of  party  receiving  it. 

City  of  Chicago  vs  McKetchney,  205  111.  372. 

Letters  written  to  a  party  to  a  transaction,  while  the  same  is 
in  fieri,  are  sometimes  competent  in  behalf  of  the  writer,  to  show 
intention,  notice  or  as  an  inducement  to  the  allowance  of  punitive 

damages. 

Morehouse  vs.  Terrill,  111  App.  460. 

Letter  written  from  owner  to  insurance  company  is  admissible 

to  show  owner  was  not  refusing  to  submit  loss  to  appraisement. 

Western  Assn.  vs.  Hankins,  221  111.  304. 
In  action  for  salary,  letters  written  by  the  plaintiff  to  his  em- 
ployer, after  plaintiff  had  been  told  not  to  go  back  to  work  until 
notified,  which  stated  that  plaintiff  did  not  consider  himself  dis- 
charged, and  asking  for  information  on  the  point,  are  properly 
admitted  in  evidence  where  their  effect  is  limited,  by  instruction, 
to  the  sole  purpose  of  showing  notice  to  the  employer  that  plaintiff 
did  not  understand  that  he  was  discharged. 

Eeiter  vs.  Standard  Scale  Co.,  237  111.  374. 

Secondary  Evidence: 

—  Proof  of  Mailing:  A  copy  of  a  letter  by  one  party,  addressed 
to  other  party,  the  original  of  which  was  not  shown  to  have  been 
mailed  or  received,  is  only  an  ex  parte  declaration  and  not  admis- 
sible in  evidence. 

Booth  &  Co.  vs.  Steffey,  150  App.  584. 

Proof  that  one  letter,  written  by  plaintiff  to  defendant,  was 
properly  addressed  and  mailed,  and  that  receipt  of  another  letter 
was  acknowledged  by  defendant,  is  sufficient  proof  of  delivery  of 
the  two  letters  to  authorize  the  admission  of  copies  thereof  in  evi- 
dence. 

Dick  vs  Zimmermann,  207  111.  636. 

—  Notice :     Evidence  by  party  to  a  suit  as  to  contents  of  a  letter 

written  by  him  to  the  adverse  party,  is  inadmissible,  where  no 

notice  to  produce  the  original  was  given. 

Young  vs.  People,  221  111.  51 ;  Wright  vs.  Eaftree,  181  111.  464. 

A  notice  to  counsel,  two  days  before  a  trial,  to  produce  a  letter 


784  LETTERS 

to  be  used  as  evidence,  and  which  he  knew  would  be  wanted,  is 
sufficient,  and  if  not  produced,  a  copy  may  be  read. 

Warner  vs.  Campbell,  26  111.   2So. 

Where  a  letter  is  destroyed,  a  copy  is  the  best  evidence,  and 
notice  to  produce  a  copy  should  be  rec^uired  before  testimony  of 
the  contents  is  permitted. 

Prot.  League  vs.  Langsdorf,  126  App.  572. 

—  Preliminary  Proof:  Secondary  evidence  of  contents  of  letters 
is  admissible  where  preliminary  proof  shows  that  writer  either 
destroyed  or  mislaid  them,  after  transaction  was  closed,  and  that 
he  is  unable  to  find  them,  and  has  no  knowledge  of  their  existence 
or  whereabouts. 

Hoblit  vs.  Howser,  171  App.  19;  Case  vs.  Lyniau,  66  III.  229. 
— •  Letter  Press  Copies : 
See  Letter  Press  Copies. 

—  Lost  Letter:  In  order  to  permit  secondary  evidence  of  a  lost 
letter,  the  evidence  must  show  that  search  was  made  in  good  faith, 
and  as  thoroughly  as  though  all  benefit  of  the  instrument  would  be 
lost  unless  it  were  found. 

Prussing  vs.  Jackson,  208  111.  85;  McNeniar  vs.  McKennan,  79 
App.   354. 

Upon  proof  of  the  loss  of  an  original  letter,  oral  evidence  as  to 
the  contents  thereof  is  admissible. 

Kashgarian  vs.  Janjigian,  160  App.  294;  Yoimg  vs.  People,  221  111. 
51;  Hazen  vs.  Pierson,  83  111.  241. 

Where  evidence  of  contents  of  lost  letters  was  material  and  rel- 
evant to  the  issue,  party  desiring  such  testimony,  being  party  to 
whom  they  were  addressed,  testified  when  he  received  them  he  put 
them  in  a  cupboard ;  that  he  had  looked  for  them  there,  and  made 
diligent  search  for  them  everywhere  he  thought  they  were  likely  to 
be  placed,  and  was  unable  to  find  them,  and  that  they  could  not 
be  found.    It  was  held  that  sufficient  foundation  was  laid  for  adrais- 

sion  of  proof  of  their  contents. 

Case  vs.  Lyman,  66  111.  229. 
Where  proper  foundation  is  laid  for  proof  of  contents  of  a  lost 
letter  or  writing,  the  fact  that  witness  cannot  tell  particularly  the 
contents,  is  no  ground  for  rejection  of  his  testimony.     He  may, 
in  such  case  give  his  best  recollection. 

Case  vs.  Lyman,  66  111.  229. 

On  trial  of  suit  for  divorce,  brought  by  wife,  her  brother  was 
called  by  her  as  a  witness,  and  on  cross  examination  the  court 
refused  to  allow  him  to  testify  to  contents  of  a  letter  written  by 
him  to  defendant,  though  he  w^as  allowed  to  state  the  facts  he  knew 
and  the  state  of  his  feelings.  No  error  in  ruling. 
Ward  vs.  Ward,  103  111.  477. 

Explanation  of  Letters : 

—~Ln  General:  AVhere  a  letter  is  not  contractual,  it  is  permis- 
sible to  explain  or  construe  a  statement  therein,  by  attending  cir- 
cumstances or  to  show  that  it  originated  in  some  mistake,  where 
it  is  not  the  basis  of  the  action  or  the  defense. 

Smith  vs.  Mayfield,  163  111.  447;  Harrison  vs.  Thackaberry,  154  App. 
246;  Carr  "vs.  Miner,  42  111.  179;  Cleveland  Seed  Co.  vs.  Moore, 
142  App.  615;  Rernhard  vs.  Trimble,  45  App.  56;  C.  B.  &  Q.  R. 
E.  Co.  vs.  Bartlett,  20  App.  96;  XII  111.  Notes  516,  §  328. 


LETTERS  785 

A  statement  in  a  letter  introduced  as  an  admission  of  defendant's 
personal  liability  under  the  contract  sued  on,  for  the  amount  due 
plaintiff,  may  be  explained  or  contradicted,  where  the  letter  is  not 
a  part  of  the  contract. 

Smith  vs.  Mayfield,  163  111.  447. 

If  a  party  writes  a  letter  stating  he  has  received  a  sum  of  money 
for  the  party  to  whom  the  letter  is  addressed,  and  such  party,  in 
acting  upon  the  statement  in  the  letter,  as  to  amount  collected,  loses 
the  security  he  held  against  his  debtor,  the  party  making  the 
statement  is  estopped  from  showing  he  had  received  a  less  sum. 
Carr  vs.  Miner,  42  111.  179. 

—  Previous  Correspondence:  The  previous  correspondence  of 
the  parties  may  be  considered  for  purpose  of  determining  their 
meaning  and  intention  in  the  use  of  the  words  employed,  but  not 
for  the  purpose  of  varying  or  contradicting  the  plain  terms  of  the 

letter. 

Auditorium  Assn.  vs.  Fine  Arts  Bldg.,  244  111.  532;  LaSalle  Theater 
vs.  Taft,  156  App.  350. 
"Where  part  of  a  letter  is  introduced  in  evidence  such  portions  of 
the  letter  to  which  it  is  a  reply  as  are  necessary  for  an  under- 
standing of  its  full  meaning  are  admissible. 

Gallagher  vs.  Singer  Sewing  Mac.  Co.,  177  App.  198. 

—  Circumstances:  The  fact  that  the  letter  was  written  by  the 
hand  of  another,  at  the  dictation,  and  in  the  presence  of  party  to 
be  charged,  may  be  proven  by  parol  evidence  of  the  statements 
of  party  to  be  charged,  or  by  any  other  relevant  circumstances. 

Morton  vs.  Murray,  176  111.  54. 

In  action  tried  by  the  court  without  a  jury,  to  recover  purchase 
price  of  a  machine,  the  question  whether  a  letter  introduced  in 
evidence  was  intended  by  the  parties  as  a  complete  and  final  state- 
ment of  the  whole  agreement  between  them,  is  to  be  determined 

from  the  circumstances  of  the  case. 

Fuchs  &  Lang  Co.  vs.  Kittredge  Co.,  242  111.  88. 

—  Anibiguity  and  Intention:  Reference  in  letter,  written  by  a 
A^atness,  cannot  be  explained  where  there  is  no  ambiguity. 

Williard  vs.  P.  C.  C.  C.  &  St.  L.  Ey.  Co.,  162  App.  427. 

Where  letter  made  reference  to  a  particular  conversation  with 
respect  to  the  subject  matter  of  a  trust  which  was  thus  manifested 
in  writing,  and  letter  itself  did  not  fully  disclose  the  character 
of  the  trust ;  held  competent  to  prove  by  parol  the  matters  re- 
ferred to  in  the  letter,  for  the  purpose  of  describing  or  defining 
what  was  meant  by  the  letter,  as  showing  the  truth  of  the  trans- 
action. 

Kingsbury  vs.  Burnsides,  58  111.  310. 

The  meaning  of  a  letter  cannot  be  varied  by  parol.  The  extent 
to  which  the  writer  of  a  letter  may  be  permitted  to  testify  in  regard 
thereto  is  to  show  the  circumstances  under  wdiich  it  was  written, 
but  he  can  not  testify  as  to  his  intention  or  purpose  in  writing  it, 
and  thereby  avoid  its  etfeet  as  a  statement  or  declaration  of  the 

facts  contained  in  it. 

Harrison  vs.  Thackaherry,  248  111.  512;   Davis  vs.  Fidelity  Ins.   Co., 
208  111.  375;  Grant  vs.  Gallup,  111  111.  487;  Flower  vs.  Brumbaugh, 
131  111.  646. 
Ev.— 5  0 


786  LETTER  PRESS  COPIES 

Effect  of  Introducing: 

AVlicre  one  party  read  in  evidence  letters  from  the  other,  and 
latter  failed  to  read  those  received  from  former,  court  should  not 
instruct  the  jury  to  draw  the  strongest  inferences  from  that  fact, 
as  the  law  presumed  they  contained  evidence  against  him  or  that 
he  would  have  produced  them,  or  accounted  for  their  non-produc- 
tion. 

The  law  indulges  no  such  presumption,  and  as  a  general  rule, 
a  party  cannot  introduce  his  own  declaration  in  evidence,  nor  will 
the  law  indulge  presumptions  against  his  adversary,  if  he  fails 
to  introduce  them  in  evidence.  Such  letters  are  no  more  than  the 
declarations  of  the  party  writing  them. 
Law  vs.  Woodnife,  48  III.  :;99. 

AVhere  party  introduces  letters  of  adverse  party,  he  will  make 
their  contents  evidence  against  as  well  as  for  himself. 
Bailey  vs.  Partridge,  134  111.  188. 

The  doctrine  in  such  case  is  that  the  admission  with  the  accom- 
panying declaration  which  serves  as  an  answer  to  the  admission, 
is  to  he  received  in  evidence  and  the  answer  is  conclusive. 
Morris  vs.  Jamieson,  205  111.  87.     (See  Whole  of  Utterance.) 

Supplementing  by  Parol: 

Where  letters  are  not,  in  themselves,  so  complete  as  to  constitute 
a  complete  written  contract,  parol  evidence  is  competent  to  supple- 
ment them. 

Penn-Amer.    P.    G.    Co.    vs.    Hawes,    170   App.    224;    Fuchs    &   Lang 
vs.  Kittredge  &  Co.,  242  111.  88. 


LETTER  PRESS  COPIES 

See  Abstracts  of  Title. 
Best  and  Secondary: 

—  Private  Writings:  A  letter  press  copy  of  writing  is  not  an 
original.  It  in  no  wise  differs  from  any  other  accurate  copy  than 
in  the  mode  in  which  it  is  made  and  can  be  used  in  the  place  of  the 
original  in  no  case  where  a  proved  copy  made  in  another  manner 

would  not  be  e(iually  admissible. 

King  vs.  Worthington,  73  111.  161;   Text  Book  Co.  vs.  Machom,  158 
App.  543. 

—  Official  Record:  The  letter  press  book  in  which  the  custod- 
ian of  the  records  of  a  local  weather  bureau  takes  copies  on  the 
blanks  on  which  weather  conditions  were  made  up  each  month, 
constitutes  the  record  of  the  local  bureau  where  the  original  blanks 
are  sent  to  the  general  department  after  copying. 

C.  &  E.  I.  R.  Co.  vs.  Zapp,  209  IlL  339;  S.  C,  110  App.  553. 

Admissibility: 

Letter  press  copies  of  correspondence,  where  originals  are  in 
possession  of  the  adverse  party  who  refuses  to  produce  them,  may 
properly  be  received  in  evidence. 
Berry  vs.  Allen,  59  App.  149. 
Letter  press  copies  of  a  receipt  and  entries  made  in  books  of 
account  in  the  regular  course  of  business  are  competent  secondary 
evidence  to  prove  execution  and  delivery  of  a  deed  by  them. 
Harrell  vs.  Enterprise  Sav.  Bank,  1S3  111.  538. 


LIBEL  AND  SLANDER  787 

A  proper  foundation  for  admission  of  letter  press  copies  of  let- 
ters is  laid  where  notice  to  produce  the  orig:inals  is  given  and  counsel 
admits  he  cannot  produce  them,  the  writer  testifying  to  the  cor- 
rectness  of   the    copies,    and   that   originals   were   mailed   to    the 

addressee. 

Union  Surety  Co.  vs.  Tenney,  200  111.  349. 


LIBEL  AND  SLANDER 

PROOF  OF  WORDS  USED. 
In  General: 

The  words  alleged  in  the  declaration,  or  enough  of  them  to 
amount  to  a  charge  of  the  offense  alleged  to  have  been  imputed, 
must  be  substantially  proven.  The  rule  is  not  that  the  substance 
of  the  words  alleged  must  be  proved.  Although  the  words  proven 
are  equivalent  to  the  words  charged,  or  have  the  same  meaning, 
or  amount  to  a  charge  of  precisely  the  same  offense,  yet  not  being 
the  same  words  or  substantially  the  same,  the  action  cannot  be 

maintained. 

Ransom  vs.  McCurley,  140  111.  626;   Schofield  vs.  Baldwin,  102  App. 
560;  Moore  vs.  :\Iapey,  152  App.  648. 

Equivalent  Words  Insufficient: 

Slanderous  words  must  be  proven  literally  and  enough  of  them 
to  establish  the  slander  charged,  other  equivalent  words  will  not 

do. 

Kuhlman  vs.  Kiefer,  147  App.  162;  Hill  vs.  Leffler,  133  App.  266. 

All  Need  Not  Be  Proven : 

All  slanderous  words  charged  in  a  particular  count  of  the 
declaration  for  slander  need  not  be  proven  to  successfully  main- 
tain the  action.     Proof  of  enough  of  such  words  to  constitute  the 

cause  of  action  is  sufficient. 

lies  vs.  Swank,  202  111.  453;  Dubois  vs.  Bobbins,  115  App.  372;  Comer 
vs.  McDonald,   117  App.  450. 

More  May  Be  Proven: 

So  many  of  the  words  complained  of  must  be  proven,  as  will 
establish  the  slander.  Other  words  of  similar  import,  or  equiv- 
alent words,  if  proven,  wall  not  sustain  the  action.     More  words 

may  be  proven  if  they  do  not  change  the  meaning. 

Wilbur  vs.  Odell,  29  111.  456;  Sloeum  vs.  Kuykendall,  2  111.  187 
Thomas  vs.  Fisher,  71  111.  576;  Comer  vs.  McDonald,  117  App.  450 
Norton  vs.  Gorden,  16  111.  38;  Sanford  vs.  Gaddis,  15  111.  229 
Baker  vs.  Young,  44  111.  42;  XIII  111.  Notes,  299,  §  110. 

Time: 

The  time  of  speaking  as  laid  in  declaration,  is  not  material. 
Hosley  vs.  Brooks,  20  111.   115. 

Place : 

The  place  of  uttering  may  be  proven  to  have  been  in  a  county 
other  than  that  alleged  in  declaration. 

Cassem  vs.  Galvin,  158  111.  30;  Owen  vs.  McKean,  14  111.  459;  Hurley  vs. 
Marsh,  2  111.  329. 


788  LIBEL  AND  SLANDER 

Meaning: 

Evidence  is  admissible  to  explain  meaning  of  terms  used. 

Siegel  vs.  Thompson,  181  App.  164;  Gaines  vs.  Gaines,  109  App.  226; 

Sheen  vs.  Peoria  Jonrnal  Co.,  53  App.  267. 

When  libelous  article  refers  to  other  articles  published  in  same 

paper,  and  when  read  in  connection  with  same,  has  a  significance 

very  different  from  meaning  when  read  alone,  defendant  may  give 

in  evidence  such  articles. 

Young  vs.  Gilbert,  93  111.  595. 

Printed  Article : 

The  manuscript  is  the  higher  and  better  evidence  and  should 
be  produced.  The  printed  article  is  secondary  and  is  competent  to 
be  received  in  evidence  only  after  proof  has  been  made  excusing 
the  production  of  the  primary  evidence. 

Prussing  vs.  Jackson,  208  111.  85. 

Notes  made  by  reporter,  of  conversation  had  with  defendant, 
and  the  article  prepared  by  the  reporter  from  the  notes,  for  pub- 
lication, are  primary  evidence.     The  printed  article  is  secondary 

evidence. 

Clifford  vs.  Drake,  110  111.  135. 
Though  article  published  substantially  according  to  manuscript, 
it  is  not  admissible  until  original  is  accounted  for. 

Strader  vs.  Snyder,  67  111.  404. 

Fact  that  defendant  is  compelled,  over  objection,  to  testify  that 
he  wrote  article  similar  to  one  published  docs  not  render  printed 
article  admissible,  without  proper  proof  of  loss  or  destruction  of 

original. 

Prussing  vs.  Jackson,  208  111.  85. 

Publication  itself  is,  of  course,  the  best  evidence  of  the  charges 
made  in  it,  and  the  original  document  containing  the  defamatory 
matter  must  be  produced  if  possible ;  but  where  original  has  been 
destroyed  or  lost  beyond  a  reasonable  hope  of  finding  it,  or  is  in 
the  hands  of  adverse  party,  who  refuses  to  produce  it,  secondary 
evidence  of  the  contents  is  admissible. 
Prussing  vs.  Jackson,  208  III.  85. 

Where  party  voluntarily  makes  statement  of  facts  to  a  reporter, 
and  editor,  from  facts  communicated,  writes  article  which  is  read 
to  such  party,  who  stated  it  was  true,  but  to  let  it  go,  he  will  be 
held  to  have  published  tlie  article. 
Clay  vs.  People,  SG  111.  147. 

IDENTITY  OF  PLAINTIFF, 
Understanding  of  Hearers : 

Testimony  of  hearers  of  defamatory  utterances  as  to  the  sense 
in  which  they  understood  the  words  is  competent. 

Ball  vs.  Evening  Amer.  Pub.  Co.,  237  111.  592;  Nelson  vs.  Borchenius, 
52  111.  286;  Merrill  vs.  Marshall,  113  App.  447. 
And  this  rule  applies  to  a  statement  of  the  witness  to  the  effect 
that  he  understood  alleged  slanderous  words  were  spoken  with 
reference  to  plaintiff,  where  plaintiff's  name  was  not  used. 

Ball  vs.  Evening  Amer.  Pub.  Co.,  237  111.  592;   Dexter  vs.  Harrison, 

146  111.  169. 

A  witness  who  heard  the  alleged  slanderous  words  used  may 

state  the  name  of  the  person  against  whom  they  were  intended  to 

be  applied,  notwithstanding  such  testimony  may  not  be  predicated 


LIBEL  AND  SLANDER  789 

upon  what  was  said.     The  sources  of  the  knowledge  of  such  wit- 
ness as  to  who  was  intended  may  be  inquired  into  upon  cross 

examination. 

Scott  vs.  Snyder,  116  App.  393. 
The  mere  fact  that  a  libelous  article  in  a  newspaper  relating  to 
the  death  of  a  woman  described  in  the  article  as  "Pearl  Ball" 
exhibits  a  likeness  of  plaintiff,  whose  name  is  Rose  Ball,  stating 
such  likeness  to  be  the  "latest  photograph  of  ]\Iiss  Ball,"  does  not, 
of  itself,   establish  the  words  were  published   of  and   concerning 

plaintiff. 

Ball  vs.  Evening  Amer.  Pub.  Co.,  237  111.  592. 

MALICE. 
Pleading: 

While  the  defense  that  words  spoken  or  published  were  not 
spoken  or  published  in  the  malicious  sense  imputed  in  the  decla- 
ration but  in  an  innocent  sense  or  upon  an  occasion  which  war- 
ranted the  publication  may  be  given  in  evidence  under  the  general 
issue,  yet,  the  want  of  malice  may  be  specially  pleaded. 
Gilmore  vs.  Litzeliiian,  41  App.  541. 

Presumptions : 

Where  words,   actionable   in  themselves,   are  not  spoken  under 

privileged  circumstances,  it  is  no  defense  that  parties  believed  the 

words  to  be  true,  and  were  not  actuated  by  malice  towards  plaintiff. 

The  law  presumes  malice,  which  cannot  be  rebutted  under  the 

general  issue. 

Gilner  vs.  Eubank,  13  111.  271;  Conwisher  vs.  Jolinson,  127  App.  607. 

When  words  are  published,  imputing  the  crime  of  perjury,  the 
law  will- imply  malice  and  consequent  injury.     In  such  case,  anger 
affords  no  justification.     It  can  only  palliate  the  offense  and  reduce 
the  damages  where  plaintiff  has  provoked  the  slander. 
Flagg  vs.  Eoberts,  67  111.  485. 

A^Hiere  publication  is  shown  to  have  been  made,  and  charges  a 

felony,  malice  is  presumed. 

Stephens   vs.    Com.    News   Co.,    164   App.   6;    Moore   vs.    Maxey,    152 
App.  647;  Schofield  vs.  Baldwin,  102  App.  560. 

]\ralice  is  presumed  from  speaking  slanderous  words,  actionable 

per  se. 

Mitchell  vs.  Milholland,  106  111.  175;  Nolte  vs.  Ilerter,  65  App.  430; 
XIII  111.  Notes,  292,  §  21. 
But  does  not  arise  from  merely  telling  to  another  what  some 

one  has  said. 

Hill  vs.  Lefller,  133  App.  266. 

Nor  inferred  where  proof  shows  the  slanderous  words  were  used 

by  defendant  for  pupose  of  translating  them  from  the  German  to 

the  English  language  at  the  request  and  for  the  information  of  an 

attorney  in  a  matter  of  business. 

Zuckernian  vs.  Sonnenschein,  62  111.  115. 
Proof  that  words  were  spoken  in  the  heat  of  passion  will  not 

rebut  malice  thus  implied. 

Hosley  vs.  Brooks,  20  111.  115. 
Proof  of  publication  of  actionable  words  is  prima  facie  proof  of 

malice. 

Gilmore  vs.  Litzelman,  41  App.  541. 

The  intent  with  which  words,  slanderous  per  se,  were  uttered 


790  LIBEL  AND  SLANDER 

is  gathered  from  proof  of  existing  conditions  and  environment  at 
tlie  time  they  were  spoken,  the  cause  in  dispute,  the  relationship 
of  the  parties,  and  the  relationslup  of  the  parties  towards  each 

other. 

Conwisher  vs.  Johnson,  127  App.  610;  Ziu-kerman  vs.  Sonneusehein,  62 
111.   115;   Schofield  vs.  Baldwin,   102  App.   560. 

Explanation  of  Words : 

The  malice  which  the  law  implies  from  the  use  of  words  action- 
able per  se  may  be  explained  and  rebutted  by  circumstances.  It 
may  also  be  shown  that,  the  words  were  used  with  reference  to  a 
known  act,  and  were  so  understood  by  those  present,  and  that  such 
was  not,  in  point  of  law,  a  felony. 
SoUitt  vs.  Moore,  107  App.  479. 

Defendant  may  prove  facts  and  circumstances  connected  with 
publication,  to  show  absence  of  malice  in  fact,  and  such  evidence 
is  competent  on  question  of  exemplary  damages,  but  not  as  aifect- 
iug  compensatory  damages  or  actual  damages,  and  the  jury  should 
be  so  instructed. 

Kcarick  vs.  Wilcox,  81  111.  77. 

Explanation  of  Intent: 

A  defendant  has  a  right  to  explain  the  meaning  of  words  used 
by  him,  and  rebut  the  presumption  of  malice,  and  a  witness  may 
be  asked  his  opinion  as  to  intent  of  defendant  to  impute  crime,  if 

it  be  doubtful. 

McKee  vs.  Ingalls,  5  111.  30 ;  Nelson  vs.  Borchenius,  52  111.  40 ;  Foval 
vs.  Hallett,  10  App.  265;  Beison  vs.  Gossard  Corset  Co.,  167  App. 
561.  ,_.   ,1 

Subsequent  Publication: 

Subsequent  publications  giving  the  result  of  later  investigations 
are  to  be  regarded  as  continuous  of  the  original  publication,  though 
not  identical  with  the  original,  and  are  admissible  on  question  of 
malice,  but  are  not  ground  for  independent  recovery  unless  de- 
clared upon. 

Ball  vs.  Evening  Amer.  Pub.  Co.,  237  111.  592. 

Proof  of  a  repetition  by  defendant  of  the  defamatory  matter 

complained  of,  is  admissible  to  prove  malice,   and  plaintiff  may 

give  in  evidence  other  publications,  being  of  like  import  to  those 

declared  upon,  or  explanatory  of  any  ambiguity  therein  contained. 

Gaines  vs.  Gaines,  109  App.   226;   Sheen  vs.  Peoria  Journal  Co.,  53 

App.  267. 

So  proof  of  verbal  repetition  of  libelous  matter  is  admissible  to 

prove  malice. 

Gaines  vs.  Gaines,  109  App.  226. 

Repetition  of  Slander: 

Plaintilf  may  prove  a  repetition  of  the  slander,  even  after  com- 
mencement of  suit,  in  aggravation  of  damages. 

Giehl  vs.  Winkler,  164  App.  358;    Spolek-Hlasatel  vs.   Hoffman,   105 

App.  170;  Eansom  vs.  McCurley,  140  111.  626;  Hintz  vs.  Graupner, 

138  111.  158;   Stowell  vs.  Beagle,  79  111.  526;   Hatch  vs.  Potter,   7 

111.  725. 

It  is  always  proper  to  introduce  repetitions  of  a  slander  or  libel 

to  prove  malice  and  to  introduce  general  expressions  of  defendant 

denoting  malice. 

Gallagher  vs.  Singer  Mach.  Co.,  177  App.  198. 


LIBEL  AND  SLANDER  791 

Proof  of  Words  Not  Charged: 

As  giving  additional  or  independent  right  of  recovery,  the  speak- 
ing of  words  not  charged  in  declaration  are  not  provable ;  but  proof 
of  them  is  admissible  if  they  repeat  a  charge  of  same  offense  or 
crime,  as  tending  to  show  motive  which  induced  first  defamation. 
Repetition  may  show  deliberate  malice  in  utterance  of  original 
slander,  in  which  case  it  is  proper  to  be  considered  in  aggravation 
of  damages. 

Ranson  vs.  McCurley,  140  111.  626 ;  Sclinnssenr  vs.  Kreilich,  92  111.  347. 

But  not  other  or  different  words,   being   mere   insults   on   the 

streets. 

Dexter  vs.  Harrison,  146  III.  169;  Giehl  vs.  Winkler,  164  App.  358. 

JUSTIFICATION. 
Plea: 

Under  a  denial  that  defendant  spoke  or  published  the  words,  he 
cannot  prove  the  words  declared  upon  to  be  true,  as  their  truth 
can  only  be  established  under  a  plea  of  justification.  A  plea  of 
justification  recjuires  great  certainty  and  particularity  of  averment. 
The  justification  must  be  of  the  very  charge  it  is  attempted  to 
justify,  and  it  is  not  permissible  to  set  up  a  charge  of  the  same 
general  nature  but  distinct  as  to  the  particular  subject.  When  the 
charge  is  specific,  then  the  plea  need  only  allege  that  the  charge 
is  true.  Where,  however,  the  charge  is  general,  the  plea  must  state 
facts  which  show  the  charge  to  be  true.  Defendant  does  not  have 
the  right,  under  general  issue,  to  prove  specific  acts  of  misconduct, 
but  is  confined  to  proof  of  his  general  bad  character.  It  is  not 
sufficient  that  a  plea  of  justification  attack  the  character  of  plaintiff 
generally,  or  to  aver  his  general  misconduct,  but  the  plea  must 
justify  the  very  words  contained  in  the  declaration.  A  plea 
justifying  the  words  as  true  must  aver  the  truth  of  the  very  charge. 
It  is  not  sufficient  to  plead  and  prove  plaintiff  is  guilty  of  a 
similar  offense,  or  one  more  flagrant. 
Dowie  vs.  Priddle,  216  111.  553. 

Where  a  defendant  denies  responsibility  for  part  of  libelous 
article,  he  cannot  be  compelled  to  justify  such  part  in  order  to 
prove  the  truth  of  the  part  authorized  by  him.  When  he  pleads 
general  issue,  and  gives  notice  that  he  Avill  prove  on  the  trial  the 
truth  of  a  part  of  the  alleged  libel,  he  may  deny  a  part  under  his 
plea  and  justify  as  to  a  part  under  his  notice. 
Cl'oidt  vs.  Wallace,  56  App.  389. 

In  pleading  justification  it  is  only  necessary  for  the  defendant 
to  justify  as  to  the  words  alleged  to  have  been  spoken  and  he  is 
not  required  to  admit  in  his  plea  of  justification  the  meaning,  in- 
ducement or  innuendoes  attributed  to  the  words  by  plaintiff,  as  that 
becomes  a  question  of  fact  for  the  jury  to  determine.  Under  such 
plea  intent  wath  which  words  spoken  is  immaterial. 
Siegel  vs.  Tbompson,  181  App.  164. 

—  Strictness   of  Proof:     Wliere   defendant,   by  his  pleas,   has 

based  his  defense  on  fact  that  plaintiff  was  guilty  of  perjury,  he 

will  be  required  to  prove  the  fact  of  perjury.     He  is  bound  to 

make  out  the  defense  which  he  had  chosen,  even  though  he  was 

not  obligated  to  impute  perjury  in  order  to  justify  the  words 

spoken. 

Hicks  vs.  Eising,  24  111.  566, 


792  LIBEL  AND  SLANDER 

Same  strictness  is  required  in  establishing  justification  as  in 

sustaining  a  prosecution  for  perjury.    But  if  the  charge  was  made 

in  reference  to  only  a  particular  portion  of  the  testimony  of  a 

witness,  the  question  of  materiality  is  open  to  investigation,  and 

if  it  turns  out   the   testimony   is  immaterial,   the   words   are   not 

actionable.     In  such  case,  it  may  be  shown  under  general  issue 

that  the  testimony  to  which  charge  was  implied  was  immaterial 

and  therefore  the  crime  was  not  imputed. 
DarlinjT  vs.  Ranks,   14  Til.  4G. 

Plea  of  Justification  not  Evidence: 

Where  the  plea  of  not  guilty  is  filed,  notwithstanding  pleas  of 
justification  are  also  filed,  plaintitt'  must  prove  speaking  of  words 
alleged,  and  the  pleas  cannot  be  used  to  convict  defendant,  nor 
will  he  be  bound  to  make  his  defense  until  he  is  proven  guilty. 
Farhaiii  vs.  ChilHs,  66  111.  544. 

Kecord  of  Indictment  and  Acquittal : 

Record  of  indictment   and  acquittal  incompetent  on  behalf  of 

defendant. 

Corbley  vs.  Wilson,  71  111.  209;  Cf.  Geiinger  vs.  Novak,  117  App.  160. 

Hearsay : 

Under  plea  of  justification,  proof  that  the  fact  published  was 
told  defendant  by  another  person,  is  not  admissible  for  purpose 
of  establishing  truth  of  published  article. 

Under  the  general  issue,  defendant  may  show,  as  tending  to 
mitigate  damages,  that  he  published  the  article  upon  the  strength 
of  facts  told  him  by  a  party  in  position  to  be  cognizant  thereof, 
and  who  defendant  believed  was  telling  the  ti-uth. 

Hlasatel  vs.  Hoffman,  204  111.  5^2 ;  Eansom  vs.  McCurlej,  140  111.  626 ; 
Tottleben  vs.  Blankenship,  58  App.  47. 

But  it  is  no  defense  to  show  that  publication  was  predicated  upon 
information  obtained  from  chief  of  police  and  others,  where  noth- 
ing further  was  known  with  respect  to  truth  or  falsity  of  charge. 
Stephens  vs.  Com.  Xews  Co.,  164  App.  6. 

Where  plaintiff  charged  with  theft  of  money,  circumstances 
which  point  to  another  person  as  the  thief,  among  \^•hich  was  the 
return  through  the  postofiice,  in  an  anonymous  way,  by  such  other 
person,  of  such  part  of  the  stolen  money  as  the  owner  was  willing 
to  take  in  settlement  of  the  matter,  is  admissible. 

So,  in  action  for  charging  plaintilf  with  having  confessed  to  a 
witness  that  she  had  stolen  money,  unless  plaintiff  shows,  in  the 
first  instance,  that  no  such  confession  was  made,  defendant's  state- 
ment that  it  had  been  made  cannot  be  regarded  as  slanderous. 

And  when  defendant  seeks  to  justify,  plaintiff  may  prove  by 
such  person  that  no  confession  was  made,  before  defendant  had 
offered  any  evidence  in  reference  to  alleged  confession. 

If  defendant  had  offered  evidence  to  show  a  confession  of  theft 
by  plaintiff,  the  latter  would  be  entitled  to  show  that  she  had  not 
so  confessed,  and  the  introduction  of  her  negative  proof  before 
affirmative  proof  of  defendant  would  be  an  advantage  rather  than 

an  injury  to  him. 

Hintz  vs.  Graupner,  138  111.  158. 


LIBEL  AND  SLANDER  793 

Effect  of  Plea: 

If  a  plea  is  made  in  good  faith,  and  evidence  is  honestly  in- 
troduced, for  purpose  of  support,  of  it,  such  evidence  should  be 
considered  by  the  jury  in  mitigation  of  the  damages,  even  though 
it  is  insufficient  to  prove  the  truth  of  the  plea,  but,  if  on  contrary, 
the  plea  and  evidence  under  it  were  resorted  to  for  purpose  of 
further  injuring  plaintiff,  then  there  is  only  an  aggravation  of 
damages. 

Thomas  vs.  Dunawav.  .^0  Til.  ?,7?,. 

PRIVILEGED  COMMUNICATIONS.  - 

Defined: 

Privileged  communications  are  of  two  kinds:  absolute  and 
qualified.  An  absolute  privilege  is  confined  to  cases  where  the 
public  service  or  the  due  administration  of  justice  require  that  a 
party  speak  his  mind  freely,  and  no  action  can  be  maintained  there- 
for even  though  the  words  be  false  and  maliciously  spoken.  Occa- 
sions where  the  privilege  is  qualified  extend  to  a  variety  of  com- 
munications made  in  good  faith  and  from  honest  motives,  upon 
any  subject  in  which  the  party  communicating  has  an  interest 
or  reference  to  which  he  has  a  duty  to  some  one  having  a  like 
interest  or  duty.     On  such  occasions  a  speaker  is  exempt  from 

liabilit}^  only  so  far  as  he  speaks  honestly  and  for  some  good. 
Young  vs.  Lindstrom,  115  App.  239. 

Wliatever  is  said  or  written  in  a  legal  proceeding,  pertinent  and 

material  to  the  matter  in  controversy  is  privileged  and  no  action 

can  be  maintained  on  it. 

Burdette  vs.  Argile,  94  App.   171;    Spaids  vs.   Barrett,  57  111.   289; 
Strauss  vs.  Meyer,  48  111.  385;  XIII  111.  Notes,  295,  §§  51-54. 

A  communication  by  a  countiy  banker  to  a  mercantile  house  in 

the  city,  in  respect  to  the  pecuniary  responsibility  of  a  customer 

of  the  house,  whose  note  has  been  sent  to  the  bank  for  collection,  is 

privileged. 

Ritchie  vs.  Arnold,  79  App.  406, 

Burden  of  Proof: 

Burden  of  proof  is  upon  defendant  to  show  that  the  occasion 

of  his  speaking  the  alleged  slanderous  words  was  privileged,  that 

the  words  were  spoken  from  a  sense  of  duty  and  with  an  honest 

belief  in  their  truth. 

Everett  vs.   Delong,   144   App.   496. 

Burden  of  proving  malice  is  upon  plaintiff  where  communication 

is  privileged. 

Wharton  vs.  Wright,  30  App.  343. 

Presumption : 

Privileged  communications  are  presumed  not  to  be  malicious. 

McDavitt  vs.  Beyer,  169  111.  475 ;  Eausch  vs.  Anderson,  75  App.  526. 

Pleadings : 
The  defense  of  privilege  may  be  introduced  under  general  issue. 
Everett  vs.  Delong,  144.  App,  496, 

Malice : 

Where  a  communication  is  privileged,  before  party  concerning 

whom  it  is  made  can  maintain  action  for  slander,  he  must  show 

that  it  was  made  maliciously  by  the  defendant, 
Ritchie  vs.  Arnold,   79  App,  406. 


794  LIBEL  AND  SLANDER 

Defendant  may  show  he  believed  in  good  faith  that  words  were 
pertinent  and  material,  thus  rebutting  presumption  of  malice. 

Buidette  V6.  Argile,  94  App.  171. 
DAMAGES. 
Presumption : 

Generally  speaking,  every  defamation  is  presumed  by  the  law  to 

be    malicious.     Words   imputing   a   crime   are    actionable   without 

proof  of  special  damage. 

McDavitt  vs.  Boyer,  169  111.  475. 

Truth  of  Charge: 

Is  inadmissible  in  mitigation  of  damages,  or  for  any  other  pur- 
pose, under  general  issue. 

Sheahan   vs.   Collins,   20   111.    326;    Owen   vs.    MeKean,    14   111.   459; 
Thomas  vs.  Dunaway,  30  111.  373;  XIII  111.  Notes,  300,  §  120. 

When  defendant  does  not  .justify,  he  may  mitigate  damages  in 
two  ways  only — by- showing  the  general  bad  character  of  plaintiff 
and  by  showing  any  circumstances  which  tend  to  disprove  malice, 
but  do  not  tend  to  prove  the  truth  of  the  charge.  This  qualification 
excludes  not  only  such  circumstances  as  the  law  recognizes  as 
competent  evidence  tending  to  prove  the  truth  of  the  charge,  but 
all  circumstances  which,  in  the  popular  mind,  tend  to  cast  suspicion 

of  guilt  upon  plaintiff. 

Storey  vs.  Early,  86  111.  461;  Sheahan  vs.  Collins,  20  111.  326;  Eegnier 
vs.  Cabot,  7  111.  34. 
Defendant,  by  plea  of  general  issue,  virtually  admits  the  false- 
hood of  his  statements,  but  if  it  is  proved  that  he  did  publish  them, 
he  may  then,  on  that  issue,  show  any  circumstances  in  mitigation 
which  tend  to  disprove  malice,  but  do  not  tend  to  prove  the  truth 

of  the  charge. 

Thomas  vs.  Dunaway,  30  111.  373. 

A  plea  of  not  guilty  admits  that  the  words  alleged  were  not 

true,  but  denies  that  they  were  spoken. 
Eeeves  vs.  Roth,  179  App.  95. 

So,  testimony  to  prove  that  the  slanderous  words  had  been  used 
by  defendant  in  reference  to  a  certain  bill  in  chancery,  which 
defendant  at  time  supposed  and  believed  plaintiff'  had  sworn  to, 
though  in  fact  it  was  sworn  to  by  another  person,  and  that  the 
allegations  in  said  bill  were  false,  is  inadmissible,  even  in  miti- 
gation of  damages.  Under  the  general  issue  of  slander,  defendant 
will  not  l)e  allowed  to  prove  the  truth  of  the  charge  in  mitigation. 
Owens  vs.  McKean,  14  111.  459. 

The  defendant  cannot  be  permitted  to  show,  under  general  issue, 
and  upon  a  claim  of  mitigating  damages,  facts  which  tend  to  cast 
suspicion  of  plaintiff's  guilt  of  the  very  charges  which  defendant 
has  declined  to  undertake  to  prove. 

Com.  News  Co.  vs.  Beard,  116  App.  501. 

Character  and  Reputation  of  Plaintiff: 

—  Presumption:  Plaintiff's  character  is  presumed  to  be  good 
until  attacked,  and  he  is  not  required  to  call  witnesses  to  support 
it  until  assailed;  and  a  plea  of  justification,  and  evidence  of  par- 
ticular acts  of  immorality  under  it,  is  not  such  an  attack  on  general 
character  of  plaintiff  as  requires  him  to  offer  evidence  in  support 

of  his  general  character. 

Stowell  vs.  Beagle,  79  111.  524. 


LIBEL  AND  SLANDER  795 

Until  the  character  of  plaintiff  is  attacked,  he  has  no  right  to 
introduce  evidence  of  his  good  character.  But  when  defendant 
files  a  plea  of  justification,  and  attempts  to  establish  its  truth, 
that  is  such  an  attack  upon  plaintiff's  good  character  as  authorizes 
him  to  introduce  evidence  of  his  good  character. 
Harbison  vs.  Shook,  41  111.  141. 

—  Admissibility  of  Evidence:  General  bad  reputation  of  plaint- 
iff prior  to  utterance  of  slanderous  words  is  competent  in  mitiga- 
tion of  damages. 

Corning  vs.  Dolmeier,  123  App.  188;  Eanson  vs.  McCurlev,  140  III.  626; 
Sheaiiau  vs.  Collins,  20  111.  326 ;  Storey  vs.  Early,  86  111.  461. 

Particular  acts  of  misconduct  cannot  be  proven  under  the  general 
issue;  defendant  is  confined  to  proof  of  general  character. 

Dowie  vs.  Priddle,  216  111.  553 ;  Ranson  vs.  McCurlev,  140  111.  626. 

There  is  a  broad  distinction  between  general  character  sustained 
by  a  person  amongst  those  who  know  him,  and  a  charge  of  a  par- 
ticular act  of  immorality  made  by  a  single  or  few  individuals; 
and  where  there  is  evidence  tending  to  prove  particular  acts  of 
unchastity  on  part  of  plaintiff,  it  is  proper  to  instruct  jury  that 
there  is  no  evidence  before  them  as  to  general  character  of  plain- 
tiff as  to  chastity  or  w^ant  of  it. 

Stowell  vs.  Beagle,  79  111.  524. 

General  evidence  is  admissible,  although  defendant  has  justified 
that  the  imputation  is  true,  for  if  the  justification  should  fail,  the 
question  as  to  quantum  of  damages  would  still  remain. 
Young  vs.  Bennett,  5  111.  43. 

But  witnesses  should  not  be  permitted  to  give  in  details  all 

reports  in  circulation  to  his  prejudice. 
Sheahan  vs.  Collins,  20  111.  326. 

—  Rumor:     Not  competent  under  general  issue,  in  mitigation  of 

damages. 

Young  vs.  Bennett,  5  111.  43;  OAven  vs.  McKeau,  14  111.  459. 

Where  alleged  slander  charges  that  plaintiff  set  his  house  on  fire 
to  get  the  insurance,  and  where  general  issue  only  is  pleaded, 
defendant  cannot  show  that  after  the  burning  of  the  house  and 
before  speaking  the  words,  plaintiff  was  generally  suspected  of 
setting  his  house  afire,  or  that  lie  gambled  or  kept  a  gambling  house. 
Lelming  vs.  Hewett,  45  111.  23;   Young  vs.  Bennett,  5  111.  43. 

—  Competency  of  Witnesses:  Same  rule  obtains  as  where  the 
character  of  a  witness  is  sought  to  be  impeached.  Witness  must 
be  able  to  state  what  is  generally  said  of  the  person  by  those  among 
whom  he  dwells,  or  with  whom  he  is  chiefly  conversant ;  it  is  not 
sufficient  for  him  to  state  what  he  has  heard  others  say,  for  they 

may  be  few  in  number. 

Regnier  vs.  Cabot,  7  111.  34. 

Provocation : 

Defendant  may  prove  prior  publications  by  plaintiff,  of  a  pro- 
voking nature,  in  mitigation. 

Thomas  vs.   Dunaway,  30  111.  373;   Young  vs.   Gilbert,  93   111.   595; 
Contra,  Danville  Press  Co.  vs.  Harrison,  99  App.  244. 

Anger : 

The  anger  or  passion  of  the  defendant  at  time  of  publication  of 
slanderous   words,    is   no   justification   or   mitigation   of  damages. 


796  LIFE  TABLES 

unless  the  passion  was  provoked  by  plaintiff,  and  even  then,  it  can 
only  be  shown  in  mitigation  of  damages. 

i'lagge  vs.  Eoberts,  07  111.  485. 

Retraction : 

A  retraction  of  the  slander,  made  so  immediately  as  to  become 
a  part  of  the  res  gestae,  and  free  from  all  suspicion  that  it  was 
made  by  defendant  more  for  his  own  protection  than  for  repa- 
ration to  the  victim  of  his  calumny,  is  admissible  in  evidence  in 

mitigation  of  damages. 

Owen  vs.  McKean,  14  111.  409. 

Pecuniary  Circumstances : 

See  Pecuniary  Circumstances. 
CRIMINAL  LIBEL. 
Truth  of  Charge: 

Truth  may  be  shown  when  published  with  good  motives  and  for 

justifiable  ends.     It  is  an  affirmative  defense  and  must  be  proven 

by  defendant. 

People  vs.  Straueh,  247  111.  220. 

And  must  be  confined  to  the  precise  charge  made. 
People  vs.  Fuller,  238  111.  116. 

Opinions  as  to  truth  of  charge  are  inadmissible. 
People  vs.  Laiidcs,  151  App.  181. 

Explanation  of  Intent: 

Explanation  of  intention   by   defendant   is  inadmissible.     The 
meaning  must  be  determined  bv  the  article  itself. 
People  vs.  Straiich,  247  ill.  220. 

Articles  Published  by  Prosecuting  Witness: 

Articles  published  by  prosecuting  witness  are  inadmissible. 
People  vs.  Straueh,  247  111.  220. 


LICENSE 

See  Negative  in   Issue,  Brokers,  Physicians  and  Surgeons, 
Penalties. 


LIFE  TABLES 

Judicial  Notice: 

Courts  take  judicial  notice  of  standard  tables.     (Wigglesworth, 

Northampton  and  Carlisle.)     That  they  are  standard  tables  need 

not  be  proven. 

Marshall  vs.  Marshall,  252  111.  568 ;  Winn  vs.  C.  C-  C.  &  St.  L.  Ey. 
Co.  239  111.  132;  Henderson  vs.  Ilarness,  184  111.  520. 

But  not  of  American  Experience  Tables  of  Mortality. 

Benjamin  vs.  Bankers  Union,   173  App.  620. 

Admissibility: 

—  Denver:     Tables  showing  the   probabilities  of  life  by  which 

dower  rights  can  be  computed  are  recognized  by  the  courts  as  a 

proper  means  to  prove  such  value. 
McHenry  vs.  Yokuni,  27  111.  160. 


LIMITATIONS  797 

The  value  of  an  inchoate  right  of  dower  cannot  Ije  approximately 
ascertained  by  the  use  of  mortality  tables. 
Cowan  vs  Kane,  211  111.  572. 

While  life  tal)les  may  be  resorted  to,  they  can  afford  bnt  a  mere 
expectancy  of  the  particular  life.  They  are  doubtless  correct  in 
the  aggregate,  but  cannot  be  when  applied  to  individual  cases. 

Hartman  vs.  Hartman,  59  111.  103;  Bonner  vs.  Peterson,  44  111.  253. 

.  —  Life  Estate:     A  standard  life  table  is  admissible  in  evidence 

and  entitled  to  be  considered  with  other  evidence  in  determining 

the  value  of  a  life  estate. 

Knifjlit  vs.  Collins,  227  111.  348;  Henderson  vs.  Harness,  184  111.  520. 

The  standard  and  recognized  mortality  or  life  tables,  together 

with  the  computations  of  experts  based  on  them,  are  competent 

evidence,  in  connection  with  other  evidence,  to  show  the  expectancy 

of  life  and  the  present  value  of  a  life  estate,  for  the  purpose  of 

estimating  damages  to  a  remainderman  from  the  change  of  grade 

of  a  street,  as  well  before  a  jury  in  an  action  at  law  as  in  equity. 

City  of  Joliet  vs.  Blower,  155  111.  414. 

—  Negligence:     The  probable   duration   of  the   life   lost  is   an 

element  to  be  considered  in  action  for  damages  for  negligently 

causing  death,  and  as  bearing  upon  such  question  standard  life 

tables  are  admissible. 

Calvert  vs.  Sprinfreld  Li^ht  Co.,  231  111.  290;  Owens  vs.  I.  C.  R.  E,  Co., 
163  App.  629;'" Presley  vs.  Kinlook  Tel.  Co.,  158  App.  220;  Spring- 
field E.  &  P.  Co.  vs.  Calvert,  134  App.  285;  XII  111.  Notes,  511, 
§285. 


LIMITATIONS 

See     Reformation     of     Instruments,     E.jectment,     Adverse 
Possession,  Payment. 
Pleading- : 

The  defense  of  Statute  of  Limitations  in  an  action  at  law  can  only 
be  availed  of  by  plea. 

Hongland  vs.  Avery  Coal  Co.,  246  111.  609;  Peterson  vs.  Manhattan  Ins. 
Co.,  244  111.,  329 ;  Lesher  vs.  U.  S.  Fidelity  Co.,  239  111.  502 ;  Gunton 
vs.  Hughes,  181  111.  132;  Wilson  vs.  King,  83  111.  232;  XIII  111. 
Notes,  342,  §  108. 

Burden  of  Proof: 

— ■  7)1    General:     Under   plea    of   Statute    of   Limitations,    tra- 
versed, the  burden  of  proof  is  upon  defendant. 

Schell  vs.  Weaver,  225  111.  159;  Bartelott  vs.  Int.  Bank,  119  111.  259; 
Moffett  vs.  Farwell,  123  App.  528;  Haynes  vs.  Anierine,  48  App.  570. 

And  this  is  true  on  objection  made  by  administrator  to  claim 

against  estate. 

Schell  vs.  Weaver,  225  111.  159. 

The  burden  of  proof  is  upon  claimant  first,  to  show  nature  and 

amount  of  his  claim,  by  a  preponderance  of  the  evidence,  then  the 

Statute  of  Limitations  having  been  applied,  and  evidence  showing 

that  if  any  indebtedness  existed,  it  was  barred  by  such  statute, 

the  burden  is  also  on  claimant  to  prove  new  promise  within  a 

period  of  limitation  next  before  commencement  of  suit. 
Edwards  vs.  Harness,  87  App.  471. 


798  LIMITATIONS 

—  Disalility:     A  party  relying  upon  a  disability,  to  avoid  the 
operation  of  the  Statute  of  Limitations,  must  prove  it. 

Fritz  vs.  Joiner,  54  111.  101;  Wacheter  vs.  Albee,  80  111.  47;  McClintic 
vs.  Layman,  12  App.  356. 
So  where  a  bill  is  filed  for  a  partnership  accounting  more  than 
five  years  after  the  firm  has  been  dissolved,  if  the  defendant  has 
been  absent  from  the  state  portions  of  that  time,  the  burden  of 
proof  is  upon  complainant  to  overcome  the  presumption  of  a  bar 
created  by  a  lapse  of  time,  by  showing  that  taking  out  the  time  of 

his  absence,  five  years  are  not  left. 
Pierce  vs.  McClellan,  93  111.  245. 

—  New  Promise :     The  burden  of  proving  a  new  promise  is  upon 
the  creditor  seeking  to  enforce  his  claim. 

McGrew  vs.  Forsyth,  80  111.  596;  Carroll  vs.  Forsyth,  69  111.  127. 

Admissibility  of  Evidence : 

—  Declarations   and   Admissions:     Declarations  of  a   payee   of 
partial  payment  are  inadmissible. 

Wellman  vs.  Miner,  179  111.  326. 
Admissions  of  indebtedness  to  third  persons  or  strangers  are 
incompetent  for  purpose  of  reviving  a  debt  barred  by  the  statute. 
Collier  vs.   Patterson,   137   111.   403;    Waehter  vs.   Albee,   SO   111.   47; 
Albers  Cora.  Co.  vs.  Sessel,  87  App.  378;   McGrew  vs.  Forsyth,  80 
111.  596. 
However,  if  a  debtor,  after  being  sued,  sends  for  a  third  person 
and  directs  him  to  tell  the  plaintiff  that  he  will  pay  him  every 
cent  he  owes  him,  a  new  promise  is  not  made  to  a  stranger,  as  the 
debtor  makes  the   third  party  his  agent  to   communicate  his  in- 
formation to  the  plaintiff  and  same  is  admissible. 
O  'Hara  vs.  Murphy,  196  111.  599. 
In  case  of  joint  debtors,  an  admission  of  one,  made  without  the 
knowledge,  assent  or  subsequent  ratification  of  his  co-debtor,  after 
the  statutory  bar  is  complete,  is  not  admissible  against  the  other, 

for  the  purpose  of  proving  a  new  promise. 

Kellenbaeh    vs.    Dickinson,    100    111.   427;    Boynton    vs.    Spafford,    62 
111.  115. 
The  admission  of  one  partner,  made  after  dissolution,  as  to  debt 
contracted   before,   is   inadmissible    to   affect    running   of   statute 

as  to  co-partner. 

Green  vs.  Baird,  61  App.  72. 

New  promise  of  husband  or  wife  will  not  revive  as  to  both  in 

joint  debt. 

Lewis  vs.  Lynch,  61  App.  476. 

—  Writings :    When   a  contract  is  in  writing,   a  new  promise 

necessary  to  remove  the  bar  of  the  statute  must  be  evidenced  in 

writing. 

Boone  vs.  Colehour,  165  111.  305, 

Admissions  in  a  will  of  deceased  debtor  are  admissible  to  remove 
bar  of  statute  as  to  simple  contract  obligations. 
Miller  vs.  Simons,  71  App.  369. 

A  final  balance  of  account  in  the  ledger  of  the  debtor,  stating  a 
balance  due  the  creditor  is  evidence  of  a  new  promise  to  remove 

the  bar  of  the  statute. 

Coulson  vs.  Hartz,  47  App.  20. 
It  is  not  enough  that  the  evidence  by  which  the  cause  of  action 


LIMITATIONS  799 

is  supported  is  in  writing,  so  where  the  action  is  not  based  on 
checks  nor  relied  upon  as  the  contract  between  the  parties,  such 
checks  are  not  admissible  to  prove  indebtedness  sued  upon. 
Phillips  vs.  Pitcher,  80  App.  219. 
Nor  are  receipts  for  goods  of  common  carrier.  •■■ 

Penn.  Go.  vs.  C.  M.  &  St.  P.  R.  R.  Co.,  144  111.  197  j  I.  C.  E.  E.  Co. 
vs.   Miller,   32  App.   259. 

Nor  is  an  implied  contract  requiring  parol  evidence  to  connect 

the  beneficiary  with  the  certificate  in  a  benefit  association  admissible. 
Conductors  Ben.  Assn.  vs.  Loomis,  142  111.  560. 

—  Endorsements:  After  a  note  is  barred  by  the  statute,  the 
endorsement  of  a  payment  thereon  by  the  payee  is  incompetent 

as  evidence. 

Wellman  vs.  Miner,  179  111.  326. 

Indorsement  before  bar  held  incompetent. 

Lowery  vs.  Gear,  32  111.  383. 
Limitations  begin  to  run  on  a  demand  promissory  note  from  its 

date. 

Ada  vs.  Ade,  181  App.  577. 

Weight  and  SuflSciency: 

—  Netv  Promise:  To  remove  the  bar  of  Statute  of  Limitations, 
it  is  incumbent  on  the  plaintiff  to  prove  an  express  promise  to  pay 
the  money,  or  a  conditional  promise  with  a  performance  of  the 
conditions,  or  an  unqualified  admission  that  the  debt  is  due  and 
unpaid,  nothing  being  said  or  done  at  the  time  rebutting  the 
presumption  of  a  promise  to  pay.  It  must  be  of  such  a  character 
as  to  clearly  show  a  recognition  of  the  debt  and  an  intention  to 
pay  it. 

Boone  vs.  Colehonr,  165  111.  305. 

A  promise  by  a  debtor  to  creditor  to  pay  him  "every  cent  he 

owed  him"  identifies  the  debt  with  sufficient  certainty. 
O  'Kara  vs.  Murphy,  196  111.  599. 

A  judgment  is  evidence  of  debt,  and  a  parol  promise  to  pay  does 

not  arrest  the  running  of  statute  or  take  it  out  of  statute. 

Ludwig  vs.  Huck,  45  App.  651. 

A  new  promise  to  pay  is  not  established  by  proof  of  defendant 
indorsing  to  plaintiff  of  a  stranger's  note,  for  accommodation  of 

plaintiff  and  not  as  payment  upon  his  note. 
Pease  vs.  Catlin,  1  App.  88. 
Payment  by  one  to  a  person  in  her  employ  with  promise  to  pay 
the  rest  when  she  was  through  with  her  property  in  ' '  this  world, ' '  is 

sufficient  to  remove  the  bar  of  the  statute. 
Neish  vs.  Gannon,   198  111.  219. 

New  promise  is  sufficient  though  amount  is  not  fixed. 

Neish  vs.  Gannon,  198  111.  219;  O 'Hara  vs.  Murphy,  196  111.  599. 

A  proposition  by  way  of  settlement  or  compromise  of  a  claim  is 
not  sufficient  to  establish  a  new  promise  in  absence  of  proof  show- 
ing same  to  have  been  accepted. 

Walker  vs.  Freeman,  94  App.  357. 

It  is  not  enough  that  the  debtor  admitted  account  to  be  correct, 
but  he  must  have  gone  further  and  admitted  that  the  debt  was  still 

due  and  had  never  been  paid. 

Quayle  vs.  Guild,  91  111.  378. 
An  admission  by  debtor  that  if  there  was  anything  found  to  be 

due  he  would  pay,  is  insufficient. 

Hayward  vs.  Gunn,  4  App.  161. 


800  LIMITATIONS 

A  new  promise  is  not  shown  by  words  "will  settle  this  thing" 
or  assurance  of  intention  to  adjust. 

Ennis  vs.  Pullman  Car  Co.,  165  111.  161. 

Indorsement  of  payment  on  note  in  handwriting  of  payee,  when 
maker  was  not  present,  must  be  shown  by  payee  to  have  been  made 
in  fact  by  maker  or  some  one  authorized  by  him. 
Waughop  vs.  Bartlett,  165  111.  1^4. 

An  indorsement  of  a  partial  payment  on  a  note  made  by  the 
holder  without  the  privity  of  the  maker  is  not,  of  itself,  and  un- 
corroborated, sufficient  evidence  of  payment  to  repel  a  defense 
created  by  the  Statute  of  Limitations. 

Declarations  of  a  party,  in  his  own  favor,  can  never  be  received 
in  evidence.  If  a  payee's  declarations  that  he  received  a  partial 
payment  are  not  admissible  in  evidence,  equally  so  is  his  written 
acknowledgment  of  such  payment. 

Wellman  vs.  Miner,  179  111.  326;  Simmons  vs.  Nelson,  48  App.  520; 
Treadway  vs.  Treadway,  5  App.  478. 

Where  the  items  of  account  are  read  to  a  party,  and  he  admits 
the  correctness  of  each  item,  and  of  the  whole  account,  but  as  to 
certain  items,  stated  he  thought  the  whole  or  a  part  of  them  had 
been  paid  by  his  son,  and  that  he  thought  the  account  was  correct, 
and  that  he  would  see  his  creditor  and  settle  with  him,  such  admis- 
sions do  not  show  a  new  promise  within  five  years. 
Ayers  vs.  Richards,  12  111.  146. 

—  Part  Payment:  A  mere  payment  by  a  debtor  owing  an 
account,  of  a  sum  not  more  than  sufficient  to  cover  recent  items, 
is  not  sufficient  to  remove  the  bar  of  the  statute  from  items  of  older 
date,  without  evidence  of  the  debtor's  intention  to  apply  such 
payment  for  that  purpose. 

In  ordinary  cases  of  mutual  dealing  the  obligation  is  to  pay  the 
balance  of  the  general  account  and  it  must  appear  that  each  new 
item  is  paid  by  the  defendant  to  lessen  such  balance,  otherwise  it 
is  not  equivalent  to  a  new  promise  to  pay  what  remains. 
Miller  vs.  Cinnemon,  168  111.  447. 

Proof  of  part  payment  on  account  of  many  items  not  sufficient 
to  revive  obligation  without  proof  of  application  by  defendant. 
Mertaugh  vs.  Murphy,  30  App.  59. 

A  payment  on  a  note  made  with  intention  of  not  recognizing 
or  affirming  the  indebtedness  will  not  preclude  Statute  of  Limita- 
tions from  being  a  bar  to  an  action. 
Kuhn  vs.  Kuhn,  171  App.  298. 

An  unauthorized  payment  by  widow  on  mortgage  indebtedness 

upon  property  in  which  she  has  but  a  homestead  and  dower  interest, 

will  not  operate  to  remove  the  bar  of  statute  from  indebtedness  as 

against  the  heirs  who  own  the  fee. 

Aetna  Ins.  Co.  vs.  McNeely,  166  111.  540. 

So  a  payment  made  by  principal  obligor,  procured  by  surety, 

is  not  evidence  of  part  payment  as  would  take  note  without  statute 

as  to  such  surety. 

Lash  vs.  Bozarth,  78  App.  196;  Davis  vs.  Mann,  43  App.  301. 

Payment  of  taxes  for  seven  successive  years  is  not  established 

where  part  of  tax  receipts  relied  upon  contain  descriptions  too 

uncertain  to  identify  payments  as  having  been  made  upon   the 


LOST  INSTRUMENTS  801 

particular  property  in  dispute,  and  tJiere  is  no  oral  evidence  con- 
necting them  therewith. 

Bell  vs.  Neiderer,  169  111.  54. 

—  Mutual  Accounts:     "IMutual  account"  means  something  more 

than  charges  on  one  side  and  credits  of  payment  on  the  other. 

Such  accounts  are  made  up  of  matters  of  set-off.     There  must  be 

a  mutual  credit  founded  on  a  subsisting  debt  on  the  other  side,  or 

an  express  or  implied  agreement  for  a  set-off  of  mutual  debts. 
Miller  vs.  Cinnemon,  168  111.  447. 

In  an  action  on  a  book  account,  which  appears  upon  its  face 
to  be  based  on  mutual  accounts  between  plaintiff  on  the  one  side, 
and  defendant  on  the  other,  .if  some  of  the  items  are  not  barred 
by  limitation,  the  whole  amount  due  upon  the  account  is  recover- 
able. 

Carpenter  vs.  Plagge,  192  111.  82;  O'Brien  vs.  Sexton,  140  111.  517. 

Services  performed  by  plaintiff  for  cause  accrued  not  mutual 
account. 

Harris  vs.  Jackson  County,  9  App.  272. 

It  is"a  question  of  fact  for  the  jury  whether  or  not  there  were 

any  credits  given  by  debtors  consent  on  the  account,  and  to  what 

part  of  the  account  the  credit  applied;  and  also,  whether  debtor 

promised  creditor  to  pay  him  the  account,  and  to  what  part  of 

such  account,  if  such  promise  were  made,  it  applied. 
Boyd  vs.  Earnst,   36  App.  583. 

In  order  to  save  items  of  an  account,  which  are  behind  the 
period  fixed  by  the  Statute  of  Limitations,  it  must  be  made  to 
appear  that  the  account  is  one  of  mutual  dealings  between  the 
parties,  and  a  promissory  note  given  by  one  party  to  the  other 
does  not  show  mutual  dealings,  and  is  inadmissible  to  show  contin- 
uous dealings. 

Seacord  vs.  Matthieson,  56  App.  439. 


LIMITING  WITNESSES 

See    Cumulative    Evidence,    Order    of    Proof,    Expert    and 
Opinion. 


LOST  INSTRUMENTS 

See  Destruction  and  Suppression,  Best  and  Secondary. 
SECONDARY  EVIDENCE. 

In  General: 

Where  the  original  written  instrument  has  been  lost  or  destroyed, 

and  the  loss  or  destruction  was  not  at  the  instance  or  with  the 

consent   of   either  of  the  parties   thereto,   secondary   evidence   is 

admissible  to  prove  the  contents. 

Concord   House  Co.  vs.   O'Brien,  228   111.  360;    Mayfield  vs.   Turner, 
180  111.  332. 

To  render  secondary  evidence  admissible,  proof  of  loss  or  destruc- 
tion of  original  must  be  made. 

Dowden  vs.  Wilson,  71  111.  485;  Cook  vs.  Hunt,  24  111.  536;  Sehnapp  vs. 
Pierce,  24  III.  157;  Whitehall  vs.  Smith,  24  111.  166. 
Ev.— 51 


802  LOST  INSTRUMENTS 

Existence  and  loss  of  original  must  be  shown  before  admission 
of  copy. 

Palmer  vs.  Logan,  4  111.  56. 

Preliminary  Proof: 

The  preliminaiy  proof,  laying  tlie  foundation  for  the  introduc- 
tion of  secondary  evidence  of  contents  of  lost  instrument,  is  ad- 
dressed to  the  court,  and  the  court  determines  whether  sufficient 
has  been  shown  to  permit  secondary  evidence  to  go  to  the  jury 
and  the  recovery  is  had,  if  at  all,  upon  the  instrument  thus  proved. 
Whether  such  instrument  was  wilfully  or  accidentally  destroyed 
is  immaterial  in  laving  the  foundation  for  secondary  proof. 
Grimes  vs.  Hilliary,  150  111.   141.  • 

' '  The  party  is  required  to  give  some  evidence  that  such  a  paper 
once  existed,  and  that  a  houa  fide,  diligent  search  has  been  un- 
successfully made.  If  it  belonged  to  the  custody  of  certain  per- 
sons, or  is  proved  or  may  be  presumed  to  have  been  in  their  posses- 
sion, they  must,  in  general,  be  called  and  sworn  to  account  for  it, 
if  they  are  \vithin  the  reach  of  the  process  of  the  court.  If  the 
search  was  made  by  a  third  person,  he  must  be  called  to  testify 
respecting  it.  The  affidavit  of  a  party,  on  the  question  of  loss  of 
a  paper,  may  be  admitted  to  exclude  any  presumption  that  he  may 
have  it  in  his  possession ;  but  those  who  may  be  admitted  as  wit- 
nesses must  testify  in  the  usual  form,  in  order  that  the  advantage 
of  cross  examination  may  be  preserved." 
Becker  vs.  Quigg,  54  111.  390. 

Affidavit  of  stranger  to  the  action  is  incompetent  for  purpose  of 
laying  foundation  for  introduction  of  secondary  evidence. 

McFarland  vs.  Dey,  69  111.  419;   Cf.  Pardee  vs.  Lendley,  31  111.  174. 

Preliminary  proof  must  show  that  original  was  not  intentionally 

disposed  of  for  purpose  of  introducing  copy  thereof  in  place  of 

original. 

Bauer  vs.  Glos,  244  111.  627;  Scott  vs.  Bassett,  194  111.  602. 

And  rebut  every  inference  of  a  fraudulent  design. 

Blake  vs.  Fash,  44  111.  302;  Palmer  vs.  Goldsmith,  15  App.  544, 

Where  a  document  is  conceded  by  the  party  in  whose  hands  it 

was  last  heard  from  to  have  been  lost  or  destroyed,  notice  to  him 

to  produce  same  is  unnecessary,  as  he  is  estopped  by  his  admission 

from  setting  up  such  a  possession  of  the  papers  as  would  make  a 

notice  to  produce  of  use. 

Stadler  Brew.  Co.  vs.  Weadlev,  99  App.  161. 
Where  foundation  for  secondaiy  evidence  of  a  deed  is  by  oral 
testimony  instead  of  by  affidavit,  opi)osing  counsel  may  test  the 
statements  of  the  witnesses  by  proper  cross  examination. 
Scott  vs.  Bassett,  194  III  602. 
Where   affidavit   for  introduction   of  certified   copy  of  deed  is 
positive  in  its  terms,  and  meets  requirements  of  statute,  opposite 
party  is  not  entitled  to  cross  examine  affiant  as  to  truth  of  affidavit. 
Glos  vs.  Garrett,  219  111.  208. 
Where  party  who  has  destroyed  original  document  testifies  in 
explanation  of  his  conduct  that  he  did  so  upon  advice  and  opinions 
of  others,  and  upon  cross  examination  he  names  the  persons  who 
have  so  advised  hira,  it  is  proper  to  call  such  witnesses  so  named 
to  contradict  him  in  this  respect. 
Butler  vs.  Cornell,  148  111.  276. 


LOST  INSTRUMENTS  803 

—  Due  Search:  While  it  is  not  sufficient,  in  laying  foundation 
for  proving  contents  of  lost  instrument  by  parol,  to  merely  prove 
as  a  conclusion  that  a  diligent  search  has  been  made,  neither  is  it 
required  to  negative  every  remote  possibility  that  may  exist. 

Mayfield  vs.  Turner,  180  111.  332. 
It  must  appear  that  all  search  reasonable  and  practicable  has 

been  made  to  tind  the  paper  alleged  to  have  been  lost. 
Holbrook  vs.  Trustees,  28  111.  187. 
In  order  to  let  in  secondary  evidence  of  contents  of  a  written 
instrument,  the  person  to  whose  possession  it  was  last  traced,  must 
be  produced  unless  shown  to  be  impossible,  in  which  case  search 
among  his  papers  must  be  proven,  if  that  can  be  done.  In  all 
events,  search  must  be  made  for  the  paper  with  the  utmost  good 
faith,  and  be  as  thorough  and  diligent  as  if  the  rule  were  that  all 

benefit  of  the  paper  would  be  lost  unless  it  be  found. 

Prussing  vs.  Jackson,  208  111.   85;   Mullanphv  Sav.  Bank  vs.  Schott, 
135  111.  655 ;  Sturgis  vs.  Hart,  45  111.  103 ;  Cook  vs.  Hunt,  24  111.  536. 

Rule  applies  in  criminal  cases. 

Sullivan  vs.  People,  108  App.  341. 
Yet  where  the  evidence  shows  the  instrument  to  have  been  des- 
troyed, no  further  proof  is  required  in  order  to  admit  secondary 

evidence. 

i?hode  vs.  ]\rcLean,  101  111.  467. 
"Where  instrument  had  particular  place  of  deposit,  such  place 

must  be  searched. 

Cook  vs.  Hunt,  24  111.  356;  Mariner  vs.  Saunders,  10  111.  113. 

Presumption  is  that  a  paper,  public  in  its  nature,  will  be  found 
in  the  possession  of  the  incumbent  of  the  office,  and  search  should 
be  made  at  the  place  of  keeping. 
Stow  vs.  People,  25  Til.  81. 

—  Proof  of  Contents:  To  prove  the  contents  of  a  written  instru- 
ment, the  vague  recollection  of  witnesses  are  not  sufficient  to 
supply  its  place.  The  substance  of  the  contract  should  be  proven 
satisfactorily ;  and  if  that  cannot  be  done,  the  party  is  in  the  con- 
dition of  every  other  suitor  in  court  who  has  no  witness  to  support 
his  claim.  The  party  showing  the  loss  of  the  original  may  read  a 
counterpart;  if  there  is  no  counterpart,  an  examined  copy,  or  if 
there  is  not  an  examined  copy,  he  may  give  parol  evidence  of  its 

contents. 

Winter  vs.  Dibble,  251  111.  200;  Eankin  vs.  Crow,  19  111.  626. 

When  a  lost  instrument  is  relied  upon  to  modify  another  con- 
tract, clear  and  convincing  proof  is  required. 
Miller  vs.  Mandel,  259  111.  214. 

When  the  proof  is  made  out  by  parol,  witness  should  have  seen 
and  read  the  paper,  and  be  able  to  speak  pointedly  and  clearly  as 

to  the  tenor  and  contents. 

Eankin  vs.  Crow,  19  111.  626 ;  Osborne  vs.  Rich,  53  App.  661. 
It  is  not  necessary  to  prove  contents  of  lost  instrument  literally. 

Substance  must  be  proven. 

Osborne  vs.  Eich,  53  App.  661. 
So  where  original  checks  have  been  destroyed  while  in  the  hands 
of  party  to  the  suit,  and  he  paid  no  attention  to  order  to  produce 
them  slight  evidence  of  the  contents  of  the  checks  will  suffice, 
Eudgear  vs.  U.  S.  Leather  Co.,  108  App.  227. 


804  LOST  INSTRUMENTS 

"Where  one  deliberately  destroys  or  purposely  induces  another 
to  destroy  a  written  instrument  of  any  kind,  and  the  contents  of 
such  instrument  subsequently  become  a  matter  of  judicial  inquiry 
between  the  destroyer  and  an  innocent  party,  the  latter  will  not  be 
required  to  make  strict  proof  of  the  contents  of  such  instrument 
in  order  to  establish  a  right  founded  thereon. 

Anderson  vs.  Irwin,  101  111.  411;  Tanton  vs.  Keller,  167  111.  129;  Kud- 
gear  vs.  U.  S.  L.  Co.,  108  App.  227. 

Sworn  copy  is  good  secondary  evidence  of  contents  of  lost  in- 
strument. 

Golden  vs.  Bressler,  105  111.  419. 
A  certified  copy  of  the  record  of  an  unacknowledged  instrument 
does  not  prove  the  contents  of  the  instrument  where  there  is  no 
proof  of  the  execution  of  such  an  instrument  and  connecting  the 
instrument  executed  with  the  one  recorded. 
Winter  vs.  Dibble,  251  111.  200. 
—  Proof  of  Execution:     The  proof  of  the  execution  of  the  in- 
strument must  be  as  strict  as  if  the  instrument  itself  were  in  court. 
Dagley  vs.  Black,  197  111.  53;  Mariner  vs.  Saunders,  10  111.  113. 

Parol  evidence  of  contents  of  deed  is  not  admissible  until  execu- 
tion has  been  proven. 

Owen  vs.  Thomas,  33  111.  320. 

CONCERNING  PARTICULAR  INSTRUMENTS. 

Affidavits : 

Contents  of  lost  affidavit  for  writ  in  action  on  replevin  bond  can- 
not be  proven  by  showing  custom  of  clerk  to  copy  certain  state- 
ments contained  in  replevin  affidavits  into  the  writs. 
Franks  vs.  Matson,  211  111.  338. 

Bonds: 

The  facts  that  a  bond  for  conveyance  of  land  has  been  given  up 

to  obligor,  may  be  proven  by  parol,  and  when  it  is  shown,  there  is 

a  very  strong  possibility,  if  not  actual  presumption  of  law,  that 

the  bond  was  destroyed  by  the  obligor. 
Snapp  vs.  Pierce,  24  111.  156. 

Certificates : 

"Certificate  of  building  superintendent  having  been  lost,  it  is 

proper  to  prove  its  contents.     The  fact  that  it  is  lost  does  not 

change  the  rights  or  relations  of  parties,  nor  in  any  way  affect 

the  validity  of  the  certificate." 

Concord  House  Co.  vs.  O'Brien,  228  111.  360. 

Chattel  Mortgages : 

To  admit  secondary  evidence  of  contents  of  chattel  mortgage  in 
suit  between  mortgagee  and  tbird  person,  it  is  sufficient  to  prove 
execution  and  surrender  of  it  to  mortgagor. 
Huls  vs.  Kimball,  52  111.  391. 

Checks : 

Copies  of  checks  are  admissible  against  defendant  in  creditor's 
bill  proceeding,  where  originals  are  destro^'ed  by  fire  while  in 
defendant's  possession,  he  having  ignored  notice  to  produce  them 
before  their  destruction  and  where  it  is  not  claimed  such  copies 

were  incorrect. 

Eudgear  vs.  IT.  S.  Leather  Co.,  206  111.  74. 

Secondary  evidence  of  unendorsed  delivered  check  is  admissible 
upon  showing  loss  of  original. 

Petrue  vs.  McLaughlin,  99  App.  463. 


LOST  INSTRUMENTS  805 

Contracts : 

The  contents  of  a  written  instrument  cannot  be  proven  until  the 
absence  or  loss  of  the  writing  has  been  fully  and  satisfactorily- 
shown. 

Cook  vs.  Hunt,  24  111.  5.36. 
Where  a  contract  was  left  with  a  party  for  safe  keeping,  who 
swears  that  he   has  made  diligent  search  among  his  papers  and 
cannot  find  it,  its  contents  may  be  proven. 
Doyle  vs.  Wiley,  15  111.  576. 

Proof  that  original  was  in  hands  of  an  agent  who  gave  it  to  a 
messenger  to  deliver  to  proper  custodian,  and  that  office  of  cus- 
todian was  destroyed  by  fire,  is  not  sufficient  preliminary  proof, 
the  fact  that  the  messenger  delivered  it  must  be  shown.  Such  fact 
cannot  be  presumed. 

C.  &  N.  W.  By.  Co.  vs.  IngersoU,  65  111.  399. 

Court  Records : 

Contents  of  files  of  clerk  cannot  be  proven  by  showing  custom 
of  clerk  to  copy  certain  statements  contained  in  such  instrument 
as  is  lost  into  the  writs,  there  being  no  proof  that  he  did  so  in  the 
particular  case. 

Franks  vs.  Matson,  21 1  111.  338. 
If  any  portion  of  the  record  of  a  cause  is  lost,  the  court  may 
restore  it  on  application  of  a  party  interested ;  but  a  party  opposed 
in  interest  should  have  reasonable  notice,  and  an  opportunity  to 
ascertain  whether  the  loss  is  to  be  supplied  truly. 

Harlev  vs.  Harlev,  67  Ajip.  138. 

On  petition  to  restore  lost  and  destroyed  files  and  records,  of 
proceeding  to  set  aside  a  decree  in  partition,  proof  of  contents  of 
files  and  records  must  be  made. 

Llewellin  vs.  Dinge,  165  111.  26. 

Where,  on  former  proceeding  to  restore  files  and  records,  copies 
of  lost  files  and  records  were  permitted  to  be  filed,  but  never 
admitted  by  defendant  or  decided  by  court  to  have  been  true 
copies,  copies  of  such  copies  are  not  sufficient  to  prove  contents  of 
lost  files  and  records  in  subsequent  like  suit. 
Llewellin  vs.  Dinge,  165  111.  26. 

Nor  are  entries  in  a  book  kept  by  solicitor  in  proceeding  in 
which  files  were  destroyed,  not  shown  to  have  been  contemporaneous 
with  his  employment,   as  part  of  the  transaction,   competent  to 
prove  contents  of  the  files  and  records. 
Llewellin  vs.  Dinge,  165  111.  26. 

And  where  petition  avers  that  exhibits  are  substantial  copies 
and  defendants  answering  disclaim  knowledge  of  truth  of  such 
averment,  and  neither  affirm  nor  deny  it,  the  verified  petition  does 
not  constitute  sufficient  proof. 

Llewellin  vs.  Dinge,  165  111.  26. 

Deeds: 

—  Affidavits:     Cannot  be  made  by  stranger  to  the  action. 

Becker  vs.  Qnigg,  54  111.  319. 

Can  only  be  made  bv  party  to  suit  or  his  agent  or  attorney, 
Bauer  vs.  Glos,  244  111.  627. 

Except  where  deed  lost  made  to  antecedent  grantee,  preliminary 

proof  may  be  made  bv  such  grantee. 
Pardee  vs.   Lindley,   31   111.   174. 


806  LOST  INSTRUMENTS 

The  affidavit  which  witness  is  required  by  statute  to  make  is 

merely' to  dispense  with  production  of  original  instrument  and  to 

make  the  record  competent  evidence. 
Scott  vs.  Bassett,  194  111.  602. 

Must    state    that    original    instnnnent    was    not    intentionally 
destroyed  or  in  any  manner  disposed  of  for  purj^ose  of  introduc- 
ing copies  thereof  in  place  of  original. 
Bauer  vs.  Glos,  244  111.  627. 

Where  affidavit  states  that  original  deed  was  not  nor  ever  had 
been  in  the  possession  of  party  offering  copy,  or  in  his  power  or 
control,  or  that  of  his  agent  or  attorney,  this  was  held  to  be  a  com- 
pliance Avith  the  statute  and  authorized  the  receiving  a  certified 
copy  in  evidence, 

Deininger  vs.  McConnell,  41  111.  227. 

An  affidavit  for  introducing  secondary  evidence  of  deeds  is  not 
sufficient  which  merely  shows  that  the  deeds  are  not  nor  have  been 
in  the  possession,  custody  or  control  of  affiant ;  that  affiant  has 
iiade  inquiry  of  the  grantees  but  has  not  received  any  of  the 
ieeds;  that  he  does  not  believe  such  deeds  have  been  lost  or 
destroyed  or  disposed  of  for  the  purpose  of  introducing  copies. 
Scott  vs.  Bassett,  186  111.  98. 

An  affidavit  which  recites  that  affiant  is  agent  and  attorney  for 

complainant,  and  that  complainant  desires  to  use   certain  deeds, 

stating  that  the   originals  of  such   deeds   are   acknowledged   and 

entitled  to  be  recorded ;  that  such  originals  are  lost  and  not  in 

the  power  of  complainant  to  produce,   and  that  they  were  not 

intentionally  destroyed  or  disposed  of,  is  sufficient  to  entitle  copies 

to  be  admitted. 

Ellison  vs.  Glos,  248  111.  275. 

It  is  not  necessary  that  the  party  wishing  to  use  the  certified 
copy  of  a  deed,  duly  acknowledged  and  recorded,  should  himself 
make  affidavit  of  the  loss  of  the  original  or  tliat  it  -was  not  in  his 
power.  Any  evidence  which  satisfies  the  mind  of  the  court  that 
the  deed  is  not  in  the  possession  or  j^ower  of  the  party  is  all  that 
is  required. 

Newsum  vs.  Luster,  1?,  111.  175. 

A  party  is  not  disqualified  to  make  an  affidavit  by  reason  of  the 

fact  that  he  could  not  be  called  as  witness  to  testify  generally  in 

the  case. 

Scott  vs.  Bassett,  194  111.  602. 

—  Copies :  A  correct  copy  of  a  deed  is  admissible  to  prove  the 
contents  when,  after  due  search,  the  original  cannot  be  found. 

Gillespie  vs.  Gillespie,  159  111.  84. 

Before  a  party  can  introduce  a  copy  of  a  deed,  he  must  lay 

the  proper  foundation  and  then  he  must  introduce  a  copy  from  the 

record  book,  not  the  book  itself. 

Hanson  vs.  Armstrong,  22  111.  442. 

—  Ahstracfs  of  Title.  Abstracts  of  title  are  admissible,  where 
it  is  sliown  that  every  eff^ort  to  find  the  deed  would  be  unavailing, 

or  that  it  was  not  within  the  power  of  the  party  to  produce  same. 
Richley   vs.    Farrell,   69   111.    264. 

—  Due  SeareJi:  Where  the  existence  of  an  original  deed  is 
clearly  shown  by  one  witness,  and  its  loss  is  shown  by  two  witnesses, 


LOST  INSTRUMENTS  807 

who  prove  that  diligent  search  has  been  made  for  it  among  the 

papers  and  files  of  a  bank,  where  they  had  every  reason  to  suppose 

it  would  be  found,  and  where  it  naturally  would  be  left,  and  that 

they  were  unable  to  find  it  or  produce  it,  this  will  be  sufficient  to 

admit  secondary  evidence  of  its  contents. 
Golden  vs.  Bressler,  105  111.  419. 

It  should  1)6  clearly  made  to  appear  that  the  search  for  the  lost 
deed  has  been  diligent  and  thorough  in  all  places  where  it  may  be 
reasonably  supposed  it  had  been  or  might  be;  the  statement  of  a 
witness  that  a  diligent  search  had  been  made  to  find  it  is  not 
sufficient. 

And  if  the  papers  of  a  party  owning  or  holding  such  a  deed  as 
is  supposed  to  have  been  lost  have  ever  been  in  the  custody  of  any 
other  person,  such  person  should  be  produced  to  account  for  the 
loss. 

A  party  should  be  required  to  make  at  least  the  same  effort  that 
it  is  expected  he  would  make  if  he  were  to  lose  the  benefit  of  the 
evidence  if  the  instrument  were  not  found. 
Eankiu  vs.  Crow,   19  111.  626. 

It  is  not  enough  that  deed  is  not  found  in  usual  place  of  deposit. 
Search  must  have  been  made  in  every  place  where  there  is  reason- 
able probability  that  it  mav  be  found. 
Eankiu  vs.  Crow,  19  111.  626. 

It  is  error  to   admit  secondary  evidence  of  contents  of  deed 
unless  proof  is  first  made  of  such  a  search  for  original  as  will  raise 
a  presumption  of  its  loss  or  destruction. 
Stowe  vs.  People,  25  111.  81. 

"Wliere  record  of  deed  was  destroyed  by  fire,  but  proof  showed 
that  original  had  been  placed  in  hands  of  a  third  party  in  another 
state,  some  years  before,  and  that  party  claiming  under  it  had 
applied  to  such  custodian  for  it,  but  was  informed  that  it  was 
lost,  but  no  search  was  made  for  it,  sufficient  foundation  was  not 
laid  for  introduction  of  evidence  of  contents,  either  by  parol  or  by 
proof  of  contents  or  original  abstract  of  title. 
Wing  vs.  Sherrer,  77  111.  200. 

Where  witness  testified  he  was  solicitor  of  grantee,  and  to  execu- 
tion, acknowledgment  and  delivery  of  a  master's  deed;  that  he, 
the  witness,  placed  it  on  his  desk  in  the  court  room,  with  another 
paper,  and  both  were  lost ;  that  he  had  never  been  able  to  find  them 
afterwards ;  that  he  had  made  diligent  search  for  them  and  that 
the  deed  had  never  been  recorded,  the  search  was  sufficient  to  admit 
secondary  evidence  of  contents  of  deed,  and  not  necessary  to  show 
a  search" in  the  recorder's  office,  or  that  incpiiries  had  been  made 

of  grantee. 

Dugger  vs.  Oglesby,  99  111.  405. 

A  party  may  not  state  in  general  terms  that  it  is  not  in  his 
power  to  produce  a  deed;  but  he  must  give  such  detailed  circum- 
stances in  relation  to  the  search  for  it  and  the  probabilities  of  its 
loss,  as  will  convince  the  court  of  its  actual  loss,  or  inability  of 

party  to  produce  it. 

Booth  vs.  Cook,  20  111.   IW. 
Parol   proof   of   contents   of  lost   deed   must   be   so   clear   and 
positive  as  to  leave  no  reasonal^le  doubt  or  suspicion  as  to  material 


808  LOST  INSTRUMENTS 

parts  thereof;  and  what  will  be  regarded  as  material  parts  of  a 
deed  will  depend  upon  the  character  of  the  controversy. 
Bennett  vs.  Waller,  23  111.  97. 

Where  the  existence  of  a  lost  unrecorded  deed  is  clearly  shown, 
and  proof  of  diligent  search  is  made  therefor,  parol  evidence  of 
its  contents  may  be  made  by  witness  familiar  with  the  same. 
Sweuringen  vs.  Guliek,  67  111.  208. 

When  parol  proof  of  existence  and  contents  of  a  lost  deed  is  the 

only  evidence  offered,  witness  must  have  seen  and  read  the  deed 

and  be  able  to  state  its  contents,  whether  it  conveyed  a  fee  simple, 

a  life  estate  or  an  estate  for  years,  and  also  whether  it  was  in  fact 

executed  by  the  grantor. 

Dagley  vs.  Black,   197  111.  53. 

The  recollection  of  witnesses  as  to  contents  of  lost  or  destroyed 
deeds  is  clearly  competent,  and  their  recollection  may  be  refreshed 
by  reference  to  notes  taken  by  them,  and  known  to  be  correct. 
Bush  vs.  Stanley,   122  111.  406. 

After  the  fact  of  the  execution  and  loss  of  a  deed  is  clearly 
shown,  the  substance  of  the  contents  of  the  deed  may  be  proven  by 
parol  evidence.  All  that  the  witnesses  in  such  case  can  be  expected 
to  remember,  is  that  a  deed  was  made,  to  whom  and  about  what 
time,  for  what  consideration,  whether  warranty  or  quit-claim,  and 
for  what  property.     To  require  more  would  be  to  render  such 

proof  almost  impracticable. 

Harrell   vs.   Enterprise   Sav.   Bank,   183   111.   538;    Perry   vs.   Burton, 
111  111.  138. 

—  Index  Books:     Where   a   record   of   deed   is   destroyed,   the 

index  book,  in  which  the  deed  is  described,  and  its  record  in  the 

proper  book  certified,  is  good  evidence  of  the  fact  that  the  deed 

was  recorded. 

Alvis  vs.  Morrison,  63  111.   181. 

—  Master's  Deed:    When  taken  in  connection  with  the  record 

of  a  master's  sale  and  his  certificate  of  purchase,  the  courts  will 

not  require  so  full  proof  of  the  contents  of  a  master's  deed  when 

it  is  lost  as  otherwise  might  be. 

Bugger  vs.  Oglesby,  99  111.  405. 

—  Execution:  Secondary  evidence  of  the  execution  and  con- 
tents of  a  deed  is  authorized  by  testimony  that  the  deed  had  never 
been  in  the  possession  of  the  party  claiming  under  it,  that  it  was 
not  of  record  in  the  county,  and  that  the  books  in  which  it  would 
probably  have  been  recorded  were  destroyed  by  fire. 

'Harrell  vs.   Bank,   183  111.  538. 

A  deed  and  record  thereof  having  been  destroyed,  court  may 

receive  all  such  evidence  as  would  tend  to  establish  execution  and 

contents. 

Tucker  vs.  Shaw,  158  111.  326. 

Secondary  evidence  of  contents  of  an  unrecorded  deed  may  be 

received  upon  proof  that  the  deed  was  executed  and  delivered  to 

the  grantee   who  subsequently   handed   it,   with   other   papers,   to 

grantor  to  keep  for  him  in  his  safe,  and  that  after  latter 's  death 

the  deed  could  not  be  found  though  diligent  search  was  made 

among  the  papers  of  deceased. 

Hawley  vs.   Hawley,  187  111.  351. 


LOST  INSTRUMENTS  809 

"Where  witness  does  not  state  by  whom  the  deed  was  signed  as 
grantor,  whether  signed  in  person  or  by  attorneys,  or  whether  it 
was  in  handwriting  of  grantors,  or  even  that  he  knew  tlieir  sig- 
natures, the  execution  is  not  sufficiently  proven.  And,  opinion 
of  the  witness  that  the  deed  purportd  to  convey  a  fee  simple  title 
is  insufficient  to  dispense  with  otlier  evidence  of  its  validity. 

Owen  vs.  Thomas,  33  111.  320;   Mariner  vs.  Saunders,  10  111.  113. 

—  Notice  to  Produce:  Where  opposite  party  has  not  the  deed 
in  his  possession,  no  notice  to  him.  to  produce  same  is  necessary, 
to  admit  j^arol  evidence  of  its  contents.     Proof  of  loss  of  deed  is 

sufficient. 

.,  ...      Taylor  vs.  Mclrvin,  94  111.  488. 

Depositions : 

Where  the  deposition  of  a  witness  residing  in  another  state 
has  been  lost  from  the  files  without  fault  of  the  parties,  leave  may 
be  given  by  the  court,  upon  satisfactory  showing,  to  file  a  copy  of 

the  deposition  and  such  copy  may  be  admitted  in  evidence. 

Gage  vs.  Eddy,  167  111.  102. 

(Distinguish  Aulger  vs.  Smith,  34  111.  534,  and  Stout  vs.  Cook, 
57  111.  386,  which  hold  that  witness  being  alive,  proper  course  is 
to  retake  deposition,  and  that  contents  of  lost  deposition  could  not 
be  proved  except  where  witness  was  deceased.  In  latter  case,  wit- 
ness was  within  jurisdiction  of  court,  and  in  former,  witness  was 
deceased.) 

Where  depositions  were  destroyed,  and  in  second  suit,  an  agree- 
ment was  made  to  admit  the  transcript  of  the  record  of  the  suit 
filed  in  the  supreme  court,  as  evidence,  which,  on  application  was 
not  allowed  to  be  withdrawn,  copies  of  the  depositions,  duly  cer- 
tified by  the  clerk  of  the  supreme  court  were  competent  and  proper 

to  be  considered. 

Dowden  vs.  Wilson,  108  111.  257. 

Executions : 

AVhere  an  execution  is  lost,  the  execution  docket  kept  by  the 
clerk,  and  the  entries  therein  of  the  date  and  amount  of  the  execu- 
tion, where  the  clerk  testifies  to  the  regularity  of  the  docket,  are 

admissible  as  evidence  of  the  facts  therein  stated. 

Dimlap  vs.  Berry,  5  111.  327;  Becker  vs.  Quigg,  54  111.  319. 

Justice's  Docket: 

Contents  of  may  be  proven  by  parol  testimony. 

People  vs.  Cotton,  250  111.  338. 

Letters : 

Where  a  letter  is  destroyed,  a  copy  is  the  best  evidence  and 

notice  to  produce  a  copy  should  be  required  before  testimony  of 

the  contents  is  permitted. 

Pro.  League  vs.   Langsdorf,   126  App  572;    Wright  vs  Eaftree,   181 
111.  464;   Young  vs.  People.  221  111.  51. 

To  admit  parol  evidence  of  the  contents  of  a  letter,  the  pre-t 
liminary  proof  must  show  that  it  is  either  lost  or  destroyed,  or 
not  in  the  power  of  the  party  to  produce  it. 

Hazen  vs.  Pierson,  83  111.  241;  Hoblit  vs.  Houser,  171  App.  19.   (See 
Letters.) 


810  LOST  INSTRUMENTS 

Memoranda: 

A  copy  of  a  lost  niemoranduin  proved  to  be  correct,  is  admissible 
in  evidence  in  connection  with  testimony  of  witness  making  it. 
Ryan  vs.  Miller,  153  111.  138. 

Notes : 

Where  a  note  with  its  endorsements  of  payments  is  used  on  trial 
before  a  justice,  and  on  appeal  is  not  found,  in  order  to  admit 
secondaiy  evidence  of  its  contents,  the  testimony  of  the  justice 
and  plaintiff's  attorney  should  be  taken,  in  addition  to  that  of 
plaintitf,  that  the  note  could  not  be  found  after  diligent  and  care- 
ful search. 

Moore  vs.  Wright,  90  III.   470. 

Party  may  lay  foundation,  by  his  own  oath,  to  prove  contents 

of  note  Avhieh  has  been  lost. 

Wade  vs.  Wade,  12  111.  88;  Palmer  vs.  Logan,  4  111.  56. 
In  case  of  unindorsed  notes,   affidavit  of  payee   or  his   agent, 
of  loss  of  same  is  sufficient  to  admit  secondary  evidence  of  con- 
tents. 

McMillan  vs.  Bethold,  Smitli  &  Co.,  35  111.  250. 

Likewise  wdiere  note  bears  special  indorsement. 

Eogers  vs.  Miller,  5  111.  334. 
And  contents  may  be  shown  by  chattel  mortgage  given  to  se- 
cure same. 

O'Neil  vs.  O'Keil,   123  111.  361. 

Pleading's : 

Copy  of  lost  pleading  may  be  used  as  evidence,  if  fact  of  loss 
and  correctness  of  copy  is  proved  by  a  witness.  Atlitlavit  of  attor- 
ney is  not  sufficient.  He  himself  should  be  called  to  testify  thereto. 
Harlev  vs.  Harlev,   67   App.   139. 

Though  such  copy  be  properly  established,  it  is  not  error  to 
refuse  to  permit  same  to  be  tiled,  since  filing  is  not  essential  to  its 

use  as  evidence. 

Harlev  vs.  Harlev,  67  App.  139. 
As  foundation  for  introducing  parol  proof  of  contents  of  bill 
and  answer  to  suit  in  chancery,  the  deputy  clerk  testified  that  he 
had  carefully  examined  the  boxes  in  w^hich  the  papers  of  the  term 
were  placed,  and  could  not  find  the  papers  of  that  case,  and  did 
not  think  they  were  in  his  office.  The  deputy  showed  a  receipt  for 
the  papers  by  a  former  attorney  of  the  party  against  whom  they 
were  sought  to  be  given  in  evidence.  The  attorney  said  he  had 
never  returned  the  papers  to  the  clerk's  office,  but  had  handed 
them  over  to  another  attorney,  his  successor  in  the  case ;  that 
he  had  searched  his  own  office  and  could  not  find  them.  The  last 
attorney  to  whose  hands  the  papers  seemed  to  have  been  traced, 
said  he  had  never  seen  them.     This  was  sufficient  proof  of  loss 

to  admit  secondary  evidence  of  contents. 
Carr  vs.  IMiiier,  42  111.  179. 

Corporate  Records : 

Copy  of  minutes  of  private  corporation  cannot  be  proven  by 
record  in  recorder's  office  without  preliminary  proof  showing  due 
search  and  producing  as  witnesses,  or  taking  depositions  of,  offi- 
cers of  corporation,  in  whose  custody  the  record  of  the  corpora- 
tion should  be. 

Mullanphy  Savings  Bank  vs.  Sehott,  135  111.  655. 


LOTTERY  811 

Wills: 

The  contents  of  a  lost  or  destroyed  will  may  be  proven  by  testi- 
mony of  a  single  witness. 

The  declarations  of  a  testator,  written  or  oral,  made  after  execu- 
tion of  will  are,  in  event  of  its  loss,  admissible,  not  only  to  prove  it 
had  not   been   cancelled,   but   also   as   secondary   evidence   of   its 

contents. 

In  re  Page,  118  111.  576. 

To  establish  contents  of  lost  will,  it  is  not  essential  that  sub- 
scribing- witnesses,  by  whom  it  is  sought  to  make  the  proof,  shall 
be  able  to  repeat  its  exact  language,  and  it  is  sufficient  if  they  are 
able  to  recollect  with  certainty  the  substance  of  the  will,  which 

is  a  very  simple  one. 

Cassein  vs.  Prindle,  258  111.  11. 

Clear  proof  of  the  execution,  attestation  and  contents  of  a  will, 
and  that  the  will  was  last  seen  in  possession  of  widow  some  weeks 
after  testator's  death,  justifies  the  presumption  that  the  widow^ 
performed  her  duty  under  the  law  and  delivered  the  will  to  the 
probate  court,  and  such  proof,  coupled  with  testimony  of  clerk 
of  probate  court,  that  he  has  made  diligent  search  among  the  files 
and  records  of  his  office,  and  has  been  unable  to  find  the  will, 
makes  a  prima  facie  case  that  the  will  has  been  lost. 
Cassem  vs.  Prindle,  258  111.  11. 

t  Lost  or  destroyed  wills  cannot  be  established  and  the  distribu- 
tion of  estates  determined  upon  unsatisfactory  evidence,  such  as 
that  of  a  single  witness,  who  testifies  that  after  the  death  of  testa- 
trix, she  found  in  her  clotliing,  and  gave  to  her  husband,  a  paper 
enclosed  in  a  wrapper  of  the  same  size  and  color  as  the  one  shown 
to  her  in  court  a  year  and  a  half  after  the  incident  occurred,  and 
which  is  claimed  to  be  a  fac  simile  of  the  alleged  will. 
St.  Mary's  Home  vs.  Dodge,  257  111.  518. 


LOTTERY 

Defined: 

A  scheme  for  the  distribution  of  prizes  by  chance. 

Thomas  vs.  People,  59  111.  160;  Dunn  vs.  People,  40  111.  465;  XIII  111. 
Notes,  351,   §  1. 
There  must  be  chance  to  gain  or  lose  by  the  drawing. 

Elder  vs.   Chapman,   176   111.    142. 
Statute  not  only  covers  chances  sold  or  drawn,  "but  also  those 
to  be  sold  or  drawn, ' '  and  it  is  not  necessary  to  show  ones  in  ques- 
tion were  sold. 

Peo[>le  vs.  Kriiger,  237  111.  357, 

Admissibility  of  Evidence: 

In  order  to  prove  the  intent  with  which  a  ticket  is  sold,  the  bill 
or  advertisement  delivered  to  purchaser  is  admissible, 
Thomas  vs.  People,  59  111.   160. 

Tickets  and  handbills  found  at  defendant's  place  of  business 
are  admissible. 

Dunn  vs.  People,.  40  111.  465. 


812  MAGNIFYING  GLASS 

So  also  are  other  tickets  and  bills  or  advertisement  of  similar 
kind  sold  and  delivered  to  other  parties. 
Thomas  vs.  People,  59  111.  1(50. 
In  action  for  money  had  and  received,  to  recover  money  re- 
ceived by  the  defendant  for  plaintiff  and  converted  to  his  own 
use,  it  is'  immaterial  that  the  money  was  won  by  plaintiff  in  a  lot- 
tery or  otherwise. 

Brady  vs.  Horvath,  167  111.  GIO. 


MAaNIFYING  GLASS 

Use  by  Jurors : 

—  Whe7i  Prejudicial:  In  an  action  against  a  city  for  damages 
for  injuries  from  a  defective  sidewalk,  if  there  is  a  sharp  conflict 
as  to  the  condition  of  the  sidewalk,  and  the  stringers  which  sup- 
ported it,  it  is  prejudicial  error  to  permit  the  jury  to  examine 
pieces  of  the  stringers  through  a  magnifying  glass  for  the  pur- 
pose of  discovering  defects. 

City  of  Elgin  vs.  Nofs,  200  111.  252;  Cf.  Howard  vs.  111.  T.  &  S.  Co., 
189  111.  568. 

—  When  Proper:  "Where  witnesses  testifying  with  respect  to 
altered  instruments  used  a  magnifying  glass,  the  court  may  per- 
mit the  jury  to  take  the  magnifying  glass  to  the  jury  room  for^ 

use  in  examining  such  instrument. 

Grand  Lodge  vs.  Young,  128  App.  628. 
(In  City  of  Rockford  vs.  Russell,  9  App.  229,  court  approved 
admission  in  evidence  of  a  stereoscope  to  aid  the  jury  in  exami- 
nation of  the  views  offered  in  evidence.) 


MALICE 

See  False  Imprisonment,  Homicide,  Intent,  Libel  and  Slan- 
der, Malicious  Mischief,  Malicious  Prosecution. 


MALICIOUS  MISCHIEF 

MaHce  and  111- Will: 

Malice  must  be  directed  against  some  person,  ordinarily  the 
owner  of  the  property,  but  it  need  not  be  shown  that  the  offender 
actually  knew  the  owner.  It  will  be  sufficient  to  show  that  he  was 
bent  on  mischief  against  the  owner,  whomsoever  he  might  happen 

to  be. 

People  vs.  Jones,  241  111.  482;  Snap  vs.  People,  19  111.  80. 

It  is  not  necessary  to  produce  evidence  of  expressions  of  ill- 
will,  but  it  will  be  sufficient  if  it  appear  from  the  evidence  that 

the  act  was  prompted  by  malevolence. 
^,.  Calef  vs.  Thomas,  81  111.  478. 

Malice  may  be,  and  frequently  must  be,  inferred  from  the  na- 
ture of  the  act  itself,  and  from  the  circumstances  which  accom- 


MALICIOUS  MISCHIEF  813 

pany  and  characterize  it,  but  the  inference  is  not  one  of  law  for 

the  court,  but  one  of  fact  for  the  jury. 
People  vs.  Jones,  241  111.  4S2. 

In  order  to  constitute  the  offense  of  malicious  mischief  in  kill- 
ing an  animal,  it  is  not  enough  to  prove  a  spirit  of  cruelty  towards 

the  animal. 

People  vs.  Jones,  241  111.  482. 

Under  section  of  criminal  code  relating  to  killing,  maiming  or 
wounding  domestic  animals,  it  is  not  necessary  to  prove  the  ani- 
mal was  killed  or  injured  by  defendant  with  intent  to  destroy 

its  life. 

People  vs.  Jones,  241  111.  482. 

Defenses : 

Evidence  tending  to  show  that  the  act  was  done  under  a  bona 
fide  claim  of  right  is  admissible  to  repel  presumption  of  malicious 

intent. 

Sattler  vs.  People,  59   111.  68. 

It  is  not  conclusive  against  a  charge  of  malicious  mischief  that 

the  person  was  in  possession  under  claim  of  ownership ;  good  faith 

and  an  honest  and  reasonable  belief  are  essential. 
Wilmerton  vs.  Sample,  39  App.  60. 

A  vicious  animal  may  lawfully  be  killed  if  found  by  the  owner  of 
property  under  such  circumstances  as  would  indicate  an  apparent 
danger  that  his  property  Avould  be  injured*  or  destroyed  unless  the 
aggressor  was  killed. 

The  law  from  the  earliest  times  has  recognized  the  right  to  defend 

property  against  the  unlawful  acts  of  man  or  beast. 
Anderson  vs.  Smith,  7  App.  354. 
The  owner  of  crops  has  no  right  to  wound  or  kill  domestic  animals 
found  trespassing  upon  the  premises.     This  rule  applies  as  well  to 

fowls  as  to  more  valuable  animals. 
Eeis  vs.   Stratton,   23   App.   314. 

In  prosecution  for  injury  to  animals,  proof  that  defendant's  act 

was  absolutely  necessary  for  the  protection  of  his  property  is  not 

required. 

People  vs.  Jones,  241  111.  482. 

The  inherent  right  of  a  person  to  protect  his  property  is  the 
right  to  do  whatever,  under  the  circumstances  of  the  particular 
case,  is  apparently  reasonably  necessary  for  its  defense ;  but  the 
same  rules  do  not  apply  as  governing  the  defense  of  one's  life,  and 
the  reasonableness  of  the  force  used  depends  in  some  degree  upon 
whether  the  offense  is  against  an  animal  or  human  being. 
People  vs.  Jones,  241  111.  482. 

Even  if  a  person  does  an  act  wilfully  or  wantonly  for  the  pur- 
pose of  injuring  an  animal,  it  does  not  necessarily  follow  that  he 
did  it  with  malice  towards  the  owner,  and  in  such  case  the  ques- 
tion of  malice  toward  the  owner  is  the  crucial  point,  and  evi- 
dence fairly  tending  to  show  lack  of  malice  by  defendant  is  ad- 
missible. 

People  vs.  Jones,  241  111.  482. 

In  malicious  mischief  prosecution  for  castrating  a  bull  which 
defendant  discovered  in  his  pasture  among  his  herd  of  another  breed 
of  registered  cows,  proof  that  when  a  cow  once  produces  a  cross- 


814  MALICIOUS  PROSECUTION 

breed  calf  she  has  the  tendency  to  cross-breed  ever  afterwards  tends 

to  show  the  seriousness  of  the  injury  to  defendant  as  a  breeder  of 

full-blooded  cattle,  and  is  admissible  as  bearing  upon  his  motive  in 

castrating  the  bull. 

People  vs.  Jones,  241  111.  482. 

Defendant  may  show  that  animal   once  attacking  a  man  will 
have  a  habit  thereafter  of  attacking  that  particular  man,  for  pur- 
pose of  showing  want  of  malice. 
People  vs.  Jones,  241  ill,  482. 


MALICIOUS  PROSECUTION 

In  General: 

Defendant  may  prove  all  the  circumstances  out  of  which  the 
prosecution  arose,  and  the  various  steps  taken  before  the  war- 
rant of  arrest  was  issued. 

Banker  vs.  Ford,  152  App.  12. 

Identity  O'f  Parties : 

Whether  complainant  is  person  against  whom  prosecution  was 
directed  is  a  matter  of  evidence,  whatever  may  be  the  name  in  the 

complaint  and  warrant. 

Conroy  vs.  Townsend,  69  App.  61. 

Must  be  shown  that  defendant  was  the  prosecutor. 
Hurd  vs.  Shaw,  20  111.  355. 

Or  was  the  principal  for  whom  the  actual  prosecutor  acted  as 

agent. 

C.  B.  &  Q.  Ey.  Co.  vs.  Williard,  68  App.  315. 
And  where  an  action  is  based  on  arrest  caused  by  agent  of  de- 
fendant, defendant  may  show  that  agent  acted  without  authority. 

C.  B.  &  q.  Ry.  Co.  vs.  Williard,  68  App.  315. 

Character  of  Defendant: 

Good  character  of  defendant  may  be  shown  by  him  as  an  ele- 
ment to  ward  off  any  suspicion  that  he  might  have  acted  with- 
out probable  cause. 

Banker  vs.  Ford,  152  App,  12, 

It  is  error  to  admit  evidence,  in  behalf  of  plaintiff,  of  a  diffi- 
culty in  which  defendant's  wife  had  been  concerned,  or  respecting 
the  character  of  defendant's  wife  and  son  for  peace  and  quiet. 

Home  vs.  Sullivan,  83  111.  30. 

Character  of  Plaintiff : 

—  When  Arrest  Made  on  Complaint:  In  action  for  malicious 
prosecution  for  having  plaintiff  arrested  for  a  riot,  upon  com- 
plaint made  by  defendant  upon  his  own  knowledge,  and  not  upon 
information  and  belief,  it  is  error  to  permit  plaintiff  to  prove  her 
character  for  peace  and  quiet.  If  the  charge  on  which  she  was 
arrested  had  been  made  upon  information  and  belief,  such  testi- 
mony would  be  admissible,  as  having  a  bearing  upon  the  ques- 
tion whether  defendant  believed  the  charge  to  be  true. 

Skidmore  vs.  Brieker,  77  111.  164. 

—  Bad  Character:  Defendant  may  show  bad  character  of  ac- 
cused. 

Banker  Vs.  Ford,  152  App.  12. 


MALICIOUS  PROSECUTION  815 

Defendant  may  prove  the  general  bad  reputation  of  plaintiff 

at  the  place  where  he  resided  at  time  of  his  arrest,  for  honest 

and  fair  dealing  in  business,  to  rebut  tiie  proof  of  want  of  probable 

cause. 

Rosencrans  vs.  Barker,  115  111.  331. 

So  far  as  such  reputation  was  known  to  defendant  when  he  in- 
stituted the  action. 

Waters  vs.  West  Chi.  St.  Ey.  Co.,  101  App.  265. 

Admissible  as  tending  to  show  probable  cause. 

Israel  vs.  Brooks,  23  111.  575;  XIII  III.  Notes,  361,  §  67. 

And  in  mitigation  of  damages. 

Eosencrans  vs.  Barker,  115  111.  331;  Israel  vs.  Brooks,  23  111.  571. 

—  Particular  Acts:  Evidence  of  good  character  or  general 
reputation  cannot  be  rebutted  by  evidence  of  particular  acts,  but 
upon  cross  examination,  the  conduct  of  plaintiff  may  be  reason- 
ably inquired  into  with  view  to  the  question  of  his  veracity. 

Waters  vs.  West  Chi.  St.  Ey.  Co.,  101  App.  265. 

The  court  may,   without  abuse  of  discretion,   refuse    to  allow 

defendant,   after  conclusion  of  the  evidence,   to  introduce  proof 

that  plaintiff  once  stole  a  pair  of  shoes,  no  reason  being  shown 

why  the  evidence  was  not  introduced  in  chief. 
Williard  vs.  Pettit,  153  111.  663. 

Proof  of  Probable  Cause: 

—  Defined:  Probable  cause  is  such  a  state  of  facts  in  the  mind 
of  the  prosecutor  as  would  lead  a  man  of  ordinary  caution  and 
prudence  to  believe  or  entertain  an  honest  and  strong  suspicion 

that  the  person  ai*rested  is  guilty. 

Harpham  vs.  Whitney,  77  111.  32. 
Reasonable  ground  for  suspicion,   supported  by  circumstances 
sufficiently  strong  to  warrant  a  cautious  man  in  belief  of  guilt, 

constitute  pro])able  cause. 

Parmelee  Co.  vs.  Griffin,  136  App.  307;  Eichey  vs.  McBean,  17  111.  62. 

Probable  cause  is  a  reasonable  ground  of  suspicion,  supported 

by  circumstances  sufficiently  strong  in   themselves  to   warrant  a 

cautious  man  in  the  belief  that  the  person  charged  is  guilty  of 

offense  charged. 

Ames  vs.  Snider,  69  111.  376;  Franczak  vs.  Plotzki,  178  App.  279. 

To  constitute  probable  cause,  there  must  be  reasonable  grounds 

for  suspicion,   supported   by   circumstances  sufficiently   strong   to 

warrant  a  cautious  man  in  belief  of  guilt, 

Treptow  vs.  Montgomery  Ward  Co.,  153  App.  422. 

—  Reports  and  Neivspaper  Publication:  Reports  and  newspa- 
per publications,  if  communicated  to  defendant,  before  beginning 
the  prosecution,  are  admissible  on  question  whether  it  was  prob- 
able that  plaintiff  was  guilty  of  crime  Avith  which  defendant 
charged  him,  as  bearing  upon  the  effect  of  the  prosecution  upon 

plaintiff's  business. 

Waters  vs.  West  Chi.  St.  Ey.  Co.,  101  App.  265. 

—  Facts  Surrounding  Arrest:  Evidence  of  what  took  place  at 
time  of  arrest  and  during  the  disturbance  in  connection  with  it, 
is  material  on  question  of  probable  cause. 

Blumenfeldt  vs.  Haisniann,  30  App.  388. 

—  Conviction  Suhsequently  Reversed:  A  judgment  of  convic- 
tion, although  reversed,  is  prima  facie  evidence  of  existence  of 


816  MALICIOUS  PROSECUTION 

probable  cause  for  prosecution,  and  constitutes  sufficient  defense, 
unless  proven  to  have  been  obtained  by  fraud. 

McElroy  vs.  Catholic  Press  Co.,  254  J II.  290. 
When  a  justice  of  the  peace  has  jurisdiction  to  render  final 
judgment  in  the  examination  of  a  criminal  charge,  and  is  not 
simply  a  committing  magistrate,  and  when  the  hearing  is  fair, 
without  fraud,  the  testimony  free  from  perjury,  and  results  in  a 
conviction  of  defendant,  such  conviction  is  conclusive  upon  ques- 
tion of  probable  cause,   for  the  prosecution,   though   on   appeal, 

defendant  may  be  acquitted. 

Thomas  vs.  Muehlmau,  92  App.  571. 

A  conviction  by  a  court  of  record  having  jurisdiction  of  a  cause, 
which  is  subsequently  reversed,  is  not  conclusive  proof  of  prob- 
able cause  for  the  prosecution,  where  it  appears  that  such  con- 
viction was  procured  by  undue  means,  as  by  fraud,  conspiracy 
or  false  testimony  or  subornation. 
Gilmore  vs.  Mastin,  115  App.  46. 

—  Becord  of  Alleged  Malicions  Action:  The  record  of  ac- 
ciuittal  of  the  charge  is  inadmissible  on  question  of  probable  cause. 

Skidniore  vs.  Bricker,  77' 111.   164. 

Want  of  Probable  Cause: 

— ■Necessity  of  Establishing:     Want  of  probable  cause  is  the 

gist  of  the  action. 

Montross  vs.  Bradsby,  68  111.  185, 

Plaintiff  must  establish  affirmatively  that  defendant  instituted 

the  prosecution  without  probable  cause. 

McElroy  vs.  Catholic  Press,  254  111.  290;  Israel  vs.  Brooks,  23  111. 
575;  Eoss  vs.  Innes,  35  111.  487;  Aiiies  vs.  Snider,  69  111.  376; 
Palmer  vs.  Eichardson,  70  111.  544;  Brown  vs.  Smith,  83  111.  291; 
Lessick  vs.  Anderson,  167  App.  393;  Young  vs.  Lindstrom,  115 
App.  239 ;  XIII  111.  Notes  360,  §  59. 

—  Mistake  of  Laiv:    Where  defendant  is  a  lawyer  of  many  years 

experience,  he  can  not  take  shelter  under  lack  of  knowledge  that 

there  was  no  probable  cause. 

Epstein  vs.  Berkowski,  64  App.  498. 

—  Subject  Matter  of  Alleged  Malicious  Action:  In  action  for 
malicious  prosecution  in  securing  arrest  of  mortgagor  who  mo- 
lested mortgagee  in  removing  mortgaged  goods  pursuant  \o  _  an 
agreement  between  them,  the  note  and  mortgage  are  inadmissible 

on  question  of  probable  cause. 

Banker  vs.  Ford,  152  App.  12. 

—  Acquittal  of  Plaintiff:  An  acquittal  or  discharge  of  plain- 
tiff is  no  proof  of  want  of  probable  cause. 

McBean    vs.    Eitchie,    IS    111.    114;    Israel   vs.    Brooks,    23    111.    575; 
Thorpe  vs.  Balliett,  25  111.  339. 
Discharge  of  plaintiff  raises  presumption  that  he  was  discharged 

for  want  of  proof  of  guilt. 

McCausland  vs.  Wonderly,  56  111.  410. 

And  the  declarations  of  defendant  at  time  prosecution  was  dis- 
missed are  inadmissible  to  explain  why  proof  was  not  made. 
McCausland  vs.  Wonderly,  56  111.  410. 

Where  declaration  for  malicious  prosecution  of  plaintiff  on 
charge  of  larceny  averred  that  grand  jury  "adjudged  and  deter- 
mined that  said  "plaintiff  was  not  guilty  of  said  supposed  offense, 


MALICIOUS  PROSECUTION  817 

and  refused  and  did  not  find  or  present  a  hill  or  indictment  against 
said  plaintiff  for  the  supposed  offense,  or  for  any  offense  what- 
ever, and  then  and  there  caused  said  plaintiff  to  be  discharged 
out  of  custody,  duly  acquitted,  and  discharged  of  the  supposed 
offense,"  proof  that  the   grand  jury  ignored   the  bill  was  held 

proof  of  the  averment. 

Gilbert   vs.   Emmons,   42    111.    143. 

—  Record  of  Alleged  Malicious  Action:  The  proceedings  before 
the  magistrate  are  admissible  on  issue  of  the  prosecution  and  dis- 
charge of  plaintiff  therein,  but  not  to  show  want  of  probable  cause. 

Banker  vs.  Ford,   152  Apj).   12. 

Notwithstanding  the  discharge  of  plaintiff  in  the  criminal  prose- 
cution is  admitted,  plaintiff  has  right  to  introduce  order  of  dis- 
charge which  constitutes  the  best  evidence  of  the  fact. 
Hascbke  vs.  Orr,  167  App.  656. 

—  As  Being  Inferred  From  Malice:     "Want  of  probable  cause 

cannot  be  inferred  from  malice. 

MeElroy  vs.  Catholic  Press  Co.,  254  111.  290;  Banker  vs.  Ford,  152 
App.  12;  Ames  vs.  Snyder,  69  111.  376;  Brown  vs.  Smith,  83  111. 
291;    XIII    111.    Notes,"  356,    §11. 

—  Action  for  Breach  of  Contract:  Want  of  probable  cause  for 
prosecution  for  obtaining  a  meal  at  an  inn  with  intent  to  defraud,, 
is  shown  where  the  meal  was  not  had,  and  there  is  at  most  but  a 
breach  of  contract  to  pay  for  a  meal  in  readiness  when  the  guest 
leaves,  and  this  known  to  the  prosecutor. 

Sundmacher  vs.  Bloeh,  39  App.  553. 

—  Character  of  Plaintiff :  The  previous  good  character  of  plain- 
tiff, and  the  knowledge  of  same  by  defendant  at  time  of  making 
the  accusation,  may  be  given  in  evidence  to  show  want  of  prob- 
able cause. 

Israel  vs.  Brooks,  23  111.  575. 

Among  the  circumstances  tending  to  prove  want  of  probable 
cause,  the  good  character  of  accused  stands  out  prominently  and 
is  a  strong  fact,  if  known  by  accuser,  to  ward  off  suspicion  and 
weaken  belief,  he  being  a  prudent  and  cautious  man,  in  the  guilt 

of  suspected  party. 

Eoss  vs.  Innes,  35  111.  487. 

—  Admissions  of  Plaintiff:  The  admissions  of  plaintiff  are 
proper  to  be  considered  by  the  jury. 

Israel  vs.  Brooks,  23  111.  575. 

—  Defendant's   Knowledge    of   the    Facts:     When    defendant, 
financially    embarrassed,    secures    an    indictment    against   plaintiff 
for  perjurj'  in  making  an  affidavit  of  defendant's  financial  condi- 
tion, such  facts  are  sufficient  to  show  want  of  probable  cause. 

Montross  vs.  Bradsby,  68  111.  185. 

—  Intent  of  Prosecutor:  Intent  of  prosecutor  in  causing  ar- 
rest is  incompetent  to  show  want  of  probable  cause. 

Eoy  vs.  Goings,  6  App.  140. 

Malice : 

—  Defined:  IMalice,  in  its  legal  sense,  means  a  wrongful  act 
done  intentionally,  without  cause  or  excuse;  the  wilful  violation 

of  a  known  right. 

London  Guaranty  Co.  vs.  Horn,  206  111.  493. 

That  evil  quality  of  the  heart  which  prompts  a  man  to  make  a 

Ev. — 5  2 


818  MALICIOUS  PROSECUTION 

false  charge  against  another,  for  the  purpose  of  private  gain  or 

advantage,  is  legal  malice. 

Neufeld   vs.   Eodeminski,   144   111.   83. 

To  constitute  malice,  there  must  be  something  more  than  spite 
01'   hatred,    party    must    be    actuated    by    improper    and    indirect 

motives. 

Splane  vs.  Byrne,  9  App.  392;  Harpham  vs.  Whitney,  77  111.  32. 

Burden  is  on  plaintiff  to  show  nudice  and  want  of  probable 

cause. 

Lowiy  vs.  Hatcly,  30  App.  297. 

—  Evidence  io  Show  Malice:  Where  action  is  based  on  prose- 
cution of  plaintiff  for  larceny,  assistant  state's  attorney  may  state 
why  he  did  not  describe  in  the  indictment  all  of  the  articles  men- 
tioned in  the  list  presented  to  the  grand  jury. 

Penny  vs.  Johnston,  142  App.  634. 

AYitness  for  defendant  may  testify  as  to  communication  by  him 
to  defendant,  relative  to  information  received  by  him  as  to  guilt 
of  plaintiff  of  charge  upon  which  alleged  malicious  prosecution 
was  based,  as  bearing  on  question  of  defendant's  good  faith. 

Penny  vs.  Johnston,  142  App.  634. 

The  abuse  of  legal  process  to  the  injury  of  another  is,  in  itself, 

proof  of  malice. 

Ki-ug  vs.  Ward,  77  111.  603  ;  Schofer  vs.  Sntter,  63  App.  2.57.  _     . ; 

Opinion  of  witness  for  plaintiff,  that  defendant,  when  testify-' 
ing  in  alleged  malicious  prosecution,  was  vindictive,  is  incompe- 
tent. 

Ames  vs.   Snyder,  69   111.  376. 

^lalice  and  want  of  probable  cause  being  the  ground  for  nudi- 

cious  prosecution,  any  fact  tending  to  disprove  either  is  competent. 

Anderson  vs.   Friend,   71   111.   475. 

It  is  evidence  of  malice  that  three  separate  warrants  are  sworn 

out  upon  distinct  charges  growing  out  of  the   same  transaction, 

and  that  defendant  said  to  plaintiff,  both  before  and  after  arrest 

that  he  would  "fix  her,"  and  that  he  would  make  her  "sick  and 

tired,"  etc. 

Epstein  vs.  Berkovrsky,   64  App.  498. 

It  is  admissible  to  prove  that  defendant  inquired  where  he  could 

get  a  lawyer  to  do  a  "dirty,  mean  trick,"  in  order  to  show  malice 

or  bad  faith,  where  defendant  alleges  that  he  acted  in  good  faith 

on  advice  of  counsel. 

Willard  vs.  Petit,  153  111.  663. 

—  Question  for  Jury:  Malice  is  a  question  of  fact  for  the  jury, 
and  in  no  case  does  a  legal  prcsumpiion  of  malice  arise  from  want 
of  i)robable  cause.  The  jury  may  infer  malice  as  a  matter  of  fact 
from  want  of  probable  cause,  but  it  does  not  necessarily  follow. 

Harpham  vs.  Whitney,  77  111,  32;  Israel  vs.  Brooks,  23  111.  575. 

—  Concurrence  ivith  Prohuhle  Cause:  It  must  be  shoAvn  that 
defendant  instituted  the  prosecution  against  plaintiff  maliciously 
and  without  probable  cause,  and  the  two  must  concur. 

Jacks   vs.    Stimsou.    13    III.    702;    Lndwig   vs.    Eawson,    2    111.    272; 
Lessick   vs.    Anderson,    167   App.    393;    Montross   vs.   Bradsby,    68 
111.   185;   XIII  HI.  Notes  356,   §10. 
It  is  a  defense  to  action  to  show  arrest  was  without  probable 

cause,  but  not  malicious. 

Siegel-Cooper  Co.   vs.   Tuebbeeke,   133   App.  312. 


MALICIOUS  PROSECUTION  819 

Express  proof  of  malice  will  not  sustain  an  action  if  there  was 

probable  cause  for  a  prosecution. 

McBeaii  vs.  Kilehie,   IS   111.   114. 
If  there  is  probable  cause  for  a  prosecution,  it  is  immaterial  if 
such   prosecution    was   actuated    hy   malice,    and   also   immaterial 
that  plaintiff  was  not  only   found  not   guilty,   but  was   actually 

innocent. 

Tumalty  vs.  Parker,  100  App.  382. 

—  Right  of  Defendant  to  Testify  to  Absence  Of:  Defendant 
may  testify  as  to  his  motive  and  may  state  that  he  was  not  actu- 
ated by  malicious  ill-will,  and  that  he  honestly  believed  in  plain- 
tiff's guilt. 

Harpham  vs.  Whitney,  77  111.  32 ;  Baker  vs.  Eonk,  134  App.  499. 

—  When  Acting  Under  Authority:  Where  a  person  has  au- 
thority giving  him  power  of  attorney  to  enter  judgment,  he  can- 
not be  held  liable  for  the  effect  of  the  entry  of  such  judgment, 
merely  because  the  evidence  shows  his  motives  were  malicious. 

•Martin    vs.    Summers,    79    App.    392. 

—  Inferred  from  Surrounding  Circumstances:  IMalice  may  be 
inferred  from  the  circumstances  surrounding  the  case. 

Epstein  vs.  Berko^vsky,  64  App.  498. 

—  Inferred  from   ^¥ant   of  Probable    Cause:     Malice   may   be 

inferred  from  want  of  probable  cause. 

McEIroy  vs.  Catholic  Press,  254   111.   290;   Treptow  vs.   Montgomery 

Ward  &  Co.,  153  App.  422;  Banker  vs.  Ford,  152  App.  12;   State 

Bank  vs.   Noser,   133   App.   173;   Daily  vs.  Donath.   100   App.   52; 

Montrose  vs.  Bradsby,  68  111.  185;   Ames  vs.  Snyder,  69  111.  370; 

XIII  111.  Notes,  357,  §  22. 
In  general  the  jury  is  authorized  to  infer  malice  from  want 
of  probable  cause  alone,  where  the  facts  and  circumstances  in 
evidence,  which  establish  the  principal  fact,  are  inconsistent  with 
good  faith  upon  the  part  of  the  prosecutor,  but  in  cases  where  the 
proof  may  show  a  want  of  probable  cause,  yet  if  the  evidence 
upon  this  point  is  consistent  with  good  faith,  the  jury  ought 
not  to  infer  malice,  simply  because  the  principal  fact  is  proved, 
but  in  such  case  the  plaintiff  should  go  further  and  introduce  inde- 
pendent evidence  of  malice. 

Comisky  vs.  Breen,  7  App.  369. 

Malice  is  in  no  case  a  legal  presumption  from  the  want  of 
probable  cause,  it  being  for  the  jury  to  find  from  the  facts  proved, 
where  there  was  no  probable  cause,  wh'ether  there  was  malice  or 

not. 

Harpham  vs.  Whitney,   77   111.   32;    Cartwright  vs.   Elliott,   45   App. 
458;   Christman  vs.  Christman,  36  App.  567. 

This  inference  is  not  in  all  cases  necessarily  to  be  deduced  from 
the  existence  of  the  fact  that  there  v/as  no  probable  cause. 
Comisky  vs.  Breen,  7  App.  369. 

—  Inferoice   When   Suit  Brought  on  Information  and  Belief: 

Malice  is  not  to  be  inferred  from  the  fact  that  the  prosecution 

was  begun  without  a  personal  knowledge  of  the  facts,  but  was 

brought  on  information  and  belief. 

Harpham   vs.   Whitney,   77   111.   32. 

—  Termination  of  Proceedings  in  Favor  of  Plaintiff:  The  ter- 
mination of  a  criminal  prosecution,  on  account  of  which  the  action 


820  MALICIOUS  PHOSECUTION 

is  brouglit,  in  favor  of  plaintiff,  does  not  tend  to  prove  either  the 
element  of  malice,  or  want  of  probable  cause. 
Tuebbecke  vs.   Ruthschild,   152  App.   321. 

—  Dismissal  of  Suit:  Where  a  prosecution  was  dismissed,  de- 
fendant may  show  by  the  prosecuting  attorney  why  he  dismissed 
it,  in  order*  to  rebut  any  inference  of  malice. 

Anderson  vs.  Friend,  71  111.  475;  Collins  vs.  Fislier,  50  111.  359. 

—  Intent  as  Showing  Malice:  The  intent  of  the  prosecutor  in 
causing  the  arrest  may  be  proven  to  show  malice. 

Eoy  vs.  Goings,  6  App.   140. 

—  Ads  Similar  to  Those  Made  Basis  of  Alleged  Malicious  Prose- 
cution: Where  the  alleged  malicious  prosecution  was  for  lar- 
ceny of  defendant's  goods,  evidence  of  thefts  of  other  goods  than 
those  described  in  the  indictment,  prior  to  finding  of  indictment, 
is  competent  on  question  of  defendant's  good  faith. 

Penny  vs.  Johnson,  142  App.  634. 

—  PuUishing  Fact  of  Plmntiff's  Arrest:  The  fact  that  defend- 
ant caused  or  secured  the  publication  of  an  account  of  plaintiff's 
arrest  on  the  charges  against  him  is  admissible  to  show  malice. 

Waters  vs.  West  Chi.  St.  Ey.  Co.,  101  App.  265. 

—  Motive:  Plaintiff  must  show  that  the  motive  of  prosecu- 
tor, in  instituting  the  proceeding,  was  malicious. 

Comisky  vs.  Breen,  7  App.  369. 
Where  the  action  is  for  prosecution  for  forgery,  in  making  a 
copy  of  a  cancelled  contract  and  placing  it  on  record  as  an  orig- 
inal, the  motive  for  that  act,  while  not  in  issue,  is  a  circumstance 
proper  to  be  considered  by  the  jury  in  connection  with  other  facts 

in  the  case. 

Davie  vs.  Wisher,   72   111.   262. 

Advice : 

—  By  Justice  of  Peace  or  Police  Officer:  Advice  given  by  a 
police  officer  may  be  proven  as  showing  the  circumstances  under 
which  the  prosecution  was  instituted,  and  to  mitigate  damages, 

but  not  as  a  defense. 

Hirsh  vs.   Feeney,  83  111.   548. 
The  fact  that  attorney  giving  the  advice  was  a  justice  of  the 
peace  and,  afer  giving  it,  issued  the  warrant,  is  immaterial. 

Morrow  vs.  Carnes,  108  App.  621. 

—  Necessity  of  Acting  in  Good  Faith:  To  render  advice  of  an 
attorney  a  defense,  the  party  seeking  advice  should  act  in  good 
faith,  and  it  must  appear  he  made  a  full  and  fair  statement  of 
all  the  material  facts  to  the  attoniey.  whose  advice  he  followed. 

Thomas  vs.  Kerr,  137  App.  479;  Daily  vs.  Donath,  100  App.  52;  Eoy  vs. 
Goings,  112  111.  656. 
The  mere  fact  that  party  sought  advice  and  acted  upon  it  is 
not  sufficient.     The  advice  must  be  sought,  given  and  acted  upon 

in  good  faith. 

Morrow  vs.   Carnes,   108  App.   621. 

And  proof  of  such  advice  is  admissible  though  conduct  of  de- 
fendant has  been  so  outrageous  as  to  preclude  from  his  mind  all 
idea  that  criminal  proceeding  was  commenced  in  good  faith. 
Morrow  vs.   Carnes,   108  App.   621. 

—  As  Showing  Absence  of  Malice:  Where  a  person,  in  the  act 
of  preferring  a  charge  against  a  party  for  burglary,  is  advised 


MALICIOUS  PROSECUTION  821 

by  an  attorney  sent  by  the  pu1)lic  prosecutor  to  assist  in  the  mat- 
ter, after  stating  the  facts  to  him,  that  the  charge  of  burglary 
could  not  be  sustained,  but  that  a  charge  of  vagrancy  could  be, 
abandoned  the  charge  of  burglary  and  signed  and  swore  to  a 
complaint  for  vagrancy  as  prepared  by  the  attorney,  upon  which 
such  party  was  arrested,  examined  and  discharged,  held,  that  the 
advice  of  the  attorney,  given  after  a  statement  of  the  material 
facts,  was  a  protection  for  swearing  out  the  warrant  for  vagrancy, 
and  that  in  so  doing,  the  person  making  the  complaint  was  not 

actuated  by  malice. 

C.  R.  I.  &  P.  Ey.  Co.  vs.  Pierce,  98  App.  368. 

—  As  Slioiving  Probable  Cause:  When  a  person  in  good  faith 
consults  a  respectable  attorney,  and  makes  to  him  a  full  and  fair 
statement  of  all  the  facts,  and  acts  on  his  advice,  it  is  strong  evi- 
dence that  there  was  probable  cause. 

Skidamore  vs.  Bricker,  77  111.  164. 
And  be  is  not  liable  in  action  for  malicious  prosecution. 

Dahlberg  vs.  Grace,  178  App.  97. 
Where   a   party   consults   competent  legal   authority   and   such 
counsel,  after  deliberation,  advises  arrest  for  a  criminal  offense, 
the  party  causing  the  arrest  should  not  be  held  to  respond  for  any 

damages  for  want  of  probable  cause. 

FitzSimmons  vs.  Mason,   135  App.  566;   Abel  vs.  Downey,   110  App. 
343. 
Where  one  found  a  person  fainting  from  the  effects  of  a  wound, 
and  is  told  that  a  certain  person  inflicted  it,  and  is  advised  by  the 
physician  and  competent  legal  counsel,  whom  he  consults,  to  do 
so,  there  is  probable  cause  for  swearing  out  a  warrant. 
Wagner  vs.  Altman,  2  App.  147. 

—  As  Shoiring   Want  of  Malice:     Advice   of  counsel  may  be 

shown  to  negative  malice. 

Verdon  vs.  Lassarias,  172  App.  244 ;  Ross  vs.  Innes,  35  111.  487. 

Where  defendant  acts  in  good  faith  on  advice  of  counsel,  pre- 
sumption of  malice  will  be  rebutted. 
Roy   vs.   Goings,    112   111.    656. 
The  fact  that  party,  in  good  faith,   consults  competent  attor- 
ney and  makes  to  him  a  full  and  fair  statement  of  the  facts, 
affords  strong  evidence  that  such  party  acted  without  malice. 

Skidmore  vs.  Bricker,  77  111.  164 ;  Palmer  vs.  Richardson,  70  111.  544. 

If  a  criminal  prosecution  is  instituted  by  a  party  maliciously, 

and  not  in  good  faith  upon  advice  of  legal  counsel  that  a  crime 

has  been  committed,  he  will  be  liable  for  malicious  prosecution, 

and  advice  of  counsel  will  not  avail  as  a  defense. 

Neufeld  vs.  Rodinski,  144  111.  83;  Freeman  vs.  Wright,  113  App.  159. 

—  Right  of  Attorney  to  Testify  as  to  Advice  Given:  The  attor- 
ney consulted  may  testify  as  to  the  opinion  he  gave  as  to  the  right 
of  action  and  arrest  of  plaintiff. 

Collins  vs.  Hayte,  50  111.  337. 

—  When  Accused -Not  Guilty:  When  one  is  sued  for  maliciously 
commencing  a  criminal  prosecution  against  another,  he  may  show 
that  he  made  a  full  disclosure  of  all  the  facts  to  a  reputable  licensed 


822  MALICIOUS  PROSECUTION 

attorney,  and  acted  upon  his  advice,  notwithstanding  it  may  appear 
that  the  party  accused  is  not  guilty. 

Morrow  vs.   Carnes,   108  App.   G21. 

Termination  of  Prosecution: 

—  When  Frusccution  Deemed  to  Be  Ended:     Where  plaintiff 

is   bound   over   to   grand   jury,    and   subseciuently   discharged   by 

habeas  corpus,  the  prosecution  is  at  an  end,  and  suit  for  malicious 

prosecution  may  be  instituted, 

Millar  vs.  SoUitt,  131  App.  196. 

—  Necessity  of  Showing:     Plaintiff  must  show  prosecution  has 

been  legally  determined  in  his  favor. 

Feazle   vs.    Simpson,    2    111.    30;    McBean    vs.    Eitchie,    ]8    111.    114; 
Walker  vs.  Martin,  43  111.  508;  Blalock  vs.  Randall,  76  111.  224. 
And  particular  manner  in  which  the  prosecution  was  terminated 

must  be  proven  as  alleged. 

Coniisky  vs.  Breeu,  7  App.  369. 

—  Character  of  Termination:    Must  have  been  a  legal,  judicial 

termination. 

Bonuey  vs.  King,  201  111.  47;  Hibbard  vs.  Ryan,  46  App.  313; 
Leyenberger  vs.  Pall,  40  App.  516. 

Record  of  Proceeding:    Discontinuance  of  the  prosecution  is 

to  be  shown  by  the  record,  but  such  record  is  admissible  only  for 
the   purpose   of  showing  prosecution  has  come   to   an   end,   and 

nothing  else.  ^,^    , 

Tumalty  vs.  Parker,  100  App.  382;  Enright  vs.  Gibson,  119  App. 
411;  Comisky  vs.  Breen,  7  App.  369;  McGuire  vs.  Goodman,  31 
App.  420. 

A  discontinuance  of  the  prosecution  is  to  be  proven  by  the 

record. 

Tumalty  vs.  Parker,  100  App.  382. 

—  Justice's  Record:  Where  prosecution  is  before  a  justice  of 
the  peace,  his  docket  or  certified  copy  of  same  is  admissible  to 
prove  termination  of  prosecution. 

Enright  vs.  Gibson,  119  App.  411;   Knecht  vs.  Lehr,  81   App.   208; 
Comisky  vs.   Breen,   7   App.  369;   Faduer  vs.  Filer,  27  App.   506; 
McGuire   vs.   Goodman,   31   App.   420;    Wilmerton   vs.    Sample,    39 
App.  60;  C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Jenkins,  75  App.  17. 
Parol  Evidence:    Where  plaintiff  alleges  termination  of  prose- 
cution in  his  favor,  he  must  prove  such  averment  by  production 
of  record,  and  if  the  court  is  compelled  to  reject  the  offered  rec- 
ord, its  place  cannot  be  supplied  by  parol. 
Comisky  vs.  Breen,  7  App.  369. 

Burden  of  Proof : 

In   General:     Burden   is   on   plaintiff   to   establish   essential 

elements  of  his  cause  of  action. 

Daily  vs.  Donath,  100  App.  52 ;  Schildrup  vs.  Farwell,  67  App.  630. 
Thus  it  is  incumbent  upon  plaintiff  to  show,  first,  want  of  prob- 
able cause  on  part  of  defendant  in  commencing  prosecution;  sec- 
ond, malice  on  his  part;  and  third,  termination  of  prosecution  in 

plaintiff's  favor. 

Daily  vs.  Donath,  100  App.  52 ;  Schildrup  vs.  Farwell,  67  App.  630. 

—  Prohahle   Cause:     Burden  of  proving  probable  cause  is  on 

defendant. 

Collins  vs.  Hayte,  50  111.  337. 


MARKET  PRICE  828 

—  Want  of  Probable  Cause:    Burden  of  showing  want  of  pvol)- 

able  cause  is  on  plaintiff. 

McElroy  vs.  Catholic  Press,  254  111.  290;  Davie  vs.  Wisher,  72  111. 
262;  Ames  vs.  Snyder,  69  111.  376;  Boss  vs.  Innes,  31  111.  487; 
Krebs  vs.  Thomas,  12  App.  266;  Skala  vs.  Bus,  60  App.  479; 
Tumalty  vs.  Parker,  100  App.  382;  Yoimg  vs.  Lindstrom,  11.5 
App.  239;  XIII  111.  Notes,  360,  §  59. 

—  Malice:  Burden  is  on  plaintiff  to  show,  by  a  preponderance 
of  the  evidence,  that  defendant  was  actuated  by  malice. 

Tumalty  vs.  Parker,  100  App.  382;  Lowery  vs.  Hately,  30  App.  297; 
Israel  vs.  Brooks,  23  111.  575;  Collins  vs.  Hayte,  50  111.  337;  Calif. 
vs.  Thomas,  81  111.  478. 

Damages: 

—  Actual  Damages:  Proof  of  false  imprisonment  and  malicious 
prosecution  for  alleged  larceny  is  proof  of  actual  damages. 

Enright  vs.   Gibson,   119  App.  44;   Affd.,  219  111.  550. 

—  Expenses  of  Snit:  Evidence  of  expenses  incurred  in  defend- 
ing against  judgment  and  loss  of  use  of  property  attached,  justify 
verdict  in  action  for  maliciously  suing  out  attachment. 

First   State    Bank   vs.   Noser,    133    App.    173;    Lavrrence   vs.    Ilagcr- 
man,  56  111.  68. 
In  action   for  malicimisly   suing  out  writ  of  attachment,   evi- 
dence of  the  nature,  character  and  amount  of  business,  the  com- 
plete destruction  of  that  business,   impairment  of  credit,  actual 
loss  of  stock  levied  upon,  is  competent. 
Lawrence  v^,  Hagerman,  56  111,  68. 


MALPRACTICE 

See  Physicians  and  Surgeons,  Expert  and  Opinion,  Burden 
OF  Proof, 


MANSLAUGHTER 

See  Homicide,  Former  Conviction. 

MARKET  PRICE 

See  Value,  Eminent  Domain. 
Rules  to  Determine : 

Price  at  place  of  delivery  is  to  be  taken. 

Newlan  vs.  Dunham,  60  111.  233. 
If  goods  are   bought  in   large   quantities,   the   market   price   at 
retail  is  not  the  standard  of  the  market  price  in  large  quantities. 
Bagley  vs.  Findlay,  82  111.  524. 
It  is  unnecessary  to  use  either  of  the  terms,   "wholesale"  or 
"retail"  in  questioning  witnesses  on  the  subject  of  price.     The 
use  of  either  of  these  terms  may  lead  to  misunderstanding,  for  the 
quantity  the  examiner  may  have  in  mind  as  being  wholesale  in 
quantity  may  not  be  Avholesale  quantity  in  the  mind  of  the  witness. 
Wendnagel  vs.  Housten,  155  App.  664. 


824  MARKET  PRICE 

The  fair  cash  market  value  of  property  is  not  to  be  in  any  wise 
determined  by  mere  offers  made  therefor  by  persons  not  bound  to 
execute  such  offers. 

White  vs.  Higgins,  130  App.  404. 

Judicial  Notice : 

It  is  a  matter  of  common  knowledge  of  which  courts  must  neces- 
sarily take  judicial  notice  that  there  is  probably  no  article  of 
merchandise  bought  and  sold  in  the  market  in  both  large  quanti- 
ties and  small  quantities  but  that  the  price  is  less  when  purchased 
in  larger  quantities.  The  line  of  demarcation,  however,  between 
the  lesser  and  the  higher  prices,  is  not  a  matter  of  common  knowl- 
edge. 

Wendnagel  vs.  Houston,  155  App.  664. 

Presumptions : 

Where  the  market  price  of  grain  is  shown  on  a  day  named, 
in  the  absence  of  evidence  to  the  contrary,  it  will  be  presumed 

to  continue  until  the  next  day. 

Nash  vs.  Classen,  55  App.  356 ;  Affd.,  163  111.  409. 

Admissibility  of  Evidence : 

—  In  General:     The  value  of  a  thing  stolen  must  be  proven, 

and  this  means  market  value. 

People  vs.  Silbertrust,  236  111.  144;  Brown  vs.  People,  173  HI.  34. 
If  there  is  a  market  price  at  the  place  of  delivery,  evidence  of 
the  market  price  at  some  other  point,  deducting  the  amount  of 
freight,  is  not  admissible  to  establish  market  price  at  the  place 

in  question. 

Graves  Co.  vs.  Lumber  Co.,  163  App.  231. 
Cost  of  manufacture  and  transporting  to  market  may  be  in- 
quired into. 

Farson  vs.  Gilbert,  114  App.  17. 

—  Hearsay  and  Opinion  Evidence:  Expressions  of  opinions  of 
others  as  to  value  of  patent  is  hearsay. 

Aiken  vs.  Hodge,  61  111.  436. 
Where  a  person  shipping  gi-ain  to  market,  through  his  agent 
there,  sells  the  same,  not  being  present  at  the  sale  and  having  no 
personal  knowledge  of  the  price  it  sold  for,  is  asked  on  the  witness 
stand  what  price  he  received  for  the  same,  an  objection  to  the 
question  will  be  properly  sustained,  as  his  testimony  would  be 
based  entirely  upon  the  report  made  to  him.  In  such  case,  the 
testimony  of  the  agent  who  made  the  sale  should  be  taken  on  that 

question. 

Carpenter  vs.  First  Natl.  Bank,  119  111.  352. 

—  Price  Received  at  Other  Sales:  In  action  to  recover  for 
hogs  lost  in  transit,  it  is  competent,  as  bearing  upon  the  market 
value  of  the  hogs  lost,  to  show  what  was  received  from  the  sale 
of  the  remaining  hogs  of  the  same  shipment  at  the  place  of  destina- 
tion of  the  entire  shipment. 

Field  vs.  St.  L.  &  S.  P.  E.  E.  Co.,  152  App.  562. 
Where  the  market  value  is  sought  to  be  established  by  other 
sales,  it  is  essential  that  such  sales  should  be  of  like  merchandise 
in  similar  quantities  and  conditions  as  that  in  question,  made  at  a 


MARKET  PRICE  825 

time  when  the  market  value  Avas  the  same  as  that  at  the  time 

of  the  sale  as  to  which  mai-ket  value  is  sought  to  be  fixed. 

Eice  vs.   Penn.  Plate  Glass   Co.,   117  App.  356;   Bagiey  vs.   Findley, 
82  111.  524. 

—  Neivspaper  Quotations:  Proof  of  the  market  price  of  a  com- 
modity at  a  particular  time  and  place  cannot  be  made  by  hear- 
say evidence,  except  that  in  the  absence  of  witnesses  having  per- 
sonal knowledge  of  such  market  price,  market  quotations  or  reports 
in  newspapers  of  general  circulation  are  competent.  Private  in- 
formation conveyed  in  conversation  is  not  admissible. 

TuUy  vs.  West.  Union  Tel.  Co.,  141  App.  312. 

AVhere  it  was  proven  that  defendant  had  corrected  the  price 
current  in  a  newspaper,  tiles  of  the  paper  were  properly  admit- 
ted in  evidence  against  him  to  prove  the  market  price  of  grain. 
Henkle  vs.  Smith,  21  111.  238. 

—  Adjacent  Market  Prices:  Where  the  market  price  of  a  com- 
modity is  in  issue,  and  no  market  price  at  the  place  of  delivery 
has  been  established  by  the  usual  mode  of  trade,  it  is  competent 
to  hear  proof  of  prices  in  adjacent  and  controlling  markets. 

Hogan  vs.  Donahue,  49  App.  432;   Penn  Co.  vs.  John  Anda  Co.,  131 
App.  426. 

—  Dealers'  Price  Lists:  Dealers'  prices-current  are  not  ad- 
missible in  evidence  to  prove  value. 

Cook  Co.  vs.  Harms,  10  App.  24. 

—  As  to  Price  of  Corporate  Stock:  Where  stock  is  unlisted 
and  has  no  recognized  value  upon  any  general  stock  market  or 
exchange,  the  fair  cash  value  thereof  can  be  established,  prima 
facie  at  least,  by  one  dealing  in  such  stocks  and  who  so  quali- 
fies himself  as  a  witness, 

Greene-Grieb  Co.  vs.  Quinlen  &  Co.,  148  App.  1. 
Opinion  of  witness,  who  has  long  been  officer  of  corporation,  is 
competent  as  to  value  of  corporate  stock. 

Bordner  vs.  Depley,  142  App.  526. 
It  is  competent,  in  trover  for  conversion  of  certificates  of  stock, 
for  a  stock-broker,  knowing  the  market  value  of  the  stock  at  all 
times  during  the  year,  to  testify  as  to  market  value  on  the  date  of 
transfer  of  such  stock  on  books  of  corporation. 

Burns  vs.  Shoemaker,  172  App.  290. 
When  a  suit  is  for  value  of  corporate  stock,  and  it  is  testified 
that  such  stock  is  worth  par,  it  is  improper  to  sustain  objection 
to  a  question  on  cross  examination  inquiring  as  to  whether  such 
stock  has  ever  paid  dividend.  Failure  to  do  so  might  be  ex- 
plained. 

Hughes  vs.  Ferriman,  119  App.  169. 

If  stock  has  no  ascertainable  market  value,  it  is  proper  to  admit 
evidence  as  to  value  of  property  of  corporation,  assets  of  company 
and  amount  of  liabilities.  By  such  proof,  the  value  of  its  capital 
stock  mav  be  determined  with  reasonable  certainty. 

McDonald  vs.  Danahay,  196  111.  133;   Sturges  vs.  Keith,  57  111.  451. 

If,  in  ascertaining  the  value  of  the  stock,  no  market  value,  for 

want  of  sales,  can  be  established,  it  is  proper  to  admit  evidence 

showing  assets  and  liabilities  of  corporation  as  tending  to  show 

real  value  of  stock. 

Goodwin  vs.  Wilbur,  104  App.  45. 


826  MARKET  PRICE 

Or  that  company  was  ready  to  increase  stock  issue  and  owners 
were  to  have  part  of  new  issue  at  reduced  rates. 
Sturges  vs.  Keith,  57  111.  451. 
—  As  to  Pnce  of  Horses  and  Grain:    Evidence  of  name  of  sires 
of  the  animal  and  unborn  foal  is  admissible  as  element  of. 
O.  &  M.  Ey.  Co.  vs.  Stribling,  38  App.  17. 

Board  of  trade  prices  do  not  always  represent  true  market  value. 
So  in  an  action  between  the  vendor  and  vendee  for  the  price  of 
corn,  it  was  contended  that  the  market  price,  at  the  place  of  de- 
livery could  be  controlled  by  the  Board  of  Trade  at  Chicago,  less 
the  cost  of  transportation,  etc.  On  the  otlier  hand,  the  contrary 
was  contended;  an  offer  was  made  to  prove  that  the  grain  was 
cornered  on  the  Board  of  Trade  on  that  day  and  that  before  the 
prices  there  prevailing  could  be  obtained,  it  must  be  inspected 
in  an  elevator  in  Chicago,  a  warehouse  receipt  issued  and  duly  reg- 
istered.   It  was  held  that  the  proof  offered  was  competent  and  the 

court  erred  in  refusing  it. 

Hogau  vs.  Donahue,  49  App.  432. 

Weight  and  Sufficiency  of  Evidence: 

Evidence  of  a  broker  who  liad  made  purchase  of  merchandise 
like  that  in  question  at  the  place  in  question  and  at  or  about  the 
time  in  question  is  sufficient  to  show  prima  facie  the  market  price 
of  such  merchandise  at  the  time  and  place  involved. 
Euston  &:  Co.  vs.  Erie  E.  E.  Co.,  147  App.  594. 

An  actual  sale  made  by  a  reliable  concern  of  the  kind  of  com- 
modity in  question  tends  to  establish  the  market  value  of  such 

property  at  the  time  of  the  sale. 

'Hasler  Co.  vs.  Griffing  Co.,  133  App.  635;   I,  C.  E.  E.  Co.  vs.  Cobb, 
72  111.  148. 

Competency  of  Witnesses : 

A  witness  who,  when  called  upon  to  testify  upon  the  question 
of  market  values  during  a  certain  period,  states  that  it  is  impos- 
sible for  him  to  state  what  such  market  values  were,  disqualifies 
himself  from  testifying. 

Gilbert  vs.  Gallup,  76  App.  526. 
In  action  for  injuries  to  horses  in  shipment,  the  plaintiff  who 
has  had  large  experience  in  selling  horses,  may  testify  as  to  the 
market  value  of  hoi-ses  at  the  point  of  destination,  even  though 
he  had  but  limited  knowledge  of  the  market,  the  weight  to  be 
given  his  testimony  being  for  the  jury, 

C.  C.  C.  &  St.  L.  E.  Co.  vs.  Patton,  203  111.  376. 
Proof  of  market  value  must  be  shown  by  a  witness  competent 
to  testify  to  the  market  value  of  the  commodity  in  question  at 
the  time  and  place  involved,  when  sold  in  the  quantities  in  issue, 
when  a  question  is  raised  as  between  wholesale  and  retail  prices. 
Weiiduagel  vs.  Houston,  155  App.  664. 
]\Iarket  values  may  be  established  by  the  testimony  of  experts 
who  (jualify  by  showing  knowledge  of  quotations  gained  by  let- 
ters and  wires. 

.Jackson  Sons  Co.  vs.  N.  Y.  C.  E.  Co.,  167  App.  461. 
A  witness  who  has  bought  buggies  and  who  is  familiar  with  the 
,  value  of  same  in  Chicago,  is  competent  to  testify  as  to  such  value. 
Maiss  vs.  Met.  Amuse.  Assn.,  146  App.  196. 


MARRIAGE  827 

MARKS  AND  BRANDS 

See  Identity,  Ownership,  Trade  ]\Iarks. 

MARRIAGE 

See   Husband   and   Wipe,   Alienating   Affections,    Criminal 
Conversation,  Bigamy,  Divorce,  Breach  of  Promise. 
Admissibility  of  Evidence : 

—  In  General:    Whether  the  marriage  relation  exists  is  always 

a  matter  of  evidence,  and  may  be  proven  by  records  or  any  other 

evidence  sufificient  to  establish  the  fact;  and  if  it  be  shown  that 

parties  intending  marrige  have  accepted  each  other  as  husband 

and  wife,  contract  will  be  enforced. 

Elzas  vs.  Elzas,  171  111.  632;  Hebblewaithe  vs.  Hepworth,  98  111.  126. 

—  Parol:     Record  evidence  of  marriage  is  not  required. 

Lowery  vs.  Peoiile,  172  111.  466;  Lowry  vs.  Coster,  91  111.  182; 
Miller  vs.  White,  80  111.  580;  Jackson  vs.  People,  3  111.  231; 
Hooper  vs.  McCaffery,  83  App.  341;  XIII  111.  Notes,  397,  §§  26-28. 

But  may  be  shown  by  parol  or  by  reputation,  declarations  and 

conduct  of  parties,  and  other  circumstances  usually  accompanying 

that  relation. 

Lowry  vs.  Coster,  91  111.  182. 

In  actions  for  criminal  conversation,  and  prosecutions  for  big- 
amy and  adultery,  actual  marriage  must  be  shown. 

Lowery    vs.    People,    172    111.    466;    Miller    vs.    White,    80    111.    580; 
Keppler  vs.  Elzer,  23  App.  643. 
In  prosecutions  by  wife  under  Dram  Shop  act,  plaintiff  may 

testify  as  to  existence  of  marital  relationship. 
Lowry  vs.  Coster,  91  111.  182. 

—  Opinion :  A  witness  may  not  state  that  certain  persons  were 
married,  the  question  is  for  the  jury  to  determine  from  the  evi- 
dence as  to  what  was  done  in  the  way  of  entering  into  a  marriage 

contract. 

Sokel  vs.  People,  212  111.  238. 

—  Acts,  Declarations  and  Bcputation  of  Parties:  During  the 
time  a  marriage  relation  is  claimed  to  exist,  are  competent  as  part 
of  the  res  gestae,  as  showing  how  the  parties  regarded  each  other. 

Eobinson  vs.  Eobiiison,  188  111.  371. 
General  reputation  is  admissible  to  prove  marriage. 
Miller  vs.  White,  80   111.   580. 

—  Register  of  Marriages  and  Births:    A  copy  of  an  entry  in  a 

parish  register  is  admissible. 

Groom  vs.  Parables,  28  App.  152. 

It  is- requisite  to  admission  of  church  records  that  it  shall  appear 

the  entries  were  made  by  the  person  whose  duty  it  was  to  make  them. 

Murphy  vs.   People,  213   111.   154. 

Registers  of  births  and  marriages  made  pursuant  to  the  statutes 

of  any  of  the  United  States,  are  competent  evidence;  but  when 

not  made  under  the  sanction  of  law  and  official  duty,  they  are  not 

evidence. 

Tucker  vs.  People,  117  111.  88. 

—  Marriage  Licenses  and  Certificates  or  Copies   Thereof:     In 


828  MARRIAGE 

suit  for  criminal  conversation,  a  marriage  license  issued  in  sister 
state  with  a  certificate  indorsed  thereon  by  a  justice  of  the  peace 
that  he  had  solemnized  the  marriage,  was  admitted  in  evidence ; 
the  official  character  of  the  officer  granting  the  license  and  also  that 
of  the  justice  being  certified  by  the  clerk,  the  keeper  of  the  rec- 
ords, under  the  official  seal,  and  the  presiding  judge  having  certi- 
fied to  the  authority  and  official  character  of  the  clerk,  it  was 
held  that  the  license  and  certificate  were  properly  admitted. 
King  vs.  Dale,  2  111.   512. 

Exemplified  copy  of  marriage  license  of  state  Vv^here  marriage 

was  performed  and  marriage  certificate  signed  by  municipal  judge 

of  city  wherein  same  was  performed,  being  properly  authenticated, 

are  admissible. 

Eeifschneider  vs.  Eeifsclmeider,  241  111.  92. 

In  action  for  criminal  conversation,  certificate  of  county  clerk 
simply  certifying  to  fact  of  marriage  is  inadmissible. 
Ewing  vs.  Cox,  158  App.  25. 

—  Letters:  On  prosecution  for  bigamy,  letters  of  defendant 
written  to  former  wife  while  they  were  living  together  as  husband 
and  wife,  showing  that  they  were  so  living  together,  and  that  she 
was  acknowledged  by  him  as  his  wife,  are  admissible  to  show  fact 

of  prior  marriage. 

Tucker  vs.  People,  122  111.  583. 

Where  complainant  is  seeking  to  establish  her  marriage  to  a 
party  since  deceased,  letters  written  after  the  alleged  marriage,  in 
his  handwriting  and  bearing  his  signature,  found  among  his  pa- 
pers, enclosed  in  envelopes  and  stamped  and  post  marked,  ad- 
dressed in  his  handwriting  to  complainant  under  a  name  other 
than  his  wife,  are  admissible  without  proof  that  complainant  re- 
ceived them,  as  part  of  the  res  gestae,  to  show  how  deceased  then 

regarded  her. 

Laurence  vs.  Laurence,  164  111.  367. 

—  In  Proseeutions  for  Bigamy:  Whether  the  parties  were  mar- 
ried is  a  question  for  the  jury,  to  be  determined  from  the  evi- 
dence as  to  what  was  done  in  the  way  of  entering  into  the  marriage 
relation,  and  it  is  error  to  permit  a  witness  to  state  that  they 
"were  married"  by  a  rabbi  on  a  certain  occasion  when  he  saw 

them  together. 

Sokel  vs.  People,  212  III.  238. 

A  paper  purporting  to  be  a  transcript  of  the  records  of  mar- 
riages reported  to  the  board  of  health,  showing  the  marriage  of  a 
person  having  the  same  name  as  defendant,  to  a  certain  woman, 
is  not  admissible  in  a  bigamy  prosecution,  in  absence  of  identifica- 
tion and  of  proof  that  the  record  was  one  reciuired  by  law  to  be 
kept;  but  admission  is  not  prejudicial  if  the  marriage  is  other- 
wise proven. 

Sokel  vs.  People,  212  111.  238. 

The  prosecution,  to  prove  the  second  marriage  in  another  state 
offered  in  evidence  the  certificate  of  the  clerk  of  the  district  court 
of  such  state,  that  there  was  in  his  office  a  record  of  a  marriage 
license  and  certificate  of  the  marriage,  giving  copy  thereof,  to 
which  was  attached  certificate  of  the  judge  of  the  coui-t  that 
clerk's  attestation  was  in  due  form.     In  the  absence  of  proof  tha* 


MARRIAGE  829 

such  entries  were  required  to  be  kept,  by  some  law  of  the  state 

from  which  they   come,   the  certihcate  and  exemplification  were 

not  admissible  in  evidence. 

Tucker  vs.  People,  117  111.  88. 

Conversation  and  letters  of  the  parties  addressing  each  other 
as  husband  and  wife  are  admissible,  and  the  marriage  may  be 
shown  by  a  certified  copy  of  the  records  of  the  county  clerk,  of 
the  certificates  of  the  person  who  performed  the  marriage  cere- 
mony, indorsed  on  the  license. 

Tucker  vs.  People,  122  111.  583. 

It  is  proper  to  refuse  to  allow  a  witness  to  answer  the  question 
if  she  knew  the  accused  had  delirium  tremens  during  the  week  of 
his  second  marriage,  since,  to  be  proper  at  all,  the  question  should 
have  been  limited  to  the  time  of  the  marriage. 
Barber  vs.  People,  203  111.  543. 

Weight  and  Sufficiency  of  Evidence : 

—  In  General:  Evidence  that  the  parties  agreed  to  accept  each 
other  as  man  and  wife,  that  the  woman  thereupon  abandoned  her 
dissolute  life  and  moved  with  her  accepted  husband  into  a  respecta- 
ble locality,  where  they  lived  together  openly  as  man  and  wife; 
that  the  man  introduced  her  and  spoke  of  the  woman  as  his  wife 
and  directed  his  letters  to  her  as  such,  will  establish  a  common 
law  marriage,  as  against  the  uncorroborated  denial  of  the  husband. 

Elzas  vs.  Elzas,  171  111.  632.     See  111.  Statutes  Annotated,  Jones  & 
Addington,   Chapt.   89,   Sec.   7348. 
The  presumption  of  the  legality  of  a  marriage,  arising  from  tes- 
timony of  witnesses  who  were  present  at  the  ceremony,   cannot 
overcome  positive  proof  that  the  marriage  was  invalid  under  laws 
of  country  where  the  ceremony  took  place. 
Canale  vs.  People,  177  111.  219. 
Evidence   tending  to   show  that  party  had  instituted   divorce 
proceedings  is  insufficient  to  prove  she  was  not  divorced. 
Winter  vs.  Dibble,  251  111.   200. 

—  Performance    of   Ceremony:     In    a   civil   case,    evidence    of 

performance  of  marriage  ceremony  in  presence  of  witnesses,  by 

church  officials,  tends  to  establish  a  marriage  without  proof  of 

exact  words  used  in  ceremony. 

Resnick  vs.  Eesniek,  126  App.  132. 

Evidence  that  accused  and  a  woman  went  through  the  mar- 
riage ceremony  before  a  minister  in  a  sister  state;  that  he  pro- 
nounced them  man  and  wife;  that  afterwards  the  parties  came 
to  Illinois,  where  they  lived  together  for  many  years,  raising  a 
family  of  children,  is  sufficient  proof  of  marriage  per  verha  de 
prescnti  without  proof  that  the  minister  was  ordained  or  author- 
ized by  the  laws  of  sister  state  to  solemnize  marriages. 
Lyman  vs.  People,  198  111.  544. 

A  mere  marriage  ceremony  does  not  establish  relation  of  hus- 
band and  wife.     Capacity  and  consent  are  absolutely  necessary  to 

the  marriage  relation. 

Orchardson  vs.  Cofield,  171  111.  14. 

—  Contracts  Per  Verla  De  Presenti:  At  common  law,  if  con- 
tract is  made  per  verha  de  presenti,  it  is  sufficient  evidence  of 

marriage. 

Port  vs.  Port,  70  111.  484. 


830  MAERIAGE 

Evidence  of  a  contract  of  marriage  per  verba  de  presenti,  fol- 
lowed by  cohabitation  as  husband  and  wife,  is  strengthened  by  the 
facts  that  there  had  not  been  previous  illicit  intercourse  between 
the  parties,  and  that  there  was  no  lack  of  capacity  on  the  part  of 
either  to  marry. 

Hejniau  vs.  Heyman,  218  111.  636. 

—  Cohahitation  and  General  Reputation:  In  proceedings  to  re- 
voke letters  of  administration,  on  ground  that  holder  of  same 
Avas  not  lawful  widow  of  deceased,  on  account  of  former  mar- 
riage, the  fact  of  cohabitation  with  former  husband  and  general 
report  to  that  effect  are  insufficient  to  establish  the  marriage. 

Myatt  vs.   Myatt,  44  III.  473. 

In  actions  under  statute  by  M'idow  or  next  of  kin  for  wrong- 
ful death  of  husband,  the  relation  of  husband  and  wife  may  be 
established  by  reputation. 

Conaut  vs.  Grimn,  48   111.  410. 

Where  a  marriage  in  fact  is  shown,  either  by  record  evidence 
or  by  witnesses  present  at  its  celebration,  the  long  continued 
cohabitation  of  the  parties,  their  reputation  of  being  man  and 
wife,  and  their  recognition  as  such  in  society,  will  afl'ord  evidence 
of  their  marriage  in  some  legal  mode,  unless  it  is  shown  that  the 
cohabitation   commenced   illegally.     Marriage   may  be   shown   by 

circumstantial  evidence. 

Cartwriglit  vs.  McGowan,  121  111.  388. 

—  Confession  or  Acknowledgment  of  Uclation:  The  confession 
or  acknowledgment  of  the  relation  Iw  plaintiff  is  insufficient  to 

prove  fact  of  marriage  in  action  for  criminal  conversation. 
Kepplor  vs.  Elzer,  23  App.  643. 

Proof  that  alleged  husband  spoke  and  addressed  the  other  party 

as  his  Avife,  and  that  he  drew  checks  in  her  name  as  his  Avife,  is  not 

sufficient  to   show   a  common   laAV  marriage,   as   against   evidence 

showing  the  i-elation  between  them  to  be  adulterous,  and  knoAvn 

to  both  of  them  to  be  such. 

In  re  Estate  of  Maher,  204  111.  25. 

—  Admissions  and  Declarations:     Admissions  of  party  may  be 

sufficient  to  prove  marriage. 

Loweiy  vs.  People,  172  111.  406;  Cf.  Tucker  vs.  People,  117  111.  88. 

Admissions   of  Avoman,   together  with   fact  of  cohabitation,   is 

insufficient  to  establish  marriage  relation. 
Myatt  vs.  Myatt,  44  111.  473. 

If  the  relation  of  laAvful  marriage  has  actually  been  created, 

the  subsequent  admissions  of  the  Avife  to  the  contrary,  no  matter 

if  solemnly  and  deliberately  made,  can  have  no  effect  to  dissolve 

the  mai-riage  tie  to  relieve  the  other  party  from  the  obligation 

and  dutA'  of  a  husband  and  father. 

Huteliinson   vs.   Hutchinson,   196  111.   432. 

The  fact  of  marriage  is  not  shown  Avhere  there  is  no  proof  that 

a  license  Avas  issued,  the  officiating  minister  is  not  produced  as  a 

Avitness  nor  any  attempt  made   to   account   for  his  absence,   and 

when  the  letters,  business  transactions,  frequent  declarations  and 

various  Avritings  signed  by  complainant  subsequent  to  the  date 

of  the  alleged  marriage  are  inconsistent  with  it, 
Knorst  vs.   Knorst,   181   111.   347. 


MARRIAGE  831 

Presumptions  and  Burden  of  Proof : 

—  As  to  Existence  and  Continuance  of  Marriage:     A  woman's 

marriage  will  not  be  presumed,  but  once  shown  will  be  presumed 

to  continue. 

Erskine   vs.   Davis,   25    111.    251. 

The  presumption  of  coverture  is  prospective  from  time  cover- 
ture is  shown  to  exist,  and  not  retrospective. 
Erskine   vs.   Davis,   25    111.    251. 

When  evidence  of  former  marriage  is  clear,  it  overcomes  any 
presumption   against   existence   of  such   former  marriage,   arising 
from  fact  that  a  second  nuirriage  has  actually  taken  place. 
Kesuick  vs.  Eesnick,  126  App.   132. 

In  many  cases  the  presumption  in  favor  of  innocence  and  agaiiist 
immorality  and  guilt  is  so  strong  as  to  give  rise  to  the  presump- 
tion of  a  marriage;  but  no  such  presumption  will  arise  if  it  will 
involve  one  of  the  parties  in  guilt, — as  when  a  man  is  cohabiting 
with  two  women,  or  when  one  of  the  parties  has  been  proven  to  be 

married  to  some  one  else. 

Cartwright  vs.  McGowan.  121  111.  388. 

—  From  Cohahitaiion  and  Circumstances:  Marriage  may  be 
presumed  from  cohabitation,  name,  reputation  and  other  circum- 
stances, in  civil  cases. 

Dowry  vs.  Coster,  91  111.  182;   Miller  vs.  White,  SO  111.  580;   Kepler 
vs.  Eker,  23  App.  643 ;  Hooper  vs.  McCaffery,  83  App.  341. 
But  is  not  sufficient  in  actions  for  criminal  conversation,  or  in 

prosecutions  for  bigamy  and  adultery. 

Dowry  vs.  Ooster,  91  111.  182;  Miller  vs.  White,  80  111.  580;  Kepler 
vs.  Elzer,  23  App.  643;  Hooper  vs.  McCaffery,  83  App.  341. 
Where  parties  competent  to  marry  have  agreed  to  marry  at 
some  future  time,  and  they  afterwards  have  copula,  lawful  only  in 
married  state,  in  absence  of  evidence  to  contrary,  they  will  be 
presumed  to  have  taken  each  other  for  husband  and  wife,  and 
changed  their  future  promise  to  marry  to  one  of  present  mar- 
riage. In  such  case,  the  copula  will  be  presumed  to  have  followed 
the  then  present  assumption  of  the  marriage  relation,  and  to 
have  been  the  consummation  of  the  actual  marriage. 

Cartwright  vs.  McCown,  121   111.  388. 

Such  presumption  may  be  overcome,   as  cohabitation   may  be 

meretricious  as  well  as  matrimonial. 

Daurence  vs.  Daureuce,  164  111.  367;  Myatt  vs.  Myatt,  44  Til.  473. 

The  presumption  in  favor  of  marriage  from  evidence  of  cohabi- 
tation, is  rebutted  and  overcome  by  proof  of  its  being  meretricious 
in  its  inception.  AVhen  shown  to  have  been  illicit  in  its  origin, 
it  will  be  presumed,  in  absence  of  anytliing  showing  otherwise 
that  its  continuance  was  of  the  same  character  and  illegal. 

Desher  vs.   Desher,   159  App.  432;   Cartwright   vs.   McGown,   121  111. 
388;  Eoljinson  vs.  Eobinson,  188  111.  371. 

Such  inference  is  destroyed  by  evidence  that  no  marriage  was, 

in  fact,  ever  solemnized. 

Port  vs.  Port,  70  111.  484. 
The   presumption   of  marriage   arising   from   cohabitation   and 
repute  is  rebutted  where  the  woman  thereafter  abandons  the  man, 
resumes  her  maiden  name,  does  not  look  to  him  for  support  or 


832  MARRIAGE 

hold  any  communication  with  him,  and  he  subsequently  is  actu- 
ally married  to  another  woman. 

Maher  vs.   Maher,   183   111.   (51. 

The  presumption  of  marriage  arising  from  cohahitation  and 
marriage  relations  may  be  overcome  by  other  presumptions  spring- 
ing from  acts  and  declarations  of  parties  after  cohabitation  be- 
tween them  has  ceased. 

In  re  Estate  of  Maher,  204  111.  25. 

The  presumption  of  marriage,  arising  from  cohabitation,  re- 
pute and  declarations,  is  rebutted  by  a  similar  relation  subsequently 

sustained  to  another  person. 

Hilar  vs.  People,  156  111.  511. 

—  As  to  Validity  of  Matriage:   Upon  proof  of  marriage,  every 

presumption  is  in  favor  of  its  validity. 

Barber  vs.  People,  203  111.  543;  (Jartwright  vs.  McGown,  121  111. 
388;  Hoch  vs.  People,  219  111.  265;  Winter  vs.  Dibble,  251  111.  200; 
XIII  111.  Notes,  396,  §  21. 

And  this  applies  to  second  marriage. 
Coal  Eim   Co.  vs.  Jones,   127  111.  379. 
"Where  marriage  ceremony  is  shown,   the  law   raises  a  strong 

presumption  in  favor  of  its  validity. 

Eeifsehneider  vs.   Eeifsehneider,   241   111.   92;    Sokel  vs.   People,   212 
111.  238;  Jones  vs.  Gilbert,  135  111.  27. 
Where  celebration  of  marriage  is  shown,  everything  necessary 

to  its  validity  will  be  presumed. 

Eeifsehneider  vs.  .Eeifsehneider,  241  111.  92;   Barber  vs.  People,  203 
111.   543. 
It  will  be  presumed  parties  were  competent  to  marry. 

Cartwright    vs.    McGown,    121    111.    388;    Sokel   vs.    People,    212    111. 
238;  Winter  vs.  Dibble,  251  111.  200. 
But  such  presumption  is  not  conclusive. 

Barber  vs.  People,  203  111.  543. 
Where  it  is  charged  that  two  successive  marriages  have  taken 
place,  the  presumption  of  the  legality  of  each  is  equal. 
Lowery  vs.  People,  172  111.  466. 
Bigamy  is  not  presumed,  but  the  presumption  is  in  favor  of 
innocence  and  of  the  legality  of  the  marriage  which  was  formally 

solemnized. 

Murphy  vs.  People,  213  111.  154. 
The  presumption  of  a  valid  marriage,  arising  from  proof  of 
the  ceremony  ceases,  and  the  burden  shifts  to  party  asserting  it, 
where  it  appears  that  the  wife  of  the  alleged  husband,  by  a  for- 
mer marriage,  is  living,  has  been  true  to  her  vows,  and  that  such 
first  marriage   was  not   dissolved   in   the  jurisdiction  where   she 

lived. 

Cole  vs.  Cole,  153  111.  585. 

—  As  to  Death  or  Divorce  of  Prior  Husband  or  Wife:  General 
presumption  is  that  life  continues  for  seven  years  after  party 
is  last  heard  from,  and  after  that,  death  is  presumed. 

Johnson  vs.  Johnson,  114  111.  611. 

But  there  is  no  presumption  that  life  continued  through   the 

entire  period. 

Johnson  vs.  Johnson,  114  111.  611. 

Nor  does  the  law  raise  any  presumption  as  to  time  when,  within 

the  seven  years,  death  in  fact  occurred. 

Johnson  vs.  Johnson,  114  111.  611;  Cf.  Eeedy  vs.  Millizen,  155  111.  636. 


MARRIAGE  833 

The  law  presumes  that  parties  in  contracting  marriage  and  in 

subsequently  cohabiting,  are  innocent  of  innnorality  or  crime. 
Johuson  vs.  Johubou,  11-i  ill.  611. 

But  where  there  are  no  circumstances  to  aid  the  presumption 
of  the  continuance  of  life,  the  presumption  of  innocence  and  of 
validity  of  second  marriage  prevails  over  presumption  of  contin- 
uance of  life  for  seven  years. 

Joliiisou  vs.  Johnson,   114  111.  611;    Schmisseur  vs.  Beatrie,   147  111. 
210. 

Courts  will  often  presume,  in  favor  of  a  second  marriage,  the 

death  of  a  prior  husband  or  wife,  when  not  heard  from  for  a 

much  less  period  than  seven  years. 

Cartwright  vs.  McGown,  121  111.  388;  Hoeh  vs.  People,  219  111.  265. 

When  a  first  marriage  is  proven,  there  is  a  presumption  in  favor 
of  its  validity,  but  where  a  first  wife  is  living  before  a  second  mar- 
j-iage,  there  is  a  presumption  of  continuance  of  life. 
Hoch  vs.  People,  219  111.   265. 

If  a  prior  marriage  is  shown,  the  death  or  divorce  of  the  for- 
mer spouse  will  be  presumed. 

Winter  vs.  Dibble,  251  111.  200;  Stein  vs.  Stein,  66  App.  526;   John- 
son vs.  Johuson,  114  111.  611. 

Courts  will  often  presume  a  previous  divorce  in  order  to  sus- 
tain the  second  marriage. 

Cartwright  vs.  McGown,  121  111.  388;  Potter  vs.  Clapp,  203  111.  592. 

The  two  marriages  being  established,  and  the  existence  of  a 
first  wife  at  time  of  second  marriage  also  being  proven,  a  presump- 
tion arises  in  favor  of  a  divorce  from  first  wife,  in  order  to  sus- 
tain the  second  marriage. 

Schmisseur  vs.  Beatrie,  147  111.  216;  Cf.  Hoch  vs.  People,  219  111.  265. 

It  will  not  be  presumed  in  aid  of  a  common  law  marriage,  that 
a  subsequent  ceremonial  marriage  of  one  of  the  parties  was  a 
bigamous  one,  since  the  presumption  is  in  favor  of  innocence  and 

of  validity  of  marriage  formally  solemnized. 

Murphy  vs.   People,   213   111.    154. 

Presumption  in  favor  of  innocence  and  against  immorality  does 

not  arise  if  it  will  involve  one  of  the  parties  in  guilt. 
Cartwright  vs.  McGown,  121  111.  388. 

—  As  to  Coidinuance  of  Meretricious  Felation:  Cohabitation 
meretricious  in  its  inception  is  presumed  to  continue  so  until  proven 
to  have  become  matrimonial,  which  fact  may  be  shown  by  direct 
or  circumstantial  evidence,  and  is  evidenced  by  a  subsequent  law- 
ful marriage  between  the  parties. 

Potter  vs.  Clapp,  203  111.  592. 

The  presumption  of  the  continuance  of  a  relation  meretricious 
in  its  inception  is  overcome  by  the  evidence  that  after  the  agree- 
ment to  live  together  as  man  and  wife,  the  woman  then  being  an 
inmate  of  a  house  of  ill-repute,  the  parties  immediatel.y  moved 
to   respectable  location,   and  lived  together  openly  as  man   and 

wife. 

Elzas  vs.  Elzas,  171  111.  632;  Crymble  vs.  Crymble,  50  App.  544. 

—  Burden  of  Proof:  "Where  a  legal  divorce,  granted  before 
the  second  marriage,  is  offered  as  a  defense,  the  burden  is  on  party 
asserting  same  to  prove  the  validty  of  the  decree. 

People  vs.  Spoor,  235  111.  230. 
Ev.— 53 


834  MARRIAGE 

The  burden  of  showing  invalidity  of  marriage  is  upon  party 
asserting  same. 

Eeifschiieider  vs.  Eeifsehneider,  241  111.  92;  Jones  vs.  Gilbert, 
135  111.  27;  Potter  vs.  Clapp,  203  111.  592;  Johnson  vs.  Johnson,  114 
111.   611. 

And  in  bill  for  divorce  on  grounds  of  impoteney,  burden  is  on 

complainant  to  establish  impoteney  and  that  same  is  incurable. 
Lorenz  vs.  Lorenz,  93  111.  376;  Kinkaid  vs.  Kinkaid,  256  111.  408. 

"Where  the  evidence  establishes  a  contract  of  marriage  pe)-  verba 
iie  presenti,  one   contending  that  such  contract   falls  within  the 
restrictions  imposed  by  the  state  where  the  marriage  took  place, 
has  the  burden  of  proof  upon  that  point. 
Laurence  vs.  Laurence,  164  111.  367. 

The  law  is  so  positive  in  requiring  a  party,  who  asserts  the  ille- 
gality of  a  marriage,  to  take  the  burden  of  proving  it,  that  such 
requirement  is  enforced  even  though  it  involves  the  proving  of  a 

negative. 

Schmisseur  vs.  Beatrie,  147  111.  210. 

Thus,  one  attacking  a  ceremonial  marriage  upon  the  ground 
that  the  husband,  at  the  time,  had  a  former  wife  living,  who  did 
not  get  a  divorce  from  him  until  two  years  later,  has  the  burden 
of  proving  that  the  husband  had  not  been  divorced  from  such 
former  wife  before  the  second  marriage. 
Potter  vs.  Clapp,  203  111.  592. 

But  party  is  not  required  to  make  plenary  proof  of  such  nega- 
tive. It  is  enough  that  he  introduce  such  evidence  as,  in  absence 
of   all    counter    testimony,    will    afford    a    reasonable   ground    for 

presuming  that  the  allegation  is  true. 

Schmisseur  vs.  Beatrie,  147  111.  210. 

Proof  of  a  prior  marriage  and  that  first  w'ife  had  not  obtained 

a  divorce  is  not  sufficient  to  overcome  presumption. 
Coal  Co.  vs.  Jones,   127   111.  379. 

A  bill  for  divorce  and  proceedings  showing  its  dismissal  with- 
out a  decree,  together  with  proof  that  parties  had  lived  all  their 
lives  in  same  county  and  no  entries  appeared  of  record  in  any 
suit  between  them  is  sufficient  to  show  that  no  divorce  had  been 

granted. 

Schmisseur  vs.  Beatrie,  147  111.  210. 

When  evidence  is  sufficient  to  overcome  presumption  in  favor 
of  a  divorce,  burden  then  shifts  to  party  defending  validity  of 
second  marriage  to  prove  there  had  been  divorce. 

Schmisseur  vs.  Beatrie,  147  111.  210. 

Competency  of  Witnesses  as  to  Marriage: 

—  Widows:  In  proceeding  against  heirs  for  partition,  where 
complainant  seeks  to  establish  the  fact  of  her  marriage  to  the 
deceased  land  owner,  she  is  not  a  competent  witness  as  to  such 
fact,  nor  are  the  ex  parte  affidavits  of  other  witnesses  as  to  that 
fact  competent  to  be  considered  by  the  master. 
Crane  vs.  Stafford,  217  111.  21. 

A  woman  whose  claim  as  being  the  lawful  wife  is  denied  by 
others  having  or  asserting  interests,  as  heirs,  in  the  estate  of  her 
alleged  husband,  is  incompetent  to  testify  to  the  fact  of  her  mar- 
riage, in  proceeding  in  which  she  seeks,  as  distributee,  a  portion 


MARRIAGE  835 

of  all  his  personal  property,  uutil  her  status  as  widow  has  beeu 
established  by  the  adjudication  of  a  competent  court. 

In  re  Estate  of  Maher,  210  111.  160. 

One  who,  as  widow  of  a  deceased  person,  in  prosecuting  a  suit 
against  which  her  adversaries  are  defending  as  heirs,  is  not  com- 
petent to  testify  in  her  own  behalf  until  the  fact  of  her  marriage 
is  proven  or  conceded,  nor,  in  such  case,  is  she  competent  to  prove 
the  marriage  itself. 

Laurence    vs.    Laurence,    164    111.    367;    Overrul.    Brown    vs.    Brown, 
142  111.  409. 

■ — Former  Sijouse:  In  prosecution  for  bigamy,  the  woman 
alleged  to  be  former  wife  is  incompetent  as  a  witness  against 
defendant. 

Hiler  vs.  People,  156  111.  511, 

The  lawful  wife  of  one  accused  of  bigamy  is  not  a  competent 
witness  against  him,  and  her  incompetency^  cannot  be  waived  by 
him. 

Barber  vs.  People,  203   111.  543. 

—  Second  Spouse:    Proof  of  a  former  marriage  and  living  wife 
being  made  aliunde,  the  supposed  second  wife  becomes  a  compe- 
tent v/itness  to  admissions  by  the  alleged  husband,  during  cohabi- 
tation, that  he  was  never  divorced  from  the  first  wife. 
Oole  vs.  Cole,   153   111.  585. 

A  woman  who  has  been  married  to  accused  is  prima  facie  his 
lawful  wife  and  incompetent  to  testify  against  him  until  fact  that 
the  marriage  was  bigamous  is  established,  in  which  case  she  be- 
comes competent  to  testify  as  to  all  matters  except  the  fact  of  the 

first  marriage,  which  must  be  established  by  other  evidence. 
Hooh  vs.  People,  219  111.  265. 

In  i^rosecutiou  for  bigamy,  if  the  first  marriage  is  established 
by  competent  evidence,  the  second  wife  is  a  competent  witness 
to  testify  to  the  second  marriage;  and  if  no  objection  is  made  to 
her  testifying  to  the  first  marriage,  the  admission  of  such  testi- 
mony cannot  be  successfully  urged  as  error. 
Barber  vs.  People,  203  111.  543. 

When  a  second  wife  is  offered  as  a  witness  in  criminal  prosecu- 
tion against  her  husband,  who,  it  is  claimed,  has  another  wife 
living  and  undivorced,  the  question  of  her  competency  is  for  the 
court,  and  in  deciding  that  question  the  court  is  not  only  judge 
of  the  law  but  also  of  the  questions  of  facts  necessary  to  be  deter- 
mined. 

Hoch  vs.  People,  219  111.  265. 

Proof  that  the  accused  had  been  married  before  and  that  the 

first  wife  is  living  and  undivorced  overcomes  all  presumptions  in 

favor  of  the  validity  of  his  subsequent  marriage  to  the  person 

offered  as  a  witness  against  him,  including  any  presumption  as 

to  the  death 'or  divorce  of  the  first  wife. 
Hoch  vs.  People,  219  111.  265. 

In  determining  the  competency  of  an  alleged  wife  as  a  witness, 
the  court  must  act  upon  the  evidence  as  presented  at  the  time  of 
the  ruling,  and  if  there  is  evidence  establishing  a  former  mar- 
riage of  accused  and  that  the  first  wife  is  still  living  and  undi- 
vorced, it  is  not  error  to  permit  the  wife  of  the  bigamous  marriage 


836  MASTER  AND  SERVANT 

to  testify,  but  all  questions  of  fact  as  to  either  marriage  must  be 
left  to  the  ultimate  determination  of  the  jury,  under  proper  in- 
structions. 

Iloch  vs.  People,  219  111.  265. 


MASTER  AND  SERVANT 

See  Work  and  Services. 


MAYHEM 

See  Intent. 
Weight  and  Sufficiency: 

Tile  proof  must  show  that  the  means  were  adequate  and  that 
the  assailant  intended  to  employ  them  for  the  purpose  of  mayhem. 

Proof  that  the  accused  threw  red  pepper  at  the  eyes  of  the 
person  assaulted  does  not  sustain  a  conviction  for  attempt  to  com- 
mit mayhem,  where  the  evidence  shows  that  the  etfect  of  red  pep- 
per is  only  to  inflame  the  eyes. 

Dahllier^  vs.  People,  225  111.  485. 

Expert  and  Opinion : 

A  physician  was  permitted  on  behalf  of  People  to  state  that 
in  his  opinion  red  pepper  in  the  eye  would  destroy  sight. 

Defense  was  permitted  to  show  by  professor  of  pharmacology 
that  he  had  never  known  or  read  a  case  of  the  sight  being  destroyed 
by  red  pepper;  that  he  had  made  diligent  search  of  the  books 
and  medical  reports  for  such  a  case ;  and  that  when  a  boy  he  had 
accidentally  gotten  red  pepper  in  his  eyes  and  the  only  result 
was  inflammation. 

Another  witness  testified  to  experiments  with  red  pepper  in  his 
own  eyes  on  the  morning  of  the  tvial  and  at  other  times. 
Dahlberg  vs.  People,  225  111.  485. 


MECHANICS 

See  Expert  anl  Opinion,  Books,  Experiments. 

MEDICAL  AND  SURGICAL  SERVICES 

See  Physicians  and  Surgeons. 
Recovery  as  Damages : 

To  enable  plaintiff  to  recover  for  expenditures  for  medical  serv- 
ices, it  is  necessary  for  him  to  prove  that  such  services  were  made 
necessary  because  of  the  injury  inflicted  by  the  defendant,  and  that 
the  fees  were  reasonable  for  the  services.  It  will  not  be  sufficient 
for  him  to  prove  merely  that  he  has  paid  a  certain  phvsician's  bill. 

Aniniin    vs.   Chi.   Traftion   Co.,   243   111.   263;   North  Chi.   St.   Ry    '~!o. 
vs.  Cotton,  140  111.  486. 


MEDICAL  AND  SURGICAL  SERVICES  837 

Plaintiff  must  prove  two  things:     First,   that   he  has  paid  or 

become    liable   to   pay    a   specitic    amount;    and   second,    that    the 

charges  made  were  the  usual  and  reasonable  charges  for  services 

of  that  nature.     He  could  recover  no  more  than  the  amount  which 

he  had  paid  or  become  liable  to  pay,  even  if  it  were  less  than  the 

usual  and  reasonable  charges  for  such  services;  and  on  the  other 

hand,  he  could  not  recover  more  than  such  usual  and  reasonable 

charge  even  if  he  had  paid  more. 

Schinitt  vs.  Kurrus,  234  111.  578 ;  Cf .  Chi.  City  Ey.  Co.  vs.  Menely,  79 
App.  679. 

Evidence  of  charges  is  admissible  without  first  showing  same 

are  customary  and  usual  where  there  is  no  usual  or  customary 

charge  in  the  locality  for  like  services. 

Fleming  vs.  Cli'i.  City  Ey.  Co.,  163  App.  185;   McCarthy  vs.   Spring 
Valley  Coal  Co.,  149  App.  275. 

—  Payment:  It  is  not  necessary  that  proof  should  show  pay- 
ment of  bills,  it  being  sufficient  that  plaintiff  has  incurred  a  lia- 
bility for  such  aid. 

C.  &  E.  I.  E.  Co.  vs.  Cleminger,  178  111.  536. 

—  Plaintiff  Married  Woman:  The  fact  that  the  p>laintiff  is  a 
married  woman,  residing  with  her  husband,  does  not  render  in- 
competent the  testimony  of  her  attending  physician  as  to  his 
charges  for  treating  the  injury,  as  under  our  statute  she  might 
be  liable  for  such  charges  as  well  as  her  husband. 

W.  Chi.  St.  Ey.  Co.  vs.  Carr,  170  111.  478. 

—  Incurred  After  Suit  Brought:  If  plaintiff  has  not  recovered 
of  his  injuries  at  the  time  he  brings  suit,  it  is  proper  to  allow  him 
to  prove  that  he  has  incurred  doctors'  bills  and  drug  bills  after 
the  commencement  of  the  suit,  in  attempting  to  be  cured,  even 
though  the  physician  and  druggist  who  testify  to  the  amount  of 
their  bills  fail  to  state  how  their  bills  should  be  divided  with  ref- 
erence to  the  time  suit  was  begun. 

Sturm  vs.  Consolidated  Coal  Co.,  248  111.  20. 

One  injured  by  the  wrongful  act  of  another  may  recover  all 
the  reasonable  doctor's  and  surgeon's  fees . necessarily  incurred 
in  effecting  a  cure,  and  if  further  expenses  for  a  surgical  opera- 
tion Avill  be  necessary,  he  may  prove  that  fact  for  the  considera- 
tion of  the  jury. 

Chi.  City  Ey.  Co.  vs.  Henry,  218  111.  92;   Gon.  Coal  Co.  vs.  Haenni, 
146  111.  614;  Village  of  Sheridan  vs.  Hubbard,  119  III.  307. 

To  justify  a  recovery  for  future  damages  the  law  requires  proof 
of  a  reasonable  certainty  that  they  will  be  endured  in  the  future, 
and  hence,  testimony  that  an  abrasion  of  the  skin  on  the  arm  and 
a  sprain  of  the  ankle  of  plaintiff's  paralyzed  side  might  aggravate 
the  paralysis  is  not  admissible,  particularly  where  the  witness 
testifies  that  he  is  not  an  expert  on  the  subject  and  has  no  opin- 
ion on  the  subject,  and  cannot  tell  what  the  probabilites  would 
be. 

Amann  vs.  Chi.  Trae.  Co.,  243  111.  263. 

Where  there  is  no  evidence  that  a  surgical  operation  upon  the 
plaintiff  had  been' performed,  or  is  even  contemplated  or  required, 
evidence  that  a  man  in  the  station  of  life  of  plaintiff  ' '  would  have 


838  MEMORANDUM 

to  have"  certain  sum  to  be  operated  upon  by  a  competent  surgeon 
is  incompetent. 

Chi.  City  Ey.  Co.  vs.  Henry,  218  111.  92. 
—  Bight  of  Physician  to  Practice:  Between  third  persons,  the 
question  of  the  physician's  qualifications  arising  only  collaterally, 
his  right  to  practice  is  presumed.  It  being  shown  that  he  is  a 
physician  and  surgeon  by  profession  and  that  he  has  practiced 
in  the  state  for  a  length  of  time,  is  prima  facie  sufficient  at  least  to 

establish  the  proper  qualification. 

Chi.  City  Ey.  Co.  vs.  Cotton,  140  111.  486;  Tichenor  ^g.  Newman,  186 
111.  264 ;  City  of  Chicago  vs.  Wood,  24  App.  40. 


MEDICAL  BOOKS 

See  Books,  Expert  and  Opinion. 

MEMORANDUM 

See   Books   of   Account,    Ancient   Documents,    Statute   of 
Frauds. 
Requisites : 

—  Made  by  Witness  Himself:  Witness  may  refresh  his  recollec- 
tion from  a  memorandum  which  he  has  testified  was  made  by 
himself  from  his  own  memory. 

Calahan  vs.  Conrau,  172  App.  261;  McCabe  vs.  Swift,  143  App.  404. 

To  allow  a  witness  to  use  a  writing  to  refresh  his  recollection, 

it  is  not  necessary  that  it  should  have  been  made  by  the  witness 

himself,  provided,  after  inspecting  it,  he  can  speak  to  the  facts  of 

his  own  recollection. 

Delbridge  vs.  L.  H.  B.  &  L.  Assn.,  98  Aj^p.  96;  Lawrence  vs.  Stiles, 
16  App.  489. 

—  Time  of  Making:  Must  have  been  made  at  time  when  wit- 
ness had  the  facts  fresh  in  mind. 

McCabe  vs.   Swift,   143   App.   404;    Woods  vs.   T.   St.   L.   &   W.   Ey. 
Co.,    159    App.    209;    Biedt    vs.    Simpson,    95    App.    333;    Kunder 
vs.    Smith,    45    App.    368;    Fitzgerald    vs.    Benuer,    219    111.    485; 
Diamond  Glne  Co.  vs.  Wietzchowski,  227  111.  338;  XIV  111.  Notes, 
1137,    §§  193-197. 
Where  a  witness  has  no  independent  recollection  of  the  facts,  but 
states  that  he  reduced  them  to  writing  at  a  time  when  he  had  a  per- 
fect recollection  of  them,  he  may  refer  to  such  writing. 

Seaverns  vs.  Tribby,  48  111.  195;  FitzGerald  vs.  Benner,  219  111.  485. 

And  where  writing  is  contemporaneous  with  the  facts. 

Woods  vs.  T.   St.  L.  &  W.  Ey.  Co.,  159  App.  209;   W.  Chi.  St.  Ey. 
Co.  vs.  Kronskiusky,  86  App.  17. 

Certificate  of  architect  showing  deduction  for  material  and  labor 
not  furnished  according  to  contract,  made  upon  personal  examin- 
ation and  while  matters  were  fresh  in  his  mind,  may  be  used  by 
him  to  refresh  his  memory  in  testifying  in  suit  by  contractor  against 

owner  for  balance  due  on  contract. 

Saunders  vs.  Hutchinson,  26  App.  633. 

—  Memoranrlum  Made  dy  Another:  A  witness  will  not  be  per- 
mitted to  testify  from  notes  and  memoranda  which  he  had  made 


MEMORANDUM  839 

from   writings  prepared   by  other  persons,   it  not  appearing  he 
had  any  personal  knowledge  of  the  matters  eontained  in  the  writing. 

Scaverns  vs.  Tribby,  4,S  111.  195;  Haish  vs.  Dreyfus,  111  App.  44; 
Kolber  vs.  Frankenthal,  159  App.  882. 

But  if  he  can,  from  an  inspection  of  such  writing,  speak  of  the 
facts  from  his  own  recollection,  or  having  seen  the  writing  at  a 
time  when  the  facts  therein  stated  were  fresh  in  his  recollection, 
and  he  knows  the  writing  to  be  a  true  statement,  he  may  use  such 
memorandum. 

Bredt  vs.  Simpson,  95  App.  333. 

Where  an  entry  is  made  by  one,  in  the  performance  of  his  duty, 
of  facts  reported  to  him  by  another  in  the  discharge  of  a  duty 
devolving  on  such  otlier  by  virtue  of  his  employment,  such  entry 
is  admissible,  but  preliminary  to  the  admission  of  such  evidence, 
it  should  be  shown  by  the  one  making  the  report,  if  he  be  living, 
that  such  report  was  true.  Where  the  clerk  who  makes  the  entries 
has  no  knowledge  of  their  correctness,  but  makes  them  as  the  items 
are  furnished  by  another,  it  is  essential  that  the  party  furnishing 
the  items  should  testify  to  their  correctness,  or  that  satisfactory 
proof  thereof,  such  as  the  nature  of  the  transaction  is  reasonably 
susceptible  of,  from  other  sources,  should  be  produced. 

Griffith  vs.  San.  Dist.,  174  App.  100;  Trainor  vs.  CI.  A.  Build.  Assn , 
204  111.  616. 

—  Witness'  Knowledge  of  Contents:  A  witness  cannot  testify 
from  a  writing  when  he  has  no  personal  knowledge  of  the  truth 
of  the  contents  of  such  writing. 

Keitli  vs.  Mafit,  ."^^S  111.  223 ;  Eussell  vs.  Stove  Co.,  120  App.  23. 

In  using  memorandum,  witness  must  be  able  to  state  he  remem- 
bers the  facts.  If  he  has  no  recollection  of  the  circumstances  and 
can  only  say  they  are  true  because  he  found  them  on  his  memo- 
randum, he  Mill  not  be  allowed  to  speak  from  same,  nor  read  as 
independent  evidence. 

Colber  vs.  Frankenthal,  159  App.  382;  C.  &  A.  Ey.  Co.  vs.  Adler,  56 
111.  344;  Seaverns  vs.  Tribby,  48  111.  195;  FitzGerald  vs.  Benner, 
219  111.  485;  Ry.  Co.  vs.  MeCahill,  56  111.  28. 

If  a  witness'  memory  is  not  refreshed  by  the  use  of  a  memo- 
randum, so  that  he  then  has  a  present  recollection,  and  if  a  witness 
has  no  recollection  independent  of  the  memorandum,  it  is  improper 
to  permit  him  to  testify  with  reference  to  the  contents  of  such 
memorandum. 

People  vs.  Maddox,  162  Apji.  95. 

—  Correctness:  A  witness  must  be  able  to  state  the  writing  is 
a  true  statement, 

Dorranee  vs.  Dearborn  Pov^er  Co.,  233  111.  354;  Diamond  Glue  Co.  vs. 
Wietzychowski,  227  111.  339;  C.  &  W.  Coal  Co.  vs.  Liddell,  69  111.  639; 
C.  &  A.  Rv.  Co.  vs.  Adler,  56  111.  344;  Elston  vs.  Kennieott,  46 
111.  187;  MeCabe  vs.  Swift,  143  App.  404. 

]\Iemorandum  must  have  been  correctly  made,  and  true  when 

made. 

C.  &  A.  Ry.  Co.  vs.  Adler,  56  111.  344;  Woleott  vs.  Heath,  78  111.  433. 

When   plaintiff  makes  memorandum   from  own   entries,   to   the 

accuracy  of  which  he  swears  from  his  own  knowledge,  the  same 

may  be  used. 

Seaverns  vs.  Tribbey,  48  111.  195. 


840  JIEMORANDUII 

—  Memorandum  of  Lost  Conveyance:     In  testifying  to  contents 

of  lost  instruments  of  conveyance,  a  witness  may  refer  to  notes 

made  by  him,  and  known  to  be  correct,  though  such  notes  were  not 

made  as  abstracts  of  title. 

liiisli   vs.   Stanley,   122   111.  406. 

Rig-ht  to  Use : 

—  In  General:  Memorandum  may  be  used  for  purpose  of  re- 
freshing memory  of  witness. 

FitzGeiald  vs.  Benuer,  219  III.  485;  Brown  vs.  Galesburg  Brick  Co., 
132  111.  648;  Seaverns  vs.  Tribbey,  48  111.  195;  Kunder  vs.  Smith, 
45  App.  368 ;  Stein  vs.  Elec.  Co.,  152  App.  392. 

A  witness,  in  giving  testimony  of  lost  writing,  may  make  use  of 
any  memorandum  to  refresh  his  memory. 

C.  &  A.  Ey.  Co.  vs.  Adler,  56  111.  344;  Dunlop  vs.  Berry,  5  111.  327. 

Memoranda  and  entries  made  at  or  about  the  time  of  the  trans- 
actions to  which  they  relate,  in  the  usual  and  regular  course  of  busi- 
ness, and  of  the  employment  and  duty  of  the  person  w^ho  made  them, 

are  admissible  as  part  of  the  res  gestae. 
FitzGerald  vs.  Beuner,  219  111.  485. 

Witnesses  may  refresh  recollection  by  reference  to  entries  made 

by  themselves  in  the  due  course  of  business,  on  the  books  of  their 

firm. 

Hodgkins  vs.  Smith,   104  App.  420. 

A  witness  may  refresh  and  assist  his  memory  by  the  use  of  a 
written  instrument,  memorandum  or  entry  in  a  book ;  but  after  in- 
spection of  such  writing,  he  must  be  able  to  speak  as  to  the  facts 

from  his  own  recollection. 

Elston  vs.  Kennicott,  46  111.  187. 

In  action  to  recover  loss  of  property  by  fire,  resulting  from  neg- 
ligence of  railroad  company,  it  is  proper  to  permit  plaintitf,  in 
giving  his  testimony,  to  refresh  his  memory  from  a  memorandum 
he  had  made  of  the  articles  lost  by  the  fire. 

In  such  case,  held  not  improper  to  allow  witnesses  to  testify  to 
the  loss  of  articles  not  included  in  the  declaration,  as  being  part  of 
the  res  gestae,  but  the  jury  could  not  allow  for  any  articles  not  so 

embraced. 

C.  &  N.  W.  Ey.  Co.  vs.  McCahill,  56  111.  28. 

In  action  on  contract,  a  witness  may  refresh  his  recollection 
as  to  dates  and  weather  conditions  by  reference  to  a  memorandum 
book,  in  which  he  made  entries  in  the  usual  course  of  business  as 
the  work  under  such  contract  progressed. 

FitzGerald  vs.  Benner,  219  Til.  485. 

"Where  a  witness,  on  his  direct  examination,  simply  refers  to 
memoranda  to  refresh  his  memory,  and  then  testifies  to  his  recol- 
lection thus  aided,  if  such  memoranda  are  given  in  evidence,  on  his 
cross  examination,  at  instance  of  adverse  party,  the  latter  cannot 
complain  of  their  admission. 

Bush  vs.  Stanley,  122  111.  406. 

—  Necessity  for  Inrlepcndcnt  Recollection:  A  writing  may 
properly  be  used  for  purpose  of  refreshing  the  memory  of  a  wit- 
ness where  he  is  able,  after  inspecting  the  writing,  to  testify  to 
the  facts  from  present  recollection,  or  where,  after  inspecting  the 
M'riting  he  still  has  no  independent  recollection  of  the  facts  therein 


ME:\I0RANDUM  841 

stated,  but  is  able  to  state  that  he  correctly  reduced  them  to  writ- 
ing at  the  time  of  the  occurrence  or  within  such  time  afterwards 
that  he  then  had  a  perfect  recollection  of  them. 

Diamond    Glue    Co.    vs.    Wietzyehowiski,    227    111.    ',V^9;    Com.    Co.    vs. 

Oregon  Short  Line,  174  App.  375;  (Jf.  Kunder  vs.  Smith,  45  App. 

368. 

A  witness  can  testify  to  such  facts  only  as  are  within  his  own 

knowledge  and  recollection,  though   he  is  allowed  to  refresh  his 

memory  by  the  use  of  memoranda,  but  after  the  inspection  of  the 

writing,  he  must  be  able  to  speak  from  his  own  recollection  of  the 

facts. 

Elston   vs.   Kennicott,   46   111.   187;    Torpedo   Top   Co.   vs.   Insurance 
Co.,  162  App.  338. 
AVhere  a  witness  recollects  having  seen  the  writing  before,  and  at 
time  of  testifying,  has  no  independent  recollection  of  the  facts  men- 
tioned in  it,  but  testifies  that,  at  the  time,  he  knew  its  contents  to 
be  correct,  he  may  use  same  in  testifying. 
Lawrence  vs.  Stiles,  16  App.  489. 
A  wdtness  may  refresh  his  recollection  of  former  testimony  of  de- 
ceased witness  by  referring  to  his  minutes  or  memoranda  made  by 
him,  but  cannot  speak  from  them  or  give  them  in  evidence ;  he  must 
speak  from  his  own  recollection  of  the  substance  of  his  testimony. 

M.  P.  Ey.  Co.  vs.  Keep,  22  111.  9;  C.  &  E.  I.  E.  E.  Co.  vs.  O'Connor, 
119  111.  586;  Overtoom  vs.  C.  &  E.  I.  E.  R.  Co.,  181  111.  323. 

The  copy  of  a  writing  or  account,  as  well  as  the  original,  may  be 
referred  to  by  a  witness,  if  his  memory,  refreshed  thereby,  enables 
him  to  testify  from  his  own  recollection  of  the  original  facts,  inde- 
pendently of  his  confidence  in  the  accuracy  of  the  copy,  but  he  is 
not  allowed,  in  such  case,  to  read  from  his  copy.  The  original 
entries,  if  shown  to  be  correctly  made,  may  be  read  in  evidence, 

but  not  a  copy  of  them. 

Bonnett  vs.  Glattfeldt,  120  111.  166. 
The  testimony  of. an  elevator  inspector  as  to  the  condition  of 
the  elevator,  based  entirely  upon  a  memorandum,  should  be  excluded 
when  he  admits  that  even  after  an  inspection  of  the  memorandum, 
he  has  no  independent  recollection  of  the  facts,  and  where  he  does 
not  testify  that  the  memorandum  was  true  and  correctly  stated  the 
facts  at  the  time  it  was  made,  and  a  refusal  to  exclude  such  testi- 
mony is  not  justified  by  the  fact  that  he  testified  without  the 
memorandum  as  to  his  name,  his  occupation,  and  that  he  remem- 
bered the  dampness  and  general  surroundings  when  inspecting  the 

elevator. 

Diamond  Glue  Co.  vs.  Wietzychowski,  227  111.  339. 

On  issue  whether  deposit  was  made  in  bank,  the  figuring  book 

which  tended  to  fix  the  date  and  was  used  by  clerk  in  testifying,  is 

admissible  in  connection  with  his  testimony,  when,  after  referring 

to  it,  he  was  still  unable,  of  his  independent  recollection,  to  swear 

to  the  date. 

Lawrence  vs.  Stiles,  16  App.  489. 
Counsels  notes  of  deceased  witness'  testimony,  taken  at  former 
trial  and  used  by  him  for  puiTDOse  of  refreshing  his  recollection  in 
testifying  at  suljsequent  trial  to  such  former  testimony,  may  be 


842  MEMORAxXDUM 

read  in  evidence  but  not  introduced  as  evidence  per  se,  and  may 
be  taken  by  jury  as  part  of  his  testimony. 
M.  P.  Ey.  Co.  vs.  Keeh,  22  J 11.  9. 

The  record  kept  in  a  power  plant,  and  claimed  to  show  the 
figures  of  the  drafts  of  a  furnace  from  time  to  time,  cannot  be 
read  from  by  witnesses  who  put  down  the  figures,  where  the  wit- 
nesses do  not  speak  from  any  independent  recollection  and  there 

is  no  evidence  that  the  record  is  a  correct  record  of  the  facts. 
Dorrance  vs.  Dearborn  Power  Co.,  233  111.  354. 

—  Right  of  Cross  Examination:     If  a  witness  testifies  to  data 

by  referring  constantly  to  memoranda,  opposing  counsel  is  entitled 

to  its  possession  for  purpose  of  cross  examination,  when  it  appears 

witness  had  no  independent  recollection  of  the  data  he  has  testified 

to. 

Harman  vs.  I.  &  E.  Coal  Co.,  237  111.  36. 

If  a  witness  knows  that  the  facts  stated  in  a  memorandum  were 
recorded  at  a  time  when  they  were  fresh  in  his  memory,  and  knows 
that  the  memorandum  would  not  have  been  made  unless  the  facts 
stated  were  true  at  the  time,  he  may  be  allowed  to  use  the  mem- 
orandum providing  it  is  produced  with  an  opportunity  for  cross 
examination  as  to  same. 

Diamond  Glue  Co.  vs.  Wietzychowski,  227  111.  339. 
Wliere  books  and  documents  are  voluminous,  schedules  showing 
data  and  results  may  be  used  by  a  witness  in  testifying,  but  even 
in  such  case,  the  originals  should  be  at  hand,  so  that  the  opposite 
party  may  have  an  opportunity  to  examine  them  to  verify  the 
correctness  of  such  schedules. 

Doyle  vs.  I.  C.  K  K.  Co.,  113  App.  532;  Harney  vs.  Sanitary  Dist., 
260  111.  54. 

—  Rigki  to  Testify  as  to  Contents:  "Witness  cannot  testify  as  to 
contents  of  memorandum. 

People  vs.  Maddox,  162  App.  95. 

—  Memoranda  Containing  Opinions:  Memoranda  prepared  by 
witness  as  to  value  of  goods  is  not  admissible,  and  evidence  of  opin- 
ion of  witness,  being  mere  repetitions  of  the  valuation  contained 
upon  a  paper  he  has  examined,  is  incompetent. 

I.  C.  R.  R.  Co.  vs.  Seitz,  105  App.  89. 

—  As   Independent   Evidence:    A    mere   memorandum   is   not 

admissible  as  independent  evidence,  though  proven  by  the  person 

who  made  it,  but  only  for  purpose  of  refreshing  the  recollection 

of  the  witness. 

Cold  Storage  Co.  vs.  Warner,  78  App.  577. 

While  not  admissi])le  as  independent  evidence,  it  may  be  admitted 
when  witness  has  no  recollection  except  accurate  reduction  of  trans- 
action to  writing. 

Com.  Co.  vs.  Oregon  Short  Line  Co.,  174  Apji.  375;  Davis  vs. 
Vandalia  R.  R.  Co.,  168  >4pp.  621;  Calahan  vs.  Conran,  172  App. 
261;   Kent  vs.  Mason,  1  App.  466;   Ryan  vs.   Miller,  153  111.  138. 

And  then  only  as  corroborative  evidence. 

Kunder  vs.  Smith,  45  App.  368. 

Where  witness  testifies  from  book,  aside  from  which  he  has  no 


ME^rORANDUM  843 

independent  recollection,  after  such  testimony,  the  book  itself  may 

be  introduced  in  evidence. 

Calalian  vs.  Conian,  172  App.  261. 
Books  containing  memoranda,  attached  to  deposition,  are  admis- 
sible as  independent  evidence  and  may  be  taken  by  the  jury,  when 

detached  from  the  deposition. 

Standard  Starch  Co.  vs.  McAlullen,  100  App.  82. 

—  Necessity  of  Producing  Memorandum:  A  witness  may,  for 
the  purpose  of  making  his  statements  intelligible  and  giving  coher- 
ence to  such  of  them  as  are  clearly  admissible,  properly  speak  of 
the  execution  of  deeds,  the  giving  of  receipts,  the  writing  of  a  let- 
ter, and  the  like,  without  producing  the  writing  referred  to.  Ref- 
erence to  such  writings  as  mere  inducement  to  the  material  parts 

of  a  witness's  testimony  may  be  allowed. 

Massey  vs.  Farmers'  Natl.  Bank,  113  111.  334. 

—  Boohs  of  Daily  Entries:  Books  in  which  ciaily  entries  of  busi- 
ness transactions  are  made,  may  be  used  by  witnesses  for  purpose 

of  refreshing  recollection. 

Wolcott  vs.  Heath,  78  111.  433 ;  Sullivan  vs.  Miller,  169  App.  607. 

—  Copies  of  Memoranda :  A  witness  may  make  use  of  a  copy  of 
an  original  memorandum  to  refresh  his  memory.  But,  unless  he 
can  give  a  satisfactory  reason  for  using  the  copy,  that  fact  might 
impair  the  weight  of  his  evidence  with  the  jury,  and  would  go  to 
the  credit  but  not  to  the  competency  of  his  testimony. 

Before  a  witness  can  be  permitted  to  refresh  his  memory  from 
the  copy,  he  must  be  clear  and  explicit  in  his  evidence  that  it  is 
truly  transcribed  from  the  original,  and  that  the  original  was  cor- 
rectly made  and  was  true  when  it  was  made. 
C.  &  A.  E.  E.  Co.  vs.  Adler,  56  111.  344. 

A  copy  of  a  writing  or  account,  as  well  as  the  original,  may  be 
referred  to  by  a  witness,  if  his  memory,  refreshed  thereby,  enables 
him  to  testify  from  his  recollection  of  the  original  facts,  independ- 
ently of  his  confidence  in  the  accuracy  of  the  copy,  but  he  is  not 
allowed,  in  such  case,  to  read  from  the  copy.  The  original  entries, 
if  shown  to  be  correctly  made,  may  be  read  in  evidence,  but  not  a 

copy  of  them. 

Bonnett  vs.   Glattfeldt,   120  111.   166. 

A  copy,  proven  to  be  correct,  of  a  lost  memorandum,  is  admissible 

in  evidence  in  connection  with  the  testimony  of  the  witness  making 

it. 

Eyan  vs.  Miller,  153  111.  138. 

A  witness  should  not  be  permitted  to  refer  to  memorandum  which 
is  copy  of  records,  wdien  it  does  not  appear  that  tlie  original  records 
were  made  in  the  ordinary  course  of  business,  by  persons  whose 
duty  it  was  to  make  them,  and  that  they  were  made  at  the  time  of 
the  occurrence  of  the  transactions  which  they  purport  to  record. 
Doyle  vs.  I.  C.  E.  E.  Co.,  113  App.  532. 

Where  destruction  of  memorandum  is  shown,  inventory  book 
containing  copy  of  same,  is  admissible  where  accuracy  and  correct- 
ness of  original  memorandum,  and  also  copy  transcribed  in  the 

book,  is  established. 

Sherman  vs.  Pardridge,  177  App.  304. 


844  MENTAL  AND  PHYSICAL  STATES 

MENTAL  AND  PHYSICAL  STATES 

See  Books,  Age,  Expert  and  Opinion,  Credibility,  Sanity  and 
Insanity,    Wills,    Conclusions    of    Witnesses,    Intoxication, 
Deeds,  Res  Gestae,  Intent,  Cross  Examination. 
ADMISSIBILITY  OF  EVIDENCE. 
Statements  and  Declarations : 

—  In  General:     Evidence  oi'  plaintiff's  complaint  as  to  pain  and 

suffering  is  competent  on  behalf  of  plaintiff'.     The  weight  of  such 

testimony  is  for  the  jury. 

City  of  Bloommgton  vs.  Osteile,  139  111.  120. 

Declarations,  to  be  admissible,  must  be  confined  to  the  statement 
of  complaint,  or  exclamations  of  present  existing  pain  and  suffering 
and  not  to  the  past,  nor  to  the  manner  and  circumstances  of  receiv- 
ing the  injury. 

W.  CJhi.  St.  Ey.  Co.  vs.  Cair,  170  111.  478. 

Statements  of  pain  and  suffering,  past  or  present,  when  not  made 
to  a  physician  or  medical  expert  to  enable  him  to  form  an  opniion 
of  the  injury,  with  a  view  to  treatment  or  other  legitimate  pur- 
poses, are  inadmissible  unless  part  of  the  res  gestae. 

W.  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508;  Globe  Ace.  Ins.  Co. 
vs.  Gerisch,  163  111.  625. 

Where  a  witness  who  visited  plaintiff  the  day  after  her  injury, 
is  asked  where  plaintiff'  complained  of  pain,  her  answer  that  "she 
complained  of  her  side,  and  under  her  spine,  in  the  back  and  this 
ankle ;  she  screamed  with  the  ankle  awfully, ' '  is  incompetent  as 
being  a  mere  declaration  by  plaintiff  concerning  her  conditou. 
W.  Chi.  St.  Ey.  Co.  vs.  Kenuelly,  170  111..  50S. 

The  exclamations  of  plaintiff,  while  in  a  fit  of  hystero-epilepsy, 
and  while  kicking  and  striking,  calling  the  name  of  defendant,  tell- 
ing him  to  get  away  from  her  and  other  expressions  of  a  similar 
character,  are  not  admissible  in  evidence  in  action  of  trespass  for 
debauching  her. 

Steurer  vs.  Eeid,  56  App.  245. 

The  law  admits  in  evidence  the  declarations  of  the  injured  party' 

as  to  his  physical  condition,  given  to  a  physician  during  treatment, 

because  it  is  presumed  that  the  injured  party  will  not  falsify  in  his 

statements  made  to  the  physician  when  he  expects  and  hopes  to 

receive  medical  aid,  but  no  such  presumption  arises  when  he  is 

examined  by  an  expert  for  the  purpose  of  giving  evidence  in  a 

case  about  to  be  tried. 

Shaugliuessy  vs.  Holt,  236  111.  485. 

—  As  to  Cause  of  Injury:  Declarations  made  by  an  injured  per- 
son are  admissible  in  evidence  when  they  relate  to  the  part  of  his 
body  injured,  his  suffering,  symptoms  and  the  like,  but  not  if  they 

relate  to  cause  of  injury. 

Globe  Ace.  Ins.  Co.  vs.  Gerisch,  163  111.  625;  Chi.  W.  D.  Ey.  Co.  vs. 
Becker,  128  111.  545;  Collins  vs.  Waters,  54  111.  485;  I.  C.  E.  E. 
Co.  vs.  Sutton,  42  111.  438;  David  vs.  C.  M.  A.  Co.,  166  App.  490; 
City  of  Aurora  vs.  Plummer,  122  App.  143;  XII  111.  Notes,  407, 
408,  §§  175-176. 

—  Made  to  Lay  Witnesses:  Statements  by  injured  person  as  to 
physical  condition,  made  to  lay  witnesses  are  inadmissible. 

W.  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508. 


MENTAL  AND  PHYSICAL  STATES  845 

But  mere  exclamations  of  pain,  made  to  lay  witness  are  admis- 
sible, and  such  witness  may  testify,  in  answer  to  ((uestion  how  slie 
found  plaintiff  on  morning  after  injury,  that  she  "was  complaining 

awfully  bad." 

W.   Chi.  St.  Ry.  Co.  vs.   Kennelly,   170  III.  508;  City  of  Aurora  vs. 
Pliimnier,  122  App.  143. 
It  is  competent  for  a  witness  to  state  that  after  the  injury  per- 
son seemed  to  be  suffering  pain  but  a  statement  that  he  complained 

of  having  pain  is  incompetent. 

Hauley  vs.  Cliicago  City  Ry.  Co.,  ISO  App.  397;  McCambridge  vs. 
Cit,y  of  Chicago,  178  App.  513. 

—  Made  lo  Physician:  Statements  must  be  made  to  attending 
physician  during  treatment  or  examination  prior  thereto,  and  with- 
out reference  to  bringing  suit  for  damages,  unless  the  examination 

is  made  at  instance  of  defendant  with  view  to  trial. 

Coburn  vs.  Moline  Ey.  Co.,  243  111.  448 ;  F\ihry  vs.  Chi.  City  Ry.  Co., 
239  111.  548;  City  of  Chicago  vs.  McNally,  227  111.  14;  City  of 
Salem  vs.  Webster,  192  111.  369;  West  Chi.  St.  Ey.  Co.  vs.  Carr, 
170  111.  478;  Greiuke  vs.  Chi.  City  Ev.  Co.,  234  111.  564;  Edward 
vs.  I.  C.  B.  R.  Co.,  161  App.  630;  Collins  vs.  Waters,  54  111.  485; 
I.  C.  R.  R.  Co.  vs.  Suttou,  42  111.  438. 

Statements  must  be  confined  to  such  as  are  made  at  time  of 
sickness  from  which  the  patient  is  suffering.     Statements  of  such 
patients  after  their  recovery  are  not  competent, 
Winnebago  vs.  City  of  Eockford,  61  Ap]>.  656. 

Declarations  as  to  cause  of  the  injury,  although  detailed  to  physi- 
cian during  treatment,  are  inadmissible. 

David  vs  Com.  Mnt.  Ace.  Co.,  166  App.  490;  Globe  Ace.  Co.  vs. 
Geriseh,  163  III.  625;  I.  C.  E.  E.  Co.  vs.  Sutton,  42  111.  438. 

Statements  of  the  location  of  an  injury,  and  existing  pain,  made 
to  physician  during  treatment,  or  upon  examination  and  for  pur- 
pose of  ascertaining  extent  and  nature  of  injury,  if  made  with- 
out reference  to  future  litigation,  may  be  stated  by  a  physician  in 
giving  his  opinion  of  the  nature,   character  and   extent   of  the 

injury. 

W.  Clii.  St.  Ey.  Co.  vs.  Carr,  170  111.  478;  I.  C.  E  E.  Co  vs.  Sutton, 
42  111.  438. 
A  physician  who  attended  plaintiff  and  who  helped  pick  him  up 
at  time  of  accident,  may  testif}^  that  he  cried  out  at  time  and  de- 
scribe the  pain  he  suffered. 

City  of  Salem  vs.  Webster,  192  111.  369. 
Physician  testifying  as  to  injuries  of  plaintiff,  may  state  what 
plaintiff  said   to  him  in   describing   her  condition   during  actual 

treatment  and  in  direct  connection   therewith. 
Chi.  City  Ey.  Co.  vs.  Bundy,  210  111.  39. 

—  Declarations  of  Third  Persons:  Mental  or  physical  condi- 
tion of  person  cannot  be  proven  ordinarily  by  the  unsworn  dec- 
larations of  other  persons. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Bell,  70  111.  102. 
So  where  defense  offered  to  prove  that  just  before  the  accident 
the  plaintiff,  in  a  saloon,  called  for  a  drink  of  liquor,  and  that  the 
bar-keeper  told  him  he  had  enough,  which  the  court  excluded, 
on  objection,  it  was  held,  that  the  evidence  was  not  admissible  and 
was  properly  refused.     The  fact  whether  plaintiff  was  under  the 


846  MENTAL  AND  PHYSICAL  STATES 

influence  of  liquor  was  subject  to  proof  as  any  other  fact  in  the 
case,  but  could  not  be  proven  by  declarations  of  third  person. 
L.  E.  &  W.  Ey.  Co.  vs.  Zoffinger,  107  111.  199. 
—  As  Pari  of  lies  Gestae:    Declarations  and  exclamations  which 
are  of  the  res  gestae  of  the  act  are  admissible  in  evidence  to  prove 
the  physical  suffering,  condition  or  injury  or  the  cause  thereof, 

but  are  only  competent  when  so  made. 

Greinke  vs.  Chi.  City  Ey.  Co.,  234  111.  564;  Lake  St.  El.  Ey.  Co.  vs. 
Shaw,  203  111.  39;  W.  Chi.  St.  Ey.  Oo.  vs.  Kennelly,  170  111.  508. 
No  inflexible  rule  has  been  or  can  be  formulated  fixing  the  exact 
time  within  which  a  statement  must  be  made  to  make  it  part  of 
the  res  gestae.  Where  evidence  shows  that  the  shock  occasioned 
by  collision,  the  exclamations  of  pain,  the  effort  to  render  help 
to  the  injured  party,  and  his  statement  "explaining  and  charac- 
terizing the  manner  in  which  the  accident  occurred,"  were  all  sub- 
stantially concurrent,  there  was  no  time  for  deliberation  of  fab- 
rication and  they  are  admissible. 

Muren   Coal   Co.  vs.   Howell,  107   App.   1;   Affd.,  217   111.   190,  Hay- 
wood vs.  Deeriiig  Coal  Co.,  145  App.  506. 
Declarations  so  immediately  connected  with  the  infliction  of  the 
injury  as  to  become  part  of  the  res  gestae  are  competent. 

W.   Chi.   St.   Ey.   Co.   vs.   Carr,   170   111.   478;   Shaughnessy  vs.   Holt, 
236  111.  485;  City  of  Chicago  vs.  McNally,  227  111.  14. 

A  statement  made  by  one  deceased,  as  to  the  manner  in  which 

he  sustained  the  injury  which  resulted  in  his  death,  not  at  time 

when  accident  occurred,  but  a  minute  or  more  afterwards,  is  not 

competent  as  part  of  the  res  gestae. 

Boyd  vs.  W.  Chi.  St.  Ey.  Co.,  112  App.  50. 

The  declarations  of  an  injured  person,  made  hours  after  the 
injury,  as  to  its  cause,  are  not  so  connected  with  the  circumstances 
and  time  of  accident  as  to  be  part  of  the  res  gestae. 
Globe  Aec.  Ins.  Co.  vs.  Gerisch,  163  111.  625. 

A  statement  made  by  an  injured  man  as  to  manner  in  which  his 
injury  occurred,  made  to  a  witness,  who  was  about  twelve  feet  away 
when  the  injury  occurred,  and  who  ran  to  the  injured  man  imme- 
diately and  heard  the  statement,  is  admissible  as  part  of  the  res 

gestae. 

Muren  Coal  Co.  vs.  Howell,  217  111.  190. 

In  action  for  personal  injury  received  in  getting  ofi'  a  street 
car,  testimony  that  plaintiff  answered  "Yes"  to  the  question 
whether  she  was  hurt,  asked  by  witness  upon  reaching  her  imme- 
diately after  she  fell,  is  competent  as  part  of  the  res  gestae. 

Springfield  Ey.  Co.  vs.  Hoeflfner,  175  111.  634. 

Condition  Prior  or  Subsequent  to  Injury: 

—  In  General:    Physical  condition  before  and  after  injury  may 

be  shown. 

Union  Traction  Co.  vs.  Lawrence,  211  111.  373;  Lauth  vs.  Trac.   Co., 
244  111.  244. 
Testimony  of  plaintiff's  associates  as  to  her  appearance,  health, 
disposition,  .etc.,  before  and  after  the  injury    is    admissible,  to  be 

considered  with  all  the  other  evidence. 

W.  Chi.  St.  Ey.  Co.  vs.  Cahill,  165  111.  496. 
A  plaintiff',  in  describing  the  injuries  received,  and  the  effect 


MENTAL  AND  PHYSICAL  STATES  847 

which  they  produced  upon  body  and  physical  streng+h,  may  testify 
as  to  physical  condition  before  and  after  the  injury. 
N.  Chi.  St.  Ey.  Co.  vs.  (UUow,  IGG  111.  444. 
Testimony  of  plaintiff  that  some  three  yeai-s  after  his  injury, 
a  small,  sharp-pointed  splinter  (which  he  testified  was  bone)  worked 
its  way  out  of  his  wrist,  is  not  admissible  in  absence  of  proof  of 
any  injury  to  the  bones  of  the  wrist,  other  than  that  the  wrist 
was  wrenclied  and  ftilt  weak  for  a  year  after  the  accident,  or  of 
expert  testimony  that  such  a  condition  might  have  resulted  from 

the  accident. 

Kelleher  vs.  Chi.  City  Ry.  Co.,  256  111.  454. 

Where  the  declaration  alleges  that  plaintiff  has  been  rendered 
impotent  for  the  rest  of  his  life,  and  the  evidence  tends  to  show  that 
fact,  it  is  not  error  to  refuse  to  strike  out  plaintiff's  statement  that 
his  virility  was  "almost  entirely  gone,"  made  in  answer  to  his  at- 
torney's question,  there  being  evidence  tbat  up  to  the  time  of  his 
injury  plaintiff  was  in  perfect  health. 

Proof  that  plaintiff'  was  father  of  one  child  is  properly  admit- 
ted as  tending  to  show  the  plaintiff'  had  virility  before  he  was 
injured,  where  it  is  claimed  he  has  been  rendered  permanently 
impotent  by  the  injury,  provided  such  proof  be  properly  restricted 
to  that  point,  and  not  considered  upon  the  question  of  damages; 
nor  can  defendant  complain  of  plaintiff's  answer  that  his  child 
was  dead,  where  there  was  no  objection  to  the  question  and  no 

motion  to  strike  out  the  answer. 

Postal  Telegraph  Co.  vs.  Likes,  225  111.  249. 

—  Extent  of  Period:     Physical  condition  of  plaintiff  one  year 

prior  to  injury  is  admissible  where  defendant  offers  evidence  of  his 

condition  at  about  same  time. 

Village  of  Warner  vs.  Wright,  103  111.  298. 

AVhere  plaintiff  had  a  leg  amputated  ten  years  before  the  injury 
complained  of,  defendant  sought  to  prove  that  at  a  period  ante- 
rior to  such  amputation  plaintiff  had  some  disease  which,  though 
dormant;  from  time  of  amputation  to  date  of  recent  injury,  may 
then  have  manifested  itself  again,  and  have  been  the  real  cause 
of  some  portion  of  his  sufferings.  The  matter  thus  sought  to  be 
investigated  was  too  remote,  and  the  inference  sought  to  be  drawn 

from  it  too  conjectural. 

N.  C.  St.  Ey.  Co.  vs.  Cotton,  140  111.  486. 

—  As  Showing  Condition  was  Result  of  Accident:  Good  condi- 
tion of  health  prior  to  accident  and  impaired  condition  subse- 
quent thereto  tends  to  show  that  changed  condition  was  result  of 

accident  complained  of. 

Chi.  U.  Traction  Co.  vs.  May,  221  111.  530;  Watkiss  vs.  City  of  Chicago, 
146  App.  562. 

—  To  Show  Extent,  Nature  and  Pervmnency  of  In  jury:  Evi- 
dence of  plaintiff's  conduct  before  and  after  injury  is  admissible 
as  tending  to  show  extent,  nature  and  probable  permanency  of 

injuries. 

Chi.  Term.  Ey.  Co.  vs.  Kotoski,  199  111.  383. 

—  Absence  of  Complaint:     Witness  who  had  visited  plaintiff 

frequently  prior  to  injury  may  testify  that  she  had  never  heard 

plaintiff  complain  of  any  sickness. 

W.  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508;  ViUage  of  Warren  vs. 
Wright,   103  111.  298. 


848  MENTAL  AND  PHYSICAL  STATES 

But  in  anticipation  of  the  defense  that  plaintiff's  ailments  ex- 
isted prior  to  injiuy  for  which  he  seeks  to  recover,  it  is  improper 
to  permit  plaintiff's  witnesses  to  state,  on  direct  examination, 
whether  they   had   ever   heard   plaintiff   was   afflicted   with   such 

ailments  before  his  injury. 

Chi.  City  Ry.  Co.  vs.  Dhter,  212  111.  174. 
Permitting  husband  of  plaintiff  in  personal  injury  case  to  state 
that   after  her   injury,   when   she   walked   any   considerable   dis- 
tance, she  "complained,"  is  not  reversible  error. 

Chi.  City  Ky.  Co.  vs.  Bundy,  210  111.  39. 

—  Manner  of  Treatment:  Evidence  that  injured  party  went 
to  Cuba  for  a  more  perfect  restoration  of  health,  without  showing 
that  a  change  was  necessary  for  a  complete  recovery,  is  inadmis- 
sible and  improper,  as  tending  to  influence  jury  to  give  damages. 

City  of  Chicago  vs.  Allen,  43  111.  496. 
Trained  nurses  may  testify  as  to  what  part  they  took  in  treat- 
ment of  plaintiff,  and  that  plaintiff'  complained  of  pain  in  his 

back. 

Horney  vs.  St.  L.  &  N.  Ey.  Co.,  165  App.  547. 

—  Mental  Condition:  As  tending  to  show  the  effect  of  injury 
upon  mental  condition,  it  is  competent  to  show  such  condition 
before  the  injury,  and  also  continuously  from  and  after  the  injury, 
and  any  witness  having  any  knowledge  upon  the  subject  during 
any  part  of  the  time  covered  by  the  inquiry  is  competent  to  tes- 
tify, the  weight  of  his  testimony  being  for  the  jury. 

Union  Trac.  Co.  vs.  Lawrence,  211  111.  373;   Chi.  Term.  Ey.  Co.  vs. 
Kotoski,  199  111.  383. 

EXPERT  AND  OPINION  EVIDENCE. 

Admissibility: 

—  In  General:  Wliere  question  as  to  physical  condition  is 
one  not  within  knowledge  of  men  of  ordinary  experience,  the 
opinions  of  physicians  having  knowledge  of  such  subject,  are  com- 
petent. 

Fuhry  vs.  Chi.  Citv  Ey.  Co.,  239  111.  548 ;  City  of  Chicago  vs.  McNally, 
227  111.  14;  Xli  111.  Notes,  527,  §  410. 
Evidence  of  physicians  as  to  physical  condition  of  plaintiff  whom 
they  had  examined  the  day  before  the  trial  of  a  personal  injury 
case,  is  competent  if  the  testimony,  taken  in  connection  with  that 
of  plaintiff  and  another  witness,  sufficiently  connects  the  injuries 
received  by  plaintiff  with  the  physical  condition   found   by   the 

physicians  to  exist. 

111.  Steel  Co.  vs.  Delae,  201  111.  150. 
It  is  competent  for  an  expert  witness  to  state  his  opinion  of 
caase  of  plaintiff's  physical  condition. 

City  of  Chicago  vs.  Bork,  227  111.  60;  Shaughnessy  vs.  Holt,  236 
111  485;  L.  &  N.  W.  Ey.  Co.  vs.  Shires,  108  111.  617;  Hobson  vs. 
St.'  L.  S.  &  P.  E.  E.  Co.,  180  App.  84. 

—  When  Manner  of  Injury  Disputed:  Where  defendant  dis- 
putes the  injury,  it  is  improper  to  permit  physician  to  testify 

as  to  permanency  of  injury. 

SchlauderVs.  Chi.  Trac.  Co.,  253  111.  154. 

—  ^yhen  Manner  of  Injury  Not  in  Dispute:  "Where  there  is  no 
dispute  as  to  manner  of  injury,  the  question  whether  certain 
pbysical  conditions  were  caused  by  injury  complained  of,  where 
determination  involves  special  skill  or  trade,  or  knowledge  of  sci- 


MENTAL  AND  PHYSICAL  STATES  849 

ence,  opinions  of  competent  persons  are  admissil)le,  and  may  be 
based  partly  upon  the  testimony  which  the  witness  has  heard, 
describing  the  manner  in  which  injury  was  received. 

But  where  there  is  a  conflict  in  the  evidence  as  to  the  manner 
of  the  injury,  it  is  not  competent  for  medical  experts  to  give  opin- 
ions upon  such  subject. 

Puhiy   vs.   Chi.    City   By.    Co.,   239   111.    548;    Chi.    IT.    Trac.   Co.    vs. 

Eoberts,   229   111.   48l";    City   of   Chicago   vs.   Didicr,   227   111.   571  ; 

Fuhry  vs.  Chi.  City  Ey.  Co.,  144  App.  521;   XIV  111.  Notes,  528, 

§  423. 

—  As  to  Commission  of  Crime:     Physician  who  has  examined 

alleged  victim  may  give  opinion  as  to  whether  offense  has  been 

committed. 

Howard  vs.  People,  185  111.  552. 

And  as  to  manner  in  which  it  was  produced. 

Clark  vs.  People,  224  111.  554;  Cook  vs.  People,  177  111.  146;  Cochran 

vs.  People,  175  111.  28. 

But  i^liysician  should  not  be  allowed  to  give  an  opinion  that  a 

rape  was  committed.    He  may  state  what  effects  might  result  from 

rape  but  not  that  the  condition  he  discovered,  was  in  his  opinion 

produced  by  rape. 

People  vs.  Schultz,  260  111,  35. 

—  Eesiilts  Attending  Injured  Condition:    "Where  physician  has 

testified  to  examination  of  injured  foot,  he  may  give  his  opinion 

as  to  "medical  condition"  of  foot. 

Graham  vs.  Mattoon  City  Ey.  Co.,  234  111.  483. 

Attending  physician  of  plaintiff  may  testify  that  injury  would 
impair  plaintiff's  ability  to  work  when  on  his  feet,  but  to  what 
extent  he  could  not  tell,  and  that  plaintiff  was  a  "cripple." 
Springfield  Con.  Ey.  Co.  vs.  Welsch,  155  111.  511. 

Expert  opinion  as  to  the  results  which  might  be  caused  by  a 

strangulated  hernia  is  inadmissible  when  such  strangulation  is  not 

a  condition  peculiar  to  plaintiff  but  is  common  to  all  hernia, 
Lanth  vs.  Chi.  Traction  Co.,  244  111.  244. 

Death  of  next  child  is  competent,  and  it  is  not  too  conjectural, 

where   Avitness  testifies   accident   coidd  or  might   have   produced 

sucli  rGSiilts 

Chi.  U.  Trac.  Co.  vs.  Ertrachter,  228  111.  114. 

Physicians  may  testify  that  first  dislocation  would  predispost' 

to  later  ones. 

Donnelly  vs.  Chi.  City  Ey.  Co.,  235  111.  35. 

Evil  consequences  competent,  when  reasonably  certain  to  occur. 

City  of  Chicago  vs.  Jarvis,  226  111.  614. 

Thus  heart  trouble  is  competent. 

I.  C.  E.  E.  Co.  vs.  Latimer,  128  111.  163. 

That  plaintiff  was  suffering  from  tuberculosis  of  bones  of  ankle 

and  instep  is  competent,  where  asked  as  to  "medical  condition" 

of  foot. 

Graham  vs.  Mattoon  City  By.  Co.,  234  111.  483. 

—  Medical  Terms:  It  is  incompetent  to  ask  expert  as  to  mean- 
ing of  terms  applicable  to  an  injury  not  shown  to  have  been  sus- 
tained. 

City  of  Chicago  vs.  Clarkson,  138  App.  582. 

Subject  of  Opinion  Evidence: 

- — Appearance  of  Plaintiff:    In  action  for  personal  injury,  it  is 

Ev.— 54 


850  MENTAL  AND  PHYSICAL  STATES 

proper  to  permit  a  witness  to  be  asked  the  question  how  the  plain- 
tiff appeared  with  reference  to  pain  and  suffering. 
Cicero  St.  Ey.  Co.  vs.  Priest,  190  111.  59:2. 

—  Period  of  Gestation:  Physician  may  testify  as  to  whether 
child  has  seen  full  period  of  gestation. 

People  vs.  Jolinson,  70  App.  034. 

—  Results  of  Injury:  Opinions  of  non-expert  witnesses  as  to 
injury  of  plaintiff  and  its  effect  upon  his  health,  which  consist  of 
statements  plaintiff  "was  suft'eriiig,"  "was  nervous,"  "in  mis- 
ery," "weak,"  "feeble,"  "in  distress,"  "sore,"  and  "in  pain" 

are  competent. 

C.  &  E.  I.  E.  E.  Co.  vs.  Eaudolph,  199  111.  126. 
An  attending  physician  may  testify  that  plaintiff's  condition 
of  nervousness  was  result  of  an  injury  to  the  head  and  the  nervous 
shock  sustained  in  the  accident. 

Fuhry  vs.  Chi.  City  Ey.  Co.,  144  App.  521. 

—  Cause  of  Injury:  An  opinion  of  plaintiff's  attending  physi- 
cian that  the  condition  in  which  he  found  her  on  the  day  of  the 
accident  must  have  been  caused  by  some  traumatism  or  injury  is 
not  incompetent,  as  invading  the  province  of  the  jury. 

City  of  Chicago  vs.  McNally,  227  111.  14. 
It  is  competent  for  physician  having  examined  the  injured  part, 
to  state  how  or  by  what  the  injury  was  caused. 

I.  C.  E.  E.  Co.  vs.  Smith,  111  App.  177, 
Where  no  question  is  made  as  to  the  cause  and  manner  of  the 

accident. 

Powers  vs.  City  of  Chicago,  180  App.  355. 

In  actions  of  personal  injury,  it  is  competent  for  an  expert  to 

express  an  opinion  as  to  cause  of  injury,  though  based  upon  a 

personal  examination. 

Village   of   Chatsworth  vs.   Eowe,    166   111.   114;   I.   C.   E.  E.   Co.   vs. 
Treat,  179  111.  576. 
After  an  expert  has  testified  to  finding  certain  physical  injuries, 
it  is  improper  to  ask  him  if,  in  his  opinion,  a  particular  accident 

caused  the  injury. 

FitzGerald  vs.  Chicago,  144  App.  462. 

Attending  physician  may  give  opinion-  as  to  cause  of  personal 
injury,  where  he  has  sufficient  personal  knowledge  of  such  injury. 
Chicago  vs.  Didier,  131  App.  406. 

—  Permanency  of  Injury:  To  permit  doctors  to  speculate  as 
to  outcome  of  injurv  is  prejudicial  error. 

Lauth  vs.  Chi.'  Traction  Co.,  244  111.  244. 
A  medical  expert  who  has  duly  qualified  and  given  basis  of 
opinion,  is  competent  to  testify  as  to  permanency  of  injury. 
Hirsch  vs.  Chi.  Con.  Trac.  Co.,  146  App.  501. 
But  not  as  to  "tendency"  or  that  certain  results  were  "liable" 

to  happen. 

Junget  vs.  A.  E.  C.  Ey.  Co.,  177  App.  435. 

—  Existence  of  Pain:  Plaintiff  called  his  attending  physician, 
who  testified  that  he  had  examined  plaintiff,  who  stated  symptoms, 
and  that  he  had  suffered  pain.  Witness  was  then  asked  whether 
plaintiff  was  feigning  or  "making  believe,"  to  which  he  an- 
swered, "No  sir;  I  know  he  did  not.  from  examination  and  tests:" 
Held,  that  with  the  explanation  as  to  his  means  of  knowledge, 


MENTAL  AND  PHYSICAL  STATES  851 

there  was  no  error  in  "admission  of  the  evidence.     The  answer 

could  only  be  understood  as  a  deduction  or  conclusion  from  the 

examination  and  tests  made. 

In  such  case,  the  attending  phj^sician,  having  every  means  of 

observing   the   symptoms,    may   be   asked   if   the   patient   suffered 

pain,  and  his  answer  in  the  affirmative  can  be  considered  only  as 

an  opinion  based  upon  actual  facts  and  tests.     It  does  not  even 

require  an  expert  to  know  the  existence  of  pain  from  the  nature  of 

the  injury  and  the  patient's  outward  manifestations. 
C.  B.  &  Q.  R.  R.  Co.  vs.  Martin,  112  111.  16. 

Basis  of  Expert  Opinion: 

—  In  General:  Medical  expert  may  give  opinion  as  to  cause  of 
personal  injury,  predicated  upon  an  examination,  facts  hypotheti- 
cally  stated,  or  upon  evidence  heard  in  open  court  and  assumed 
for  purposes  of  opinion  to  be  true. 

City  of  Chicago  vs.  Didier,  131  App.  401. 

—  Objective  Symptoms:  A  physician  who  has  not  treated  the  in- 
jured person,  but  who  has  made  an  examination  to  enable  him  to 
testify  on  the  trial  as  to  his  condition,  must  base  his  opinion  upon 
objective  and  not  subjective  conditions.  He  cannot  relate  nor 
take  into  consideration  the  self-serving  statement  of  the  injured 
person  made  to  him,  not  with  reference  to  the  treatment  but  with 
reference  to  the  trial. 

Fuhry  vs.  Chi.  City  Ey.  Co.,  2.39  111.  548 ;  Greinke  vs.  Chi.  City  Ry.  Co., 
234  111.  564;  Casey  vs..  Chi.  City  Ry.  Co.,  237  111.  140;  Nau  vs. 
Standard  Oil  Co.,  *154  App.  421;  Chi.  City  Ry.  Co.  vs.  Shreeve, 
128  App.  462;  Chi.  City  Ey.  Co.  vs.  Manger,  128  App.  512;  XII 
111.  Notes,  531,  §444.  ,  ai    .,(: 

But  an  attending  physician  may  testify  as  to  subjective  symp- 
toms received  while  treating  his  patient  and  not  examining  her 
for  purpose  of  giving  testimony. 

Stout  vs.  Taylor,  168  App.  410;  Maxey  vs.  E.  St.  Louis,  158  App. 
627;  Greinke  vs.  Chi.  City  Ry.  Co.,  234  111.  564;  Chi.  City  Ry.  Co. 
vs.  Buudy,  210  111.  39. 

Opinions  of  expert  witnesses  should  be  based  upon  objective 
and  not  subjective  symptoms,  and  should  be  the  expression  of  the 
witness  from  what  is  manifest  to  him  rather  than  the  words  of 
the  person  examined.  Physicians  who  had  examined  plaintiff 
prior  to  the  trial,  but  who  were  not  attending  physicians  during 
treatment,  may  express  opinions  that  party  was  emotional,  nervous, 
lacking  in  power  of  concentration,  and  unable  to  work  at  anything 
reciuiring  mental  concentration ;  and  such  opinions  cannot  be  said 
to  be  based  upon  subjective  symptoms. 

Physician  may  be  guided  in  forming  his  opinion,  to  some  extent, 
by  what  plaintiff  has  said  to  him  in  detailing  pain  and  suffering. 
City  of  Chicago  vs.  McNally,  227  111.  14.  ^.;;mi-m, 

Testimony  by  a  physician,  who  has  merely  examined  plaintiff 
with  a  view  to  testifying,  is  not  admissible  where  it  is  based  wholly 
upon  his  observation  of  outward  manifestations,  Avithin  plain- 
tiff's control,  such  as  pressure  of  hands,  turning  in  of  toes,  drop- 
ping the  foot  when  sitting  in  a  chair,  dragging  the  foot  slightly 
when  walking,  twitching  the  hands,  and  the  like. 
Greinke  vs.  Chi.  City  Ry.  Co.,  234  111.  564. 


852  MENTAL  AND  PHYSICAL  STATES 

A  physician  sent  to  examine  an  injured  person  with  view  to 

testifying  in  an  action  for  damages  should  not  be  allowed  to  testify 

that  she  showed  nervousness,  timidity  and  fear,  that  she  trembled 

and  shook  and  shrank  away  from  him  and  cried  out  and  acted  in 

a  frightened  manner. 

Casey  vs.  Chi.  City  Ey.  Co.,  237  111.  140. 

Testimony  relative  to  test  made  by  reflexing  knees  must  be 
based  upon  objective  symptoms. 

Hiisch  vs.  Chi.  Trac.  Co.,  146  App.  501. 
Expert  must  base  his  opinion  on  objective  and  not  subjective 

conditions. 

Barnes  vs.  Chi.  City  Ey.  Co.,  147  App.  601. 

—  Subjective  Symptoms:  Subjective  symptoms  or  tests  ob- 
tained from  a  plaintiff  during  an  examination  by  a  physician  for 
the  purpose  of  testifying  upon  the  trial  are  inadmissible. 

Krakowski  vs.  A.  E.  C.  E.  E.  Co.,  167  App.  469. 

Where  physician  examined  plaintiff's  hand  not  for  treatment 

but  to  determine  its  mobility  he  cannot  on  the  trial  answer  the 

question  ' '  Can  he  flex  his  finger  to  his  palm  ? ' '  the  question  merely 

calling  for  matters  purely  subjective. 

Barnes  vs.  Chi.  City  Ey.  Co.,  147  App.  601. 

A  physician  who  has  treated  the  injured  person  may  predicate 
his  opinion  upon  subjective  as  well  as  objective  symptoms,  and 
may  state  his  opinion  and  his  reasons  therefor. 
McCabe  vs.  Swift  &  Co.,  143  App.  404. 

—  Self  Serving  Acts  and  Statements  of  Injured  Party:  Expert 
expressing  an  opinion  cannot  take  into  consideration  the  self- 
serving  statements  of  the  injured  party,  made  to  him,  not  with 
reference  to  his  treatment,  but  with  reference  to  his  trial. 

Coburn  vs.  M.  &  W.  Ey.  Co.,  243  111.  448 ;  Fuhry  vs.  Chi.  City  Ey.  Co., 
239  111.  548;  Chi.  U.  Trac.  Co.  vs.  Giese,  229  111.  260;  Greinke  vs. 
Chi.  City  Ey.  Co.,  234  111.  564;  C.  &  E.  1.  E.  E.  Co.  vs.  Douworth, 
203  111.  192 ;  Elvvard  vs.  I.  C.  E.  E.  Co.,  161  App.  630. 
Opinion  of  physician  is  not  competent  evidence  where  it  is  based 
upon  self-serving  statements  by  patient  not  made  in  course   of 
treatment  but  with  a  view  to  enabling  physician  to  testify  in  ref- 
erence to  the  physical  condition  of  the  patient. 

Coburn  vs."  M.  &  W.  Ey.  Co.,  243  111.  448 ;  Junget  vs.  A.  E.  &  C.  Ey. 
Co.,  177  App.  435;  Chi.  U.  T.  Co.  vs.  Giese,  177  App.  635. 
Testimony  of  physicians  who  examined  plaintiff  shortly  be- 
fore the  hearing  of  her  damage  suit,  for  the  purpose  of  testifying 
for  her  as  witnesses,  to  the  effect  that  they  made  a  test  upon  the 
person  of  the  plaintiff  with  tubes  respectively  containing  hot  and 
cold  Avater,  and  that  she  could  not  always  tell  w^hich  tube  was 
hot  and  which  was  cold,  which  indicated  nervous  prostration  or 
neurasthenia,  is  not  competent,  even  though  plaintiff  testifies  that 
the  answers  she  gave  the  physicians  when  the  tests  were  made  were 

true. 

Shaughnessy  vs.  Holt,  236  111.  485. 

Testimony  of  a  physician  who  treated  plaintiff  for  his  injury, 
and  who  has  examined  him  before  the  trial,  to  the  effect  that 
plaintiff,  who  was  lame,  had  a  curvature  of  the  spine  and  a  degen- 
eration of  the  spinal  cord,  should  not  be  stricken  out  because  he 


MENTAL  AND  PHYSICAL  STATES  853 

had  been  guided  to  some  extent  in  his  conclusion  as  to  the  degen- 
eration of  the  spinal  cord  by  what  plaintitt'  had  said  to  him. 
Eckels  vs.  .Mutschall,  230  111.  462. 
A  statement  by  a  physician,  testifying  as  witness  for  plaintiff, 
that  the  latter  had  lost  the  power  of  hearing  in  his  left  ear,  should 
be  excluded  when  such  testimony  is  not  based  upon  the  physician's 
actual  knowledge  but  upon  declarations  of  plaintiff. 

C.  &  ?].  I.  R.  R.  Co.  vs.  Donwoith,  20;}  111.  192. 
Opinions  of  physicians  with  respect  to  plaintiff's  injuries,  which 
are  based  in  whole  or  in  part  upon  declarations  of  plaintiff,  should 
be  stricken  out  when  the  fact  of  their  being  so  based  is  made  to 
appear  upon  cross  examination,  wliere  the  physicians  were  not 
treating  plaintiff',  but  were  examining  him  for  purpose  of  report- 
ing to  his  attorneys  to  enable  them  to  determine  upon  taking  the 
ease,  or  for  purpose  of  testifying  as  witnesses. 

Chi.  U.  Trae.  Co.  vs.  Gies-e,  229  111.  260. 
AVhere  a  physician,  who  has  examined  plaintiff  shortly  before 
trial,  is  asked  whether  plaintiff  then  suffered  pain,  his  answer, 
"She  tells  me  she  suff'ers  pain,"  should,  on  motion,  be  stricken 
out,  as  hearsay. 

West  Chi.  St.  Ey.  Co.  vs.  Carr,  170  111.  478. 
Testimony  of  a  physician  that  a  pressure  on  a  certain  place  in 
plaintiff's  spine  caused  involuntary  contraction  of  the  muscles 
of  the  right  side  and  hip,  and  that  the  pulse  beat  went  from  80  to 
120  on  such  pressure,  cannot  be  rejected  upon  the  ground  that  the 
manifestations  were  voluntary,  even  though  the  witness  testified 
that  any  one  could  simulate  the  motion  of  the  foot  and  flinch 
voluntarily. 

Schmidt  vs.  Chi.  City  Ey.  Co.,  239  111.  494. 

—  Physical  Condition:  Physician's  opinion  as  to  pregnancy 
of  woman  must  be  based  upon  a  physical  examination  and  not  upon 
party's  history  of  the  case  detailed  by  her  to  him. 

Stevens  vs.  People,  215  111.  593. 
A  physician  may  express  opinion  as  to  probable  cause  of  physi- 
cal condition  of  plaintiff  found  to  exist  after  examination,  when 
such  opinion  is  based  upon  objective  testimony  alone,  but  a  physi- 
cian who  has  not  treated  the  injured  party  but  who  has  made  an 
examination  of  such  party  for  the  sole  purpose  of  testifying  as  an 
expert,  should  not  be  permitted  to  express  an  expert  opinion  to 
the  jury  based  upon  subjective  conditions,  and  then  be  allowed 
to  fortify  his  opinion  by  stating  to  the  jury  such  acts  of  the 
injured  party  which  could  have  been  purely  voluntary  and  under 
his  control  and  which  rest  upon  no  other  basis  than  his  truthfulness. 

Greinke  vs.  Chi.  City  Ey.  Co.,  234  111.  564 ;  Elward  vs.  I.  C.  E.  E.  Co., 
161  App.  630. 

—  Physicians' s  Knoivledge:  Where  a  physician  testified  that 
injuries  of  plaintiff  were  permanent  and  liable  to  lead  to  tuber- 
culosis, but  it  appeared  on  cross  examination  that  his  opinion  was 
based,  in  part,  upon  his  knowledge  that  brothers  and  sisters  of 
plaintiff  had  died  of  tuberculosis,  such  evidence  should  be  stricken 
out,  but  the  evidence  relating  to  the  permanency  of  the  injury  was 

proper. 

E.  J.  &  E.  Ey.  Co.  vs.  Lawlor,  229  111.  621. 


854  MENTAL  AND  PHYSICAL  STATES 

Witnesses : 

— -Eight  to  Compel  Giving  O'f  Tcsiimomj:    The  right  of  a  court 
to  compel  a  physician  to  give  expert  testimony  in  answer  to  a 
hypothetical  question  calling  for  his  opinion,  extends  to  suits  be- 
tween individuals  and  is  not  confined  to  criminal  prosecutions. 
Dixon  vs.  People,  168  111.  179. 

A  physician  or  surgeon  cannot  be  punished  for  a  contempt  for 
refusing  to  make  a  post  mortem  examination  unless  paid  therefor, 
nor  can  he  be  required  to  prepare  himself  in  advance  for  testify- 
ing in  court  by  making  an  examination  or  performing  an  operation 
or   resorting  to   a   certain  amount  of   study   without   being   paid 

therefor. 

Dixon  vs.  People,  168  111.  179. 

A  physician  subpoened  and  interrogated  as  an  expert  witness 
only,  cannot  refuse  to  testify  upon  the  ground  that  no  compensa- 
tion greater  than  that  allow^ed  to  ordinary  witnesses  has  been  paid 

or  promised  him. 

N.  Chi.  St.  Ey.  Co.  vs.  Zeigler,  182  111.  9. 

—  Osteopath:  An  osteopath  may  testify  as  to  declarations  of 
pain  and  suffering  made  to  him'  for  purpose  of  treatment,  even 
though  such  practitioner  may  not  be  regarded,   by  the  medical 

profession,  as  a  practitioner. 

Smith  vs.  Chi.  City  Ey.  Co.,  165  App.  190. 
— -Non-Experts  Generally:     Competency  of  non-experts  to  give 

opinion  as  to  a  person's  mental  condition  is  for  court. 
Graham  vs.  Deuterniau,  244  111.  124. 

A  non-expert  witness  may  express  opinion  where  the  subject 
matter  of  testimony  is  such  that  it  cannot  be  reproduced  and  de- 
scribed to  the  jury  precisely  as  it  appeared  at  the  time,  as,  where 
the  subject  is  the  state  of  another's  health,  his  ability  to  work  or 

his  apparent  suffering,  his  state  of  mind,  and  kindred  topics. 

City  of  Chicago  vs.  MeNally,  227  111.  14;  W.  Chi.  St.  Ry.  Co.  vs. 
Fishman,  169  111.  196. 

A  non-expert  witness  may  testify  to  the  apparent  nervousness, 
excitability,   agitation   or   calmness  of   another. 
Dimmick  vs.  Downs,  82  111.  570. 

Non-expert  witnesses  are  competent  to  testify  to  state  of  health, 

hearing,  eyesight  and  ability  to  work  and  walk  and  to  use  arms 

and  legs  naturally. 

Chi.  City  Ey.  Co.  vs.  VanVleck,  143  111.  480;  C.  &  A.  R.  R.  Co.  vs. 
Arnold,  46  App.  157 ;  Ashley  Wire  Co.  vs.  McFadden,  66  App. 
26;  Supreme  Tent  vs.  Jones,  113  App.  241;  Pioneer  Reserve  Ai-sn. 
vs.. Jones,  111  App.  156;  L.  E.  &  W.  Ry.  Co.  vs.  DeLong,  109  App. 
241;  XII  111.  Notes,  522,  §  368. 

Non-experts  are  competent  to  testify  as  to  injury  of  party,  its 

effect  upon  health,  which  consists  of  statements  that  person  was 

suffering,  nervous,  weak,  feeble,  in  misery,  in  distress,  sore  and  in 

pain. 

C.  &  E.  I.  E.  E.  Co.  vs.  Randolph,  199  111.  126;   Girard  Coal  Co.  vs. 
Wiggins,  52  Ajip.  69. 
That  a  person  was  sick,  but  not  as  to  character  of  sickness. 
City  of  Shawneeto^-sn  vs.  Mason,  82  111.  337. 

—  Painty  Injured:  Refusal  to  strike  out  the  answer  "I  have 
been  a  nervous  wreck  ever  since,"  to  a  question  put  to  plaintiff 


MENTAL  AND  PHYSICAL  STATES  855 

as  to  her  physical   condition  since   the   injury   for   wliich   she   is 
seeking  to  recover  damages,  is  not  reversible  error,  where  there  is 
other  and  ample  evidence  in  the  record  to  show  her  physical  con-( 
dition. 

C.  &  J.  Elec.  Ey.  Co.  vs.  Patton,  219  111.  214. 
Whether  the  witness  suft'ered  pain  from  a  broken  arm,  is  a 
fact  that  requires  no  expert  skill  to  ascertain,  nor  does  it  require 
expert  knowledge  or  skill  to  determine  the  fact  that  he  required 
help  to  put  his  coat  on  or  that  in  consequence  of  his  broken  arm 
his  food  had  to  be  cut  for  him.  It  is  competent  for  him  to  tes- 
tify as  to  his  condition  resulting,  from  the  injury  and  the  effect 
produced  by  it,  even  though  he  was  aged  and  infirm  and  to  some 

extent  a  paralytic  at  time  of  injurv. 

N.  Chi.  St.  Ey.  Co.  vs.  Cook,  145  'ill.  551. 

—  Persons  Having  Perisanal  Ohscrvation:  Non-experts  who 
have  had  opportunity  to  observe  a  person  may  give  their  opinions 
as  to  his  mental  condition  or  capacity,  at  the  same  time  stating 
their  i-easons  and  the  facts  observed  on  which  they  base  their  opin- 
ions, including  conversations,  as  a  part  of  the  observed  facts,  but 
to  render  such  opinions  admissible  they  must  be  limited  to  con- 
clusions drawn  from  the  specific  facts  thus  disclosed. 

Mayville  vs.  French,  24ri  111.  434;  Union  Trac.  Co.  vs.  Lawrence,  211  111. 
373;   Eing:  vs.  Lawless,   190  111.   520;   Amer.  Bible  Soc.  vs.  Price, 
115  111.  623;  Craig  vs.  Southard,  148  111.  37;   Upstone  vs.  People, 
109   111.    169;    Eoe   vs.    Taylor,   45   III.   485;    XII   111.   Notes,   522,-, 
§  367. 

The  general  rule  is  that  the  conclusions  of  a  witness  derived 
from  personal  observation  are  admissible  in  evidence  when,  from 
the  nature'  of  the  subject  matter  under  investigation,  it  cannot 
be  stated  or  described  in  such  language  as  will  enable  persons,  not 

eye-witnesses,  to  form  an  accurate  judgment  in  regard  to  it. 

City  of  Salem  vs.  Webster,  95  App.  120;  Affd.,  192  111.  369. 

Whether  a  person  was  sick  O'r  not  is  a:  fact  requiring  no  special 
skill  or  science  to  understand,  and  the  fact  may  be  proven  by 
anyone  who  knows  it. 

Chi.  City  Ey.  Co.  vs.  Bundy,  210  111.  39;    City  of  Shawneetown  vs. 
Mason,  82  111.  337. 

It  is  proper  to  prove  condition  of  injured  person  by  persons  who 
had  observed  his  physical  condition,  demeanor  and  conversation 
through  the  year  both  before  and  after  the  time  of  injury,  and  to 
show  by  them  what,  if  any,  change  they  observed  in  him  after  he 
received  the  injury. 

Lanth  vs.  Chi.  Trac.  Co.,  244  111.  244. 

Any  witness  having  any  knowledge  on  the  subject  during  any 
part  of  the  time  covered  by  the  inquiry  is  competent  to  testify, 
the  weight  of  his  testimony  being  for  the  jury. 
Union  Trac.  Co.  vs.  Lawrence,  211  111.  373. 

Testimony  of  doctors  upon  the  subject  of  mental  capacity  is  not 
entitled  to  any  greater  weight  than  that  of  laymen  who  are  men 
of  good  sound  sense  and  judgment. 

Austin  vs.  Austin,  260  HI.  299;  Carpenter  vs.  Calvert,  83  111.  62. 

Relatives,  neighbors  and  acquaintances  of  one  are  competent  to 
testify  as  to  his  state  of  health,  hearing,  eye-sight  and  ability  to 


856  MENTAL  CAPACITY 

work,  walk  and  use  his  arms  and  legs  naturally  and  without  trou- 
ble, during  a  given  part  or  period  of  time,  even  though  they  are 
not  scientific  experts  in  matters  relating  to  human  anatomy.     They 
are  competent  to  testify  as  to  what  they  know  from  their  own  per- 
sonal observation.     Witnesses  not  experts  may  testify  that  imme- 
diately after  the  accident,  the  plaintitf  was  unconscious,  and  was 
so,  off  and  on,  and  most  of  the  time  for  three  weeks  thereafter. 
Chi.  City  Ey.  Co.  vs.  VanVleck,  143  111.  480. 
—  Nurses:    In  action  for  personal  injury,  the  person  who  nursed 
plaintiff  after  the  injury  may  testify  whether  plaintiff  appeared 
to  be  suffering  pain,  and  may  state  such  natural  manifestations 
of  pain  as  plaintiff  exhibited  in  connection  with  the  injury,  whether 
by  groans,  expression  of  the  features  or  in  other  ways. 
Cicero  St.  Ey.  Co.  vs.  Priest,  190  111.  592. 

MENTAL  CAPACITY 

See  Age,  Wills,  Sanity  and  Insanity,  Mental  and  Physical 
States,  Expert  and  Opinion,  Witnesses. 

MESSENGER 

Admissibility  of  Declarations; 

The  fact  that  a  message  was  sent  by  one  person  to  another,  and 
the  character  of  such  alleged  message,  cannot  be  proven  by  the 
person  receiving  such  message,  where  his  testimony  is  based  solely 
upon  hearsay  statements  of  the  person  delivering  same. 
C.  &  A.  E.  Co.  vs.  Jennings,  217  111.  494. 

MINES  AND  MINING 

See  Custom  and  Usages,  Expert  and  Opinion,  Habits,  Physi- 
cian AND  Surgeons,  Wages,  Earning  Capacity  and  Domestic 
Relations. 


MISTAKE 

See  Reformation  of  Instruments,  Building  Contracts,  Can- 
cellation OF  Instruments,  Parol. 


MODELS 

See  Experiments,  Demonstrative  Evidence. 

MONEY 

See  Larceny,  Embezzlement,  Value. 


MONEY  COUNTS  857 

MONEY  COUNTS 

See  Assumpsit,  Allegations  and  Proof,  Set  Off  and  Counter- 
claim. 
Money  Had  and  Received : 

—  In  General:  Assumpsit  for  money  had  and  received  may  be 
maintained  whenever  defendant  has  obtained  money  belonging  to 
plaintiff  which,  in  equity  and  good  conscience,  he  has  no  right  to 
retain,  as  in  such  case  the  law  implies  a  promise  to  pay,  not- 
withstanding there  was  no  privity  between  the  parties. 

First  Natl.  Bank  vs.  Gatton,  172  111.  625;  Gary  vs.  Niblo,  155  App. 
338. 

A  third  person  for  whose  benefit  a  contract  is  made  may  sup- 
port an  action  in  his  own  name  for  a  breach  of  the  agreement  and 
it  is  not  necessary  for  him  to  resort  to  a  court  of  equity.  The 
common  count  for  money  had  and  received  for  the  use  of  another 
is  an  equitable  form  of  common-law  pleading  and  will  sustain  a 
recovery  thereunder. 

Lawrence  vs.  Oglesby,  178  111.  122. 

In  an  action  for  money  had  and  received,  the  main  inquiry  is 
"whether  the  defendant  holds  money  which  belongs  to  the  plain- 
tiff. 

Prairie  State  Loan  &  Bldg.  Assn.  vs.  Gorrie,  167  111.  414. 

And  may  be  maintained  where  the  plaintiff  has  a  just  and  legal 
right  to  the  money.  It  lies  for  money  which,  equitably,  the  de- 
fendant ought  to  refund. 

Sangamon  County  vs.  City  of  Springfield,  63  111.  66. 

Money  in  the  hands  of  an  agent  to  which  a  person  other  than 

the  principal  is  entitled  may  be  recovered  in  an  action  for  money 

had  and  received  where  bad  faith  is  shown. 
Shipherd  vs.  Underwood,  55  111.  475. 

—  What  Plaintiff  Must  Show:  In  action  to  recover  for  money 
had  and  received  by  defendant  for  plaintiff' 's  use,  plaintiff  must 
prove  defendant  holds  money  which  ex  aequo  et  bono  he  should  pay 
to  plaintiff,  the  usual  test  being  does  the  money  in  justice  belong 
to  plaintiff. 

Eic-holson  vs.  Maloney,  195  111.  575. 

The  right  of  recovery  in  action  for  money  had  and  received 
depends  upon  proof  of  two  things:     First,  that  defendant  has 
actually  received  the  money ;  and  second,  that  in  equity  and  good 
conscience  he  should  pay  it  to  plaintiff. 
Morris  vs.  Jamleson,  99  App.  32. 

An  action  for  money  had  and  received  is  maintainable  when- 
ever the  money  of  one  man  has,  without  consideration,  gotten  into 
the  pocket  of  another. 

Law  vs.  Uhrlab,  104  App.  263. 

A  common  count  which  declares  for  money  had  and  received  by 
defendant  for  use  of  plaintiff'  is  not  supported  by  evidence  that 
plaintiff  paid  monev  for  use  of  defendant. 

Claycomb  vs.  McCoy,  48  111.  110. 

Where  there  is  an  agreement  to  pay  a  certain  sum  in  specified 
articles  of  personal  property,  at  agreed  prices,  on  a  particular 
day,  a  failure  to  deliver  the  articles  on  the  day  fixed  in  the  agree- 


858  MONEY  COUNTS 

ment  converts  the  transaction  into  a  money  obligation,  and  the 

common  counts  are  sufficient  to  support  the  action. 
McKinnie  vs.  Lane,  230  111.  544. 

Recovery  on  the  common  counts  cannot  be  had  on  ground  that 
plaintifl  promised  to  buy  back  certain  stock  within  a  year,  where 
it  appears  the  stock  had  not  been  tendered  nor  delivered  to  and 
accepted  by  defendant. 

Smith  vs.  Young,  179  App.  364. 

—  Payment  Under  Duress:  In  order  to  recover  for  money  paid 
under  duress,  not  only  must  the  duress  be  established,  but  it  is 
essential  that  it  appear  from  the  evidence  that  defendant,  who 
received  the  money,  ought  not,  in  equity  and  good  conscience,  be 
allowed  to  retain  it.  The  averment  that  the  money  sought  to  be 
recovered  back  was  money  which  in  equity  and  good  conscience 
should  not  be  retained  is  not  a  negative  averment.  It  is  affirma- 
tive and  vital,  and  cannot  be  dispensed  with  in  actions  of  this 
character,  and  must  be  sustained  by  proof. 

Koenig  vs.  Peoples  Light  Co.,  153  App.  432. 

— -FraAid:  A  recovery  may  be  had  under  count  for  money  had 
and  received,  where  defendant  has  obtained  such  money  by  fraud 
and  which,  in  equity  and  good  conscience,  he  should  return  to 

plaintiff. 

Sturgeon  vs.  Birkey,  86  App.  489. 

—  Goods  Wrongfully  Converted:  When  goods  have  been 
wrongfully  converted  into  money  by  the  wrongdoer,  assumpsit  for 
money  had  and  received  can  be  maintained  but  only  on  proof  that 
the  wrongdoer  has  converted  the  goods  into  money  and  has  re- 
ceived the  money. 

Green  vs.  Lepley,  88  App.  543 ;  DeClerq  vs.  Mungin,  46  111.  112. 

—  Measure  of  Damages:     Is  amount  actually  received. 

Cushman  vs.  Hayes,  46  111.  145. 

—  When  Tort  Cannot  Be  Waived:  The  right  of  a  party  to  waive 
a  tort  and  bring  assumpsit  does  not  extend  to  cases  arising  out  of 
breach  of  contract  or  of  a  legal  duty  arising  out  of  contract. 

Morris  vs.  Jamieson,  205  111.  87. 

—  Defense:  The  same  principle  which  allows  plaintiff,  to  re- 
cover what  ex  aequo  et  hono  he  is  entitled  to,  operates  in  favor 
of  defendant,  when  called  on  for  the  payment  of  money;  if  he  can 
show  the  better  equity,  he  will  be  permitted  to  retain  the  money. 
He  may  go  into  every  equitable  defense  and  claim  every  allow- 
ance under  the  general  issue. 

Harris  vs.  Pearce,  5  App.  622. 

It  is  immaterial  that  the  money  was  won  by  the  plaintiff  in  a 

lottery  or  otherwise. 

Brady  vs.  Horvath,  167  111.  610. 

Money  Paid: 

—  What  Must  he  Shown:  In  order  to  maintain  action  for  money 
paid  for  use  of  another,  it  must  appear  it  was  paid  at  such  other's 
request,  express  or  implied,  or  that,  after  payment,  there  was  an 
express  promise  to  pay  it  back.  If  there  is  a  request,  express  or 
implied,  from  that  the  law  implies  the  requisite  promise ;  and  if 


MOTIVES  859 

there  is  a  subsequent  express  promise  to  repay  it,  from  that  the 
laAV  implies  the  requisite  previous  rec^uest. 

North  vs.  North,  GM  App.  129. 

Proof  must  show  a  request,  express  or  implied,  by  the  defend- 
ant; and  it  is  not  sufficient  that  defendant  was  benefited  by  such 

payment. 

City  of  Chicago  vs.  C.  &  N.  W.  R.  R.  Co.,  186  111.  300. 

—  Action  by  Surety:    Note  is  competent  on  question  of  amount, 

and  to  whom  paid. 

McFerran  vs.  Chambers,  64  111.  118. 

—  Wntten  Obligation:    True  relations  of  parties  may  be  shown 

by  parol. 

Baum  vs.  Parkhurst,  26  App.  129. 

Money  Lent:  "^ 

—  Defendant's  Financial  Circumstances:  On  suit  brought  to 
recover  alleged  loan,  where  the  testimony  of  the  parties  is  conilict- 
ing,  evidence  that  the  financial  circumstances  of  defendant  were 
such  that  he  did  not  need  the  money  at  the  time  is  competent. 

Sager  vs.   St.  John,   109  App.  358;   Thorj)  vs.  Goeway,  85  III.   611; 
Chi.  Trust  Co.  vs.  Ward,  113  App.  327. 
Cf.     "Where  no  issue  of  fraud  is  in  the  case,  the  fact  that  defend- 
ant, at  the  time,  had  a  much  greater  sum  on  deposit  in  a  certain 
bank,  is  not  competent  as  tending  to  support  defense  that  such 

money  was  not  borrowed." 

Agat  vs.  Apfelbaum,  155  App.  572. 


MORTALITY  TABLES 

See  Life  Tables. 


MOTIVES 

See  Intent,  Bias  and  Hostility,  Credibility,  Cross  Exami- 
nation, Malicious  Prosecution,  Fraudulent   Conveyances. 
Presumption : 

Where  there  exist  two  motives  for  an  act  done,  the  one  lawful 
and  the  other  unlawful,  it  must  be  presumed,  in  absence  of  satis- 
factory evidence  to  the  contrary,  that  the  lawful  motive  controlled. 
Speck  vs.  Pullman  Car  Co.,  121  111.  33. 

Legislature : 

Courts  cannot  inquire  into  the  motives  of  the  legislature.  Its 
knowledge  and  good  faith  are  not  open  to  question.  Courts  must 
always  assume  that  the  legislative  discretion  has  been  properly 
exercised. 

People  vs.  Thompson,  155  lU.  451. 
Unless  that  discretion  has  been  so  grossly  abused  as  that  it  may 

be  said  to  not  have  been  exercised  at  all. 

People  vs.  Rose,  203  111.  46;  People  vs.  Carlock,  198  111.  150. 

City  Council: 

An  ordinance  passed  by  a  city  council,  in  the  exercise  of  the 
legislative  powers  conferred  upon  it,  for  purpose  of  police  regula- 


860  MOTIVES 

lion  or  municipal  government,  cannot  be  impeached  by  an  inquiry 

into  the  motives  of  the  members  of  the  city  council,  and  if  the 

ordinance  is  within  the  legislative  power  of  the  council,   courts 

cannot  declare  it  invalid  on  account  of  improper  motives  which 

induced  its  passage. 

Murphy  vs.  C.  E.  I.  &  P.  Ry.  Co.,  247  111.  614;  People  vs.  Wieboldt, 
233  "ill.  572;  City  of  Aniboy  vs.  I.  C.  E.  E.  Co.,  236  111.  237. 

Parol  evidence  is  not  admissible  for  purpose  of  invalidating  an 

ordinance  by  establishing  a  motive  or  purpose  in  the  council  to 

serve  some  private  interest.     Such  evidence  must  be  found  in  the 

ordinance  itself. 

City  of  Aniboy  vs.  I.  C.  E.  R.  Co.,  236  111.  236. 

Execution  of  Note : 

On  an  issue  as  to  the  genuineness  of  the  signature,  where  evi- 
dence  is  equally   balanced,    reason    for   execution    of   instrument 

admissible. 

Hunter  vs.  Harris,  131  111.  482. 

Contract : 

Motive  of  party  making  special  contract  is  immaterial. 

Emerich  vs.  Siegel,  Cooper  Co.,  237  111.  610;   Eobbins  vs.  Eothe,  95 
111.  464. 

Forcible  Entry  and  Detainer : 

Motives  of- party  who  forcibly  expels  another  are  immaterial. 
Baker  vs.  Hayes,  28  111.  387. 

Partition : 

Motives  of  party  seeking  decree  of  partition  are  wholly  imma- 
terial. 

Trainer  vs.  Greenough,  145  111.  543. 

Malicious  Prosecution: 

Defendant  may  testify  as  to  his  motive,  and  state  that  he  hon- 
estly believed  plaintiff  to  be  guilty. 

Barker  vs.  Eonk,  134  App.  500;  Harpham  vs.  Whitney,  77  111.  32. 

Homicide : 

If  the  evidence  in  a  murder  trial  shows  beyond  a  reasonable 
doubt  that  the  accused  killed  the  deceased  with  malice  afore- 
thought, it  is  wholly  immaterial  what  his  motive  was  or  whether 

the  evidence  indicates  any  motive. 

People  vs.  Enright,  256  111.  221;  Clifford  vs.  People,  229  111.  633. 

In  a  criminal  prosecution  the  People  are  required  to  prove  the 
commission  of  an  act  forbidden  by  law  and  to  prove  it  beyond  a 
reasonable  doubt,  but  they  are  never  required  to  prove  a  cause  or 
reason  that  induced  accused  to  commit  the  act  if  without  such 
proof  the  evidence  is  sufficient  to  show  that  the  act  was  done  by 
him.  If  the  accused  committed  the  act,  the  question  whether  he 
had  a  motive,  or  what  it  was,  is  immaterial.  Evidence  tendnig 
to  show  the  existence  or  non-existence  of  a  motive  is  admissible  and 
is  frequently  important  to  be  considered  in  connection  with  the 
other  evidence  in  the  case,  and  although  the  People  are  under  no 
obligation  to  show  a  motive  for  the  commission  of  a  criminal  act, 
they  may  do  so.  If  the  People  claim  that  a  motive  existed  induc- 
ing the  commission  of  the  act,  it  must  be  proven,  and,  like  any  other 
circumstance,  cannot  be  inferred,  but  as  they  are  not  required  to 


NEGATIVE  IN  ISSUE  861 

show  any  motive  a  jury  should  not  be  informed  that  failure  to 

show  tends  to  prove  that  the  crime  was  not  committed. 
People  vs.  Euright,  256  III.  221. 

Witness : 

A  defendant  may  prove  animus  and  hostility  on  the  party  of 
a  witness  for  the  prosecution,  and  declarations  of  determination 
to  convict  him  if  false  swearing  could  do  it. 

Walsh  vs.  Peoi)le,  6-5  111.  58;  O'Donnell  vs.  People,  110  App.  250. 
Motive  in  giving  money  to  witness  may  be  shown. 
I.  C.  R.  E.  Co.  vs.  Berry,  81  App.  17. 

MUNICIPAL  CORPORATIONS 

See  Corporations,  Dedication,  Eminent  Domain,  Ordinances, 
Officers,  Records,  Sidewalks,  Quo  Warranto. 


MURDER 

See  Homicide. 

MUTUAL  BENEFIT  ASSOCIATIONS 

See  Insurance. 

NAMES 

See  Abbreviations,  Identity,  Judicial  Notice. 

NATURALIZATION 

See   Citizenship,   Contested   Elections,   Records,   Residence, 
Domicile. 

NAVIGABILITY 

See  Waters  and  Water  Courses. 

NEGATIVE  EVIDENCE 

See  Positive  and  Negative. 

NEGATIVE  IN  ISSUE 

Quantity  and  Burden  of  Proof: 

The  elfect  of  the  negative  form  of  issue  is  not  to  relieve  the  party 
making  such  charge  of  burden  of  introducing  any  proof,  but  the 


862  NEGLIGENCE 

law  will  be  satisfied  with  a  less  qnantity  of  proof;  and  this  is 
particularly  so  where  there  is  the  concurring  circumstance  of  the 
fact  being  within  the  knowledge  of  the  adverse  party.  Evidence 
which  renders  the  existence  of  the  negative  probable  may  be  sufti- 
cient  in  the  absence  of  proof  to  the  contrary.  Full  and  conclusive 
proof,  where  a  party  has  the  burden  of  proving  a  negative,  is  not 
required,  but  even  vague  proof  or  such  as  renders  the  existence 
of  the  negative  probable  is  in  some  cases  sufficient  to  change  the 

burden  to  the  other  party. 

Prentice  vs.   Crane,   234   111.   302;   Welsh  vs.   Shumway,   232   111.   54; 

Eexroth  vs.  Schein,  20G  111.  80;   Dorsey  vs.  Brigham,  177  111.  250; 

Beardstjown  vs.  Virginia,  76  111.  34;  Graves  vs.  Bruen,  11  111.  431; 

Cf.  Union  Natl.  Bank  vs.  Baldenwick,  45  111.  375;  XII  111.  Notes, 

4S0,   §  46. 

Such  evidence  as,  in  the  absence  of  counter  evidence,  affords 

reasonable  ground  for  presuming  that  a  negative  averment  is  true, 

is  sufficient  to  throw  the  burden  of  proof  upon  the  adversary. 

Cole  vs.  Cole,  153  111.  585;  Eyan  vs.  Hamilton,  205  111.  191;  Vigus 
vs.  O'Bannon,  118  111.  334;  Parry  vs.  Squair,  79  App.  324. 

—  Knowledge  ejf  Adversary':  Where  a  fact  is  peculiarly  within 
the  knowledge  of  one  of  the  parties,  he  has  the  burden  of  proving 
it  whether  the  proposition  is  affirmative  or  negative. 

City  of  Chicago  vs.  Dunham,  161  App.  307;   Eobinson  vs.  Robinson, 

51  App.  317;  Williams  vs.  People,  121  111.  84;  People  vs.  Nedrow, 

16  App.  192;  Estate  of  Ramsey  vs.  People,  97  App.  283. 

But  where  allegation  is  that  a  public  official  obtained  money  by 

making  a  representation  that  he  had  rendered  services  where  he 

had  not,  in  fact,  done  so,  this  rule  does  not  apply. 
People  vs.  Templeman,  169  App.  287. 
So  where  a  party  is  bound  to  aver  a  negative,  he  is  also  bound 
to  prove  it,  if  the  means  of  proof  are  equally  within  the  control  of 

both  parties. 

G.  W.  E.  E.  Co.  vs.  Bacon,  30  111.  347;  Borner  vs.  Brotherhood  of 
Yeomen,  154  App.  27. 

—  Where  License  Fequired:  In  prosecutions  for  a  penalty  for 
doing  an  act  which  the  statute  does  not  permit  to  be  done  by  any 
person  except  those  who  are  duly  licensed  therefor,  when  the  act  is 
proven,  the  burden  is  on  the  party  to  show  such  license,  and  neg- 
ative of  the  license  is  not  required. 

Prentice  vs.  Crane,  234  111.  302;  Harliaugh  vs.  City  of  Monmouth, 
74  111.  367 ;  Chandler  vs.  Smith,  70  App.  658 ;  People  vs.  Koehler, 
146  App.  541. 

NEGLIGENCE 

See  Ordinances,  Habits,  Similar  Facts,  Repairs  After  Acci- 
dent, Promise  to  Repair,  Pecuniary  Circumstances,  Rules  in 
Actions  for  Negligence,  Res  Gestae,  Admissions  and  Declar- 
ations, Expert  and  Opinion,  Medical  and  Surgical  Services, 
Sidewalks,  Experiments,  Physical  Examination,  Coroner's 
Inquest,  Ownership,  Wages,  Earning  Capacity  and  Domestic 
Relations,  Photographs,  Release,  Custom  and  Usage,  Presump- 
tions, Bttrden  of  Proof,  Representative  Capacity,  Safer 
Method,  Mental  and  Physical  States,  Witnesses. 


NEW  TRIAL  863 

NEW  PROMISE 


See  Limitations. 


NEWSPAPER 

See  Libel  and  SLANnp:R. 
Admissibility  in  Evidence : 

—  Market  Price:  J*roof  of  market  value  of  a  commodity  at  a 
particular  time  and  place  cannot  be  made  by  hearsay  evidence 
except  in  the  absence  of  witnesses  having-  personal  knowledge  of 
such  market  jirice.  Quotations  or  reports  in  newspapers  of  general 
circulation  are  competent. 

Tally  vs.  West.  Uinoii  Tel.  Co.,  141  App.  312. 

Where  it  is  proven  that  defendant  had  corrected  a  price  current 

in  a  newspaper,  files  of  the  papers  were  properly  admitted  against 

him  to  prove  market  value  of  grain. 
Hiiikle  vs.  Smith,  21  111.  237. 

—  Fraud:  The  fact  that  no  mention  is  made  of  the  conveyance 
in  a  newspaper  especially  devoted  to  the  publication  of  real  estate 
transfers  is  not  competent  evidence  upon  the  issue  of  fraud  in 
making  such  conveyance. 

Nelson  &  Co.  vs.  Leiter,  93  App.  176. 


NEW  TRIAL 

See  Cumulative  Evidence. 
Impeaching-  Verdict : 

—  Affidavit  of  Juror:     Affidavits  by  jurors,  made  after  the  trial, 
will  not  be  received  to  impeach  their  verdict. 

Phillips  vs.  Scales  Mound,  195  111.  353;  Marzeii  vs.  People,  190  111.  81 ; 

Bertholf  vs.   Quinlan,   G8   111.   297;    Keins  vs.   People,   30    111.    25G; 

Martin  vs.  Ehrenfelds,  24  111.  1S7;  XIII  111.  Notes,  982,  §  107. 

The  affidavit  of  a  juror  is  not  admissible  to  impeach  his  verdict, 

on  motion  for  a  new  trial.     He  is  not  competent  to  show  that  the 

damages  found  were  arrived  at  by  each  juror  marking  down  the 

amount  thought  proper  by  him,  and  dividing  the  aggregate  by  the 

number  twelve. 

Eeed  vs.  Thompson,  88  111.  245. 
Affidavits  of  jurors  cannot  be  received  for  purpose  of  showing 
cause  for  setting  aside  their  verdict.  They  are  not  admissible  to 
show  the  conduct  of  others  than  the  jurors,  or  improper  conduct 
in  arriving  at  a  verdict  by  the  jurors  themselves,  such  as  that  it 
was  obtained  by  average  or  by  lot,  or  in  any  other  improper  manner. 
Sanitary  District  vs.  Cullerton,  147  111.  385.  '• 

—  Affidavits  of  Others:     Affidavits  of  persons  swearing  to  state- 
ments made  by  jurors  will  not  be  received  to  impeach  their  verdict. 

Phillips   vs.   Scales   Mound,    195   111.   353;    Heldmaier   vs.   Eehor,    188 
111.  458;   Palmer  vs.   People,   138   111.  356;    Allison  vs.   People,  45 
111.  37;   Schneider  vs.  Chi.  City  Eys.  Co.,  177  App.  334. 
A  juror  cannot  be  heard  to  question  the  manner  by  which  he 


864  NEW  TRIAL 

arrived  at  his  verdict,  nor  can  the  verdict  be  impeached  by  evidence 
of  outsiders  as  to  facts  derived  from  members  of  jury  as  to  their 
action. 

Smith  vs.  Smith,  169  111.  623. 

An  affidavit  made  by  one  convicted  of  crime,  that  verdict  was 
arrived  at  by  chance,  although  directly  averred,  must  be  presumed 
to  have  been  made  upon  information  and  belief,  and  therefore  in- 
sufficient, when  the  source  of  the  affiant's  information  is  not  shown. 
Bonardo  vs.  People,  182  111.  41]. 

An  affidavit  that  the  verdict  was  found  by  each  juror  marking 
down  the  amount  of  damages  he  deemed  proper,  and  dividing  the 
aggregate  of  the  several  sums  by  twelve,  with  an  agreement  that 
the  result  should  be  the  verdict,  if  made  merely  upon  information 

and  belief  of  defendant,  is  clearly  insufficient. 

Cummins  vs.  Crawford,  88  111.  312;  City  of  Pekin  vs.  Winkel,  77 
111.  56. 
An  affidavit  that  while  the  jury  were  deliberating  on  their  ver- 
dict, in  charge  of  two  officers,  one  of  the  jurors  separated  from 
the  others  and  went  about  one  hundred  and  fifty  yards  away  and 
was  absent  a  considerable  time  does  not  show  ground  for  a  new 
trial,  there  being  nothing  to  show  that  the  juror  was  not  in  charge 
of  an  officer,  or  that  he  had  opportunity  to  communicate  with  any 

one,  where  he  went  or  the  circumstances  shown. 
Waller  vs.  People,  209  111.  284. 

—  Grounds   of   Verdict:     The  verdict  of  the  jury,   where   the 

evidence  is  conflicting,  disposes  of  the  issues  of  fact,  and  subsequent 

affidavits  of  the  members  thereof,  as  to  grounds  of  their  verdict, 

cannot  be  considered. 

Frank  vs.  Taubman,  31  App.  592;   Smith  vs.  Eames,  4  Til.  76. 

— ■Misconduct  of  Others:  While  a  jury  may  not  be  heard  to  im- 
peach his  verdict,  yet  he  may  unquestionably  testify  as  to  what  the 
parties  did  and  said  upon  the  trial,  and  also  as  to  any  improper 
practices  to  corrupt  the  jury  in  its  action,  and  the  effect  it  may  have 
had  upon  the  jury  in  their  decision. 
Spurek  vs.  Crook,  19  111.  415. 

But  as  to  conduct  of  officers  in  charge,  affidavits  of  jurors  were 

not  received  in 

Sanitary  Dist.  vs.  Cullerton,  147  111.  385;  Allison  vs.  People,  45  111.  37. 

—  Mistake:  W^here  the  jury  have  returned  a  verdict  which  is, 
by  the  court,  put  in  form,  and  the  jury  then  polled,  and  each  of 
them  assents  to  the  verdict  after  it  is  so  put  in  form,  they  cannot 
be  permitted  to  come  in  afterwards  and  say  they  were  mistaken, 
and  thus  impeach  their  verdict. 

Suver  vs.  O 'Riley,  80  111.  104. 

Affidavits  of  jurors  are  competent  to  show  that  the  verdict 
returned  by  them  is  not  the  real  verdict  upon  which  they  had 
agreed,  by  reason  of  some  omission  to  state  correctly  the  verdict 
at  which,  by  due  and  regular  course  of  proceedings,  they  had  hon- 
estly and  fairly  aiTived.  (Clerical  error.  Jury  thought  company 
defendant  instead  of  plaintiff,  and  accordingly  found  for  defend- 
ant : ) 

Schwamb  Lumber  Co.  vs.  Schaar,  94  App.  544. 


NEW  TRIAL  865 

Supporting-  Verdict: 

Affidavits  of  jurors  will  l)e  received  to  support  verdict. 

Phillips  vs.  Scales  Mound,  195  111.  353;  Smith  vs.  Eames,  4  111.  76; 
Peek  vs.  Brewer,  48  111.  54. 

Disqualification  of  Juror : 

"Affidavits  filed  in  support  of  motion  for  new  trial  on  ground 
that  three  of  the  jurors  were  incompetent  for  the  reason  that  they 
had  previously  'formed  and  expressed'  opinions  as  to  defendant's 
guilt,  do  tend  to  show  one  or  more  of  these  juroi^s  had  previously 
expressed  opinions  concerning  guilt  of  defendant,  but  the  jurors 
implicated  deny  in  the  most  positive  manner  they  ever  made  the 
statements  attributed  to  them.  Their  affidavits  in  this  respect  find 
some  support  in  the  affidavits  of  persons  alleged  to  have  been  pres- 
ent. Considering  all  the  affidavits  together,  it  is  not  thought  it  is 
sufficiently  proven  either  of  the  jurors  whose  competency  is  now 
called  in  question  had  previously  formed  any  such  opinions  con- 
cerning the  guilt  of  defendant  as  would  disqualify  them,  or  either 
of  them.  A  verdict  ought  not  to  be  set  aside  on  such  grounds, 
unless  it  is  made  to  appear,  from  satisfactory  evidence,  the  jurors 
had  previously  'formed  and  expressed'  opinions  hurtful  to  the 
defence.  Scarcely  a  criminal  case  comes  to  this  court  where  the 
same  objection  to  the  competency  of  jurors  is  not  taken,  founded 
on  mere  ex  parte  affidavits.  Such  affidavits  are  the  most  unsatis- 
factory mode  of  estalilishing  any  fact  in  a  case.  The  parties  mak- 
ing them  are  subjected  to  no  cross  examination, — one  of  the  most 
potent  methods  ever  adopted  to  elicit  the  truth  and  to  detect  false- 
hood. Besides  that,  a  mere  casual  remark  concerning  any  matter 
may  be  imperfectly  understood  or  not  accurately  remembered. 
Many  cogent  reasons  readily  present  themselves  why  the  testimony 
as  to  such  previously  expressed  opinions  by  persons  called  as 
jurors  should  be  of  clear  and  satisfactory  character,  otherwise  a 
verdict  fully  warranted  by  the  evidence  might  have  to  be  set 
aside,  and  the  ends  of  justice  defeated." 

Hughes  vs.  People,  116  111.  330;  Spies  vs.  People,  122  111.  1;  People  vs. 
Strauch,  144  App.  282. 

Newly  Discovered  Evidence: 

—  Affidavits  of  Witnesses:  A  motion  for  new  trial,  upon  ground 
of  newly  discovered  evidence,  should  be  supported  by  the  affidavits 
of  the  witnesses  relied  upon  to  make  the  new  proof,  or  some  excuse 
should  be  shown  for  not  obtaining  them. 

Janaway  vs.  Burton,  201  111.  78;  T.  W.  &  W.  Ey.  Co.  vs.  Ingram, 
85  111.  172;  Emery  vs.  Addis,  71  111.  273;  Cowan  vs.  Smith,  35 
111.  416;  Chi.  City  Ey.  Co.  vs.  Bohnow,  108  App.  346;  Fuller  vs. 
Little,  69  111.  229 ;  x'HI  111.  Notes,  981,  §  102. 

—  Discovery  After  Trial:  It  must  appear  that  the  evidence  has 
been  discovered  since  trial,  and  that  it  could  not  have  been  pro- 
duced at  the  trial,  by  the  use  of  reasonable  diligence.  The  evidence 
must  also  be  material  to  the  issue,  and  relate  to  the  merits  of  the 

case. 

Chi.  City  Ey.  Co.  vs.  Bohnow,  108  App.  346;  Dyke  vs.  DeYoung, 
133  Til.  82;  Crozier  vs.  Cooper,  14  111.  139;  People  vs.  Moeller,  260 
111.  375. 

—  Diligence:     It  is  not  sufficient  to  state  merely  that  due  dil- 

Ev. — 55 


866  NON   JOINDER 

igeiiee  has  been  used,  but  the  facts  constituting  diligence  must 

be  stated. 

Heklniaier  vs.  Taman,  ]88  111.  283. 

—  Names  of  Witjiesses:  The  names  of  the  witnesses  by  whom 
the  party  applying  for  a  new  trial  expects  to  prove  alleged  newly 
discovered  matters  must  be  stated  in  the  atfidavit. 

Edwards  vs.  Barnes,  55  App.  38 ;  Forrester  vs.  Guard,  1  111.  74. 

And  what  party  expects  to  prove  by  them. 
Butterworth  vs.  Pfeift'er,  80  App.  240. 

—  Counter  Affidavits:  On  motion  for  a  new  trial  on  ground  of 
newly  discovered  evidence,  counter  affidavits  should  not  be  re- 
ceived; the  motion  should  be  heard  upon  ex  parte  affidavits. 

Helliug  vs.  VaiiZandt,  162  111.  162;  Pro.  lus.  Co.  vs.  Dill,  91  111.  174; 
Nelson  vs.  Equitable  Ins.  Co.,  73  App.  133;  Chicago  vs.  Edson, 
.43  App.  417. 


NON  EST  FACTUM 

See  Denial  of  Execution. 


NON  JOINDER 

See  Partnership. 
Pleading: 

—  As  to  Parties  Plaintiff:  The  non- joinder  as  to  parties  plain- 
tiff may  be  shown  under  the  general  issue. 

Lasher  vs.  Colton,  225  111.  234;  Seigel,  Cooper  &  Co.  vs.  Schueck, 
167  111.  522;  Snell  vs.  DeLand,  43  111.  323;  Dressell  vs.  Lonsdale, 
46  App.  454. 

—  As  to  Defendants:  Where  joint  liability  is  denied  by  a  part 
of  the  defendants,  burden  is  upon  plaintiff  to  show  joint  liability 
of  all  the  defenciants,  including  those  who  failed  to  tile  pleas, 
unless  he  amend  his  declaration  and  dismiss  suit  as  to  such  of 
defendants  as  are  not  shown  to  be  jointly  liable  with  all  the  others. 

But  even  in  absence  of  a  special  plea  denying  joint  liability,  the 
evidence  must  show  liability  as  to  all  defendants  in  order  to  entitle 

plaintiff  to  a  judgment. 

Powell  Co.  vs.  Finn,  198  111.  567;  Boiler  vs.  O 'Conner,  157  App.  46; 
Heidelnieier  vs.  Ileeht,  145  App.  116. 
If  a  person  who  should  have  been  joined  in  action  on  contract, 
be  omitted  as  defendant,  advantage  of  omission  can  only  be  taken 
by  a  plea  in  abatement,  unless  the  joint  liability  appears  from  the 
plaintiff' 's  own  pleading.  And  this  rule  prevails  though  plaintiff 
has  merely  filed  the  common  counts,  since  he  is  entitled  to  ask  for 
a  bill  of  particulars  if  the  declaration  does  not  sufficiently  advise 
him  of  plaintiff's  claim  to  enable  him  to  plead,  and  if  he  fails  to 
take  that  step  and  pleads  the  general  issue,  he  admits  there  is  no 
foundation  for  a  plea  in  abatement  and  the  misjoinder  of  parties 
caimot  be  taken  advantage  of  under  the  general  issue.  The  fact 
that  joint  liability  is  not  claimed  to  cover  all  the  items  of  plaintiff's 
demand  does  not  abrogate  the  rule   requiring  that  a  nonjoinder 


NOVATION  867 

of  parties  be  set  up  by  a  preliminary  plea  which  gives,  the  plaintiff 
a  better  writ  if  he  chooses  to  avail  himself  of  it. 
Eutter  vs.  McLaughlin,  257  J 11.  199. 

The  rule  is  plaintiff  must  join  as  parties  defendant  all  who  are 
jointly  liable  upon  the  contract  and  if  he  does  not,  he  cannot 
recover  against  any.  If  it  expressly  appear  on  the  face  of  the 
declaration  or  some  other  plea  of  the  plaintiff  that  the  party 
omitted  is  still  living,  as  well  as  jointly  liable  with  the  other  defend- 
ants on  the  contract,  the  other  defendants  may  demur  or  move  in 
arrest  of  judgment,  or  sustain  a  writ  of  error. 

Sinsheinipr  vs.  Skinner  Mffj.  Co.,  16.5  111.  116. 

In  action  against  two  or  more  defendants  ex  contractu,  it  must 
appear  from  the  evidence  that  there  was  a  joint  contract  by  all 
the  defendants,  otherwise  there  can  be  no  recovery  against  anyone. 
Pluard  vs.  Gerrity,  146  App.  224. 
A  failure  to  file  a  plea  denying  joint  liability  does  not  prevent 
the  interposition  of  such  defense.  The  effect  of  filing  such  plea  is 
to  require  proof  of  joint  liability  as  a  part  of  plaintiff's  case. 

Capitol  Food  'Co.  vs.   Smith,   155   App.   123 ;    Martin   vs.   Nelson,   53 
App.  518. 


NOTARY  PUBLIC 

See   Affidavits,  Acknowledgments,    Certificates,    Officers, 
Judicial  Notice. 


NOTICES 

See  Service,  Knowledge,  Sidewalks. 

NOVATION 

Definition  and  Requisites : 

Novation  is  the  substitution  of  a  new  obligation  for  an  existing 
one  and  must  be  made  by  contract.  The  original  agreement  must 
be  absolutely  extinguished  and  a  new  agreement  substituted  for 
it.  All  the  parties,  not  only  to  the  new  contract,  but  also  to  the 
one  for  which  the  new  contract  is  substituted,  must  consent  to  the 
novation;  the  parties  to  the  original  contract  must  consent  in 
order  to  have  that  extinguished,  and  the  parties  to  the  new  con- 
tract in  order  to  have  a  valid  obligation  substituted  for  the  old. 
Karraker  vs.  Eddleman,  101  App.  23. 

In  every  novation  there  are  four  essential  requisites;  first,  a 
previous  valid  obligation ;  second,  the  agreement  of  all  parties  to 
the  new  contract;  third,  the  extinguishment  of  the  old  contract; 
and  fourth,  the  validity  of  the  new  one. 

Hayward  vs.  Burke,  151  Til.  121 

—  Consent  of  All  Parties:  It  takes  the  consent  of  three  per- 
sons to  constitute  a  novation.     One  contract  cannot  be  wiped  out 


868  NOVATION 

and  another  formed  unless  the  consent  of  all  the  parties  interested 

in  both  contracts  is  given. 

Com.  Natl.  Bank  vs.  Kirkwood,  172  HI.  563;  Walker  vs.  Wood,  ]70 
111.  463;  Netterstrom  vs.  Gallistcl,  110  App.  352;  Eeid  vs.  Deaener, 
82  111.  308.  -IF,  &        , 

Such  consent  may  be  by  implication. 

Com.  Natl.  Bank  vs.  Kirkwood,   172  111.  563. 

Admissibility  of  Evidence: 

It  is  sufficient  to  show  the  parties  made  a  parol  agreement  to  the 
novation  of  the  debt. 

Hartford  Ins.  Co.  vs.  Olcutt,  97  111.  439;  Haynard  vs.  Gunn,  82  111. 
385;  Runde  vs.  Rnnde,  59  111.  98;  Brown  vs.  Strait,  19  [11.  88. 

Proof  of  agreement  by  plaintitf  in  assumpsit  to  transfer  indebt- 
edness sued  for  to  a  third  person  is  inadmissible  in  absence  of 
evidence  that  indebtedness  was,  in  fact,  transferred. 
Argyle  vs.  McNeill,  153  111.  6(59. 

Burden  of  Proof  and  Presumptions : 

The  burden  of  establishing  a  novation  is  upon  the  party  who 
asserts  its  existence. 

Hayward  vs.  Burke,  151  111.  121;  Netterstrom  vs.  Gallistel,  110  App. 
352. 

The  presumption,  in  the  absence  of  proof,  where  collateral  secur- 
ity is  taken,  is  that  there  was  no  novatimi. 

Potter  vs.  I'Mtchburg  Engine  Co.,  110  App.  430;  Wilhelm  vs.  Schmidt, 
84  111.  183. 

Weight  and  Sufficiency : 

In  order  to  establish  a  novation,  the  proof  must  be  clear  and  con- 
vincing. 

Potter  vs.  Fitchburg  Engine  Co.,  110  App.  430;  Netterstrom  vs. 
Gallistel,  110  App.  352. 

Where  property  is  conveyed  with  the  understanding  that  the 
grantee  shall  assume  certain  debts  of  the  grantor,  his  creditors 
agreeing  to  look  to  the  former  for  payment,  it  amounts  to  a  com- 
plete novation. 

Seymour  vs.  Seymour,  31  App.  227. 

If  one  of  several  partners  promises  a  creditor  of  the  firm  of 

which  he  is  a  member,  to  assume  and  pay  his  entire  debt,  and  the 

creditor  agrees  to  look  to  him  alone,  a  substitution  of  debtor  is 

effected  and  the  other  partners  released. 
Leihy  vs.  Briggs,  33  App.  534. 

Pending  an  adjustment,  insured's  creditors  garnished  insur- 
ance company,  who  placed  the  amount  in  hands  of  its  attorney. 
Insured  surrendered  his  policy,  and  receipt  for  the  amount  of  the 
loss  as  adjusted ;  and  attorney  paid  to  him  the  amount  not  gar- 
nished, and  gave  him  a  written  acknowledgment  of  the  amount 
retained.  Held,  in  action  against  company  for  balance  of  the  loss 
as  adjusted,  a  verdict  for  insured  would  not  be  set  aside  on  the 
ground  that  he  had  accepted  attorney  as  his  debtor,  instead  of 

company. 

Farmers  Fire  Ins.  Co.  vs.  Gorzelany,  89  App.  388. 

Neither  notice  to  a  creditor  of  a  partnership  that  the  latter  has 

become   incorporated   and  that  the  corporation   had   assumed   the 

firm   debts,   nor  partial  payment   of  the   creditor's  claim  by   the 

corporation  nor  a  demand  by  the  creditor  on  the  receiver  of  the 


NUISANCE  869 

corporation  for  payment  of  the  claim  and  acceptance  of  dividends 
thereon,   establishes   the  creditor's   consent   to   the   novation   as   a 
matter  of  law,  but  such  facts  may  all  be  considered  in  determining, 
as  a  question  of  fact,  whether  there  was  an  implied  consent. 
Walker  vs.  Wood,  170  111.  463. 


NUISANCE 

Defined : 

A  private  nuisance  is  defined  to  be  anything  done  to  the  hurt 

or  annoyance  of  the  lands,  tenements  or  hereditaments  of  another. 

To  constitute  the  condition  or  use  of  premises  a  nuisance,  some 

legal  rights,  public  or  private,  must  be  violated,  and  it  must  work 

some  material  annoyance,  inconvenience  or  injury,  either  actual 

or  implied  from  the  invasion  of  the  right. 
Lazarus  vs.  Parmly,  113  App.  624. 

Question  of  Fact: 

The  existence  of  matters  alleged  to  constitute  a  nuisance  is  a 

question  of  fact. 

Eubberman  vs.  Pierce,  66  App.  389.  _  ^  '^ 

The  question  as  to  whether  or  not  ordinance  declaring  a  nui-' 

sance  is  valid  is  question  of  law. 

City  of  Biislmell  vs.  C.  B.  &  Q.  R.  E.  Co.,  259  111.  391. 

Allegations  and  Proofs: 

If  plaintiff,  in  his  declaration,  places  his  right  to  recover  upon 
the  ground  of  an  obstruction  by  which  light  and  air  are  prevented 
from  coming  into  his  house,  and  thereby  rendering  his  rooms  dark, 
unwholesome  and  uninhabitable,  he  will  be  required  to  prove  his 
case  as  laid,  and  show  his  right  to  the  passage  of  air  and  light  over 
defendant's  land,  and  its  interruption.  It  will  not  be  competent 
for  him  to  prove  an  injury  from  a  nuisance,  as  that  the  obstruc- 
tion was  made  of  offensive  and  filthy  material,  which  created  an 
unwholesome  atmosphere  in  his  home,  as  that  is  a  different  and 
independent  cause  of  action. 

Guest  vs.  Reynolds,  68  111.  478. 

Under  a  declaration  charging  that  dirt,  waste  coal,  waste  material 
and  other  refuse  matter  from  the  coal  shaft  were  deposited  either 
directly,  or  through  the  agency  of  a  stream,  upon  plaintiff* 's  land, 
rendering  it  unfit  for  cultivation  or  tilla])le  purposes,  evidence  of 
damages  by  water  occasioned  by  the  obstruction  of  the  channel 
of  the  stream  by  the  coal,  so  as  to  flood  his  land  and  destroy  the 
crops  by  the  action  of  the  water,  is  inadmissible, 
"Coal  Run  Coal  Co.  vs.  Giles,  49  App.  585. 

Damages : 

—  Rental  Value:  Where  the  owner  has  resided  on  property 
during  the  period  for  which  he  seeks  to  recover  damages,  his  dam- 
ages must  be  measured  by  his  discomfort  and  the  deprivation  of 
the  healthful  use  and  comforts  of  his  home,  and  not  by  the  depre- 
ciation in  rental  value  of  the  property. 

Fairbanks  Co.  vs.  Nicholai,   167   111.   242;   Chi.   Coal  Co.  vs.   Wilson, 
67  App.  443 ;  Gempp  vs.  Bassham,  60  App.  84. 


870  NUISANCE 

—  Railroad  Construction :    Where  deterioration  of  value  of  land 

is  occasioned  by  the  construction  of  a  railroad,  such  nuisance  is 

a  permanent  one,  so  that  all  damages  for  past  and  future  injury 

to  the  property  may  be  recovered  in  one  suit,  and  such  recovery 

is  a  bar  to  all  future  actioixs  therefor. 

Strange  vs.  C.  C.  C.  &  St.  L.  Ky.  Co.,  245  111.  246 ;  Hart  vs.  Wabash 
Ey.  Co.,  238  111.  336;  Chi.  &  E.  I.  E.  E.  Co.  vs.  Loeb,  118  111.  203. 

—  Offensive  Structures:  In  action  for  injury  to  a  well  by 
rendering  the  water  impure,  all  the  circumstances  may  be  proven 
and  considered ;  and  to  ascertain  the  damages,  the  cost  of  furnish- 
ing water  to  the  family,  having  regard  to  quality  and  quantity, 
may  be  taken  into  account  in  the  estimate, — also  the  difference  in 
value  of  the  property,  owing  to  the  erection  of  gas  or  other  offensive 

structures  in  the  vicinity. 

Ottawa  Gas  Co.  vs.  Graham,  28  111.  73. 

—  Permanent  and  Temporary  Nuisance:  Wliether  recovery 
should  be  confined  to  such  damages  as  have  been  sustained  at  time 
action  is  brought,  or  whether  future  damages  might  also  be  re- 
covered, depends  upon  whether  the  nuisance  is  permanent  or  tem- 
porary in  character. 

If  permanent,  all  damages,  past,  present  and  future  may  be 
proven  and  recovered.  If  temporary,  only  such  damages  can  be 
recovered  as  have  accrued  up  to  the  time  of  bringing  action. 

Fairbanks  Co.  vs.  Bahre,  213  111.  636;  City  of  Clentralia  vs.  Wright, 
156  111.  561;  ttchlitz  Brew.  Co.  vs.  Compton,142  111.  511;  Suehr  vs. 
San.  Dist.,  149  App.  328;  XIII  111.  Notes,  1007,  §  55. 

—  Market  Value:  Depreciation  in  market  value  is  not  measure 
of  damages  for  a  temporary  injury  which  may  be  removed  or 

abated. 

N.  S.  St.  Ey.  Co.  vs.  Payne,  192  111.  239. 
It  is  proper  to  show  the  character  and  value  of  the  premises 
without  the  nuisance  to  enable  the  jury  to  understand  and  estimate 
the  amount  necessary  to  compensate  plaintiff  for  being  deprived 
of  the  comfortable  use  and  enjoyment  of  it  as  his  home,  but  not 
for  the  purpose  of  showing  permanent  depreciation  in  the  market 

value  as  ground  of  recoveiy. 

Fairbanks  Co.  vs.  Nicholai,  167  111.  242. 
The  price  at  which  similar  property  had  been  sold  shortly  before 
in  the  same  vicinity  may  be  shown  by  witnesses. 

C.  &  B.  p.  Co.  vs.  Chicago,  111  111.  651. 

Admissibility  of  Evidence : 

Injury  to  Other  Persons  or  Property:     Evidence  as  to  the 

effect  of  the  nuisance  upon  persons  or  property,  similarly  situated 
with  respect  to  the  nuisance,  is  competent  to  show  the  nature  and 
extent  of  the  injury  and  that  the  nuisance  objected  to  is  capable 

of  inflicting  the  injury  complained  of. 

Wylie  vs.  Elwood,  134  111.  281;  Cooper  vs.  Eandall,  59  111.  317; 
Ottawa  Gas  Co.  vs.  Graham,  35  111.  346;  Fairbanks  vs.  Bahre, 
112  App.  290;  Belvidere  Gas  Co.  vs.  Jackson,  81  App.  424;  Crane 
Co  vs.  Stammers,  83  App.  329;  Contra,  Knhn  vs.  I.  C.  E.  E.  Co., 
Ill  App.  323;  XIII  111.  Notes,  1006,  §49. 
It  is  proper  to  allow  witnesses  to  describe  the  offensive  character 

of  the  nuisance. 

Seacord  vs.  People,  121  111.  623. 


NUISANCE  ■  871 

-Injury  to  Health:  In  action  for  a  nuisance  to  a  dwelling 
house  on  account  of  a  rewer,  it  is  proper  to  allow  plaintiff  to  prove 
how  other  members  of  her  family  and  visitors  were  affected  by  the 
noxious  and  offensive  odors  arising  from  the  sewer  and  the  extent 
thereof,  to  aid  the  jury  in  detennining  whether  and  to  what  extent 
she  and  her  family  had  been  deprived  of  the  wholesome  and  com- 
fortable use  of  her  home,  by  the  stenches  and  offensive  odors  from 
the  sewer. 

City  of  Litchfield  vs.  Whitenack,  78  App.  364. 
Where  nuisance  consists  of  the  stenches  and  noises  of  a  livery 
stable  upon  an  adjoining  lot,  evidence  of  the  effect  of  such  stenches 
and  noises  upon  any  person  who  might  be  in  the  house,  whether  a 
member  of  the  family  or  a  mere  culler,  which  tends  to  enlighten 
the  jury  upon  the  question  whether  the  house  was  rendered  physi- 
cally uncomfortable  as  a  home,  is  competent. 
Gempp  vs.  Bassham,  60  App.  84. 

—  Subsequent  Bepair:  After  suit  brought  incompetent  as  ad- 
mission, but  competent  as  tending  to  show  cause  of  damage. 

Kuhn  vs.  I.  C.  E.  E.  Co.,  Ill  App.  323. 

—  Opinion  of  Witnesses:  In  action  for  injury  to  real  property, 
caused  by  the  increased  flow  of  water  due  to  the  act  of  defendant, 
proof  is  best  made  by  showing  the  manner  in  which  the  market 
value  was  in  fact  depreciated  by  actual  results  rather  than  by 
offering  the  opinions  of  witnesses  based  upon  their  conclusions  as 

to  what  the  effect  would  be. 

Suehr  vs.  San.  Dist.,  149  App.  328. 
In  estimating  the  damages  it  is  not  necessary  that  any  witness 
express  an  opinion  as  to  the  amount  of  such  damages.  The  jury 
may  themselves  make  such  estimate  from  the  facts  and  circum- 
stances in  proof,  and  by  considering  them  in  connection  with  their 
own  knowledge,  observation  and  experience  in  the  business  affairs 

of  life. 

City  of  Litchfield  vs.  Whitenack,  78  App.  364. 

In  action  for  damages  to  a  dwelling  house  by  reason  of  the  loca- 
tion of  zinc  works,  it  is  proper  for  witnesses  to  state  the  value  of 
the  premises,  both  before  and  after  such  location,  and  then  to  con- 
nect the  depreciation  with  the  location  and  operation  of  such  works. 
Wenona  Zinc  Works  vs.  Dunham,  56  App.  351. 

—  No  Protest:  It  is  no  bar  to  an  action  for  the  recovery  of 
damages  that  plaintiff  has  made  no  objection  or  protest  against 
the  creation  or  continuance  of  a  nuisance  from  which  the  injury 
and  resulting  damages  arose. 

Deweese  vs.  Hussmann,  146  App.  55. 

—  Proper  Management:  Nor  can  defendant  manufacturing 
company  prove  that  the  machinery  used  in  the  business  was  good 
and  business  properly  managed,  except  where  vindictive  damages 

are  claimed. 

Cooper  vs.  Ei^ndall,  53  111.  24. 

—  Character  of  Property  in  NeigJiborJiood:  Nor  may  defend- 
ant show  the  character  of  property  in  the  neighborhood  owned  by 

plaintiff. 

Cooper  vs.  Eandall,  53  111.  24. 


872  OBJECTIONS 

Injunction  to  Restrain: 

—  Public-Nuisance:  A  public  nuisance  may  be  a  private  nui- 
sance, as  where  the  property  of  an  individual  is  injured  in  a  man- 
ner special  to  him,  and  diiferent  from  the  injury  to  the  public. 
An  injury'  to  the  public,  in  the  sense  here  used,  is  such  an  injury 
as  excludes  or  hinders  all  alike  in  the  enjoyment  of  a  common 
right.  The  question  whether  a  private  person  has  suffered  such 
special  injury  or  damage  is  not  to  be  determined  by  whether  he 
alone  has  suffered  damage  or  whether  others  in  the  same  vicinity 
have  been  injured.  If  an  individual  has  suffered  special  damage 
to  his  property  from  the  nuisance  his  right  to  maintain  a  bill  to 
enjoin  it  is  not  affected  by  the  fact  that  the  property  of  others 

has  been  injured  by  the  same  cause. 

Hoyt  vs.  McLaugiilin,  250  111.  442 ;   Stead  vs.  Fortner,  255  111.  468 ; 
joos  vs.  111.  Nat.  Guard,  257  111.  138. 

—  Private  Nuisance:  To  entitle  a  party  to  equitable  relief 
against  a  private  nuisance  before  resorting  to  a  court  of  law,  his 
case  must  be  clear  so  as  to  be  free  from  all  substantial  doubt  as  to 
his  right  to  relief.  In  doubtful  cases,  he  will  be  turned  over  to 
his  legal  remedy.  To  entitle  him  to  come  into  a  court  of  equity 
in  the  first  instance,  there  must  be  a  strong  and  mischievous  case 

of  pressing  necessitv. 

Oswald  vs.  Wolf,  129  111.  200. 

Where  the  legal  right  of  the  complainant  is  clearly  established 

and  an  unreasonable  and  unlawful  use  by  defendant  of  its  own 

property  to  the  injury  of  complainant's  rights  is  clearly  proven, 

relief  may  be  granted  without  prior  determination   in  a  suit  at 

law,  that  the  defendant's  use  of  its  property  constitutes  a  nuisance. 

Wente    vs.    Conti.    Fuel    Co.,    232    111.    526;    Deaconess    Hospital    vs. 

Boutjes,  207  111.  553. 

NUMBER  OF  WITNESSES 

See  Cumulative  Evidence,  Expert  and  Opinion,  Order  of 
Proof,  Evidence  Defined,  Credibility. 

OBJECTIONS 

See  Striking  Out  and  Withdrawal  of  Evidence. 

Who  May  Object: 

Only  the  party  who  is  affected  by  introduction  of  evidence  may 

object, 

Eice  vs.  Eice,  108  111.  199. 

Grounds : 

— •  Weight  of  Testimony :  The  weight  of  testimony  is  not  ground 
for  an  objection. 

Fuhiy  vs.  Chi.  City  Ey.  Co.,  239  111.  548. 

—  Failure  of  Opposite  Party  to  Introduce  Evidence:  Party 
whose  objection  is  sustained  cannot  complain  of  opposite  party's 

failure  to  introduce  evidence  objected  to. 

Bernstein  vs.  C.  I.  &  L.  Ey.  Co.,  147  App.  443. 

—  Irresponsive  Ansivers:     That  an   answer   otherwise   unobjec- 


OBJECTIONS  873 

tionable  is  not  responsive  to  the  question,  is  not  an  objection  that 

a  party  not  asking  the  question  can  avail  himself  of. 

Turck  vs.  City  of  Chicago,  146  App.  472;  Int.  Book  Co.  vs.  MacHorn, 
158  App.  543. 

One  obtaining  a  fairly  responsive  answer  to  a  question  put  by 

him  upon  cross  examination  cannot  object  to  its  competency  as 

evidence. 

Board  of  Trade  Tel.  Co.  vs.  Blunie,  17G  111.  247;  Capen  vs.  DeSteiger 
Glass  Co.,  105  111.  185;  City  of  Chicago  vs.  Spoor,  91  App.  472. 

—  Evidence  Admissible  for  Any  Purpose:  Evidence,  if  com- 
petent for  any  purpose,  must  be  admitted,  and  proper  restrictions 

made  by  instruction. 

Mighell  vs.  Stone,  175  111.  261. 
So  where  evidence  is  competent  as  to  one  party,  although  in- 
competent as  to  co-party,  it  is  admissi])le. 

Con.  Ice  Mach.  Co.  vs.  Keifer,  134  111.  481. 

General  Objections: 

—  In  General:  An  objection  that  instruments,  records,  etc.,  are 
"incompetent,"  "improper,"  or  "irrelevant,"  is  too  general  to 
save  special  objection  not  going  to  the  relevancy  or  competency 

of  the  proper  proof. 

City  of  Chicago  vs.  Gillsdorff,  258  111.  212;   Gage  vs.  Eddy,  186  111. 
432;  C.  &  E.  E.  E.  Co.  vs.  Holland,  122  111.  461. 
General  objection  is  not  sufficient  if  the  grounds  are  such  as 
might  be  obviated  if  specifically  pointed  out. 

C.  &  E.  I.  E.  E.  Co.  vs.  Wallace,  202  111.  129;  Calumet  Dock  Co.  vs. 
Morawetz,  195  111.  398;  Benefield  vs.  Alber,  132  111.  665;  Wilson  vs. 
King,  83  111.  232;  Espen  vs.  Hinchcliffe,  131  111.  468;  XIV  111. 
Notes,  850,  §  91. 

—  When  Evidence  Wholhj  or  Partially  Admissihle:  An  objec- 
tion to  evidence  as  "incompetent  and  irrelevant"  is  insufficient 
unless  the  evidence  is  clearly  inadmissible  for  any  purpose. 

Taylor  vs.  Adams,  115  111.  570. 

A  general  objection  is  not  sufficient  unless  evidence  is  wholly 

inadmissible. 

C.  E.  L  &  P.  Ey.  Co.  vs.  Eathneau,  225  111.  279. 

If  objection  is  made  to  entire  testimony  of  a  witness,  and  part 

of  it  is  proper,  objection  will  fail. 

Myers  vs.  People,  26  111.  173 ;  Hucks  vs.  Adlard,  157  App.  287. 
But  a  general  objection  to  evidence  which  is  incompetent  in 

any  event  is  sufficient. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Eatheneau,  225  111.  279. 
So  where  ordinance  is  wholly  irrelevant,  general  objection   is 

sufficient. 

Bullis  vs.  City  of  Chicago,  235  111.  472;  Eev.,  138  App.  298. 

—  Best  Evidence:  The  question  "What  was  the  amount  of 
the  account  which  you  presented  to  defendant  for  payment?" 
was  objected  to  on  ground  that  it  was  not  the  best  evidence.  The 
objection  should  have  stated  that  such  evidence  was  not  the  best 
evidence  because  it  called  for  the  contents  of  a  writing  shown  to 
have  once  existed  and  which  remained  unaccounted  for. 

Lewisohn  vs.  Stevens,  70  App.  307. 

—  Introduction  of  Ordinances:  A  general  objection  to  the 
introduction   of  a   village   ordinance   is   insufficient  to   raise   the 


S74  OBJECTIONS 

question  that  the  ordinance  does  not  show  that  it  had  been  ap- 
proved by  president  of  village. 

Payue  vs.  So.  Springfield,  161  111.  285. 
A  general  objection  to  proof  of  a  municipal  ordinance  by  means 
of  a  printed  pamphlet  is  not  sufficient  to  raise  a  technical  point 
upon  question  of  competency  of  such  pamphlet. 
I.  C.  R.  E.  Co.  vs.  Burke,  112  App.  415. 
A  general  objection  to  the  introduction  or  ordinance  does  not 
raise  the  question  of  its  validity.     This  can  only  be  done  by  spe- 
cific objection  upon  that  ground. 

Wabush   vs.   Kamradt,   109   App.   203;    Craw   vs.   Chi.   City  Ey.   Co., 
159   App.   100. 

—  Introduction  of  Deed:  A  general  objection  to  introduction 
of  a  deed  is  not  sufficient  to  raise  question  as  to  uncertainties 
and  imperfections  in  description  of  land  thereby  conveyed. 

Preston  vs.  Davis,  112  App.  636. 

—  Official  Character  of  Acknowledging  Officer:  A  general  ob- 
jection to  the  admission  of  an  instrument  is  not  sufficient  to 
question  the  official  character  of  the  officer  before  whom  it  pur- 
ports to  be  acknowledged. 

Weber  vs.   Mick,   131   111.   520;    Osgood  vs.   Blackmore,   59   111.   261; 
McCarthy  vs.  Hetzuer,  70  App.  480. 

—  Attorney's  Fees:     A  general  objection  to  a  question  relative 

to  attorney's  fees  is  not  sufficient  to  raise  question  that  the  inquiry 

should  be  directed  to  what  is  the  usual  and  customary  charge  for 

such  services. 

Maneaty  vs.  Steele,  112  App.  19. 

—  Documentary  Evidence:  A  general  objection  to  documen- 
tary evidence  does  not  question  failure  to  make  preliminary  show- 
ing, but  raises  only  question  of  relevancy. 

Gage  vs.  Eddy,  186  111.  432;  McDonald  vs.  Stark,  176  111.  456; 
Crawford  vs.  C.  B.  &  Q.  E.  R.  Co.,  112  111.  314. 
A  general  objection  to  documentary  evidence  goes  alone  to  its 
pertinency,  and  under  such  objection  the  party  will  not  be  al- 
lowed, on  appeal  or  error,  to  urge  specific  objection  that  the  execu- 
tion of  a  written  agreement  was  not  proven,  nor  the  foundation 
laid  to  authorize  a  copy  from  the  record  to  be  read.  Such  objec- 
tions must  be  specifically  made  on  the  trial,  so  as  to  afi:ord  oppor- 
tunity of  obviating  same. 

Crawford  vs.  C.  B.  &  Q.  E.  E.  Co.,  112  111.  314. 
So  an  objection  that  the  certificate  of  the  recorder  to  the  certi- 
fied copy  of  the  record  of  a  deed  was  not  signed  must  be  specific. 
City  of  Chicago  vs.  GilsdorfP,  258  111.  212. 
A  general  objection  to  admission  of  a  writing  offered  as  im- 
peaching proof  does  not  present  for  review  the  question  whether 
part  of  statements  therein  contained  were  inadmissible,  as  being 
mere  opinions,  if  the  writing  was  admissible  for  any  purpose. 
I.  C.  E.  R.  Co.  vs.  Wade,  206  111.  523. 
—  What   Questions  General  Objection  Raises:     A   general  ob- 
jection raises  question  of  relevancy  and  materiality  only. 

Wrisley  vs.  Burke,  203  111.  250;  Cantwell  vs.  Welch,  187  111.  275; 
Gage  vs.  Eddy,  186  111.  432;  Scott  vs.  Caldwell,  152  App.  172; 
Haberstich  vs.  Elliott,  189  111.  70. 


OBJECTIONS  875 

Does  not  present  the  question  of  secondary  character  of  evi- 
dence. 

Groom  vs.  Parables,  28  App.  153. 
Objection   to   letter   that   it    is   "incompetent   and   immaterial" 
does  not  raise  question  of  genuineness. 
Franklin  vs.  Criim,  171  III.  378. 

—  As  to  Irresponsive  Ansivcrs:  AVill  not  reach  the  irrespon- 
siveness  of  an  answer. 

Craney  vs.  Sehloeman,  145  App.  313. 

—  As  to  Leading  Questions:  And  will  not  reach  the  objection 
of  its  being  leading. 

Eiuldy  vs.  McDonald,  244  111.  494;  Dunn  vs.  People,  172  111.  582; 
Funk  vs.  Babbitt,  156  111.  408;  First  Natl.  Bank  vs.  Dunbar,  118 
111.  025;  Hilton  vs.  Santleman,  129  App.  109. 

•  — HypotJufical  Questions:  A  general  objection  does  not  save 
for  review  the  completeness  or  accuracy  of  the  recital  of  facts 
contained  in  a  hypothetical  question. 

McCauley  vs.  Cbi.  City  Ey.  Co.,  163  App.  176. 

—  As  Affecting  Competency  of  Witness:  An  objection  to  a 
question  calling  for  opinion  does  not  question  competency  of  wit- 
ness to  give  the  opinion. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Nix,  137  111.  141. 

—  As  Affecting  Form  of  Question:  A  general  objection  to  a 
question  propounded  to  a  witness  must  be  regarded  as  going  to 
the  competency  of  the  testimony  sought  and  not  to  the  form  of 
the  question,  and  if  the  testimony  sought  to  be  elicited  is  perti- 
nent and  competent,  it  is  en^or  to  sustain  such  an  objection. 

Tracy  vs.  People,  97  111.  101 ;  Maneaty  vs.  Steele,  112  App.  19. 

—  Tax  Receipts:  A  general  objection  to  tax  receipts  as  evi- 
dence goes  only  to  their  competency  or  relevancy,  and  not  to  any 
objection  that  might  be  obviated  by  party  offering  them.  Under 
such  an  objection,  party  is  not  bound  to  prove  the  signatures  of 
the  officers  signing  same. 

Walcott  vs.  Gibbs,  97  111.  118. 

—  Loan  Association  Director's  Resolutions:  A  general  objec- 
tion to  introduction  of  certified  copy  of  a  resolution  by  the  board 
of  directors  of  a  loan  association,  authorizing  institution  of  fore- 
closure  proceeding,  does  not  raise  point  that  secretary's  certifi- 
cate fails  to  show  that  he  is  keeper  of  records  and  official  papers. 

Cantwell  vs.  Welch,  187  111.  275. 

Specific  Objections: 

—  In  General:     Objection  must  be  specific  and  made  promptly. 

Hunting  vs.  Aurand,  70  App.  28 ;  Schroeder  vs.  Walsh,  10  App.  36. 

And  this  rule  applies  to  applications  for  registration  of  title. 
Bjork  vs.  Glos,  256  111.  447. 

The  rule  applies  only  to  cases  where  the  objection,  if  specifically 
pointed  out,  might  be  obviated.  It  has  no  application  to  a  case 
where  the  objection  could  not,  under  any  circumstances,  be  reme- 
died. A  general  objection  is  sufficient  to  exclude  evidence  that  is 
not  admissible  under  any  circumstances. 

Sidwell  vs.  Schumacher,  99  111.  426;  Poles  Co.  vs.  Messer,  199  111.  540. 

Counsel  should  be  permitted  to  state  grounds  of  objection.  It 
is  the  duty  of  counsel  to  always  state  the  grounds  of  objection. 


876  OBJECTIONS 

In  many  instances  a  general  objection,  without  stating  reasons,  is 

insufficient. 

Coueord  House  Co.  vs.  O  'Brieii,  228  111.  360. 

—  Foreclosure  Proceeding  lieconls:  Objection  to  admission 
of  record  of  foreclosure  proceedings  on  ground  of  want  of  proof 
of  jurisdiction  should  be  specific. 

Davis  vs.  Hamilton,  53  App.  94. 

—  Repeating  Ground:  Where  a  question  put  to  a  witness  is  ob- 
jected to  on  ground  of  his  incompetency,  it  is  not  necessary  to 
repeat  the  special  ground  of  objection  to  every  question  there- 
after asked  of  the  witness. 

Taylor  vs.  Pegrani,  151  HI.  106. 
— ■  As  to  Diligence  of  Discharged  Employe  i7i  Searching  for  Work: 
In  action   to  recover  amount  due  on   contract  of   service,   objec- 
tion to  plaintiff's  evidence  of  expenses  incurred  in  searching  for- 
other  employment  after  his  discharge  must  be  specific. 

Leslie  vs.  Joliet  Bridge  Co.,  149  App.  210. 

—  Preliminary  P^oof  of  Lost  Instruments:  Objection  to  suf- 
ficiency of  preliminary  proof  of  lost  instruments  must  be  specific. 

B.  &  O.  E.  R.  Co.  vs.  Bnibaker,  217  111.  4G2 ;  G.  P.  Shooting  Club  vs. 
Crosby,  181  HI.  266;  Gillespie  vs.  Gillespie,  159  111.  84. 

—  Court  Orders:  Where  a  general  objection  only  is  made  to 
introduction  of  order  of  court  authorizing  a  guardian's  sale  of 
land,  its  admission  cannot  be  assigned  as  error  on  the  ground  that 
the  record  in  the  case,  showing  jurisdiction  of  the  court,  was 
not  first  offered.  A  specific  objection  to  evidence  that  might  be 
obviated  comes  too  late  on  appeal  or  error. 

Benefield  vs.  Albert,  132  111.  665. 

—  Hypothetical  Question:    Objections  to  hypothetical  questions 

must  point  out  defects. 

People's  Casualty  Co.  vs.  Darrow,  172  111.  62;  Chi.  U.  Trae.  Co.  vs. 
Eoberts,  229  111.  481;  Simpson  vs.  Peoria  Ey.  Co.,  179  App.  307; 
XIV  111.  Notes,  851,  §  95. 

—  Fiecord  of  Former  Conviction:  The  objection  to  admission 
of  record  of  former  conviction  of  one  charged  with  crime,  that  de- 
fendant is  not  identified  as  person  formerly  convicted,  should  be 
specifically  made  on  trial,  so  that  it  might  be  obviated  by  other 
proof.     A  general  objection  Avill  not  save  the  point  on  appeal. 

Sullivan  vs.  People,  122  111.  385. 

—  As  to  Secondary  Evidence:  Objection  on  ground  of  sec- 
ondary evidence  must  be  specific. 

People  vs.  White,  237  111.  165;   Merchants  Bank  vs.  Dawdy,  230  111. 

199;  Mac-kin  vs.  Haven,  187  111.  480;  Eich  vs.  Trustees  of  Schools, 

158  111.  242 ;  People  vs.  Whalen,  151  A])p.  16. 

An  objection  to  oral  testimony  as  to  rule  of  railroad  company, 

on  ground  that  it  is  in  writing,  should  be  placed  specifically  on 

that  ground. 

St.  L.  A.  &  T.  H.  E.  E.  Co.  vs.  Bauer,  156  111.  106. 

—  Limits  of  Cross  Examination:  An  objection  that  the  in- 
quiry on  cross  examination  is  not  within  the  limits  of  the  exam- 
ination in  chief  must  specifically  point  out  the  ground  of  objec- 

I.  C.  E.  E.  Co.  vs.  Prickett,  210  111.  140;  Wrisley  vs.  Burke,  203 
111.  250. 


OBJECTIONS  877 

—  Competency  of  Witnesses:  A  specific  ohjoetion  is  essential, 
to  save  for  review,  objection  to  qualilication  ui"  witness  to  give 
opinion   with  respect  to  matter  in  controversy. 

Peebles  vs.  U  "Gara  Coal  Co.,  143  App.  ^TO;  Afl'd.,  239  111.  370. 
Objection   that   the   witnesses   were   not   qualitied   to   testify   to 
market  value  of  material  will  not  be  considered  where  the  only 
objection  made  to  such  evidence  wa§  that  the  price  of  material 
was  immaterial  under  the  issues. 

Schilliugei'  Bros.  vs.  Thompson  Co.,  171  App.  319, 

Time: 

—  At  Time  of  Introduction :  The  admission  of  incompetent 
evidence  will   not  reverse  where  no  objection   was  interposed   at 

time  of  introduction. 

Aiuer.  Ins.  Co.  vs.  Walston,  111  App.  133. 
If  cause  for  objection  to  testimony  is  apparent  at  time  it  is 
given,  motion  to  exclude  comes  too  late  after  witness  excused  from 

stand. 

E.  T.  St.  L.  &  W.  E.  E.  Co.  vs.  Stevenson,  122  App.  654. 

Objection  should  be  made  at  time  question  is  propounded. 

Kreigh  vs.  Sherman,  105  111.  49;  Gillett  vs.  Booth,  95  111.  183;  K.  S.  & 
L.  Co.  vs.  Kankakee,  128  111.  173;  XIV  111.  Notes,  852,  §  90. 
It   is   not   sufficient   objection  for  counsel   to   advise   the    court 
that  he  will  object  to  a  given  line  of  testimony,  but  objection  must 
be  made  after  question  is  stated. 

City  of  Charleston  vs.  Newman,  130  App.  6. 

—  On  Appeal:  Objections  cannot  be  made  for  first  time  on 
appeal. 

Fuller  vs.  Kelso,  163  App.  576;   People  vs.  C.  V.  &  C.  Ey.  Co.,  256 
111.  286. 
If  party  makes  objection  which  is  overruled,  he  does  not,  by  intro- 
ducing like  evidence  to  combat  that  admitted,  lose  his  rights  on 

appeal. 

Chi.  City  Ey.  Co.  vs.  Uliter,  212  111.  174;  Cf.  People  vs.  Newman,  261 
111.  11.     (See  Eelevancy.) 
A  document  otfered  in  evidence,  which  was  before  court,  will  be 
considered  as  having  been  formally  read  to  the  jury,  where  the 
objection  that  it  was  not  read,  is  first  made  on  appeal. 

Hefling  vs.  YanZandt,  162  111.   162. 

If  the  only  objection  to  the  admission  of  a  copy  of  a  will  was 
that  it  w^as  incompetent,  objection  that  it  was  inadmissible  be- 
cause  not   accompanied   by   properly   certified   order   of   probate 

court  cannot  be  urged  on  appeal. 

Deiterman  vs.  Euppel,  200  111.  199, 
Evidence  cannot  be  complained  of  by  party  who  opposed  its 
exclusion  and  objected  to  its  withdrawal  from  consideration  of 

jury, 

N,  Y.  C.  &  St.  L.  Ey.  Co.  vs.  Blumenthal,  160  111.  40;  C.  &  A.  E.  E. 
Co.  vs.  Pettit,   111  App.  172. 
A  general  objection  to  admission  of  a  note  that  it  is  irrelevant, 
incompetent  and  immaterial  does  not  permit  specific  objection  to 
be  made,  that  there  was  no  proof  of  its  execution. 

Brown  vs.  Schintz,  203  111.  136. 

—  Execution  of  Instruments:  Objection  as  to  execution  of  in- 
strument must  be  made  in  time  to  afi'ord  opportunity  of  supplying 

requisite  evidence. 

Lake  vs.  Brown,  116  111.  83. 


878  OBJECTIONS 

—  Depositions:     Absence   of  signature   cannot   be    objected   to 

for  first  time  on  appeal. 

Dorn  vs.  Rose,  177  111.  225;  Huff  vs.  Wells,  86  App.  186. 
An  objection   to  either  question  or  answer,   which   can  be  ob- 
viated by  retaking  depositions,  cannot  be  first  made  at  the  trial, 
but  must  be  made  upon  motion  to  suppress,  in  apt  time  before 

trial. 

Smith  vs.  Swigart,  149  App.  21. 

—  Secondanj  Evidence:     Objection  to  secondary  evidence  must 

be  made  at  trial. 

Condon   vs.   Brockway,   157   111.   90;    C.   C.   C.   &   St.   L.   By.   Co.   vs. 
Strong,  56  App.  6U-i. 

Objections  to  secondary  evidence  cannot  be  first  made  on  appeal. 

Waiss  vs.  Cannon,  146  App.  379. 

Although  judgment  was  taken  by  default,  where  appellants  had 

been  duly  served  with  process. 

Condon  vs.  Brockway,  157  111.  90. 

—  Competency  of  Witnesses:  Objection  to  incompetency  of 
witness  must  be  made  before  witness  is  examined  in  chief. 

Chi.  Trust  Co.  vs.  Sagola  Lumber  Co.,  148  App.  333. 

A  party  knowing  of  disqualification  of  a  witness  should  object 
before  testimony  is  given.  If  such  incompetency  is  known,  he 
cannot,  without  objection,  permit  witness  to  testify  and  then 
raise  question  of  disqualification  by  motion  to  exclude  the  evi- 
dence. 

Chi.  Trust  Co.  vs.  Sagola  Lumber  Co.,  242  111.  468. 

One  Avho  knows,  before  the  trial,  that  a  witness  is  incompetent 
because  of  his  mental  condition,  must  make  his  objection  before 
such  witness  has  given  any  testimony,  and  if  he  is  ignorant  of 
such  condition  before  the  trial  he  must  make  his  objection  as  soon 
as  such  condition  becomes  apparent. 
People  vs.  Enright.  256  111.  221. 

Objection  to  incompetency  of  witness  cannot  be  made  for  first 
time  on  appeal. 

Cotten  vs.  Sullivan,  162  App.  396;  Willenliorg  vs.  Murphy,  36  111.  344. 
Parties  cannot  permit  a  witness  to  testify  in  apparent  hope  of 
gaining  advantage,  and  for  first  time  on  appeal  question  his  com- 
petency. 

Holroyd  vs.  Milliard,  142  App.  392. 

To  Form  of  Question : 

The  objectionable  form  of  a  question  is  not  reached  by  an  ob- 
jection that  question  was  improper. 

Beyer  vs.  Peoria  Traction  Co.,  156  App.  47. 

Waiver: 

—  As  to  Cross  Examining  Witness:  An  objection  to  improper 
evidence  is  not  waived  by  a  cross  examination  of  the  witness  in 

respect  thereto. 

Aetnae  Ins.  Co.  vs.  Paul,  23  App.  611. 
But  error  in  admission  of  evidence  is  waived  by  the  objecting 
party  subsequently  examining  other  witnesses  on  same  point. 

Huling  vs.  Century  Pub.  Co.,  108  App.  549. 

^r- Offer  of  Evidence  After  Objection:  After  the  court  has 
overruled  defendant's  exceptions  to  the  admission  of  a  certain 
class  of  evidence,  the  defendant  may  introduce  evidence  of  same 


OBJECTIONS  879 

class  to  meet,  that  of  plaintiff  without  waiving  his  right  to  claim 
the  benefit  of  his  exceptions  on  appeal. 

Chicago  City  Ey.  Co.  vs.  Uhter,  ^12  111.  174;  Winn  vs.  Christian  Co;il 
Co.,  156  App.  179. 

—  Withdrawal  of  Objection:  An  objection  that  court  erred 
in  refusing  to  allow  defendant  to  testify  as  to  his  good  faith  in 
transaction  involved  is  waived  where  plaintiff  withdrew  his  objec- 
tion after  it  had  been  sustained,  and  stated  that  the  testimony 
might  be  admitted  without  objection,  but  defendant  declined  to 

avail  himself  of  such  withdrawal  and  did  not  testify. 
Crawford  vs.  Burke,  201  111.  581. 
An  objection  to  admission  of  evidence  may  be  waived  hy  con- 
duct of  objector  inducing  court  and  opposing  counsel  to  believe 

objection  has  been  withdrawn. 

Thommason  vs.  Wilson,  146  111.  384. 

—  By  Making  Specific  Objection:  When  a  specific  objection  is 
made  to  introduction  of  a  document,  it  is  a  waiver  of  all  other 
objections  which  might  be  obviated  by  proof.  So  when  the  only 
objection  made  to  a  tax  deed  is  the  defect  in  authority  of  officer 
to  make  the  sale,  it  may  be  regarded  as  an  admission  that  the 

title  and  proceedings  were  otherwise  valid. 
Garrick  vs.  Chamberlain,  97  111.  620. 
A  specific  objection,  based  solely  upon  a  particular  point,  is  a 
waiver  of  objections  to  all  other  points  not  specified  or  relied 

upon. 

Prairie  DiiEocher  vs.  Milling  Co.,  248  111.  57;  T.  H.  &  I.  R.  R.  Co. 
vs.  Voelker,  129  111.  540. 

—  By  Introducing  Like  Irrelevant  Evidence:  Where  the  ob- 
jecting party  has  introduced  irrelevant  testimony,  he  cannot 
complain  if  the  court  permits  the  adverse  party  to  produce  evi- 
dence of  like  irrelevant  nature  to  rebut  the  evidence  he  has  him- 
self offered. 

111.  steel  Co.  vs.  Wier^becky,  206  111.  201  ;  C.  C.  C.  &  St.  L.  Ey.  Co. 
vs.  Highsmith,  59  App.  651.     (See  Rebuttal.) 

Where  both  parties  introduce  incompetent  evidence  of  same 
kind,  neither  will  be  heard  to  complain  that  such  evidence  is  in- 
competent. 

Kuhn  vs.  Eppstein,  239  111.  555;  Whalen  vs.  Stevens,  193  111.  121; 
Moyer  vs.  Swygart,  125  111.  262;  Godsall  vs.  Joliet,  150  App.  519; 
Eeavelly  vs.  Harris,  145  App.  545 ;  XI  111.  Notes,  275,  §  1245. 

—  Failure  to  Object:  A  motion  to  strike  out  evidence  is  prop- 
erly denied  where  admitted  without  objection  or  any  promise 
on  part  of  plaintiff's  counsel  as  to  supplemental  evidence. 

Chi.  Un.  Trac.  Co.  vs.  May,  221  111.  530. 
A  party  who  has  allowed  a  Avritten  instrument  to  be  introduced 
in  evidence,   without  objection,   must  be   held   to   have   admitted 
that  it  is  evidence,  that  it  is  duly  executed,  but  not  that  it  is  suf- 
ficient evidence. 

Lowe  vs.  Bliss,  24  111.  168. 

A  party  cannot  sit  by  and  permit  evidence  to  be  introduced 

without  objection,  and  upon  appeal  urge  objection  which  might 

have  been  obviated  if  made  at  the  trial. 

Bartlow  vs.  C.  B.  &  Q.  B.  E.  Co.,  243  111.  332;  County  of  DuPage  vs. 
Comrs.,  142  111.  607;  Tarrant  vs.  Burch,  102  App.  393. 


880  OBJECTIONS 

Failure  of  defendant  in  foreclosure  proceeding  to  object  to 
oral  evidence  that  complainants  were  executors  of  deceased  mort- 
gagee's estate,  waives  point  that  proper  proof  of  the  fact  was 
not  offered. 

Maichal  vs.  Davis,  20G  111.  231, 

Failure  to  object  to  evidence  at  all  or  at  proper  time  or  in 
proper  manner  waives  right  to  subsequently  question  admissi- 
bility of  the  evidence. 

People  vs.  Weston,  28(5  111.  104;  Graham  vs.  People,  115  111.  566; 
Miller  vs.  Potter,  59  Ai>p.  1:J5. 

Right  to  object  is  not  necessarily  waived  by  reason  of  failure 
of  adverse  party  to  object  when  objecting  party  himself  offered 
the  irrelevant  testimony. 

FitzSimjiions  vs.  Braun,  199  111.  390. 

A  party  who  fails  to  object  to  evidence  when  offered,  on  ground 

of  variance,  and  to  point  out  such  variance,  waives  the  objection. 
Linqnist  vs.  Hodges,  248  111.  491;   Eeavely  vs.  Harris,  239  111.  526; 
Swift  &  Co.  vs.  Eutskowski,  182  111.  18;  Holman  vs.  Gill,  107  111. 
407;  I.  St.  L.  R.  E.  Co.  vs.  Estes,  96  111.  470. 

One  who  fails  to  object  to  a  question  until  after  it  is  answered, 

and  pursues  the  witness  with  questions  on  same  subject  on  cross 

examination,   after  court's  refusal  to   strike  out   answer,  cannot 

complain  of  evidence  on  appeal. 

Poehlman  vs.  Kurtz.  204  111.  418. 

Burden  of  Sustaining  Objection: 

The  presumption  is  that  one  offered  as  a  witness  is  competent 

to  testify,  and  burden  is  therefore  upon  one  who  objects,  to  state 

and  prove  grounds  of  his  objections. 

Boyd  vs.  McConnell,  209  HI.  396;  Campbell  vs.  Campbell,  130  111. 
466;  S.  C.  Inst.  vs.  Estate  of  Avery,  157  App.  568. 

Renewal : 

When  evidence  has  been  received  under  promise  that  a  link  nec- 
essary to  its  competency  will  be  established  by  other  evidence, 
and  a  motion  to  strike  out  such  evidence  is  made  and  overruled 
because  of  such  promise,  such  a  motion  must  be  renewed  if  such 
promise  is  not  kept,  in  order  to  urge  upon  appeal  the  incom- 
petency of  evidence  so  received. 

Chi.  City  Ey.  Co.  vs.  Hyndshavr,  116  App.  367. 

Where  an  objection  has  once  been  made  and  overruled,  it  need 
not  be  repeated  to  same  species  of  evidence,  and  party  is  under 
no  necessity,  to  make  exception  available,  to  renew  objection  when 
same  species  of  evidence  is  offered  by  same  party  a  second  or  third 

time. 

Mackin  vs.  Blythe,  35  App.  216;  Anglo  Pkg.  Co.  vs.  Baier,  20  App.  376. 

Excluding  Evidence: 

If  evidence  is  admissible  for  any  purpose,  it  should  not  be  ex- 
cluded. It  is,  however,  the  proper  practice  to  limit  such  evi- 
dence by  instruction  to  its  proper  office  in  the  ease. 

People  vs.  Hagenow,  236  111.  514;  People  vs.  Casey,  231  111.  261; 
Central  Ey.  Co.  vs.  Allmon,  147  111.  471;  Purdy  vs.  People,  140 
111.  46. 

The  correct  practice  is  to  move  to  exclude  the  answer  on  ground 


OBSTRUCTING  HIGHWAYS  881 

of  irresponsiveness,  and  if  no  such  motion  is  made,  the  objection 

that  answer  is  irresponsive  cannot  be  urged  on  appeal.  >• 

McMahon  vs.  Chi.  City  Ey.  Co.,   239  111.  334;   Wilson  vs.  Chi.   City 
By.,  15-i  App.  632. 
If  witness  answers  before  objection   could   be  interposed,   rul- 
ing should  be  obtained  by  motion  to  strike  out. 
Board  of  Trade  Tel.  Co.  vs.  Blunie,  176  111.  247. 
Where  copy  of  ordinance,  certified  under  hand  and  seal  of  vil- 
lage clerk,  is  received  in  evidence  without  objection,  on  motion  to 
exclude,  the  objection  that  such  ordinance  was  not  signed  by  presi- 
dent of  such  village  is  not  sufficient  ground  for  exclusion. 
Prairie  DuEocher  vs.  Milling  Co.,  248  111.  57. 

Exceptions : 

An  exception  must  be  taken  at  time  decision  is  made,  and  bill 

of  exceptions  must  show  that  fact. 
Feitl  vs.  Ey.  Co.,  211  111.  279. 

Deferred  Ruling-: 

An  objection  to  evidence,  competent  in  itself,  but  which  needs 
supplemental  evidence,  is  properly  overruled,  but  if  supplemental 
evidence  is  not  introduced,  objector  should  move  to  exclude. 

Schmitt  vs.  Kurrus,  140  App.  132;  Affd.,  234  111.  578. 

Erroneous  Ruling: 

Erroneously  sustaining  an  objection  that  a  question  was  lead- 
ing is  not  grounds  for  reversal  where  merits  of  case  are  not  affected. 
Wilson  vs.  Chi.  City  Ky.  Co.,  154  App.  632. 


OBSTRUCTING  HIGHWAYS 

See  Abandonment,  Dedication,  Eminent  Domain,  Admissions 
AND  Declarations. 
ADMISSIBILITY  OF  EVIDENCE. 
Location  of  Obstruction  and  Notice: 

When  a  notice  charges  a  person  with  obstructing  a  road,  such 
person  is  entitled  to  understand  from  the  notice  what  place  he  is 
obstructing,  so  he  may  ascertain  what  his  rights  are  and  then 
proof  must  correspond  with  this  notice. 

Town  of  Lovington  vs.  Adkius,  232  111.  510 ;  Farlow  vs.  Town  of  Camp 
Point,  186  111.  256. 
But  if  variance  is  only  apparent,  same  may  be  explained  by 
parol. 

People  vs.  Young,  72  111.  411. 
To  authorize  a  recovery  of  a  penalty  for  obstructing  highway, 
it  must   be   shown   by   preponderance   of   evidence   that  obstruc- 
tion erected  by  defendant  is  substantially  the  same  one  described 
in  the  declaration  and  in  notice  to  remove  obstruction. 
Town  of  Bethel  vs.  Prnett,  215  111.  162. 
Notice   is  not  necessary  to   authorize  recovery  for  obstructing 
road,  but  must  be  given  before  per  diem  penalty  for  allowing 

same  can  be  recovered. 

Seidsehlag  vs.  Town  of  Antioch,  207  111.  280;   Town  of  Madison  vs. 
Gallagher,  159  111.  105. 
Ev. — 5  6 


882  OBSTRUCTING  HIGHWAYS 

Evidence  of  obstruction  at  places  other  than  one  complained  of, 
and  by  other  persons  is  inadmissible. 
Littiech  vs.  Mitchell,  73  111.  603. 

Existence  of  Road: 

—  Prescription:  To  establish  a  highway  by  prescription,  the 
user  must  be  open,  notorious,  exclusive,  continuous  and  uninter- 
rupted for  fifteen  yeare,  and  must  be  under  claim  of  right  with 
the  knowledge  of  the  owner  but  without  his  consent. 

Palmer  vs.  City  of  Chicago,  248  111.  201 ;  Eose  vs.  City  of  Farmington. 
196  111.  226;   O 'Connell  vs.  Chi.  Term.  Co.,  184  111.  308;  XIV  111. 
Notes,  390,  §§11  et  seq. 
To  establish  a  common  law  dedication,  it  is  essential  that  the 
proof  be  clear  and  unequivocal  as  to  the  intention  of  the  propri- 
etor to  dedicate  to  public  use. 

City  of  Chicago  vs.  Wildman,  240  111.  215. 
And  must  be  on  a  definite  and  specific  line. 

City  of  Chicago  vs.  Gait,  224  111.  421;   Town  of  Bethel  vs.  Pniett, 
215  111.  162. 
And  evidence  as  to  location  of  traveled  track  in  establishing  a 
road  by  user,  should  be  limited  to  place  where  alleged  obstruc- 
tion was  placed. 

Seidsehlag  vs.  Town  of  Antioch,  207  111.  280. 

Road  not  laid  out  under  statute,  but  claimed  to  exist  by  dedi- 
cation or  prescription,   must  be   determined  by  fences  built  by 

owners  on  each  side  of  road. 

Town  of  Harmony  vs.  Clark,  250  111.  57 ;  Town  of  Bethel  vs.  Pruett, 
215  111.  162. 

But  it  is  not  competent  for  defendant  to  show  that  road  as 
obstructed  is  as  wide  as  the  highway  in  either  direction  from  ob- 
struction. 

Town  of  Whitney  vs.  Linville,  174  111.  579. 

—  Record  Evidence:  Where  statute  in  force  requires  all  pub- 
lic highways  laid  out  by  order  of  highway  commissioners  to  be 
not  less  than  four  rods  wide,  an  order  of  highway  commission- 
ers laying  out  a  road  forty  feet  wide  is  not  admissible,  to  show  a 

statutory  road  legally  established. 

Town  of  Lovington  vs.  Adkins,  232  111.  510. 
But  admissible,  if  properly  limited  in  competency  and  applica- 
bility, as  tending  to  show  the  line  of  travel  by  the  public  to  prove 

highway  by  prescription. 

Town   of  Harmony  vs.   Clark,   250   111.  57;    Seidsehlag  vs.   Town   of 
Antioch,  207  111.  280. 

Consent  to  Use  of  Land : 

Defendant  may  testify  he  never  gave  any  express  consent  to 

use  strip  of  land  as  public  highway. 

Town  of  Bethel  vs.  Pruett,  215  111.  162. 
He  may  testify  as  to  what  his  intention  was  and  such  testimony 
is  to  be   considered  in  connection  with  all  other  facts  and  cir- 
cumstances of  the  case. 

Rose  vs.  City  of  Farmington,   196  111.   226;   Town  of  Lovington  vs, 
Adkins,  232  111.  510. 
And  may  show  an  agreement  with  road  commissioners. 
Town  of  Bethel  vs.  Pruett,  215  111.  162. 


OBSTRUCTING  JUSTICE  883 

Road  Laid  Out  on  Different  Lines : 

In  action  against  adjoining  land  Owner  for  Obstructing  a  newly 
opened  highway,  defendant  may  show  the  commissioners  laid 
out  the  road  on  a  different  line  from  that  described  in  the  petition 
and  commissioners'  order,  over  land  in  which  they  acquired  no 

right. 

Farrelly  vs.  Town  of  Kane,  172  111.  415. 

Weight  and  Sufficiency: 

It  is  only  necessary  that  the  defendant's  guilt  should  be  estab- 
lished by  a  clear  preponderance  of  the  evidence. 

Town   of  Pardridg^e   vs.   Snyder,    78   111.   519;    Town   of  Havanna   vs. 
Biggs,  58  [11.  483;  C.  &  E.  I.  E   li.  Vo.  vs.  People,  44  App.  632. 


OBSTRUCTINa  JUSTICE 

See  Resistance  to  Officers. 
Tampering  with  Witness : 

—  Attempt  to  Suhorn  Witness:  In  Order  to  cOnvict  a  person 
of  endeavoring  to  incite  or  procure  another  to  commit  perjury, 
it  must  be  shown  that  the  accused  urged  the  witness  to  give  false 
testimony,  knowing  that  such  witness,  as  well  as  himself,  was 
aware  of  its  falsity.  It  must  appear  that  the  witness  would  have 
been  guilty  of  perjury  if  he  had  given  the  proposed  false  testi- 
mony, w^hich  could  not  be  unless  he  knew  it  to  be  false. 

If  the  proposed  witness  believes  what  he  is  asked  to  testify  to 
is  true  and  does  not  know  of  its  alleged  falsity,  he  will  not  be 
guilty  of  perjury  if  he  swears  to  it ;  and  in  such  case  the  person 
soliciting  the  witness  to  so  testify  cannot  be  convicted  of  endeavor- 
ing to  procure  such  witness  to  commit  perjury, 
Coyne  vs.  People,  124  111.  17. 

—  Causing  Witness  to  Abscond:  Parties  conspiring  together 
to  induce  persons  who  they  know  are  witnesses  in  a  criminal  case 
to  leave  the  jurisdiction  of  the  court  so  that  they  cannot  be  pro- 
duced as  witnesses  are  guilty  under  the  statute,  whether  the  testi- 
mony of  such  witnesses  would  be  material  and  result  in  the  con- 
viction or  acquittal  of  the  accused  or  not,  and  the  indictment  need 
not  aver  that  the  testimony  of  the  witnesses  was  material. 

The  guilt  or  innocence  of  the  person  at  whose  trial  the  witnesses 
should  have  testified  is  not  material,  and  proof  that  he  was  or 
was  not  guilty  is  properly  denied  admission. 
Tedford  vs.  People,  219  111.  23. 

Tampering  with  Jurors : 

It  is  not  essential  to  the  sufficiency  of  an  indictment  for  con- 
spiracy to  cause  certain  persons  to  be  summoned  as  jurymen  for 
the  purpose  of  obtaining  a  certain  verdict,  that  it  be  alleged  that 
some  one  of  the  conspirators  had  the  power  to  summon  the  jury- 
men or  cause  them  to  be  summoned. 
Gallagher  vs.  People,  211  111.  158. 

—  Jurisdiction:  An  indictment  alleging  conspiracy  to  procure 
a  false  verdict  in  a  cause  pending  before  a  certain  justice  of  the 
peace  charges  a  conspiracy  to  defeat  justice  in  a  public  court, 


884  OFFER  OF  EVIDENCE 

and  it  is  not  necessary  to  aver  the  justice  of  the  peace  had  juris- 
diction of  the  cause. 

Gallagher  vs.  People,  211  111.  158. 

—  Bes  Gestae:  Evidence  of  defendants  in  a  prosecution  for 
conspiracy  to  corrupt  a  jury  is  admissible  when  it  tends  to  con- 
tradict the  state's  case  in  connection  with  certain  alleged  acta 
done  pursuant  to  the  conspiracy  and  part  of  the  res  gestae. 

O'Donnell  vs.  People,  110  App.  250. 

OFFER  OF  EVIDENCE 

What  Constitutes  an  Offer: 

Where  no  statement  is  made  by  counsel  as  to  what  he  intended 
to  prove  by  a  witness,  and  no  question  is  propounded  to  him,  from 
which  it  can  possibly  be  inferred  that  he  knew  anything  of  the 
material  facts,  error  in  sustaining  objection  to  question  cannot  be 

successfully  urged. 

Corcoran  vs.  Poncini,  35  App.  130;  Gaffield  vs.  Scott,  33  App.  317; 

Nonotuck   Silk   Co.   vs.   Levy,    75   App.    55;    Hovrard   vs.    Tedford, 

70  App.  660;  Giddings  vs.  McCumber,  51  App.  373;  Hatterman  vs. 

Thompson,  83  App.  217;  XI  111.  Notes,  190,  §460. 

A  conversation  between  counsel  and  court,   to  the  effect  that 

counsel  desired  to  offer  evidence  upon  a  certain  question,  which 

the  court  declined  to  receive,  does  not  amount  to  an  offer  of  the 

evidence,  and  a  refusal  to  admit  it,  upon  which  an  assignment  of 

eri'or  can  be  based. 

Chi.  City  Ry.  Co.  vs.  Carroll,  206  111.  318. 
A  mere  statement  of  an  offer  to  prove  is  not  anything  upon 
which  a  court  is  called  to  act.    The  witnesses  should  be  called  and 

questioned,  or  documentary  evidence  produced. 

Martin  vs.  Hertz,  224  111.  84;  Stevens  vs.  Newman,  68  App.  549. 

Right  to  Make  Offer : 

—  Examining  Party:  The  examining  party  has  the  right  to 
make  an  offer  to  prove  the  facts  which  he  assumes  his  question 

will  elicit. 

Maxwell  vs.  Habel,  92  App.  510;   P.  &  C.  Ins.  Co.,  vs.  Weise,  80 
App.  499. 

—  Ixiglit  of  Adversary:  Party  may  offer  portion  of  document, 
but  adversary  may  offer  and  read  remainder. 

Slingloff  vs.  Bruner,  174  111.  561;  Vischer  vs.  N.  W.  E.  Ry.  Co.,  171 
App.  544. 

Form : 

—  Specificness  of  Offer:    Offer  must  be  specific. 

Goodrich  vs.  City  of  Chicago,  218  111.  19;   McLeod  vs.  Andrews,  116 
App.  646. 
Must  be  so  specific  as  to  put  court  in  the  wrong  in  refusing  to 

admit  it. 

Russell  vs.  Lake,  68  App.  440;  Kearney  vs.  Aetna  Ins.  Co.,  109 
App.  600. 
It  is  not  error  for  court  to  refuse  to  admit  evidence  which  con- 
stitutes no  defense  to  action,  but  which  may  be  proper  for  pur- 
pose of  impeaching  a  witness,  when  such  proof  is  offered  as  a 
defense  alone.  To  make  it  admissible  it  should,  be  offered  for 
the  purpose  of  impeachment  and  not  as  a  defense. 
^■^^''"  ■       Davis  vs.  Gibson,  70  App.  273. 


OFFER  OF  EVIDENCE  885 

Counsel  should  make  statement  of  what  he  expects  the  wit- 
ness will  answer. 

Ittncr  Brick  Co.  vs.  Asbby,  198  111.  3&2;  Home  Guardian  vs.  Holt, 
108  App.  578. 

When  the  materiality  and  relevancy  of  a  question  asked  is  ap- 
parent, it  is  not  necessary,  upon  objection,  to  state  what  is  ex- 
pected to  be  proven  by  it. 

Hair  Co.  vs.  Ma  nicy,  102  App.  570. 

Where    documentary    evidence    is    offered,    should    not    merely 
name  document  but  should  disclose  its  contents. 
Chi.  St.  Ey.  Co.  vs.  Capek,  GS  App.  500. 

—  Pari  Compelcnt:  When  the  offer  of  testimony  includes  that 
which  is  admissible  with  that  which  is  not,  and  the  competent  and 
incompetent  are  blended  together,  it  is  not  the  duty  of  the  court 
to  separate  the  legal  from  the  illegal,  but  the  whole  may  be  re- 
jected Avhen  objection  is  made. 

Donnan  vs.  Donnan,  25G  111.  244;  People  vs.  Venard,  168  App.  2.74; 
Crcssy  vs.  Kimmel,  78  App.  27;  Eiemensnider  vs.  Eiemensnider, 
179  App.  209. 

—  Exhibits  En  Masse:    It  is  improper  to  offer  en  masse  a  large 

number  of  exhibits. 

Dowie  vs.  Priddle,  IIG  App.  184. 

Re-offer : 

Wliere  counsel  has  obtained  the  ruling  of  the  court  that  proof 
sought  to  be  introduced  is  incompetent,  and  has  saved  his  excep- 
tion, he  need  not  press  the  question  further  in  order  to  preserve 

the  error. 

Maekin  vs.  Blythe,  35  App.  216. 

But  the  rule  that  where  an  adverse  ruling  has  once  been  ob- 
tained, and  exception  taken,  other  offers  governed  by  such  rul- 
ing need  not  be  made  has  no  application  to  questions  excluded  on 
the  ground  of  improper  cross  examination  wdien  defendant  comes 

to  put  in  defense. 

Hansen  vs.  Miller,  44  App.  550. 

If  letters  have  been  rejected  on  ground  that  they  are  second- 
ary   (no  notice   to  produce   having  been  served)    they  should   be 
re-offered  if  proof  subsequently  develops  a  claim  upon  the  part  of 
the  addressee  that  the   original  letters  had  never  been  received. 
Int.  Text  Book  Co.  vs.  Mackhorn,  158  App.  543. 

Presence  of  Jury: 

If  the  court  should  be  of  the  opinion  that  statement  of  counsel 

is  not  made  in  good  faith,  or  that  it  is  calculated  to  improperly 

influence  the  jury,  the  jury  may  be  ordered  to  retire  while  the 

statement  is  being  made,  or  it  may  be  made  to  the  court  so  as  not 

to  be  heard  by  the  juiy. 

Maxwell  vs.  Habel,  92  App.  510. 

After  the  case  had  been  argued  by  counsel  to  the  jury,  the 
court  permitted  counsel  to  offer,  in  presence  of  jury,  to  prove 
certain  things  by  a  witness  who  had  previously  testified  in  the  case, 
which  offer  the  court  overruled.  The  permitting  the  offer  to  be 
made  was  complained  of  as  error.  While  the  witness  was  pre- 
viously on  the  stand,  counsel  attempted  to  state  what  was  ex- 
pected to  be  proven  by  him,  but  the  court,  on  objection,  refused 


886  OFFICERS 

to  permit  an  offer  of  proof.  Counsel  have  the  riglit  to  make 
an  offer  of  proof  for  the  two-fold  purpose  of  informing 
the  court  of  what  is  expected  to  be  proven,  and  of  preserving  an 
exception  to  the  exclusion  of  the  offered  evidence,  and  there  was 
no  error  in  permitting  the  offer  to  be  made. 

F.   &   C.   Ins.   Co.   vs.   Weise,   80   App.   499;    C.   &   A.   E.   E.   Co.   vs. 
Shenk,  131  111.  283. 

As  to  Competency  of  Witnesses : 

If  a  witness  be  exlcuded   from  testifying  as  incompetent,   an 
offer  as  to  what  he  will  testify  to  is  not  essential  to  save  for  re- 
view the  question  as  to  his  competency. 
Kolber  vs.  Fi-ankenthal,  1.59  App.  382. 

But  where  a  witness  sought  to  be  examined  is  competent  as 
to  certain  facts,  but  not  as  a  general  witness,  and  he  is  objected 
to  as  incompetent,  the  party  desiring  his  testimony  should  state 
what  he  proposes  to  prove  by  him,  so  that  the  court  may  know  that 
it  is  proper.  Otherwise  the  court  cannot  say  there  is  any  en-or 
in  refusing  to  allow  him  to  testify. 

Stewart  vs.  Kirk,  69  111.  509 ;  Hobby  vs.  Ogden,  72  App.  242. 


OFFICERS 

See  Quo  Warranto,  Parol,  Records,  Certificates,  Judicial 
Notice. 

EXISTENCE  OF  OFFICE. 
Information  in  Nature  of  Quo  Warranto : 

An  information  in  the  nature  of  a  quo  ivarromto  will  not  lie  to 
try  the  legal  title  of  the  relator  to  an  alleged  office  which  in  fact 
and  in  law  has  no  legal  existence,  and  the  legal  existence  must  be 
affirmatively  shown. 

People  vs.  Freeman,  242  111.  1.52;  Hedrick  vs.  People,  221  111.  374. 

And  an  office  cannot  be  legally  established  by  proof  of  the  ap- 
propriation of  pul)lic  money,  by  ordinance,  to  the  payment  of  the 
salary  or  compensation  of  person  acting  as  such  officer.       Nor  by 

mere  appointment  and  confirmation  by  council. 

Hedrick  vs.  People,  221  111.  374;  Moon  vs.  Mayer,  214  111.  40. 

Collaterally  in  Question: 

The  doctrine  that  there  cannot  be  a  de  facto  officer  where  there 
is  not  an  office  de  jnre  has  no  application  to  a  case  where  a  city 
council  is  authorized  by  statute  to  create  an  office,  and  a  person 
is  found  exercising  the  function  and  duties  of  such  office.  In  such 
case  it  will  be  presumed  tliat  the  person  so  acting  in  a  public 
capacity  is  duly  authorized,  until  contrary  is  shown ;  and  it  is 
not  material  how  the  question  arises,— whether  in  a  civil  or  crim- 
inal cas^, — nor  whether  the  officer  is  or  is  not  a  party  to  the  rec- 
ord,  unless,   being  plaintiff,   he   unnecessarily   avers   title   to   the 

office. 

North  vs.  People,  139  111.  81. 

ELIGIBILITY. 

Presumption : 

The  election  and  commission  of  one  to  a  particular  office  raises 


OFFICERS  887 

a  strong:  prpsnmption  of  his  eligibility  and  this  presumption  must 
be   overcome   by   satisfactory  evidence  before  incumbent  can   be 

ousted. 

Smith  vs.  People,  44  111.  16;  People  vs.  Connell,  28  App.  285. 
TITLE  AND  TENURE. 
Claim  of  Rights  as  Officer: 

When  one  claims  rights  as  an  officer  by  virtue  of  his  office,  it 
must  appear  that  the  office  legally  exists,  and  that  he  is  lawfully 
entitled  to  hold  same,  and  to  exercise  the  duties  and  powers 
thereof.  He  must  sliovv  that  he  is  an  officer  dc  jure.  It  is  not 
enough  that  as  to  the  pu])lic  or  as  to  third  persons  he  is  acting 
in  an  official  character,  and  that  as  to  them  his  acts  in  his  official 
capacity  have  the  force  and  virtue  of  the  acts  of  an  officer  de 

jure. 

Moon  vs.   Mayer,   214  111.   40;    People  vs.   City   of  Chicago,   210   111. 
479;   Stott  vs.  City  of  Chicago,  205  111.  281;   Mayfield  vs.  Moore, 
53  111.  428. 
Where  an  officer  justifies  the  commission  of  an  act  complained 
of,  which  purported  to  be  done  in  his  official  capacity,  it  is  nec- 
essary that  he  should  show  in  defense  not  only  that  he  was  an  act- 
ing officer,  but  also  that  he  was  an  officer  duly  commissioned  and 
qualified  to  act  as  such ;  while  as  to  all  others,  it  is  sufficient  for 

him  to  show  that  he  was  acting  as  such  officer. 

Schlencker  vs.  Eisley,  4  111.  483;  Larsen  vs.  Ditto,  90  App.  384. 

Person  acting  in  public  employment  under  color  of  appoint- 
ment, presumed  legally  appointed. 

Colder  vs.  Bressler,  105  111.  419. 

Continuance  in  Office : 

Ordinarily,  when  a  fact  or  relation  is  once  shown  to  exist,  it 

will   be  presumed  to  continue ;   but  it  is  doubtful   whether  such 

presumption  will  prevail  when  applied  to  an  annual  office,  like 

that  of  city  attorney. 

Linck  vs.  City  of  Litchfield,  141  111.  469. 

DUTIES. 
Presumption: 

The   presumption   always   is   that  public   authorities   do   their 

duty  when  performance  is  collaterally  questioned. 

State  vs.  I.  C.  E.  E.  Co.,  246  111.  188;  City  of  Peoria  vs.  Cen.  Natl. 
Bank,    224   111.   43;    Hogue   vs.    Corbett,    156   111.   540;    People   vs. 
Trustees,  87  111.  41;  Niantic  Bank  vs.  Dermis,  37  111.  381;  Conwell 
vs.  Watkins,   71   111.  488;   Woodward  vs.  Donovan,   167  App.  503; 
XII  111.  Notes,  476.  §  24. 
Where  certificate  of  public  officer  contains  contradictory  state- 
ments compliance  with  law  is  presumed. 
Clark  vs.  Glos,  180  111.  556. 
No  presumption  can  be  indulged  that  a  public  officer  will  do 

that  which  the  law  forbids  him  to  do. 

Lieb  vs.  Henderson,  91  111.  282;   People  vs.  A.  T.  &  S.  P.  Ey.  Co., 
261  111.  33. 
Nor  is  there  any  presumption  that  officers  assumed  to  do  that 
which  thev  had  no  authority  or  jurisdiction  to  do. 
Shields  vs.  Eoss,  158  111.'  214. 
It  will  not  be  presumed  that  engineer's  estimate  is  a  mistake  or 

a  fraudulent  one. 

City   of  Chicago  vs.   Underwood,   258   111.   116;    City  of  Chicago  vs, 
McChesney,  240  111.  174. 


888  OFFICERS 

Burden  of  Proof: 

A  sheriff  refusing  or  neglecting  to  levy  an  execution  upon  per- 
sonal property  in  possession  of  the  debtor,  can  discharge  himself 
from  liability  for  false  return  only  by  showing  that  the  property 

was  not  subject  to  levy,  and  the  burden  of  proof  rests  ui)on  him. 
Second  Natl.  Bank  vs.  Gilbert,   174  111.  485;   People  vs.  Palmer,  46 
111.  398;  Bonnell  vs.  Bownuui,  53  111.  460. 

ADMISSIBILITY  OF  EVIDENCE. 
Actions  on  Official  Bonds: 

—  Bond:  Certified  copy  of  an  official  bond  is  admissible  in  evi- 
dence without  preliminary  proof  of  the  loss  of  the  original. 

Estate  of  Eanisey  vs.  People,  197  111.  572. 

—  Approval:     May  be  shown  by  parol. 

Bartlett  vs.  Board  of  Education,  59  111.  364;   Estate  of  Ramsey  vs. 
People,  197  111.  572. 

—  Estoppel:  If  a  public  officer  gives  a  bond  under  which  he 
is  allowed  to  receive  money  and  does  actually  receive  it  b.y  virtue 
of  his  office,  he  and  his  sureties  are  estopped  to  deny  the  validity  of 

the  bond. 

Estate  of  Ramsey  vs.  People,  197  111.  572. 

Sureties  cannot  be  permitted  to  deny  official  character  of  prin- 
cipal. 

Meyer  vs.  Wiltshire,  92  111.  395;  Allbee  vs.  People,  22  111.  533. 

—  Admissions:     In  suit  on  treasurer's  bond,  an  admission  by 

him  that  he  owed  the  township  a  certain  amount  is  evidence  of 

that   fact,    not   only   against  himself  but   against   his   co-obligors. 
Swift  vs.  Trustee's  of  Schools,   189    111.   581;    L'hode  vs.  McLean,   101 
111.  467;  People  vs.  Title  G.  &  S.  Co.,  156  App.  488. 

And  if  such  admission  be  proved,  liis  successor  in  office  may, 

without  producing  the  books,  testify  that  the  books  showed  that 

the  party  had  received  such  an  amount  and  failed  to  turn  it  over. 
Swift  vs.  Trustees  of  Schools,  189  111.  584. 

—  Books  and  Records:  Where  the  books  upon  which  the  en- 
tries of  a  public  officer  are  made  are  such  as  the  law  requires  to 
be  kept  so  that  they  constitute  the  official  record  of  the  acts  per- 
formed by  him  in  the  discharge  of  his  official  duties,  such  entries 
are,  on  general  principles,  admissible  in  evidence  for  or  against 
all  persons  having  any  interest  in  them  or  the  facts  to  which  they 

relate,  including  the  officer  and  sureties  on  his  bond. 

Cassidy  vs.  Trustees  of  Schools,  105  111.  560;  Building  Association  vs. 
Cochrane,   103  App.  29. 

And  this  whether  the  entries  were  made  by  official  or  his  book- 
keeper, the  presumption  being  that  he  would  not  permit  improper 
or  incorrect  charges  to  stand  uncorrected. 
Cawley  vs.  People,  95  111.  249. 

So  the  report  of  a  county  treasurer,  in  his  handwriting,  pre- 
sented to  county  board,  as  well  as  record  of  board  approving  them, 
are  competent  evidence  against  his  sureties  in  action  on  his  official 
bond. 

Stern  vs.  People,  102  111.  541. 

Where  books  upon  which  entries  of  a  public  officer  are  made 
are  such  as  law  requires  to  be  kept,  so  that  they  constitute  the 
official  record  of  the  acts  performed  by  him  in  discharge  of  his 


ORDER  OF  PROOF  889 

official  duties,  such  entries  ai-e  cnnelnsive  upon  principal  and  sure- 
ties. 

Town   of   Cicero   vs.   Grisko,    240    111.    220;    Cowdon   vs.    Trustees   of 

Schools,  23.5  111.  604;  Loiifjau  vs.  Taylor,  1.30  111.  412;  Fogarty  vs. 

Ream,  100  Til.  ?A\G;  XIII  111.  Notes,  1030,  §2.''). 

But  records  which  require  an  adjudication  or  approval  by  a 

court  are  not  conclusive  until  so  ai)proved  or  adjudicated  upon. 

People  vs.  Hull'uiau,  182  111.  390. 


OPINION  EVIDENCE 

See  Expert  and  Opinion, 


ORDER  OF  PROOF 

See  Offer  of  Evidence,  Cross  Examination,  Leading  Ques- 
tions,  Impeachment,   Rebuttal,   Recalling   Witnesses. 
Determination  of  Order: 

The  order  in  which  evidence  shall  be  received  is  a  matter  rest- 
ing wholly  in  the  discretion  of  the  trial  court. 

Mayer  vs.  Breusinger,  ISO  111.  110;  Board  of  Comrs.  vs.  Harlev,  174 

III.  412;  Brenuan  vs.  People,  113  App.  361;   Busse  vs.  Hemp,  48 

App.  195;  Floto  vs.  Floto,  233  111.  605;  XIV  111.  Notes,  848,  §§  73, 

et  seq. 

The  order  of  testimony,  both  as  regards  the  examination  of  the 

particular  witnesses  and  the  general  course  of  the  trial  is  within 

the  discretion  of  the  court. 

McEuiry  vs.  Tri-City  Ey.  Co.,  179  App.  152. 

A  party  has  a  right  to  introduce  his  evidence  in  the  order  he 

may  prefer,  provided  he  will  connect  it  and  thus  render  it  material 

to  the  issue. 

Mix  vs.  Osby,  62  111.  193;   Wilding  vs.  Horner,  50  111.  50. 

The  order  in  which  a  party  shall  otfer  his  evidence  is  for  his 
counsel  to  determine,  unless  it  is  made  to  aj^pear  to  the  court 
that  some  undue  advantage  of  the  opposing  party  is  thereby  at- 
tempted. 

MeDaniel  vs.  Logi,  143  111.  487. 

The  usual  practice  is  that  the  party  upon  whom  the  burden  of 
proof  rests  must,  in  the  first  instance,  produce  all  the  proof  he 
proposes  to  offer,  and  after  his  adversary  has  closed  his  proof, 
he  may  only  introduce  such  proof  as  directly  rebuts  that  of  his 

adversary. 

Muller  vs.  Eebham,  94  111.  142. 
The  time  of  receiving  evidence  is  much  in  the  court's  discre- 
tion and  it  would  not  be  ground  for  reversing  a  judgment  that 
evidence   was  permitted   to  be  introduced  in  rebuttal  which   in 

strictness  was  not  properly  so  receivable. 
Upstone  vs.  People,  109  111.  169. 

Evidence  Depending-  on  Preliminary  Proof: 

Where  evidence  is  offered  whicli,  at  the  time,  does  not  appear 
to  have  any  relation  to  the  case,  and  the  offer  to  introduce  is  not 


890  ORDER  OF  PROOF 

accompanied  by  a  statement  that  its  relevancy  will  appear  in  the 
progress  of  the  trial,  it  may  properly  be  rejected,  and  its  exclu- 
sion under  such  circumstances  will  not  become  erroneous  because 
it  may  afterwards  become  relevant  in  the  further  development  of 
the  ease;  in  such  event  the  rejected  evidence  should  be  offered 
again,  when,  if  excluded,  exception  will  lie. 

Lonergan  vs.  Stewart,  55  111.  44;  City  of  Alton  vs.  Hartford  Ins.  Co., 

72  111.  328;    Dunning  vs.   Mathews,   16  111.   308;   Cf.   Comstoek   vs. 

Gage,  91  111.  328. 

It  often  happens  that  a  case  must  be  established  by  a  number 

of  facts,  any  one  of  which  by  itself  would  be  of  little  weight,  but 

all  of  which,  taken  together,  would  prove   the   issue.     Evidence 

which,  standing  alone,  may  not  be  sufficient  to  make  out  a  case, 

may  aid  in  doing  so.     Testimony  not  manifestly  relevant  should 

not  be  excluded  where  its  relevancy  may  be  made  to  appear  by 

proof  aliunde.     The  ciuestion  is,  whether  the  offered  proof  tends 

to  support  the  defense  or  cause  of  action.     All  evidence  tending 

to  prove  either  of  the  material  facts  is  admissible,   although   it 

may  not  alone  establish  the  whole  case. 

Central  Ey.  Co.  vs.  AUniou,  147  111.- 476;  City  of  Chicago  vs.  Dalle, 
115  111.  386. 
It  is  the  right  of  a  party,  when  he  offers  evidence  in  its  proper 
order,  which  proves  or  tends  to  prove  any  necessary  fact  in  the 
case,  to  have  it  go  to  the  jury,  for  the  reasonable  presumption  is 
that  it  will  be  followed  by  such  other  proof  as  is  necessary  for  its 
proper  connection,  and  if  it  is  not,  it  then  becomes  irrelevant  aud 

if  desired,  may  be  withdrawn  from  the  jury. 

Rogers  vs.  Brent,  10  111.  573;   Chi.   City  Ey.  Co.  vs.  Hyndshaw,   116 
App.  367, 
Where  evidence  is  refused  admission  on  general  objection  court 
sustaining  objection  for  sole  reason  as  to  order  of  proof  should  so 

state. 

Teenies  vs.  Johnson,  179  App.  32. 

It  is  proper  to  permit  testimony  to  be  offered  upon  promise  of 
counsel  it  would  be  subsequently  connected  with  transaction  in 
issue,  but  should  be  excluded  unless  evidence  is  subsequently  of- 
fered which  tends' to  show  its  relevancy.  It  is  not  necessary  that 
it  be  connected  by  undoubted  evidence.  If  sufficient  evidence  is 
offered  to  make  it  a  fair  question  of  fact  for  the  jury,  it  should  not 

be  excluded. 

People  vs.  Smith,  254  111.  167. 

Party  may  first  show  the  acts  and  statements  of  one  claiming 

to  be  an  agent,  to  bind  the  principal,  if  he  will  follow  it  with 

proof  of  the  agency,  and  show  the  agent's  acts  were  within  the 

scope  of  his  authority. 

Mix  vs.  Osby,  62  111.  193. 
It  is  competent  for  plaintiff,  in  action  for  causing  the  intox- 
ication of  her  husband,  to  testify  to  the  fact  of  intoxication  and 
damage  sustained  by  reason  thereof,  before  proving  that  defend- 
ant caused  the  intoxication,  in  whole  or  in  part,  although,  in  order 
to  recover,  she  must  prove  the  latter  fact  in  some  way,  either  by 
her  own  testimony  or  others. 

Hall  vs.  Barnes,  82  111.  228. 


ORDER  OF  PROOF  891 

A  plat  intended  to  be  used  in  evidence  should  first  be  shown 
to  be  correct  but  when  it  is  exhibited  and  used  for  reference  without 
such  preliminary  proof,  and  where  no  evidence  is  afterwards  in- 
troduced of  its  correctness,  such  use  is  not  reversible  error. 
Williams  vs.  Carterville,  97  App.  160. 

Admission  of  evidence  on  promise  to  supply  necessary  prelimi- 
nary proof  is  prejudicial  error  when  such  evidence  is  not  sup- 
plied. 

Hoxsey  vs.  St.  L.  &  S.  Ey.  Co.,  171  App.  76. 

Where  the  power  of  an  agent  to  make  a  contract  is  disputed, 
the  most  convenient  and  natural  course  to  pursue  is,  first,  to  es- 
tablish the  fact  that  an  agreement  was  made,  by  showing  its  terms 
and  the  names  of  the  parties  who  officiated  in  settling  them,  and 
then  to  show  that  those  who  assumed  to  act  had  the  requisite  au- 
thority to  do  so. 

E.  &  P.  Ej.  Co.  vs.  Cecil,  112  111.  ISO. 

After  Both  Parties  Have  Rested: 

After  a  party  has  closed  his  evidence  it  is  a  matter  of  discre- 
tion whether  the  court  will  permit  him  to  give  further  testimony, 
and  the  exercise  of  such  discretion  is  not  reviewable. 

People  vs.  Lukozsus,  242  111.  101;  Hartrich  vs.  Hawes,  202  111.  334; 
First  Natl.  Bank  vs.  L.  E.  W.  Ey.  Co.,  174  111.  36;  Washington 
Ice  Co.  vs.  Bradley,  171  111.  255;  C.  &  N.  W.  Ey.  Co.  vs.  Janiieson, 
112  App.  69;  Eowley  vs.  Hughes,  40  111.  316;  Hunt  vs.  Wier,  29 
111.  83. 

After  Argnment  of  Counsel: 

The  admission  of  testimony  after  the  arguments  have  been,  made 
and  the  instructions  read,  rests  in  the  discretion  of  court,  and 
the  exercise  of  such  discretion  is  not  ground  for  reversal  unless 
some  injury  has  been  occasioned  to  the  party  complaining. 

Schwittors  vs.  Springer,  236  111.  271;  I.  I).  &  W.  Ey.  Co.  vs.  Hendriau, 
190  111.  501;  Stivers  vs.  Conklin,  103  App.  288;  Maxwell  vs.  Durkin, 
185  111.  546;  Eobinson  vs.  Kirkwood,  91  App.  54;  Busse  vs.  Hemp, 
48  App.  195. 
The  discretion  is  not  an  arbitrary  but  a  judicial  discretion. 
I.  D.  &  W.  Ey.  Co.  vs.  Hendrian,  190  111.  501. 

Re-opening-  Case : 

Court  may  allow  plaintiff  to  re-open  his  case  and  introduce  addi- 
tional evidence  after  motion  to  direct  verdict. 
Garretson  vs.  Fox,  154  App.  58. 

Anticipation  of  Defense : 

Party  anticipating  that  evidence  will  be  introduced  in  rebut- 
tal may  introduce  same. 

Kenny  vs.  Marquette  Cement  Co.,  149  App.  173. 
Court  may,  in  its  discretion,  allow  plaintiff  to  anticipate  a  sug- 
gested defense  and  produce  evidence  to  refute  it. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  144  App.  38;  Dimmick  vs.  Downs,  82 
111.  570. 
The  court  may  permit  a  party  to  introduce  evidence  in  support 
of  his  ease  or  defense  during  the  cross  examination  of  his  adver- 
saries witnesses  but  the  refusal  of  such  permission  is  not  error. 

McEniry  vs.  Tri-City  Ey.  Co.,  179  App.  152. 

In  slander  for  having  charged  plaintiff  with  having  confessed 
to  a  person  that  she  stole  the  money  of  another,  when  defendant 


892  ORDINANCES 

seeks  to  justify,  there  is  no  error  in  allowing  plaintiff  to  prove  by 
such  person  that  no  confession  was  made,  before  defendant  iiad 
offered  any  evidence  in  reference  to  the  alleged  confession. 
Hintz  vs.  Graupuer,  138  ill.  158. 
But  in  action  to  recover  damages  for  alleged  libel,  it  is  im- 
proper to  permit  plaintiff,  in  first  instance,  before  any  other  evi- 
dence is  given,  to  introduce  witnesses  to  testify  as  to  his  general 

character, 

Aetna  Ins.  Co.  vs.  Paul,  23  App.  611. 

Documentary  Evidence: 

Defendant  is  not  entitled  to  introduce  documentary  evidence 
until  plaintiff  has  closed  his  case  in  chief. 
Osgood  vs.  Poole,  165  App.  63. 

Proceeding's  to  Contest  Will: 

Opinions  of  experts,  based  upon  facts  testified  to  by  witnesses 
of  will  proponent,  should  be  offered  before  such  proponent  closes 
his  evidence  in  chief,  but  after  contestants  have  offered  their 
proof  as  to  testamentary  capacity,  such  experts  may  be  exam- 
ined as  to  their  conclusions  drawn  from  such  proof. 
Albrecht  vs.  Hittle,  248  111.  72. 

Pending-  Cross  Examination: 

It  is  proper  to  refuse  to  allow  a  party  to  introduce  evidence 
during  the  cross  examination  of  a  witness  for  the  adverse  party. 
Wheeler  &  Wilson  vs.  Barrett,  70  App.  222. 

Except  by  consent  of  parties  and  permission  of  the  court  a  de- 
fendant cannot,  on  cross  examination  of  plaintiff's  witness,  open 
up  his  defense  by  interrogating  such  witness  in  chief. 
Wheeler  &  Wilson  vs.  Barrett,  172  111.  610. 

When  witness  admits  on  cross  examination  his  signature  to 
a  document  which  tends  to  impeach  his  testimony,  such  instru- 
ment is  properly  excluded  as  evidence  until  offered  as  rebuttal.  Hav- 
ing laid  the  foundation  for  such  evidence  by  the  question  to  the  wit- 
ness on  cross  examination,  the  proper  time  to  offer  the  paper  as 
impeaching  evidence  would  be  when  it  came  turn  of  adversary 

to  offer  evidence. 

Payton  vs.  Morgan  Park,  172  111.  102. 

Trials  by  Court: 

Where  case  is  tried  by  court  without  a  jury,  it  is  proper  for 
court  to  permit  a  party  to  re-open  case  and  introduce  further  evi- 
dence. 

Burgener  vs.  Lippold,  128  App.  590. 


ORDINANCES 

See  Judicial  Notice,  Motives,  Speed,  Sidewalks. 
Presumptions : 

—  Validity  of  Ordinance:  The  presumption  is  always  in  fa- 
vor of  the  validity  of  a  statute  or  ordinance  passed  in  pursuance 
of  competent  legal  authority.     If  the  facts  shown  are  susceptible 


ORDINANCES  893 

of  tAvo  constructions,  one  of  wliicli   will   support  and  the  other 

defeat  the  statute,  the  formej-  will  be  adopted. 

Springfield  vs.  Postal  Tel.  Co.,  253  111.  340;  People  vs.  G.  T.  Ry. 
Co.,  232  111.  292;  Ry  Co.  vs.  Averill,  224  111.  516;  Harmon  v^. 
City  of  Chicago,  140  111.  374;  City  of  Springfield  vs.  Postal  Tel. 
Co.  164  App.  276;  XIII  111.  Notes,  750-751,  §§85,  et  seq. 

An  ordinance  re^ilating  the  operation  of  railroad  trains  within 
city  limits  is  presuinptively  a  valid  exercise  of  police  power,  and 
before  it  can  be  held  to  be  invalid,  it  must  be  manifest  that  the 
discretion  of  the  city  authorities  has  been  arbitrarily  and  unrea- 
sonably exercised. 

C.  E.  I.  &  P.  Ry.  Co.  vs.  Steckmau,  224  111.  500;  C.  &  A.  R.  R.  Co. 
vs.  Averill,  224  111.   516. 

The  production  of  a  duly  certiiied  copy  of  an  ordinance  of  a 

city   acting   under   the   general   incorporation   law,   affords  prima 

facie  evidence  that  every  step  has  been  taken  with  reference  to 

it  to  make  it  a  valid  ordinance.     If  the  party  against  whom  the 

ordinance  is  sought  to  be  used  desires  to  controvert  the  fact  that 

it  was  duly  passed  by  a  majority  vote  on  the  call  of  the  ayes  and 

noes,  it  devolves  upon  bim  to  produce  the  journal,  and  thereby 

overcome  the  prima  facie   case  made  by  the  production  of  the 

ordinance,  or  a  certified  copy  thereof. 

Prairie  DiiRoclier  vs.  Milling  Co.,  248  111.  57;  Lindsay  vs.  City  of 
Chicago,  115  111.  120;  I.  C.^E.  R.  Co.  vs.  Collison,  134  App.  443. 

—  Reaso7iaJ)lencss  of  Ordinances:  Ordinances  are  presumed 
to  be  reasonable  when  passed  within  powers  of  city. 

City  of  Chicago  vs.  Shaw  Livery  Co.,  258  111.  409;  City  of  Springfield 
vs.  Postal  Tel.  Co.,  164  App.  276;  Conrad  vs.  Springfield  Ry.  Co., 
145  App.  565. 

—  From  Bool-s  and  Pamphlets:     Printed  book  or  pamphlet  is 

pritna  fade  proof  of  ordinance. 

McGregor  vs.  Village  of  Lovington,  48  App.  202. 

The  book  of  ordinances  of  a  village  incorporated  under  the  gen- 
eral law,  containing  an  ordinance,  is  prima  facie  evidence  of  its 

passage. 

Barr  vs.  Village  of  Auburn,  89  111.  361. 

—  Continvance  of  Ordinance:  Presumption  is  that  ordinance 
shown  to  have  been  passed  is  still  in  force,  unless  contrary  ap- 
pears. 

St.  L.  A.  &  T.  H.  Ry  Co.  vs.  Eggmann,  161  111.  155. 

Burden  of  Proof : 

Burden  of  showing  ordinance  unreasonable  rests  upon  party 

seeking  to  set  same  aside. 

C.  &  A.  Ry.  Co.  vs.  Averill,  224  111.  516. 
City  authorities  are  vested  with  broad  discretion  in  the  mat- 
ter of  making  local  improvement,  and  burden  is  on  objector  to 
show  an  improvement  ordinance  is  unreasonable, 

Marshall  vs.  Peoi^le,  219  111.  99. 
It  is  not  incumbent  upon  party  offering  ordinance  in  evidence 
to  prove  that  the  book  of  revised  ordinances  offered  by  him  was 
the  latest  revision.  It  is  sufficient  to  prove  the  existence  of  such 
ordinance,  and  if  it  has  been  repealed  or  superseded  by  a  later 
ordinance,  the  opposing  party  has  burden  of  showing  same. 

Goetz  vs.  Koehler,  20  App.  233. 


894  ORDlNAxNCES 

Admissibility  of  Evidence  Generally : 

—  Books  and  Pamphlets:  Where  the  ordinances  of  a  city  or 
viUage,  incorporated  under  the  general  law,  are  printed  in  a  book 
or  pamphlet  form,  purporting  to  be  published  by  authority  of 
city  council  or  board  of  trustees,  such  book  or  pamphlet  is  evi- 
dence of  passage  and  contents  of  ordinances  therein  contained, 
and   of   their   legal   publication. 

Lindsay   vs.   City   of  Cliicago,   115   111.    120;    People  vs.   Maxon,   139 
111    306;   I.  C.  E,   E.  Co.  vs.  Warner,   229   111.   91;    Baxter  vs.   C. 
C.  C.  &  St.  L.  Ey.  Co.,  151  App.  118;   I  C.  E.  E.  Co.  vs.  White- 
akre,  122  App.  331;   Hinchliff  vs.  Eobinsou,   118  App.  450;   XIII 
111.  Notes,  752,  §  105. 
The  court  may  refuse  to  admit  in  evidence  an  ordinance  printed 
in  a  book  which  does  not  appear  to  have  been  published  by  the 
authority  of  the  municipality  claimed  to  have  adopted  it. 
L.  N.  A.  &  C.  Ey.  Co.  vs.  Patchen,  167  111.  204. 
Though  not  styled  precisely  as  required  by  the  ordinance  di- 
recting its  publication,  printed  book  or  pamphlet  is  admissible  if 
it  purports  to  be  published  by  the  authority  of  the  city  council. 
C.  &  A.  E.  E.  Co.  vs.  Winters,  65  App.  435. 
A  book  entitled  "Charter  and  Revised  Ordinances  of  the  City 
of  Bloomington,  with  the  Statutes  of  the  State  of  Illinois  and  Con- 
stitutional Provisions  Relating  to  the  City  of  Bloomington,"  etc., 
purporting  to  be  published  by  the  authority  of  the  city  council,  is 
sufficient  to  entitle  it  to  be  received  asi  evidence  of  the  passage 
and  publication  of  such  ordinances. 

C.  &  A.  E.  E.  Co.  vs.  Winters,  65  App.  435, 
Pamphlet  bearing  on  its  title  page,  "Revised  ordinances  of  the 
town  of  Petersburg,  adopted  10th  September,  1867.  Printed  and 
published  by  authority  of  Board  of  Trastees  of  said  town  of  Pet- 
ersburg. Printed  at  the  Menard  County  Axis  office,  by  C.  Clay, 
1867."     Held,  properly  admitted. 

Hensoldt  vs.  Town  of  Petersburg,  63  111.  111. 
Admitting  in  evidence,  a  pamphlet  of  ordinances  not  purport- 
ing to  be  puUisked  by  the  authority  of  the  village  trustees  but  only 
to  be  revised  and  compiled  by  such  authority  is  harmless,  where 
original  ordinance,  in  manuscript  form,  with  the  record  proof  of 
its  passage,  is  also  introduced. 

Winn  vs.  C.  G.  C.  &  St.  L.  Ey.  Co.,  239  111.  132. 
A  pamphlet  containing  a  city  ordinance,  but  not  purporting  to 
be  a  publication  of  the  ordinance  by  authority  of  city  council,  is 
not  admissible  to  establish  such  ordinance,  though  the  book  con- 
tains official  record  of  proceedings  of  city  council. 
Bullis  vs.  City  of  Chicago,  235  111.  472. 
The  certificate  of  the  village  clerk,  printed  on  a  pamphlet  or 
printed  ordinances,  certifying  that  such  pamphlet  was  published 
by  the  authority  of  the  president  and  board  of  trustees  of  the 
village,  entitles  the  pamphlet  to  be  received  as  evidence  of  the 
passage  and  legal  publication  of  the  ordinances  of  the  village. 
C.  &  E.  I.  E.  E.  Co.  vs.  Beaver,  199  111.  34. 
Ordinance  is  not  proven  by  introduction  of  pamphlet  purport- 
ing to  contain  same,  but  which  does  not  purport  to  have  been  pub- 


0RDINANCP:S  895 

lished  by  authority  of  council,  and  where  no  certificate  has  been 

appended  thereto. 

Kroll  vs.  C.  B.  &  Q.   Ry.  Co.,   150  App.  438  j    I.  &  I  M.  R.  R.  Co. 
vs.  Minuihan,  129  App.  333. 

—  Ordinance  Record:  Where  mayor  testified  that  the  book  from 
which  the  ordinances  were  read,  marked  "City  Records,"  was  the 
original  record  of  the  city,  wlierein  was  recorded  all  city  ordi- 
nances; that  it  was  kept  in  the  office  occupied  by  city  clerk  and 
himself,  and  he  had  access  to  it,  the  ordinances  were  sufficiently 
proven  to  permit  them  to  be  read  in  evidence  without  proof  of 

their  pu})lication. 

City  of  Eoekford  vs.  Hildebrand,  61  111.  155. 

—  Copies  of  Ordinance:  All  ordinances  of  a  city  or  village 
incorporated  under  the  general  law,  and  their  publication,  may 
be  proven  by  certificates  of  the  city  or  village  clerk,  under  seal 
of  the  corporation.  A  certified  copy  of  an  ordinance,  under 
seal  of  corporation,  made  by  the  clerk,  will  have  the  same  force 
and  effect  as  evidence  as  a  printed  book  of  ordinances,  which  is 
made  evidence  of  the  publication  and  passage  of  an  ordinance. 

Prairie    DuRoeher    vs.    Milling    Co.,    248    111.    57 ;    Lindsay   vs.    City 
of  Chicago,  115  111.  120;  I.  C.  R.  R.  Go.  vs.  Collison,  134  App.  443. 

A  certified  copy  of  the  ordinance  attested  by  the  clerk,  under  seal 

of  the  corporation,   is  competent  evidence  of  the  passage  of  the 

ordinance. 

T.  H.  &  I.  R.  E.  Co.  vs.  Voelker,  129  111.  540;   Pendergast  vs.  City 
of  Peru,  20  111.  52. 
Copies  of  ordinance,  certified  by  city  clerk,  authenticated  by 
corporate   seal,   are   admissible   though   ordinance  not   signed   by 

Mayor. 

T.  H.  &  I.  R.  R.  Co.  vs.  Voelker,  129  111.  540. 

Copies  of  ordinances  and  council  proceedings,  certified  by  clerk, 

are  competent. 

Boyd  vs.  C.  B.  &  Q.  Ry.  Co.,  103  App.  199. 

A  copy  of  a  special  assessment  ordinance,  properly  certified  to 
be  a  true  copy  of  the  original  made  upon  a  blank  from  which,  ap- 
parently, the  printed  matter  not  corresponding  with  the  original 
ordinance,  was  stricken  out  and  other  provisions  inserted  with 
pen  and  ink,  and  making  ordinance  harmonious  throughout,  is 
properly  admitted  in  evidence  without  extrinsic  explanation  of 

the  change. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Gage  vs.  City  of  Chicago,  223 

111.  602. 

Clerk's  certificate  is  not  invalidated  by  an  interlineation,  where 

city  attorney  testifies,  without  contradiction,  that  he  made  same 

by  consent  of  the  clerk,  and  in  his  presence,  and  before  certificate 

was  signed. 

Sargent  vs.  Evauston,  154  111.  268. 

A  printed  copy  of  a  certificate  by  president  of  board  of  trus- 
tees and  village  clerk  to  the  effect  that  ordinances  contained  in 
the  pamphlet  wherein  such  printed  copy  of  the  certificate  ap- 
pears, are  true  and  correct  copies  of  the  ordinances  of  the  vil- 
lage, is  of  no  legal  effect  as  a  certificate,  and  a  variance  between 
the  certificate  and  the  memorandum  appearing  at  the  bottom  of 


896  ORDlxNANCES 

an  ordinance  as  to  date  of  passage  and  publication  does  not  af- 
fect the  ordinance  nor  render  it  inadmissible  whei'e  pamphlet 
purports  to  be  printed  by  authority. 

I.  C.  K.  E.  Co.  vs.  Warner,  229  111.  91. 

Ordinances  are  properly  proved  by  copies  sworn  to  upon  the 
trial,  by  witness  as  having  been  compared  by  him  with  the  orig- 
inals and  found  to  be  true  and  correct  And  this  dispenses  with  the 
necessity  of  producing  the  originals  and  makes  copies  of  the 
ordinances  original  evidence  without  any  certificate  whatever. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Bender,  09  App.  26:3;  City  of  Chicago 
vs.  English,  80  App.  163. 

Ordinances  of  foreign  state  may  be  proved  by  sworn  copy. 

L.  N.  A.  &  C.  E.  E.  Co.  vs.  Shires,  108  111.  617. 

—  Adoption:  It  is  improper  to  receive  evidence  which  merely 
goes  to  the  motive  by  which  a  municipality  is  actuated  in  pass- 
ing an  ordinance. 

City  of  Aniboy  vs.  I.  C.  E.  E.  Co.,  236  III.  237. 

But  matters  of  fact  appearing  on  face  of  ordinance  may  be 
considered  in  determining  its  validity. 

People  vs.  Wieboldt,  233  111.  572;   Smith  vs.  McDowell,  148  111.  51; 
Ligare  vs.  Chicago,  135  111.  46. 

And  may  be  determined  from  the  records  of  tlie  city  council. 

Deland  vs.  Dixon  Power  Co.,  225  111.  212;  People  vs.  Clean  Street  Co., 
225  in.  470. 

The  journal  of  the  village  board  must  show  that  an  ordinance 
received  the  concurrence  of  the  majority,  and  such  fact  cannot 
be   supplied   by  parol. 

People  vs.  Ehoades,  231  111.  270;  People  vs.  McCullough,  210  111.  488. 

—  To  Fix  Penaltij  for  Violation  of  Ordinance :  In  suit  by  a 
city  for  violation  of  a  smoke  ordinance,  proof  that  the  building 
was  equipped  wdth  a  heating  plant  of  the  most  approved  type, 
and  that  owner  had  done  all  that  skill  could  devise  to  prevent  the 
smoke  from  escaping  from  the  stack,  should  be  admitted  for  con- 
sideration of  jury,  to  guide  them  in  fixing  the  penalty. 

City  of  Chicago  vs.  Knobel,  232  111.  112. 

—  To  Show  Creation  of  Monopoly  hy  Ordinance:  Where  an 
ordinance  for  pavement  to  be  constructed  by  lowest  responsible 
bidder  requires  the  cement  to  be  made  from  asphaltum  "obtained 
from  Pitch  Lake,  in  the  Island  of  Trinidad,"  evidence  that  such 
lake  is  owned  by  a  single  corporation  engaged  in  manufacturing 
cement,  and  that  the  asphaltum  from  such  lake  is  not  superior 
to  that  used  by  competing  cement  manufacturers,  may  be  intro- 
duced to  show  that  the  ordinance  tends  to  prevent  competition 
and  to  create  a  monopoly. 

Fishburn  vs.  City  of  Chicago,  171  111.  338. 

—  Financial  Effect  of  Ordinance:  Financial  effect  of  an  ordi- 
nance fixing  rate  of  water  company,  is  admissible  upon  question 

of  reasonableness  of  such  rate. 

L.  F.  Water  Co.  vs.  Lake  Forest,  154  App.  184. 

Admissibility  of  Ordinances : 

—  In  General:     Ordinances  of  city  are  admissible  on  question 

of  notice  bv  citv  of  defects  and  obstructions  of  streets. 
Bibbins  vs.  City  of  Chicago,  193  111.  359. 


ORDINANCES  897 

—  As  Determined  hy  the  Pleadings:    When  a  cause  of  action  is 

predicated  on  an  ordinance,  the  ordinance  must  be  specially  pleaded, 

but  when  invoked  as  a  defense,  it  is  admissible  under  a  plea  of 

general  issue. 

Flynii  vs.  Chi.  City  Ej.  Co.,  250  111.  460;  Echert  vs.  Collot,  46  App. 
361. 

Where  an  ordinance  is  pleaded,  although  in  an  imperfect  man- 
ner, court  may  admit  it  in  evidence  at  trial  in  aljsence  of  a  de- 
murrer to  the  declaration. 

I.  C.  E.  E.  Co.  vs.  Ashline,  171  111.  313. 
Though  title  of  ordinance  may  be  defectively  stated  it  may  be 
admitted. 

DeScheppers  vs.  C.  E.  I.  P.  Ey.  Co.,  179  App.  298. 
In   action   against   railway   company   for   injury   by   escape    of 
fire   from   locomotive,   an   ordinance   limiting   speed  of   passenger 
trains  within  the  city,  is  admissible,  when  count  sets  out  ordinance. 
L.  E.  &  W.  Ey.  Co.  vs.  Middlecoff,  150   111.  27. 
An  ordinance  may  be  properly  excluded  where  there  is  no  alle- 
gation in  the  declaration  of  an  ordinance  regulating  the  matter. 
U.  S.  Brew.  Co.  vs.  StoUenberg,  211  111.  531;  I.  C.  E.  E.  Co.  vs.  God- 
frey, 71  111.  500;  Flyim  vs.  Chi.  City  Ey.  Co.,  158  App.  405. 

—  Authentication:  The  original  ordinance  under  which  a  spe- 
cial tax  for  a  sidewalk  was  levied  is  admissible  in  evidence  upon 
application  for  judgment  of  sale,  when  identified  by  testimony  of 
city  clerk. 

People  vs.  Smith,  201  111.  454. 

—  Admissihility  in  Whole  or  in  Part:  In  prosecution  for  vio- 
lation of  a  particular  section  of  an  ordinance,  it  is  proper  to 
admit  entire  ordinance,  where  such  practice  will  aid  jury  in  a 
fair  understanding  of  the  particular  section  forming  tiie  basis 
of  the  prosecution. 

Weinberg  vs.  Village  of  Augusta,  116  App.  423. 

—  Defective  or  Irregidar  Ordinances:  Where  negligence 
charged  is  driving  engine  through  city  without  warning,  con- 
trary to  ordinance,  such  ordinance  is  admissible  regardless  of 
defects  in  same,  where  company  operated  in  conformity  with  its 
provisions. 

Eoseuthal  vs.  C.  &  A.  E.  E.  Co.,  164  App.  221. 

Where  clerk's  certificate  to  an  ordinance  shows  when  the  ordi- 
nance was  passed  and  published,  and  is  complete  in  everj^  way 
except  that  it  has  no  date,  the  want  of  a  date  is  not  ground  for 
excluding  the  ordinance. 

Collison  vs.  I.  C.  E.  E.  Co.,  239  111.  532. 

The  fact  that  clerk's  certificate  is  attached  to  face  of  improve- 
ment ordinance  and  refers  to  the  "foregoing  ordinance,"  instead 

of  being  attached  to  back  of  same,  is  not  material. 
Heiple  vs.  City  of  Washington,  219  111.  604. 

—  Effect  of  Recital  of  Reason  for  Passage:     A  city  ordinance 

otherwise   competent  cannot  be  rejected   as  evidence  because   of 

recitals  in  the  preamble  giving  reasons  for  its  passage. 
P.  Ft.  W.  &  C.  Ey.  Co.  vs.  Lyons,  159  111.  576. 

—  Different  Ordinances  Covering  Same  Subject  Matter:  A 
"fire  ordinance"  fixing  the  penalty  for  piling  lumber  within  cer- 

Ev.— 5  7 


898  ORDINANCES 

tain  distance  of  any  wood  working  establishment,  having  been 
introduced  on  question  of  damages  by  defendant  in  proceeding 
to  condemn  a  strip  of  land  otf  a  tract  leased  by  it  for  a  box  fac- 
tory and  for  storing  lumber,  the  petitioner  may  introduce  a  ' '  build- 
ing ordinance,"  passed  later,  reducing  the  distance  fixed  by  the 
lire  ordinance. 

Cook  &  Co.  vs.  Sanitary  District,  177  111.  599. 

—  In  Actions  for  Injuries  from  Defective  Sidewalks:  An  ordi- 
nance requiring  the  owners  of  abutting  property  to  repair  a  side- 
walk, passed  some  months  prior  to  time  plaintiff  was  injured  on 
such  walk,  is  admissible  to  show  notice. 

City  of  Beardstown  vs.  Clark,  204  111.  524. 

Ordinances  of  city,  when  sued  for  injury  resulting  from  neglect 
to  keep  sidewalks  in  a  safe  condition,  are  admissible  when  they 
tend  to  show  it  has  control  thereof  and  had  taken  the  streets 
under  its  cognizance.  Such  ordinances  are  relevant  to  the  issue 
and  therefore  proper  evidence,  and  if  likely  to  mislead,  the  de- 
fendant  should   ask   instructions   to   obviate   such   tendency   and 

confine  the  evidence  to  its  legitimate  puipose. 
City  of  Eockford  vs.  Hildebrand,  61  111.  155. 

Where  negligence  alleged  is  permitting  obstructions  to  remain 
for  several  months,  ordinances  making  it  the  duty  of  policemen 
to  endeavor  to  remove  obstructions  from  sidewalks  or  report  the 
same  to  the  department  of  public  works  are  admissible  on  ques- 
tion of  notice  unless  such  notice  is  not  controverted. 
Bibbius  vs.  City  of  Chicago,  193  III.  359. 

Ordinances  of  defendant  city  making  it  the  duty  of  certain 
officials  to  keep  the  streets  and  sidewalks  in  good  condition,  are 
admissible,  the  purpose  of  the  evidence  being  to  show  that  com- 
plaints of  defective  condition  of  the  walk  were  made  to  the  proper 
parties. 

City  of  Gibson  vs.  Murray,  216  111.  589. 

—  Regulating  Driving  of  Horses:  Ordinance  regulating  the 
driving  of  horses  on  public  streets  is  properly  admitted  in  action 
for  damages  from  careless  driving,  where,  by  instruction,  the 
jury  are  left  to  determine  whether  defendant  violated  the  ordi- 
nance, and  if  so,  whether  its  violation  caused  or  contributed  to 

the  injury. 

Brink's  City  Express  Co.  vs.  Kinnare,  168  111.  643. 

—  Regulating  Street  Railivays:  In  aetion  for  an  injury  by 
being  thrown  under  a  passing  car  while  attempting  to  hold  a 
frightened  horse,  a  city  ordinance  providing  that  upon  the  ap- 
pearance of  danger  to  any  person  upon  or  near  the  track,  the  car 
must  be   stopped,   if  an  injury  will   thereby  be   averted   is   not 

admissible. 

Eockford  City  Ey.  Co.  vs.  Blake,  173  111.  354. 
In  action  for  wrongful  ejection  from  a  street  car,  by  a  con- 
ductor who  refused  to  accept  transfer,  an  ordinance  showing  the 

validity  of  transfers  is  admissible. 

Chi.  U.  Trae.  Co.  vs.  Bretthauer,  223  111.  522. 

An  ordinance  providing  when  cars  shall  stop  at  street  inter- 
sections is  incompetent  for  purpose   of  showing  where   a  street 


ORDINANCES  899 

car  should  stop  at  a  point  where  the  cars  merely  turn  a  street 
corner. 

W.  Chi.  St.  Ry.  Co.  vs.  Brown,  112  App.  351. 
An  ordinance  requiring  an  electric  railway  to  maintain  guard 
wires  above  the  electric  wires,  where  the  wires  of  other  com- 
panies are  suspended  above  them,  is  not  admissible  in  action  against 
a  telegraph  company  for  injuries  received  by  a  lineman  in  its 
employ  coming  in  contact  with  an  uninsulated  and  unguarded 
feed  wire  of  such  railway  company,  where  the  offered  evidence  is 
not  accompanied  by  any  promise  to  show  that  tlie  telegraph  com- 
pany relied  upon  compliance  by  the  railway  company  with  the 

ordinance. 

Postal  Telegraph  Co.  vs.  Likes,  225  111.  249. 

Proof  of  ordinance  restricting  speed  of  a  car  over  a  bridge,  in- 
admissible where  there  was  no  negligence  charged  based  upon  speed 
of  ear. 

E.  A.  &  S.  Trac.  Co.  vs.  Hench,  132  App.  535. 
—  Regulating  Railroads:  Ordinance  providing  that  trains  when 
backing  "shall  have  a  conspicuous  light  in  the  rear  car  or  en- 
gine," etc.,  is  admissible  under  evidence  that  servants  of  defend- 
ant, in  the  night  time,  uncoupled  the  rear  car  of  a  switching  train 
Avhile  moving  backwards,  and  "kicked"  it  in  upon  a  siding  with- 
out a  light. 

C.  &  A.  E.  E.  Co.  vs.  O'Neil,  172  111.  527. 

Where  the  negligence  charged  is  the  violation  of  a  city  ordi- 
nance regulating  the  movement  of  trains  within  the  city  limits, 
the  ordinance  is  admissible  in  evidence,  as  proof  of  its  existence 
is  a  necessary  part  of  plaintiff's  case. 

E.  St.*L.  By.  Co.  vs.  Eggmaun,  170  111.  538;  I.  C.  R.  E.  Co.  vs.  Gil 
bert,  157  111.  354;  St.  L.  A.  &  T.  H.  Ry.  Co.  vs.  Eggmann,  161  111. 
155. 

In  action  for  negligence  in  running  a  train  of  cars  at  a  pro- 
hibited rate  of  speed,  a  section  of  the  ordinance  regulating  the 
speed  of  trains  was  offered  in  evidence  and  admitted.  The  authen- 
ticity of  the  ordinance  was  admitted,  but  the  admission  of  the 
same  was  objected  to  upon  various  specific  grounds,  but  not  upon 
the  ground  that  it  was  not  in  force  at  time  of  death  of  intestate. 
The  defendant,  by  admitting  the  authenticity  of  the  book  of  ordi- 
nances, and  raising  no  objection  as  to  date  of  ordinance,  raised  a 
strong  inference  that  the  ordinance  appeared  by  the  book  to  have 

been  in  force  at  date  of  accident. 

A.  T.  &  S.  F.  Ry.  Co.  vs.  Feehan,  149  111.  202. 
Ordinance  requiring  the  continuous  ringing  of  a  locomotive  bell 
within  two  hundred  feet  of  street  crossings  is  admissible  under 
averment  in  declaration  charging  negligence  in  failing  to  ring 
such  bell  for  eighty  rods  before  reaching  such  crossing,  where 
proof  made  that  the  crossings  are  so  numerous  as  to  make  the  ring- 
iug  for  two  hundred  feet  and  for  eighty  rods  practically  the  same 
thing. 

I.  C.  E.  E.  Co.  vs.  Ashline,  171  111.  313. 
Ordinance   restricting   the   speed   of   ti'ains   is   incompetent   in 
action  for  injuries  arising  from  a  collision  of  the  trains  of  two 


900  ORDINANCES 

companies,   where   such   ordinance    is   offered   by   defendant    for 

purpose  of  showing  contributory  negligence  of  plaintiff,  who  was 

a  fireman  on  one  of  the  trains,  and  who  did  not  have  control  of 

the  operation  thereof. 

C.  &  A.  Ry.  Co.  vs.  Vipond,  11^  App.  558. 

—  Regulating  Tanks  and  Boilers:  Where  the  declaration 
counted  upon  an  ordinance  which  made  it  unlawful  to  operate  a 
tank  subject  to  steam  pressure  without  hrst  having  obtained  the 
inspection  and  approval  thereof  by  inspector  of  boilers,  and  the 
evidence  showed  that  the  tank  in  question  was  subject  to  steam 
pressure,  not  only  at  time  of  accident,  but  occasionally  prior 
thereto,  the  ordinance  was  properly  admitted. 

Natl.  Woodenware  Co.  vs.  Smith,  108  App.  477. 

— -Street  Extensions:  In  proceeding  to  condemn  land  for  the 
extension  of  a  street,  under  petition,  the  jury  have  nothing  to  do 
with  the  ordinance  and  it  is  ther(>fore  enough  to  set  it  out  in 
the  petition.  Its  sufficiency  to  authorize  the  proceeding  to  con- 
demn is  for  the  court  alone. 

Cahill  vs.  Village  of   Norwood  Park,   149  111.   156. 

Weight  and  Sufficiency : 

—  Ordinance  Books:  Book  of  ordinances  published  by  au- 
thority of  proper  persons  is  sufficient  to  establish. 

Plantc  vs.  I.  C.  R.  R.  Co.,  14S  App.  609. 
Record  book  of  ordinances,  showing  ordinances,  attestation,  ap- 
proval and  proof  of  posting,  is  sufficient  to  establish  proper  post- 
ing of  ordinances. 

Douglas  vs.  Wabash  Ry.  Co.,  149  App.  612. 

—  To  Show  Existence  of  Ordinance:  The  existence  of  one  ordi- 
nance is  not  proven  by  introduction  in  evidence  of  resolutions 
and  other  ordinances,  referring  to  purported  ordinance. 

Bullis  vs.  City  of  Chicago,  235  Til.  472. 

—  To  Show  Failure  to  Pass  Ordinance:  To  overcome  the  prima 
facie  proof  made  by  introduction  of  book  of  ordinances  in  evi- 
dence it  is  not  sufficient  that  the  journal  of  the  proceedings  of 
the  municipal  corporation  has  cast  a  doubt  upon  the  validity  of 
the  ordinance  by  giving  incorrectly  the  date  of  its  passage  and 
the  title  of  the  chapter  in  which  it  is  included,  but  it  must  be 
shown  that  the  ordinance  was,  in  fact,  never  passed. 

C.  &  A.  Ry.  Co.  vs.  Wilson,  225  111.  50. 

—  To  Show  Puhlieation:  The  certificate  of  the  village  clerk 
of  the  due  publication  of  an  ordinance  is  made  by  the  statute  suf- 
ficient evidence  of  that  fact.  Whether  published  in  book  or  pam- 
phlet form,  or  written  notice  of  its  passage  has  been  posted  in 
the  village  is  immaterial.     It  is  sufficient  to  publish  same  in   a 

newspaper  of  the  village. 

Moss  vs.  Village  of  Oakland,  88  111.   109;   Chamberlain  vs.  Litchfield, 
56  App.  652. 

Such  certificate  must  show  time  and  place  of  publication. 

TTiitchiiison   vs.    Mt.   Vernon,   40   App.    19. 

Degree  of  Proof : 

In  action  to  recover  penalty  or  fine  for  the  violation  of  a  town 


OUSTER  901 

ordinance,  it  is  error  to  instruct  ibe  jury  that  a  preponderance 
of  the  evidence,  only,  is  required  to  convict. 

Euth  vs.  City  of  Abingdon,  SO  111.  418;   A.  T.  &  S.  F.  Ry.  vs.  Peo- 
ple, 227  111.  270;  T.  P.  &  W.  liy.  Co.  vs.  Foster,  43  111.  480. 

Validity : 

Question  whether  ordinance  is  valid  cannot  be  left  to  the  jury.' 
The  only  question  for  the  jury  is  whether  the  evidence  establishes 
a  violation  of  the  terms  of  the  ordinance. 

City  of  Bushnell  vs.  C.  B.  &  Q.  Ey.  Co.,  259  111.  391. 

Objections: 

Waiver  of  objection  on  grounds  of  absence  of  seal  from  certifi- 
cate of  city  clerk  to  improvement  ordinance  results  from  failure 
to  object  upon  such  ground  at  time  of  its  introduction. 

Billings  vs.  City  of  Chicago,  167  111.  3r)7. 

Specific  objection  is  essential  to  save  the  question  of  defect  in 
certificate. 

Ewert  vs.  Village  of  West  Springs,  180  111.  318. 


OUSTER 

Weight  and  Sufficiency: 

—  By  Co-Tcnant:  To  establish  ouster  by  a  co-tenant,  the  evi- 
dence must  be  stronger  than  is  necessary  to  establish  ordinary 
adverse  possession. 

Long  vs.  Morrison,  251  111.  143;   Lambert  vs.  Hemler,   244  111.  254; 
Nickrans  vs.  Wilk,  161  111.  76;  XI  111.  Notes  70,  §  80. 

—  Breach  of  Covenant:  It  is  sufficient  to  show  that  there  was, 
at  the  time  the  covenant  was  made,  a  person  in  possession  hold- 
ing under  an  apparent  title. 

Moore  vs.    Vail,   17  111.   185. 
Or  an  eviction  under  a  paramount  title,  the  act  of  the  grantor. 
Joneg  v§.  Wq,rner,  81  lU.  343 ;  Dugger  vs.  Oglesby,  3  App.  94. 


OWNERSHIP 

See  Title. 
Necessity  of  Proof : 

Where  the  question  of  ownership  is  one  of  inducement,  proof 
thereof  is  not  necessary  unless  ownership  is  expressly  denied. 

Brimhikl  vs.  Union  Trac.  Co.,  239  111.  621  ;  Chi.  Trac.  Co.  vs.  Jerka, 
227  111.  95;  Johnson  vs.  Johnson,  166  App.  422;  City  vs.  Durham 
Tug  Co.,  161  App.  307;  Cohen  vs.  Toy  Gun  Mfg.  Co.,  170  App.  611; 
Wendelin   vs.   Chi.   City   Ey.   Co.,    170   App.   374;    Clark   vs.   Wisr. 
Cent.  Ey.  Co.,  177  App.   620;   Thomas  vs.  Anthony,   261   111.   288. 
Where  a  liability  is  charged  against  a  railway  company,  on  ac- 
count of  acts  of  negligence  committed  by  its  lessee,  unless  there 
is  a  special  plea  denying  the  relationship  of  lessor  and  lesssee,  the 
defendant  will  be  regarded  as  having  admitted  the  relationship. 
If  defendant  wishes  to  challenge  right  in  which  plaintiff  sues,  or 
character  in  which  defendant  is  sued,  it  must  be  done  by  special 

pleas. 

Taylor  vs.  P.  &  E.  E.  E.  Co.,  156  App.  151. 


902  OWNERSHIP 

A  plea  of  the  general  issue  filed  by  city  in  action  against  it  for 
injuries  sustained  upon  an  alleged  street,  does  not  admit  the  ex- 
istence of  such  street  and  its  control  by  such  city. 

Campton  vs.  Decatur,    J5J    A])p.   161. 

Presumption  from  Possession : 

—  Chattels  Generally:  Party  in  possession  of  personal  prop- 
erty is  presumed  to  be  the  owner  of  it,  possession  being  one  of 
the  strongest  evidences  of  title  to  personal  property. 

Gilbert  vs.  Natl.  Cash  Eeg.  Co.,  176  111.  288;   Johnson  vs.  Milmine, 
150  App.   208. 

The  possession  of  personal  property  is  prima  facie  evidence  of 
ownership,  and  the  assertion  that  such  property  belongs  to  an- 
other will  not  rebut  presumption  that  it  is  property  of  possessor. 
Eoberts  vs.  Haskell,  20  111.  59. 

The  fact  a  party  was  in  actual  possession  of  a  building,  which 
was  personal  property,  making  and  paying  for  repairs  upon  it, 
offering  to  sell  it,  and  exercising  other  acts  of  ownership,  furnish 
presumptive  evidence  of  ownership  in  him,  subject  to  be  rebut- 
ted by  adverse  claimant.  If  it  be  shown  such  person  was  agent, 
employed  to  superintend  making  such  repairs,  then  no  title  could 

be  based  upon  such  acts  of  ownership. 

Amiek  vs.  Young,  69  111.  542. 

The  possession  of  personal  property  is  prima  facie  evidence  of 
ownership,  but  it  may  in  most  cases  be  rebutted.  The  possession 
of  agents,  factors,  brokers,  common  carriers,  warehousemen,  me- 
chanics and  bailees  of  like  character  is  not  fraudulent  per  se.  In 
such  cases  the  possession  must  be  shown  to  accompany  the  owner- 
ship to  render  such  property  liable  for  the  debts  of  the  custo- 
dian of  the  property. 

Peters  vs.  Smith,  42  111.  417. 

Possession  of  personal  property,  is  prima  facie  evidence  of  own- 
ership, sufficient  until  overcome  by  proof,  yet  the  prima  facie 
case  created  by  the  possession  may  be  rebutted  by  the  circum- 
stances attending  the  possession. 

Eengel  vs.  Schoden,  178  App.  151;  Bergen  vs.  Riggs,  34  111.  170. 

—  Promissory  Notes:  The  possession  of  personal  property  is 
prima  facie  evidence  of  ownership,  and  the  term  "personal  prop- 
erty" applies  to  notes  and  money  as  well  as  to  goods  and  chat- 
tels. 

Brownell  vs.  Dixon,  37  111.  198;  Lewis  vs.  Lewis,  150  App.  354. 

Possession  of  a  negotiable  note  is  prima  facie  evidence  of  own- 
ership by  the  possessor. 

Henderson  vs.  Danisson,  157  111.  379;  Ransom  vs.  Jones,  2  111.  291; 
XI  111.  Notes  628,   §  377. 

And  this  though  the  note  be  unindorsed. 

Martin  vs.  Martin,  174  111.  371. 
The  possession  of  a  promissory  note  is  presumptive  evidence  of 
ownership ;  but  that  ownership  is  limited  by  the  statements  of  the 
possessor  as  to  the  character  of  his  possession. 

Henry  vs.   Eddy,  34   111.   508. 

A   party  holding  a  bill  or  note  with  a  blank  indorsement  on 

it,  is  presumed  to  be  the  legal  owner  of  the  instrument. 
Burnap  vs.  Cook,  32  111.  168. 


OWNERSHIP  903 

Possession,  unattended  by  circumstances  which  in  a  reasonable 
mind  ought  to  excite  suspicion  or  distrust,  or  put  the  party  on 
inquiry,  is  prima  facie  evidence  of  title.  But  the  holder  of  a  note 
which  has  been  negotiated  may  sometimes  be  called  upon  to  show 
in  what  manner  he  acquired  possession  and  that  he  paid  a  con- 
sideration for  the  same. 

McConnell  vs.  Hodson,  7  111.  640;  Garvin  vs.  Wiswell,  83  111.  215. 

The  mere  possession  of  a  promissory  note  or  bond  is  prima 
facie  evidence  of  the  legal  title  to  the  instrument,  and  of  the  right 
of  one  in  possession  to  sue  thereon,  and  in  the  case  of  an  instru- 
ment of  that  character  made  payable  to  some  other  person  than 
the  one  in  possession,  the  presumption  arising  from  the  possession 
is  that  the  one  in  possession  may  sue  thereon  in  the  name  of  the 
person  to  whom  it  is  made  payable. 

Woodward   vs.   Donovan,    167    App.   503. 

—  Drafts:  The  rule  of  law  is  that  the  holder  of  a  draft  will, 
in  absence  of  evidence  to  contrary,  be  presumed  to  be  a  bona  fide 
holder  for  value. 

Hall  vs.  First  Natl.  Bank,  133  111.  234. 

—  Bonds:  The  fact  that  a  person,  for  several  years  before 
his  death,  had  the  undisputed  possession  of  a  number  of  U.  S. 
Government  bonds,  and  collected  and  used  the  interest  accruing 
thereon,  affords  presumptive  evidence  that  he  was  the  absolute 
owner  thereof.  But  such  evidence  of  ownership  may  be  overcome 
by  proof  explaining  the  possession,  and  showing  that  he  had  but 
a  life  interest  in  the  bonds,  and  held  them  under  such  title. 

Comer  vs.  Comer,  120  111.  420. 

—  Mortgage:     Possession  of  mortgage  by  mortgagee  is  prima 

facie  evidence  of  ownership  of  notes  secured. 

Mantonva  vs.  Martin  Outfitting  Co.,  172  111.  92;  Morris  vs.  Cal. 
Dock  Co.,  91  App.  437. 

—  Certificate   of  Deposit:     The   possession  of  a   certificate   of 

deposit,  duly  indoreed,  is  presumptive  evidence  of  ownership  in 

the  holder. 

Kavanaugh  vs.  Bank  of  America,  239  111.  404. 

—  Certified   Copy   of  Foreign   Judgment:     The   possession    of 

a  certified  copy  of  a  foreign  judgment  affords  no  presumption  that 

the  holder  is  the  owner  thereof. 
Bell  vs.  Farwell,  189  111.  414. 

—  Corporate  Stock:  The  holder  of  a  certificate  of  stock  is  pre- 
sumed to  be  the  owner. 

Coffey  vs.  Coffey,  179  111.  283. 
As  is  also  the  person  whose  name  appears  upon  the  stock  regis- 
ter, where  his  receipt  is  given  for  the  same, 
Gillett  vs.  Chi.  T.  &  T.  Co.,  230  111.  373. 

Admissibility  of  Evidence : 

—  Names  on  Raitwag  Cars  and  Engines:    In  proving  ownership 

of  engines  in  actions  for  personal  injuries,  it  is  competent  to  show 

the  initials  of  the  company.     If  an  engine  bears  the  initials  of  the 

company,  the  presumption  is  that  it  is  owned  and  operated  by 

that  company. 

E.  St.  L.  Ey.  Co.  vs.  Altgen,  210  111.  213;  Eyan  vs.  B.  &  O.  9.  W. 
E.  E.  Co.,  60  App.  612;  P.  Ft.  W.  &  C.  Ey.  Go.  vs.  Callaghan,  50 
App.  676. 


904  OWNERSHIP 

But  this  is  not  eonelnsive. 

.    Chi.  General  Ky.  Co.  vs.  Capek,  68  App.  500. 

Ownership  of  trains  may  be  proven  by  marks  upon  ears. 
Bacon  vs.  Peoria  Ey.  Co.,  1(32  Ajip.  162. 

—  Schedules  and  lusurance  Policies:    Schedules  of  property  as 

used  in  a  particular  business  in  insurance  policies  covering  such 

l)roperty  admissible  as  tending  to  show  that  such  property  was 

owned  by  the  vendor  and  intended  to  be  included  by  him  in  a  bill 

of  sale. 

Current  vs.  Enright,  159  App.  260. 

—  Enrollment  of  Vessel :  A  copy  of  the  last  enrollment  of  a 
vessel,  duly  certified  by  the  collector  of  customs,  is  competent  evi- 
dence to  establish  prima  facie  the  ownership  of  such  vessel. 

Where  a  prima  facie  case  of  ownership  of  a  vessel  is  made,  it 
at  least  shifts  the  burden  of  proof  to  show  that  such  vessel  was 
not  under  the  control  of  the  persons  so  established  prima  facie 

as  owners. 

Vincent  vs.  Soper  Lbr.   Co.,  113  App.  463;   Merchants  Nav.  Co.  vs. 
Amsden,  25  App.  307. 
Copies  of  the  last  enrollment  of  a  vessel  and  of  a  bill  of  sale 
of  same,  duly  certified  by  collector  of  customs,  are  competent  evi- 
dence to  show  ownership  of  vessel. 

Merchants  Nav.  Co.  vs.  Amsden,  25  App.  307. 

—  District  Court  Records:  In  action  brought  upon  an  account 
bought  from  a  bankrupt's  estate,  the  records  of  United  States  Dis- 
trict Court  are  competent  to  prove  title. 

James  vs.  Couklin,  158  App.  640. 

—  Inventory  of  Estate:  The  administrator's  inventory  of  an 
estate  is  competent  evidence  tending  to  show  what  property  the 
decedent  owned  at  his  death,  and  it  is  error  to  exclude  such  in- 
ventory when  offered  by  defendant  in  suit  by  administrator  upon  a 
note,  where  it  tends  to  corroborate  evidence  for  defendant  toiding 
to  show  that  at  time  he  gavel  deceased  the  check,  the  latter  held  no 
note  against  defendant  except  the  one  in  suit. 

Bailey  vs.  Eobiuson,  233  111.  614;  Smythe  vs.  Evans,  209  111.  376. 

—  Marks  and  Brands:  Marks  and  brands,  and  letters,  on  stock 
and  other  property,  have  been  held  to  be  evidence  of  identity  and 
of  ownership  of  such  property.  Such  evidence  has  a  special  force 
where  the  label,  brand  and  mark  is  the  actual  label,  brand  or  mark 
oT  the  owner,  and  placed  or  caused  to  be  placed  on  the  property 

1)V  the  OMaier  thereof  and  for  his  use. 

Independent  Brew.  Assn.  vs.  Cook  Co.,  169  App.  347;  Foster  vs. 
Wadsworth  Co.,  168  111.  514;  P.  Ft.  W.  &  C.  Ey.  Co.  vs.  Callaghan, 
157  111.  406. 

—  Wills:     Will  is  incompetent  to  prove  ownership,  in  absence 

of  proof  of  probate. 

Bacon  vs.  Peoria  Ey.   Co.,  145  App.  502. 

—  Chattel  Mortgages:     Proof  that  a  person  in  possession  of  a 

piano  executed  a  chattel  mortgage  thereon  is  admissible  to  show 

his  title  thereto. 

Downey  vs.  Arnold,  97  App.   91. 

An  over-due  chattel  mortgage,  made  in  a  foreign  state,  is  not 

admissible  in  suit  in  this  state  to  determine  the  ownership  of  a 


OAVNERSHIP  905 

fund  derived  from  the  sale  of  the  mortgaged  property  by  the 
mortgagor  after  the  maturity  of  the  mortgage,  which  fund  was 
attached  by  the  creditors  of  the  mortgagor,  in  absence  of  any 
proof  that  under  the  laws  of  the  foreign  state,  the  mortgagee's 
lien  was  not  lost  by  failure  to  take  possession  after  maturity. 
Shannon  vs.  Wolf,  173  111.  253. 

—  Direct  Evidence:  Witness  may  state  ownership  of  personal 
property.     Prima  facie  proof  of  ownership  may  be  so  made. 

Maginnis  vs.  Hartford  Ins.  Co.,  160  App.  614. 

—  Grantor's  Declarations:  The  principle  that  the  declarations 
and  admissions  of  a  former  owner  or  possessor  of  property,  against 
his  interest,  made  during  the  continuance  of  his  interest  or  posses- 
sion are  evidence  against  those  subsequently  obtaining  title  or  pos-' 
session  from  him,  is  applicable  equally  to  personal  property  and 

to  choses  in  action,  as  to  real  estate. 

First    Natl.    Bank   vs.   Strang,    138   111.   347;    Wheeler   vs.   McCorris- 
ton,  24  111.  41;   Kane  vs.  Corbit,  23  App.  311;   Merrick  vs.  Hul- 
bert,  15  App.  606 ;  XII  111.  Notes  500,   §  §  199  et  seq. 
The  same  rule  applies  where  party  is  in  possession  as  agent. 

Leiserowitz  vs.  Fogarty,  135  App.  609. 

But  declarations  of  the  vendor  in  reference  to  the  ownership 

of  the  property,  made  after  the  sale,  are  not  admissible  in  evidence 

to  defeat  the  title  of  his  vendee  unless  vendee  is  present  at  the  time 

such  declarations  are  made  and  either  expressly  or  tacitly  assents 

to  their  truth. 

Eendegger  vs.  Ehrhardt,  51  111.  101;  Giillett  vs.  Otey,  19  App.  182; 
HoUey  vs.  Augestine,  2  App.  108, 

Weight  and  Sufficiency: 

—  Citation-  to  Deliver  to  Administrator:  Mere  possession  by  a 
holder  of  personal  property,  received  from  his  mother,  is  insuffi- 
cient to  establish  his  ownership,  and  to  entitle  him  to  the  property 
in  his  own  right  as  against  her  heirs-at-law,  where  he  does  not  claim 
under  a  sale,  gift  or  loan,  and  there  is  evidence  tending  to  prove 
that  he  acted  as  his  mother's  agent. 

Adams  vs.  Adams,  181  111.  210. 

—  Replevin:  Possession  of  chattels  is  always  sufficient  to  hold 
them  against  another  who  is  not  shown  to  have  an  interest  in  them. 

Downey  vs.  Arnold,  97  App.  91. 

—  Attachment:  Possession  of  property  by  attachment  defend- 
ant is  prima  facie  evidence  of  ownership. 

Kickham  vs.  Kane,  135  App.  628. 

—  In  Actions  for  Negligence:  That  the  engine  which  caused 
plaintiff's  injury  was  not  running  upon  defendant's  track  at  the 
time,  but  upon  a  track  used  by  several  railroad  companies,  does 
not  destroy,  although  it  may  weaken  the  presumption  of  ownership 
arising  from  the  fact  that  the  engine  bore  defendant's  corporate 
name. 

It  is  for  the  jury  to  say  what  weight  shall  be  given  to  the  state- 
ments of  witnesses  as  to  matters  whereof  their  knowledge  is  shown 
by  cross  examination  to  be  based  largely  upon  hearsay,  where  their 
evidence  is  allowed  to  go  to  the  jury  without  objection  and  no 
motion  is  made  to  strike  it  out. 

E.  St.  L.  C.  Ey.  Co.  vs.  Altgen,  210  111.  213. 


906  PARDON 

In  actions  against  a  railway  company  to  recover  for  an  injury 
inflicted  by  a  train  of  cars,  alleged  to  have  belonged  to  the  com- 
pany, or  operated  by  it,  full  and  undoul)ted  proof  of  the  fact  that 
the  company  owned  the  train,  or  was  operating  the  same,  is  not 
required  of  plaintiff.  In  absence  of  positive  proof  on  the  subject 
by  the  company,  it  will  be  sufficient  if  plaintift"'s  evidence  is  prima 

facie  sufficient  to  show  that  fact. 

P.  C.  G.  &  St.  L.  Ry.  Co.  vs.  Knutson,  69  111.  103. 

Proof  that  one  of  the  defendants  in  a  personal  injury  case 
was  organized,  under  the  name  of  "North  American  Restaurant 
and  Oyster  House, ' '  to  keep  a  restaurant  at  a  certain  named  place ; 
that  its  name  appeared  there  over  each  entrance  and  headed  the 
bills  of  fare  ;  that  the  words  ' '  North  American, ' '  and  ' '  North  Amer- 
ican Restaurant  Company,"  appeared  in  different  places  on  the 
premises,  and  that  the  injury  occurred  in  the  restaurant,  tends 
to  prove  ownership  of  the  restaurant  by  such  defendant. 
N.  A.  Eestaurant  vs.  MeElligott,  227  111.  317. 

—  Wagon :  The  presumption  arising  from  the  appearance  of  a 
name  on  a  vehicle  to  the  effect  that  it  was  property  of  the  party 
whose  name  so  appeared,  may  be  rebutted  by  the  positive  testimony 
of  the  driver  and  his  helper  that  they  were  employed  by  another 

party. 

United  Brew.  Co.  vs.  Bass,  121  App.  299. 

—  Injunction:  Complainant's  ownership  of  the  seams  of  coal 
which  defendant  is  alleged  to  be  wrongfully  removing,  is  sufficiently 
proven,  even  though  there  is  an  inaccuracy  of  description  in  his 
deed  to  the  coal  underlying  the  land,  where  two  recorded  deeds 
are  proved  purporting  to  convey,  by  accurate  descriptions,  the 
entire  fee  to  complainant's  grantors,  who  are  shown  to  have  been 

in  possession  under  such  deeds. 

McGnire   vs.   Boyd   Coal   Co.,   236   111.   69;    Con.,  Coal  Co.   vs.   Bruce, 
150  111.  449. 

—  To  Enforce  Statutory  Liability  of  Stockholder:  The  appear- 
ance of  names  on  the  books  of  a  corporation  as  stock-holders,  is 
prima  facie  evidence  that  the  persons  whose  names  so  appear  are 

the  owners  of  the  stock. 

Sherwood  vs.  111.  T.  &  S.  Bank,  195  111.   112;   Gillett  vs.  Chi.  Trust 
Co.,  230  111.  373. 


PAIN  AND  SUFFERING 

See    Mental    and    Physical    States,    Expert    and    Opinion, 
JuDicLVL  Notice. 


PARDON 

Credibility  of  Witness: 

Conviction  of  a  witness  of  a  crime  may  be  shown  as  affecting  his 
credibility,  but  evidence  that  he  was  subsequently  pardoned  is  im- 
material and  properly  denied  admission. 


PARENT  AND  CHILD  907 

"Formerly  a  person  who  had  been  convicted  of  any  crime  was 
incompetent  to  testify  upon  the  trial  of  a  criminal  case,  but  that 
disability  was  removed  by  our  statute,  with  the  qualification  that 
such  conviction  might  be  shown  for  the  purpose  of  affecting  his 
credibility.  Under  the  statute,  the  guilt  or  innocence  of  the  defend- 
ant of  the  crime  for  which  he  had  been  convicted,  his  punishment, 
his  term,  and  etc.,  are  wholly  immaterial  and  incompetent.  That 
he  may  have  been  pardoned  proves  nothing  as  to  his  credibility, 
and  to  permit  evidence  of  that  fact  would  simply  be  to  introduce 

into  the  case  a  collateral  issue." 

Gallagher    vs.    People,    211    111.    158;    Contra   O'Donnel   vs.    People, 
■      110  App.  250. 


PARENT  AND  CHILD 

See  Infants,  Work  and  Services,  Deeds,  Identity,  Presump- 
tions, Burden  of  Proof,  Gifts,  Wills,  Legitimacy,  Domicile. 
CUSTODY. 
Presumption : 

A  father's  right  to  the  custody  of  his  child  is  superior  to  the 
right  of  any  other  person,  and  it  will  be  presumed  that  he  is  en- 
titled to  the  custody  of  the  child  until  proof  to  the  contrary  is  made. 
Sullivan  vs.  People,  224  111.  468. 

The  right  of  the  parent  to  the  custody  of  his  children  is  superior 
to  that  of  any  other  person,  when  the  parent  is  a  fit  person  to  have 
the  custody  and  is  able  to  provide  them  with  the  necessaries  of  life, 
and  administer  to  their  requirements  according  to  their  best  in- 

Hohenadel  vs.   Steele,   237   111.   229;    Cormack  vs.   Marshall,   211   III. 
519. 

Discretion  of  Court: 

The  paramount  right  of  the  father  to  the  children  will  not  be 
recognized  where  a  divorce  has  been  granted  for  his  fault  or  mis- 
conduct.   His  common  law  right  must  yield  to  the  discretion  of  the 

court. 

Hewitt  vs.  Long,  76  111.  399;  Draper  vs.  Draper,  68  111.  17;   Miner 
vs.  Miner,  11  111.  43. 
A  decree  respecting  the  custody  of  a  child  is  exceptional  in  iicj 

character  and  is  always  temporary. 

Hohenadel  vs.   Steele,   237   111.   229;    Cormack  vs.   Marshall,    11    HI. 
519. 
Declarations  of  the  child  as  to  its  wishes  and  preference  may  be 
heard  but  not  necessarily  allowed  to  prevail. 

Hewitt  vs.  Long,  76  111.  399 ;  People  vs.  Porter,  23  App.  169. 

EMANCIPATION. 
May  be  Implied : 

Before  a  recovery  could  be  had  in  the  name  of  the  infant,  it  is 
necessary  for  him  to  show  by  express  arrangement  or  from  such 
circumstances  as  that  it  might  be  inferred  that  the  father  had  given 
the  son  his  time  so  as  to  entitle  him  to  receive  his  own  earnings. 
Ford  vs.  McVey,  55  111.  119. 


908  PARENT  AND  CHILD 

When  May  Be  Presumed : 

AVliere  father  is  t-alled  as  a  witness  on  behalf  of  son  suing  for 
wages  and  makes  no  ehiini  to  the  wages  and  speaks  of  the  trans- 
action as  his  son's,  the  presumption  is  that  he  had  emancipated  his 
son  at  time  the  services  were  rendered  and  a  recovery  under  these 
^circumstances  by  the  son  would  be  a  bar  to  any  claim  by  the 

father  for  the  son's-  wages. 

Scott  vs.  White,  71  111.  287 ;  Aulger  vs.  Badgley,  29  App.  33G. 

Marriage : 

Marriage  emancipates,  though  not  of  age,  and  entitles  child  to 
his  earnings. 

Y:iii;itta  vs.  Carr,  229  111.  47. 

Prosecution  of  Suit  for  Damages : 

Prosecution  of  a  suit  in  the  name  of  a  minor  by  his  father  as 
next  friend  is  equivalent  to  a  relinquishment  by  the  father  of  his 
right  to  claim  the  earnings  of  such  minor. 
Chi.  Screw  Go.  vs.  Weiss,  203  111.  536. 

LIABILITY  FOR  TORTS. 

A   parent  cannot  be  held  liable  for  the  unauthorized  torts  of 

his  minor  children. 

Wilson    vs.    Garrard,    59    111.    51;    Paulin    vs.    Houser,    63    111.    312; 
Mahleniberg  vs.  Bartos,  83  App.  481;  Dick  vs.  Swenson,  137  App. 
68. 
In  order  to  render  a  parent  liable  for  the  tort  of  his  infant  son, 
it  is  essential   that  it  should  appear  from   the   evidence   that   he 
might  have  reasonably  anticipated  injury  as  a  conseciuence  of  per- 
mitting such  son  to  employ  the  agency  which  produced  the  injury. 
Palm  vs.   Ivorson,   117  App.   535. 
An  infant  is  liable  for  his  torts  the  same  as  an  adult. 

Hildreth  vs.  Hancock,  156  HI.  618;  Wilson  vs.  Garrard,  59  111.  51; 
Davidson  vs.  Young,  38  111.  145. 

LIABILITY  FOR  NECESSARIES. 

In  General: 

An  express  promise  must  be  proven  or  circumstances  from  which 
a  promise  by  the  father  can  be  inferred,  to  hold  him  liable  for 
necessaries  furnished  his  infant  child  by  a  third  person. 

Sehuncble  vs.  Bierinan,  89  111.  454;  Murphy  vs.  Ottenheimer,  84  111. 
39;  Gotts  vs.  Clark,  78  111.  229;  McMullen  vs.  Lee,  78  111.  443; 
Dumser  vs.  UnderAvood,  68  App.  121;  Allen  vs.  Jacob,  14  App.  278; 
XIII  111.  Notes  1038,  §§  16  ei  seq. 

Burden  of  Proof : 

Where  a  third  person  furnishes  means  for  the  support  of  the 
child,  he  must  take  the  burden  of  showing  that  the  parent  expressly 
promised  to  pay  for  same,  or  such  facts  and  circumstances  bearing 
upon  the  question  of  the  parent's  neglect  and  his  evident  inten- 
tions and  purposes  regarding  the  necessities  of  the  child  and  pro- 
vision therefor,  as  that  a  promise  can  properly  be  inferred  there- 
from. 

Clark  vs.  Gotts,  1  App.  454. 
But  where  a  father  and  mother  separate  by  mutual  consent,  and 
the  father  permits  the  mother  to  take  the  children  with  her,  then 
the  father  constitutes  the  mother  his  agent  to   provide  for  his 
children  and  is  bound  by  her  contracts  for  necessaries  for  them. 
McMillen  vs.  Lee,  "78   111.   442. 


PARENT  AND  CHILD  909 

Where  a  wife  leaves  the  hiishand  without  his  eonsent  and  against 
his  wishes,  without  fault  or  misconduct  of  the  husband,  he  will 
not  be  liable  for  necessaries  furnished  by  a  third  person  to  the 
wife  or  child  at  her  request. 

Selniuckle   vs.    Bierman,    89    111.   455. 

Liability  of  Step-Father : 

A  person  is  not  bound  to  maintain  the  children  of  his  wife  by  a 
former  husband. 

Altridge   vs.   Billings,    57    111.    490;    Mowbrey   vs.    Mowbrey,    64   111. 
383. 

But  if  a  man  take  the  children  of  his  wife  by  a  former  mar- 
riage into  his  family,  he  stands  in  loco  parentis  as  to  them,  and  is 
bound  by  his  wife's  contract  made  for  their  maintenance  and  edu- 
cation. 

Chi.  Man.  T.  S.  Co.  vs.  Scott,  159  App.  350, 
A   voluntary   acceptance   of   the    children   imposes   duties    and 
obligations  of  a  parent. 

Capek  vs.  Kropik,  129  111.  509. 

Where  a  minor  son  bought  clothing  without  eonsent  of  father, 
who  knew  nothing  of  purchase  until  goods  were  brought  home,  but 
allowed  the  son  to  keep  them,  and  plaintitf  testified  to  father's 
promise  to  pay,  which  the  latter  denied,  it  was  held  that  jury  were 
authorized  to  find  the  father  liable  for  the  price  of  the  goods. 

Jolmson  vs.  Smallwood,  88  III.   73. 

COMPENSATION  FOR  SERVICES. 

Presumption : 

"Where  one  remains  with  a  parent  or  person  standing  in  the 
relation  of  parent,  after  arriving  at  majority,  and  remains  in  same 
apparent  relation  as  when  a  minor,  the  presumption  is  that  the 
parties  do  not  contemplate  payment  of  wages  for  services.  This 
presumj^tion  may  be  overcome  and  reverse  established  by  proof 
of  an  express  or  implied  contract,  and  the  implied  contract  may 
be  proven  by  facts  and  circumstances  wliieh  sliow  that  both  parties, 
at  time  services  were  performed,  contemplated  or  intended  pecun- 
iary recompense  other  than  such  as  naturally  arises  out  of  rela- 
tion of  parent  and  child." 

Switzer  vs.  Kee,  146  111.  577;  Marshall  vs.  Coleman,  187  111.  556 
Neish  vs.  Gannon,  198  111.  219;  Freeman  vs.  Freeman,  65  111.  106 
Smith  vs.  Birdsall,  106  App.  264;  Miller  vs.  Miller,  16  111.  296 
Sehwachtgen  vs.   Schwachtgen,  65  App.    127. 

Where  near  relatives,  by  blood  or  marriage,  reside  together  as 
one  common  family,  and  one  of  them  renders  services  to  another, 
and  such  other  furnishes  him  board  and  lodging,  or  other  neces- 
saries, or  comforts  the  presumption  arises  that  neither  party 
intended  to  receive  or  pay  compensation  for  the  services,  on  the  one 
hand,  or  for  the  board  and  lodging  or  other  necessaries  or  comforts, 
on  the  other ;  but  such  presumption  may  be  overthrown  and  the 
reverse  established  by  an  express  or  implied  contract  and  the 
implied  contract  may  be  proven  by  facts  and  circumstances  which 
shovv^  that  both  parties  contemplated  and  intended  pecuniary  com- 
pensation. 

Keys  vs.  Estate  of  Thornton,  150  App.  523;   Smith  vs.  Birdsall,   106 
App.  264;  Martin  vs.  Martin,  89  App.  147. 


910  PARENT  AND  CHILD 

Contra  as  to  Implied  Contract:    In  Faloon  vs.  Melntyre,  118  111. 
292,  Court  Says:     "Unless  it  be  shown  that  there  is  an  express 
contract  to  pay  for  such  support  and  services,  a  recovery  therefor 
cannot  be  had  by  one  of  the  parties  against  the  other." 
Express  Contract: 

xVn  express  contract  may  be  proven  by  facts  and  circumstances 
which  show  that  both  the  parties,  at  the  time  services  were  ren- 
dered,  contemplated  or  intended  pecuniary   compensation,  other 

than  such  as  naturally  arises  out  of  family  relation. 

Brooks  vs.  Ostrander,  158  App.  78;  McClory^  vs.  Lancaster,  44  App. 
212. 
May  be  proved  not  only  by  an  actual  agreement,  by  express 
words  used  by  the  parties,  but  also  by  circumstantial  evidence, 
Heffron  vs.  BrovFn,  155  111.  322. 

Implied  Contract : 

May  be  proven  by  circumstances  showing  that  the  parties  in- 
tended to  contract  and  by  the  general  course  of  dealing  between 
them.  The  evidence  must  show  that,  when  services  were  rendered, 
both  parties  expected  them  to  be  paid  for.  The  facts  and  circum- 
stances must  be  such  as  to  show  that  at  the  time  services  were 
rendered,  the  one  expected  to  receive  payment  and  the  other  to  make 

payment. 

Heffron  vs.  Brown,  155  111.  322;   Byers  vs.   Thompson,  66  111.   421; 
Truitt  vs.  Anderson,  12  App,  421. 
An  implied  contract  may  be  proven  by  circumstances  showing 
that  the  parties  intended  to  contract,  and  the  general  course  of 

dealing  between  them. 

Neish  vs.  Gannon,  198  111.  219;  Sherman  vs.  Whiteside,  190  111.  576; 
Miller  vs.  Miller,  16  111.  296;   Keyes  vs.  Thornton,   150  App.  523. 

Something  more  is  meant  by  implied  contract  than  a  mere 
promise  to  pay,  which  the  law  implies  where  one  person  does  work 
for  another,  with  the  knowledge  and  approbation  of  that  other. 
This  implied  contract  thus  raised  by  law  is  rebutted  where  tliere 
is  shown  a  relation  between  the  parties  as  to  exclude  the  inference 
that  thev  were  dealing  on  the  footing  of  a  contract, 
Heffron  vs.  Brown,  155  111.  322, 

Mere  declarations  of  gratitude  are  not  proof  of  an  agreement 
to  pay  for  services.  Loose  expressions  of  an  infirm  parent,  ex- 
pressions of  gratitude  for  the  personal  services  of  a  child,  and  of 
a  desire  that  compensation  should  be  rendered  after  his  death, 
but  not  indicative  of  teimas  of  a  contract  are  insufficient  basis  for 
submission  to  a  jury  from  which  to  find  whether  such  a  contract 

in  fact  existed. 

Smith  vs.  Birdsall,  106  App.  264;   Collar  vs.  Patterson,  137  HI.  403. 

VOLUNTARY  CONVEYANCES  FROM  PARENT  TO  CHILD. 

Presumptions : 

—  Fraud  and  TJndne  Influence:  There  is  no  presumption  of 
law,  from  the  mere  fact  of  relationship,  that  a  conveyance  from 
parent  to  child  is  the  product  of  fraud  or  undue  influence,  and  in 


PARENT  AND  CHILD  911 

order  to  set  aside  the  conveyance  upon  such  grounds,  there  must 
be  proof  of  fraud  or  undue  influence  in  fact. 

Smith  vs.  Kopitzki,  254  111.  498;   Fitzgerald  vs.  Allen,  240  111.  80; 

Hudson  vs.   Hudson,  237   111.   9;    Sears  vs.   Vaughn,   230   111.   572; 

Oliphant  vs.  Liversidge,  142  111.  160;  XIII  111.  Notes  1041,  §§40 

et  seq. 

—  Consideration:      The    conveyance    from    a    parent    to    child 

which  is  a  gift  or  voluntary  settlement  will  not  be  set  aside  because 

no  money  consideration  was  paid,  natural  love  and  affection  being 

a  sufficient  consideration. 

Brock  vs.  Stines,  258  111.  346;  Danville  Seminary  vs.  Mott,  136  111. 
289;   Young  vs.  Young,  113  111.  430. 

—  Delivery  and  Recordation:  The  presumption  in  favor  of  the 
delivery  of  a  deed  from  a  parent  to  child,  in  case  of  voluntary 
settlement  is  stronger  than  in  ordinary  cases  of  bargain  and  sale, 
and  fact  that  such  deed  has  been  recorded  is  prima  facie  evidence 

of  its  delivery. 

Prince  vs.  Prince,  258  111.  304;   Weigand  vs.  Rutsche,  253  111.   260: 

Valter   vs.   Blavka,    195   111.    610;    Crabtree   vs.   Crabtree,    159    111. 

342;  XII  111.  Notes  114,  §177. 

The  rule  that  a  presumption  of  delivery  in  case  of  voluntary 

settlement  will  arise  from  slight  circumstances  indicative  of  an 

intention  that  the  deed  shall  become  effective  from  the  present, 

cannot  arise  where  the  uncontradicted  evidence  shows  that  there 

was  no  delivery. 

Hawes  vs.  Hawes,  177  111.  409. 
The  law  presumes  much  more  in   favor  of  delivery  of  deeds 
especially  when  made  to  infants.     The  burden  of  proof  is  on  the 
grantor  to  show  clearly  that  there  was  no  delivery. 

Thurston  vs.  Tubbs,  257  111.  465;  Hill  vs.  Kreiger,  250  111.  408; 
Baker  vs.  Hall,  214  111.  364;  Abbott  vs.  Abbott,  189  111.  488. 
The  execution  and  recording  of  a  voluntary  settlement  to  a 
grantee  who  is  a  minor  or  under  some  disability  raises  a  presump- 
tion of  delivery,  even  though  the  grantor  retains  possession  of  the 
deed;  but  such  presumption  may  be  rebutted  by  proof  that  the 
grantor  did  not  intend  the  deed  to  take  effect  immediately. 

Hill  vs.  Kreiger,  250  111.  408;   Abrams  vs.  Beale,  224  111.  496. 
■    The  declaration  of  a  father  in  his  lifetime,  that  he  had,  at  a 
previous  period,  acquired  land  in  the  name  of  his  child,  with  the 
design  of  defeating  creditors,  cannot  be  considered  as  testimony 

to  divest  the  interest  of  the  child. 

Cochran  vs.   McDowell,   15  111    11. 
Or  when  brought  in  question  by  those  claiming  adversely  to  the 
donee  or  beneficiary,  the  burden  is  upon  them  to  show  clearly  that 

there  was  no  delivery. 

Chapin  vs.  Nott,  203  111.  341. 
The  presumption  of  delivery  of  a  deed  from  a  parent  to  child, 
arising  from  its  execution  and  recording,  does  not  obtain  in  favor 
of  adult  children  to  the  same  extent  as  where  the  children  are 

minors. 

Ackman  vs.  Potter,  239  111.  578;  Willenou  vs.  Handlon,  207  111.  104. 

The  presumption  is  never  conclusive  and  the  facts  that  the  deed 


912  PARENT  AND  CHILD 

was  executed,  acknowledged  and  recorded,  do  not,  of  themselves, 

prove  delivery. 

Kirby  vs.  Kirby,  236  111.  255;  Abrams  vs.  Beale,  224  Til.  496;  Brown 

vs.  Brown,   167   111.  631;   Sullivan  vs.  Eddy,   154  111.   199;    Weber 

vs.  Christen,  121  111.  91. 

—  Acceptance:     Where  the  conveyance  is  a  voluntary  settlement, 

formal  assent  need  not  be  shown,  as  it  will,  if  nothing  further 

appear,  be  presumed. 

Spencer  vs.  Eazor,  251  111.  278 ;  Baker  vs.  Hall,  214  111.  364 ;  Winter- 
bottom  vs.  Patteson,  152  111.  334;  Masterson  vs.  Cheek,  23  111.  72; 
XII  111.  Notes  114,  §  182. 
Acceptance  of  a  deed  of  voluntary  conveyance,  if  its  terms  are 
beneficial  to  the  grantee,  will  be  presumed,  even  though  the  grantee 
had  no  knowledge  of  the  existence  of  the  deed  until  after  grantor's 

death. 

Baker  vs.  Hall,  214  111.  364. 

No  such  presumption  can  arise  in  respect  to  a  grantee  who  is 
not  under  legal  disability,  so  long  as  he  is  ignorant  of  the  con- 
veyance. 

Lancaster  vs.  Blaney,  140  111.  203;  Moore  vs.  Flynn,  135  111.  74. 

When  acceptance  is  not  proven  and  the  facts  do  not  justify 

the  presumption  of  law  that  the  grantee  has  accepted,  the  title 

does  not  pass. 

Pratt  vs.  Griffin,  184  111.  514. 

The  mere  fact  that  grantor  retains  deed  in  his  possession  is  not 

conclusive  against  validity,   if  there  are  no  other  circumstances 

besides  the  mere  fact  of  his  retaining  it,  to  show  it  was  not  intended 

to  be  absolute. 

Kodemeir  vs.  Brown,  169  111.  347;  Miller  vs.  Meers,  155  111.  284. 

Grantor  may  deliver  deed  to  grantee  or  stranger  for  his  use, 

and  his  acceptance  will  be  presumed  from  the  fact  that  the  deed 

is  for  Ms  benefit. 

Eivaird  vs.  Walker,  39  111.  414. 

VOLUNTARY  CONVEYANCES  CHILD  TO  PARENT. 
Presumptions : 

Where  a  parent  obtains  a  deed  for  land  from  a  child  not  strong 
mentally,  without  consideration,  the  presumption  is  the  transaction 
was  fraudulent  and  the  deed  will  be  set  aside  in  a  court  of  equity," 
unless  it  is  clearly  sho^vn  to  be  a  valid  transaction. 

Hays  vs.   Feather,   244   111.    172;    Lewis   vs.    McGrath,   191   111.   401; 
Sayles  vs.  Christie,  187  111.  420;  White  vs.  Boss,  160  111.  56. 
The  presumption  that  a  deed  from  a  child  recently  of  age,  to  a 
parent  was  not  voluntarily  or  understandingly  made,  is  rebutted 
by  proof  that  the  grantor  subsequently  testifies,  in  two  proceedings 
in  court,  that  he  conveyed  the  property  to  his  father  and  received 
the  consideration,  not  questioning  the  validity  of  the  deed. 
Ferns  vs.  Chapman,  211  111.  597. 

Burden  of  Proof : 

And  where  a  deed  is  procured  by  a  parent  from  a  child  for  the 
real  estate  of  the  child,  without  consideration,  the  burden  is  upon 
the  parent  to  show  that  the  transaction  was  fair  and  was  entered 
into  by  the  child  fully  understanding  its  rights  and  fully  compre- 


PAROL  913 

bending  the  transaction  by  which  it  parted  with  the  title  to  its 

land,  and  that  the  transaction  was  for  the  benefit  of  the  child. 

McLaughlin  vs.   McLancvhlin,  241   Til.   366;    Ferns  vs.  Chapman,   211 
111.   597;    White  vs.   Ross,  160   111.   56. 


PAROL 

INTERPRETATION  OF  WRITINGS  GENERALLY. 
In  General : 

When  writings  show,  npoii  inspection,  a  complete  legal  obliga- 
tion, without  any  uncertainty  or  ambiguity  as  to  the  object  or 
extent  of  the  engagement,  it  is  conclusively  presumed  that  the 
whole  engagement  of  the  parties  was  included  in  the  writings. 
The  fact  that  a  point  has  })een  omitted  which  might  have  been 
embodied  therein  will  not  open  the  door  to  the  admission  of  parol 

evidence  in  that  regard. 

Gnibb  vs.  Milan,  249  111.  456;  Schneider  vs.  Siilzer,  212  111.  87; 
TelUuide  Power  Co.  vs.  Crane  Co.,  208  111.  218;  Eector  vs.  Hart- 
ford Deposit  Co.,  190  111.  380;  Harding  vs.  Com.  Loan  Co.,  84 
111.  253;  McKinney  vs.  Miilvaney  Mfg.  Co.,  157  App.  339;  Mes- 
ter  vs.  Quincy  Natl.  Bank,  163  App.  645;  Petrea  vs.  Hediger,  173 
App.  203;  XII  111.  Notes  519,  §§351  et  seq. 

The  rule  applies  to  instruments  not  under  seal  as  well  as  to  in- 
struments under  seal. 

Ryan  vs.  Cook,  172  111.  302;   Chambers  vs.  Prewitt,  172  111.  615. 

A  written  contract  which  purports  to  be  a  complete  and  final 
statement  of  the  entire  transaction  is  the  only  evidence  of  its  terms 
and  conditions. 

Osgood  vs.  Skinner,  211  111.  229;  Wadhams  vs.  Swan,  109  111.  46;  Hol- 

liday  vs.   Hnnt,  70   111.    109;    Schreiber  vs.   Straus,   147  App.  581; 

Osgood  vs.  Poole,  165  App.  63. 

Where  there  is  no  misunderstanding  between  the  parties  about 

the  terms  of  a  contract,  and  no  dispute  lietween  them  as  to  the 

meaning  of  the  same,  parol  evidence  as  to  alleged  ambiguities  is 

properly  refused. 

Finch  &  Co.  vs.  Furnace  Co.,  245  111.  586. 

If  the  language  is  plain  and  unambiguous  proof  aliunde  can- 
not be  heard  to  contradict  or  vary  its  terms  or  give  it  a  meaning 
inconsistent  witli  the  language  used  in  the  instrument. 

Chi.  And.  Assoc,  vs.  Fine  Arts  Bldg.,  244  111.  532;  Gale  vs.  U.  S. 
Brg.  Co.,  181  App.  381.  >  \ 

Where  there  is  no  amliiguity  in  the  terras  used,  or  where  the 
language  used  has  a  settled  legal  meaning,  the  instrument  itself 
is  the  only  criterion  of  the  intention  of  the  parties. 

Butterfield  vs.  Sawyer,  187  111.  598;  Razor  vs.  Razor,  142  HI.  375; 
Schmuhl  vs.  Fiddiek,  34  App.  190;  Somerville  vs.  Klien,  140  App. 
39;   Fowler  vs.  Black,  136  111.   363. 

It  is  only  when  there  is  some  doubtful,  ambiguous  or  equivocal 
phrase  or  expresion  in  the  contract  that  a  court  may  receive  evi- 
dence aliunde  the  instrument,  explaining  the  subject  matter,  the 
relations  of  parties,  and  inducing  causes  which  led  to  making  of 
the  agreement,  so  that  the  court  may  be  placed  in  the  situation  of 

Ev. — 58 


914-  PAROL 

the  parties  as  nearly  as  possilile,  and  be  the  better  enabled  to 

interpret  their  language  as  they  then  understood  it. 
Sanitary  District  vs.  MoMahon,  110  App.  510. 

In  eases  of  latent  ambiguity,  evidence  is  received,  not  for  pur- 
pose of  incci'porating  into  the  writing  an  intention  not  expressed 
therein,  but  simply  with  view  of  elucidating  the  meaning  of  words 
employed. 

Bradish  vs.  Yoeiiin,  130  111.  380;   nhaiiiliers  vs.  Prewitt,  71  App.  119. 

Contracts,  if  obscure,  may  be  illumined  by  parol,  and  are  to 
be  construed  with  reference  to  the  subject  matter. 
Wolf  vs.  Willetts,  35   111.  88. 
Where  the  language  of  the  instrument  is  sufficiently  clear  to 
enable  the  court  to  ascertain  the  intention  of  the  parties,  parol 
evidence  is  inadmissible  to  vary  or  explain  its  terms. 

Walton  vs.  Follansbee,  165  111.  480;  Overby  vs.  Prudential  Ins.  Co., 
181  App.  327. 

Extrinsic  Rendering-  Uncertain: 

AV^here  a  contract  on  its  face  seems  to  be  explicit  and  certain, 
but  is  rendered  uncertain  by  extrinsic  evidence,  then  it  may  be 
explained  by  the  same  character  of  testimony  by  which  the  un- 
certainty was  created. 

Harnian  vs.  People,   214   111.  454;    Halliday  vs.  Hess,   147   111.   588: 
Marshall  vs.  Gridley,  46  111.  247 ;  Doyle  vs.  Teas,  5  111.  202. 
Where  it  appears  by  extrinsic  evidence  that  the  words  used  in 
an  insurance  policy  to  designate  the  beneficiary  fail  to  correctly 
describe  any  person  related  to  or  known  by  insured,  further  ex- 
trinsic evidence  may  be  received  to  aid  in  determining  who  is  the 

intended  beneficiary. 

Hogan  vs.  Wallace,  166  111.  328. 

Patent  Ambig-uity : 

Parol  evidence  cannot  be  admitted  to  explain  or  clear  up  an 
ambiguity  on  the  face  of  the  instrument  itself. 

Eampke  vs.  Biiehler,  203  111.  384;  Engelthaler  vs.  Engelthaler,  196 
111.  230;  Marshall  vs.  Gridley,  46  111.  247;  Panton  vs.  Tefft,  22  111. 
367. 

Conversations  and  Neg-otiations : 

Contract  may  be  established  by  letters  and  correspondence. 
Scatt  vs.  ro\Yler,  227  111.  104. 

When  parties  have  deliberately  put  their  engagements  into  writ- 
ing, in  such  terms  as  import  a  legal  obligation,  without  any  un- 
certainty as  to  the  object  or  extent  of  such  engagement,  it  is  con- 
clusively presumed  that  the  whole  engagement  of  the  parties  and 
the  extent  and  manner  of  their  undertaking  was  reduced  to  writ- 
ing; and  all  oral  testimony  of  a  previous  colloquium  between  the 
parties,  or  of  a  conversation  or  declarations  at  the  time  when  it 
was  completed,  or  afterwards,  as  it  would  tend  in  many  instances 
to  substitute  a  new  and  different  contract  for  the  one  which  was 
really  agreed  upon,  to  the  prejudice,  possibly,  of  one  of  the  parties, 

is  rejected. 

Fuchs  &  Lang  vs.  Kittredge  &  Co.,  242  111.  88 ;  Ellis  vs.  Conrad  Seipp 
Co.,  207  111.  291;  Tichenor  vs.  Ne^man^  igQ  j]i_  264;  Hartford 
Ins.  Co.  vs.  Webster,  69  111.  392;  Woods  vs.  Price,  46  111.  439; 
Snyder  vs.  Griswold,  37  111.  216;  Sexton  vs.  Berry,  102  App.  586; 
Wilson  vs.  Storm,  164  App.  13;  XII  111.  Notes  514,  §319;  518, 
§345. 


PAROL  915 

A  written  contract,  if  unambig:uous  in  its  terms,  cannot  be 
varied,  contradicted  or  modified  by  parol  evidence  of  conversations 
relating  to  the  subject  matter  of  the  contract,  which  occurred 
between  the  contracting  parties  before  the  execution  of  the  con- 
tract. Nor  can  a  sealed  executory  contract  be  altered,  changed  or 
modified  by  parol. 

Schneider  vs.   Sulzer,   212   111.   87;   Town  of  Kane  vs.  Farrelly,   192 
111.  512;  Alschuler  vs.  Schiff,  164  111.  298.  tO  30 

So  in  an  action  on  a  written  contract  for  the  sale  of  a  business, 
which  contains  a  specific  guaranty  as  to  the  value  thereof,  prior 
conversations  between  buyer  and  seller  as  to  such  value  are  not 
admissible. 

Tiehenor  vs.  Newman,  186  111.  264. 

And  in  action  by  plaintiff  against  defendant  for  price  of  castings 
delivered  to  latter  under  a  contract  made  by  him,  evidence  of  a 
prior  verbal  contract  for  sale  and  delivery  of  castings  is  properly 
excluded,  it  appearing  they  were  all  furnished  after  the  written 
contract. 

Hess  &  Co.  vs.  Dawson,  149  111.  138. 

Prior  negotiations  may  be  competent  to  identify  subject  matter 

of  instrument. 

Panish  vs.  Vance,  110  App.  57. 

It  is  competent  to  resort  to  parol  evidence  to  ascertain  the 
nature  and  qualities  of  subject  to  which  instrument  refers. 
Wilson  vs.  Boots,  119  111.  379. 
Where  the  true  meaning  of  the  terms  used  is  doubtful,  evidence 
of  what  was  said  by  the  parties  and  all  their  acts  that  tend  to  shed 
light  on  the  meaning  of  the  words  used  is  admissible  whether  such 
statements  and  acts  are  contemporaneous  or  subsequent  to  the  con- 
tract. 

Chi.  Portland  Cement  Co.  vs.  Hoffman,  ICS  App.  71;  Gale  vs.  U.  S. 
Brg.  Co.,  181  App.  381. 

Parol  evidence  is  competent  to  show  what  was  said  and  done 

before  as  well  as  after  a  lease  was  executed  and  delivered,  in  order 

to  indicate  what  was  intended  to  pass  by  the  demise,  and  to  identify 

the  subject  matter  of  the  lease. 

Parrish  vs.  Vance,  110  App.  57. 

Where  the  issue  was  upon  the  point  whether,  in  fact,  there  had 
been  a  purchase  or  payment  of  certain  notes  and  mortgages,  evidence 
of  all  the  negotiations  which  finally  culminated  in  transfer  or  sur- 
render of  them  was  competent,  as  tending  to  show  the  character 
of  the  transactions  and  the  understanding  and  intention  of  the 
parties  when  it  was  finally  concluded. 

Balohrandsky  vs.  Carlisle,  14  App.  289. 

Where  ambiguous  part  of  contract  has  been  construed  by  court, 

parol  evidence  of  prior  conversations  is  inadmissible  in  second  suit, 

to  vary  contract. 

Town  of  Kane  vs.  Farrelly,  192  111.  521. 

Recitals  Not  Part  of  Contract : 

Parol  evidence  may  be  introduced  which  contradicts  or  varies 
recitals  or  statements  of  fact  in  a  writing  where  they  constitute  no 


916  PAROL 

part  of  the  contract,  and  where  the  party  is  not,  on  other  principles, 

estopped  to  deny  such  recitals. 

Ludeke  vs.  Sutherland,  87  111.  481. 

Date : 

Parol  evidence  is  admissible  to  show  date  of  a  contract. 

Lambe  vs.  Mauiiing,  171  111.  612;  Blake  vs.  Fash,  44  111.  302;  School 
District  vs.  Stiliey,  36  App.  133;  Horn  vs.  Booth,  22  App.  385. 

Existence  of  Written  Contract : 

,-  Where  the  party  offering  evidence  insists  that  the  contract  under 
consideration  was  not  in  writing,  parol  is  prima  facie  admissible, 
subject  to  exclusion,  if  the  opposite  party  is  successful  in  proving 

that  contract  is  in  writing. 

Kehlor  vs.  Wilton,  99  App.  228. 

Different  Writings : 

—  In  General:  If  an  agreement  is  evidenced  by  more  than  one 
writing,  all  of  them  are  to  be  read  together  and  construed  as  one 
contract,  and  all  writings  executed  at  the  same  time  and  relating 
to  the  same  subject  matter  are  admissible. 

People  vs.  Economy  Povrer  Co.,  241  111.  290;  Gould  vs.  Magnolia 
Metal  Co.,  207  111.  172. 

—  Construed  Together:  AVhere  two  written  instruments  are 
executed  as  the  evidence  of  one  transaction,  they  will  be  read  and 
considered  together  as  one  instrument  in  arriving  at  intention  of 
the  parties. 

111.  Match  Co.  vs.  C.  E.  I.  &  P.  Hj.  Co.,  2.50  111.  396;  Grindle  vs.  Grin- 
die,  240  111.  143;  Freer  vs.  Lake,  115  Jll.  662;  Gardt  vs.  Brown, 
113  111.  475;  Pruett  vs.  O 'Gara  Coal  Co.,  165  App.  470;  XI  111. 
Notes  989,  §  189,  et  scq. 

And  parol  is  admissible  to  identify  instruments. 

Hamlin  vs.  Piser,  163  App.  51. 
Contract  incomplete  by  reason  of  reference  to  other  writings  is 
inadmissible  without  such  writing  and  evidence  connecting  them. 
Aluminum  Co.  vs.  King,  92  App.  276. 
A  contract  and  a  lease  as  parts  of  the  same  transaction,  and 
relating  to  the  same  subject  matter,  although  written  at  different 
times,  are  to  be  construed  together  as  one  instrument. 
Crandall  vs.  Sorg,   198  111.  48. 
A  lease  and  a  contemx)oraneous  agreement  providing  for  abate- 
ment of  rent  in  case  the  lessors  should  be  prevented  from  delivering 
possession  by  the  acts  of  third  parties  over  which  they  had  no  con- 
trol,  should   be   construed   together   in    determining   whether   the 
lessors  or  lessee  would  be  entitled  to  receive  the  double  rental 
value  of  the  premises  in  case  the  former  lessees  wilfully  held  over. 
Alexander  vs.  Loeb,  230  111.  454.    Hrft    i 
Where,  at  time  bill  of  sale  for  personal  property  is  executed  and 
delivered,  vendee  executed  and  delivered  to  vendor,  or  his  agent, 
a  writing  showing  receipt  of  property  and  what  vendee  is  to  do  in 
consideration  of  transfer,  the  two  writings  will  be  construed  to- 
gether, as  affording  evidence  of  the  transaction. 
Wood  vs.  Clark,  121  111.  359. 
Where  notes  and  a  written  contract  bear  same  date,  and  are  exe- 
cuted at  same  time,  they  are  but  parts  of  one  transaction. 
Denby  vs.   Graff,    10  App.    194. 


PAROL  917 

Part  in  Writing : 

Where  only  part  of  a  contract  is  reduced  to  writing  and  the  part 
so  reduced  to  writing  is  merely  a  partial  execution  of  a  part  of  an 

entire  agreement,  the  whole  agreement  may  be  jiroven. 

Bradshaw  vs.   ComLs,   102   111.   428;    Griffin   vs.    Griffin,    163   111.   216. 

The   rule   excluding   parol   evidence   does  not   apply   when   the 

original  contract  was  verbal  and  entire,  and  a  part  only  is  reduced 

to  writing. 

Casner  vs.  Stafford,  86  App.  469. 

So  a  circular  delivered  to  one  party  may  be  admissible  as  part 

of  contract. 

W.  U.  Cold  Storage  Co.  vs.  Warner,  78  App.  577;  W.  U.  Cold  Stor- 
age Co.  vs.  pjmnierling,  73  App.  394. 

The  execution  of  instruments  in  part  performance  of  an  oral 
contract  does  not  prevent  the  introduction  of  oral  evidence  of  the 

terms  of  the  contract, 

Scott   vs.   Scott,  61  App.   103;   Lacey  vs.  Gard,  60  App.  72. 

Unsigned  Writing: 

A  contract  prepared  by  a  party,  though  not  executed  by  either, 

is  entitled  to  great  weight  in  showing  what  was  the  real  contract 

between  them. 

Purington  vs.  Ackburst,  74  111.  490;  Ewing  vs.  Bailey,  36  App.  191. 

A  contract  executed  by  party  to  be  l)Ound  is  admissible,  notwith- 
standing a  third  party  is  named  in  the  contract,  who  has  not  signed 

same. 

Breiliiig  vs.  Hybl,  167  App.  165 ;  Thomas  vs.  Caldwell,  50  111.  138. 

Contemporary  Agreements: 

The  contract,  having  lieen  reduced  to  writing,  affords  the  only 
evidence  of  its  terms  and  conditions,  and  cannot  be  varied  by  con- 
temporaneous verbal  agreements  of  the  parties. 

Eobison  vs.  Yetter,  238  111.  320;  Weaver  vs.  Fries,  85  Til.  356;  Whit- 
ney vs.  Bnllock,  145  App.  269;  Metzger  vs.  Highland  Brew.  Co., 
151  App.  332. 

Delivered  Instruments: 

While  it  may  be  shown  that  a  deed  or  contract  is  not  to  be  de- 
livered until  a  condition  is  to  be  performed,  yet  it  cannot  be  shown 
by  parol  that  actual  delivery  was  made  under  an  agreement  that  a 
condition  should  be  performed,  and  that  deed  or  contract  should 
not  be  operative  unless  it  was  performed. 

In  the  one  case,  the  purpose  of  the  proof  is  to  show  want  of  a 
legal  delivery,  but  in  the  other  case,  the  effect  of  the  proof  is  to 
contradict  an  instrument  absolute  on  its  face,  by  showing,  contrary 
to  its  terms,  that  it  it  is  not  absolute,  but  only  conditional, 

Eyan  vs.  Cook,  172  111.  302;   Eyan  vs.  McArdle,   159  App.  579. 

Reservations : 

Parol  proof  to  show  what  fixtures,  on  an  estate  at  time  of  its 
conveyance,  passed  by  the  deed,  is  inadmissible.     The  deed  must 

settle  that  question. 

McL.nnghliii  vs.  Johnson,  46  111.   163. 
So,  on  a  written  contract  for  sale  of  land,  proof  cannot  be  received 
of  verbal  reservation,  of  trees  and  shrubbery  growing  in  a  nursery, 
contemporaneous   with  written  contract  and  impairing  its   legal 
effect. 

Smith  vs.  Price,  39  111.  20;  Darnlcy  vs.  Fergnson,  48  App.  224. 


918  PAROL 

Prior  Contract: 

A  written  contract  cannot  be  contradicted  or  varied  by  evidence 
of  an  oral  agreement  entered  into  between  the  parties  before  or  at 
time  of  making  such  contract. 

Couvcrt  vs.  Bishop  &  Co.,  152  App.  516;  Wheaton  vs.  Bartlett,  105 
App.  326;  Cannon  vs.  Micli.  Ins.  Co.,  103  App.  414;  Walker  vs. 
Crawford,  56  111.  444;  Emery  vs.  Mohlcr,  69  III.  221. 

When  a  written  contract  is  silent  as  to  any  proposed  dedication 

of  a  street,  proof  of  prior  parol  agreement  to  make  same  is  inad- 

iiiissit)!^. 

Schneider  vs.  Sulzer,  212  111.  87. 

Intention: 

What  the  parties  to  a  written  contract  may  have  understood  as 
to  the  meaning  of  language  used  is  not  admissible  in  evidence.  The 
intention  or  understanding  of  the  parties,  when  there  is  a  written 
contract  in  existence,  must  be  determined,  not  from  what  the  parties 
thought,  but  from  the  language  of  the  contract  itself. 

Noble   vs.    Fickes,    230    111.    594;    Gage   vs.    Cameron,    212    111.    146; 

Duggan  vs.  Uppendahl,  197  111.   179;   Packer  vs.  Koberts,   140  111. 

90;    Eigdon  vs.  Conlcy,   141    111.   565;    Wetenkamp   vs.   Billigh,   27 

App.  585;  Todd  vs.  Mitchell,  67  App.  84. 

An  agreement,  when  reduced  to  writing,  must  be  presumed  to 

speak  the  intentions  of  parties  who  signed  it.    It  speaks  for  itself, 

and  the  intention  with  which  it  was  executed  must  be  determined 

from  language  used  to  express  its  intention.   It  is  not  to  be  changed 

by  extrinsic  evidence,  as  to  how  it  was  understood  or  what  was 

intended. 

Emerich  vs.  Siegel  Cooper  &  Co.,  237  111.  610;   State  Bank  vs.  But- 
ler,  149   111.   575;    Mer.   Ins.   Co.   vs.   Jaynes,   87    111.    199;    McCor- 
mick  vs.  Huse,  66  111.  315;  Gibbons  vs.  Bressler,  61  111.  110;  Whit- 
ney vs.  Bullock,  145  App.  269;  Gardt  vs.  Brown,  113  111.  475. 
But  parol  is  admissible  to  show  intent  and  understanding  of 
parties   where    particular   words   are,    prior   to    making    contract, 
agreed  upon  as  having  particular  meaning. 

Evans  vs.  Eoss  Cons.  Co.,  142  App.  375;   Salt  Pork  Coal  Co.  vs.  El- 
dridge   Coal   Co.,   170   App.   268. 
Or  where  words  used  have  a  doubtful  meaning. 
Gale  vs.  U.  S.  Brg.  Co.,  181  App.  381. 

As  to  Strangers: 

,:  Strangers  to  a  written  instrument,  when  their  rights  are  con- 
cerned, are  at  liberty  to  show  by  parol  evidence  that  the  contract 
of  the  'parties  is  different  from  what  it  purports  to  be  on  the  face 

of  the  writing. 

Harts  vs.  Emory,   184  III.   560;   German  Ins.   Co.  vs.   Gibe,   162   HI, 
251;  Washburn  Co.  vs.  Wire  Fence  Co.,  i09  111.  71;   Lane  Co.  vs. 
W.  U.  Tel.  Co.,  149  App.  562 ;  Aleshire  vs.  Lee  Co.  Bank,  105  App. 
32. 
The  rule  that  a  written  agreement  cannot  be  contradicted,  en- 
larged or  varied  by  parol  proof  does  not  apply  to  controversy  be- 
tween one  of  the  parties  and  a  third  person. 

Gore  vs.  Henrotin,  165  App.  222;  Broughton  vs.  Mitchell,  147  App. 
281;  Salter  vs.  Hines  Lbr.  Co.,  77  App.  97:  C.  P.  &  St.  L.  Ey.  Co. 
vs.  Beach,  29  App.  157. 
This  rule  applies  to  a  release  to  a  joint  tort-feasor. 
Gore  vs.  Henrotin,   165  App.  222. 


PAROL  919 

But  one  who  claims  under  a  contract  cannot  contradict  it  by 

parol. 

Northern    Assn.    Co.    vs.    Building    Assn.    198    111.    474;    Schnltz    vs. 
Plankington  Bank,  40  App.  4G2. 

Subsequent  Agreements: 

—  Ahrogatioii  and  Release:  Parol  evidence  is  admissible  to  show 
contracts  under  seal  have  been  released,  abrogated,  cancelled  and 
surrendered  by  an  executed  parol  agreement,  and  the  question 
whether  a  sealed  contract  is  so  abrogated  is  a  question  for  the  jury. 

Alseluiler  vs.   Schiff,    1(54   111.    298;    Goldsliorongh   vs.   Gable,   140   111. 

269;    Robinson  vs.   Hardy,   22   App.   512;    Bloomquist   vs.   Johnson, 

107  App.  154;   Milligen  vs.  Hinbaugh,  70  App.  537;  Danforth  vs. 

Melntyre,  11  App.  417. 

And  such  release  may  be  deduced  from  circumstances  or  a  course 

of  conduct  in  evidence  clearly  evincing  an  abandonment. 

Lasher   vs.   Locffler,    190    111.    150;    Harrison   vs.    Polar    Star   Lodge, 
IK)  111.  279;  Holbrook  vs.  Elec.  App.  Co.,  90  App.  86. 
A  contract  under  seal  may  be  released,  abrogated,  cancelled  and 

surrendered  by  an  executed  parol  agreement. 

Alschuler  vs.   Sehitf,   1(34  111.   298;   Goldsborough  vs.   Gable,   140  111. 
269;    Pelouze   vs.    Gibbons,    157    App.    186;    Gnnn    vs.    Tibbs,    134 
App.  280. 
An   executory   sealed   contract   cannot  be   altered,   modified   or 
changed  by  a  parol  agreement,  but  may  be  surrendered  and  can- 
celled by  an  executed  parol  agreement. 

Breitman  vs.   Fischer,  216  111.   142;   Starin  vs.  Kraft,   174  111.   120; 
White  vs.  Walker,  31  111.  422;   Worrell  vs.  Forsythe,  141  111.  22; 
Baker  vs.  Pratt,  15  111.  568. 
So  where  a  lease  has  been  fully  executed  as  modified  by  a  parol 
agreement,  evidence  of  the  parol  agreement  is  admissible. 

Snow  vs.  Griesheimer,  220  111.  106;  Harmes  vs.  McCormick,  30  App. 
125;  Warder  vs.  Arnold,  75  App.  674. 
An  executed  parol  agreement  may  be  shown  to  defeat  recovery 
under  an  instrument  under  seal.  If  a  new  parol  agreement,  even 
though  it  may  be  without  consideration,  has  been  executed,  and  one 
of  the  parties  thereto  has  been  led  into  a  line  of  conduct  which 
must  be  prejudicial  to  his  interests,  an  equitable  estoppel  will  arise 

in  his  favor. 

Worrell   vs.   Forsythe,   141   111.    22. 
But  an  executory  contract  under  seal  cannot  be  modified,  varied, 
discharged  or  released  by  an  unexecuted  parol  agreement. 

Leavitt  vs.  Stern,  159  111.  526;  Pelonze  vs.  Gibbons,  157  App.  186; 
Heisen  vs.  Heisen,  145  111.   658;   Loach  vs.  Farnum,   90  111.   368; 
Danchy  Iron  Works  vs.  Toles,  76  App.  669. 
The  terms  of  a  contract  under  seal  cannot  be  varied  except  by 
an  instrument  of  the  same  dignity,  and  this  notwithstanding  such 
contract  would  have  been  valid  without  a  seal ;  but  the  mere  waiver 
of  one  of  the  terms  or  a  condition  of  such  contract,  which  waiver 
operates  merely  by  way  of  release  or  discharge,  but  leaves  the  con- 
tract otherwise  unchanged,  may  be  shown  by  parol. 
Morehoiise  vs.  TerriU,  111  App.  460. 

—  Waiver:  An  executory  contract  under  seal  cannot  be  modi- 
fied by  parol  so  as  to  introduce  any  new  element  into  the  contract 
or  add  any  new  terms  thereto,  but  a  waiver  of  a  covenant  by  the 
party  for  whose  benefit  it  is  inserted  may  be  shown  by  parol  to  have 


920  PAROL 

been  made,  and  such  waiver  is  not  a  modification  or  change  in  the 

terms  of  the  original  agreement. 

Becker  vs"  Becker,  250  III.  117;  Pierce  vs.  Powers,  ISO  App.  687. 
A  waiver  need  not  be  shown  by  an  express  agreement  between 
the  parties;  it  may  be  established  by  their  acts  and  eondnct  with 
respect  thereto.  It  may  be  inferred  from  facts  and  circumstances 
sufficiently  indicating  an  intention  to  waive,  and  a  new  consider- 
ation is  not  essential. 

Globe  Brew.  Co.  vs.  Amer.  Malt  Co.,   152  App.  194;   Stowe  vs.  Ens- 
sell,  36  111.  18;  Frost  vs.  Thompson,  18  App.  410. 
Any  party  has  a  right  to  waive  a  strict  compliance  with  the  terms 
of  a  contract,  and  proof  of  such  waiver  may  consist  of  acts  in  pais. 
Kissack  vs.  Bonrke,  224  111.  352;   Vroman  vs.   Darrow,  40  111.   171; 
Morehouse   vp.   Terrell,   111   App.   460;    C.   &    E.   I.   E.   E.   Co.   vs. 
Morau,  85  App.  543. 
—  Rescission:    Of  contract  may  be  implied  from  circumstances. 

Natl.   Ins.   Co.   vs.   Met.   Ins.   Co.,   226   111.    102. 
Evidence  of  a  subsequent  contract  raises  a  conclusive  presumption 
of  rescission  of  former  contract  so  far  as  the  two  are  inconsistent. 
Stowe  vs.  Eus-ell,  36  111.   IS;   Farrar  vs.  Tolliver,  88   111.  408;   Gray 
vs.  B.  &  N.  Ey.  Co.,  120  App.  159. 
But  the  contract  must  appear  to  have  been  rescinded  i)i  toto. 

Balicock  vs.  Farwcll,  245  111.  14;  Bollnow  vs.  Novacek,  184  111.  463; 
Kelloog  vs.  Turpee,  93  111.  265. 

And  when  shown  to  have  been  abrogated,  parol  is  admissible  to 

show  transaction  and  relation  of  parties. 
Loeber  vs.  Horn,  167  App.  311. 

Separate  Parol  Agreement: 

A  separate  parol  agreement  as  to  any  matter  not  inconsistent  with 
the  terms  or  legal  effect  of  the  written  agreement,  and  on  which  it 
is  silent,  may  be  shown,  where  it  appears  the  written  instrument  was 
not  intended  to  be  a  complete  and  final  statement  of  the  whole  trans- 
action between  the  parties. 

Mnrphy  vs.  Schnell,  248  111.   182;   Fnchs  vs.  Kittredge,  242   111.   88; 

Todd  vs.  Todd,  159  111.  408;  Halliday  vs.  Mulligan,  113  App.  177; 

Saffer  vs.   Lambert,   111  App.  410;    Penn.   Amer.   Plate  Glass  Co. 

vs.  Hawes,  170  App.  224;  XII  111.  Notes  519,  §  350. 

To  the  rule,  however,  there  are  exceptions.     One  is  where  the 

apparent  omission  is  supplied  by  implication  of  law.    In  such  case 

the  implication  cannot  be  disputed  or  overcome  by  attempting  to 

show  a  parol,  prior  or  contemporaneous  agreement  that  a  condition 

should  exist  at  variance  with  the  implication. 

Union   Sewing   Mach.   Co.   vs.  Lockwood,   110   App.   387;    Drivier  vs. 

Ford,  90  111.  595. 

A  waiver  of  the  right  to  rebuild,  made  by  parol,  may  be  shown, 

notwithstanding  a  subsequent  written  submission  to  arbitrators,  its 

admission  not  being  a  violation  of  the  rule  that  parol  evidence  will 

not  be  received  to  vary  the  terms  of  a  wTiting. 
Piatt  vs.  Aetna  Ins.  Co.,  1.53  111.  113. 
Where  a  written  contract  for  sale  and  delivery  of  railroad  ties 
provides  that  same  shall  be  inspected  before  payment,  and  that  they 
shall  be  loaded  on  company's  cars  at  certain  place,  but  is  silent  as 
to  where  inspection  shall  be  made,  it  may  be  shown  that  it  was  the 


PAROL  921 

understanding  of  the  parties  that  the  ties  were  to  be  shipped  and 

inspected  where  unloaded. 

H.  K.  &  E.  K.  K.  Co.  vs.  Walsh,  85  111.  58. 

Contract  Not  Intended  Binding: 

Parol  evidence  is  competent  to  show  that  an  instrument  was 

never  intended  to  become  operative.     The  rule  that  parol  evidence 

of  contemporaneous  agreement  is  not  admissible  to  contradict  or 

vary  terms  of  a  valid  written  agreement  is  not  infringed  by  the 

introduction  of  parol  evidence  which  shows  that  the  "instrument 

never  had  a  legal  existence  or  binding  force." 

Eobinson  vs.  Nessell,  8G  App.  212;  VauNorman  vs.  Young,  129  App. 
542. 

So  a  contract,  mutual  in  form  but  signed  by  only  one  party,  is 

inadmissible. 

Waggjeman   vs.   Brackman,   52   III.   468. 

Fraud  and  Deceit: 

—  lib  General:    Misrepresentations  made  to  induce  execution  of 

contract  may  be  proven  by  parol  evidence,  notwithstanding  the 

terms  of  the  contract  may  be  reduced  to  writing.     In  such  a  case, 

the  action  is  not  upon  the  contract,  but  upon  the  representations 

and  deceit.     Fraud  is  not  extinguished  by  the  covenants. 

Gnibb  vs.  Milan.  249  111.  456;  Grand  Tower  E.  E.  Co.  vs.  Walton,  150 
111.  428;  Antle  vs.  Sexton,  137  111.  410;  A'anBiiskirk  vs.  Day,  32 
111.  260;  Supreme  Council  vs.  Beggs,  110  App.  139. 

— ■Circumstantial  Evidence:  Proof  of  fraud  may  be  made  by 
facts  and  circumstances  which  raise  the  inference  that  it  was  per- 
petrated. 

Swift  vs.  Yanawav,  153  111.  197;  Bear  vs.  Bear,  145  111.  21;  Strauss 
vs.  Kramert,  56*^111.  254;  Eeed  vs.  Noxon,  48  111.  323. 

So  circulars  submitted  to  vendee  by  vendor  are  admissible  to 

show  fraud. 

Hicks  vs.  Stevens,  121  111.  186. 

—  As  to  Scaled  Instruments:  In  action  at  law,  a  written  instru- 
ment under  seal  cannot  be  impeached  for  fraud  not  inhering  in  the 
execution  thereof,  but  which  only  goes  to  the  extent  of  the  con- 
sideration. 

Papke  vs.   Hammond,   192   111.   631;    Windette  vs.   Hurlbut,   115   111. 

403;  Fowler  Cycle  Co.  vs.  Fraser,  110  App.  126. 
But  this  rule  does  not  include  a  release  not  under  seal. 

Jackson  vs.  Security  Ins.  Co.,  233  111.   161;   F.  &  M.  L.  Ins.  Co.  vs. 

Caine,  224  111.  599;   Titsworth  vs.  Hyde,  54  111.  386. 

Consideration : 

—  In  General:  Where  suit  is  brought  upon  a  simple  contract, 
resort  may  be  had  to  parol  evidence  for  purpose  of  impeaching 

consideration. 

Eobinson  vs.  Yetter,  238  111.  320;  F.  M.  Ins.  Co.  vs.  Caine,  224  111. 
599;   Wolfe  vs.  Fletemeyer,  83  111.  418;   Logue  vs.  Flannery,   148 
App.  471. 
And  to  establish  consideration  where  none  is  recited  in  instru- 
ment. 

Martin  vs.  Stubbings,  27  App.  121. 
In  suit  upon  a  written  contract  for  payment  of  money  on  a 
certain  condition  expressed,  when  consideration  is  put  in  issue  and 
denied,  antecedent  propositions  in  reference  to  contract,  as  well  as 


922  PAROL 

the  circumstances  at  the  time  it  was  entered  into,  may  be  shown  to 
ascertain  what  was  the  real  consideration  of  the  contract. 

Grier  vs.  Puterbaugh,  108  111.  602. 
—  Sealed  Instruments:  A  seal  imports  consideration  and  a 
court  of  law  may  not  receive  parol  evidence  and  investigate  the 
question  whether  there  were  fradulent  representations  touching 
merely  the  nature  or  value  of  the  consideration,  but  leaves  the  party 
to  a  court  of  equity,  where  the  consideration  may  be  impeached  for 
fraud.  The  remedy  there  is  by  a  direct  proceeding  to  set  aside 
the  instrument,  and  parol  evidence  is  there  competent. 

Eobiusou  vs.  Yetter,  238  111.  320;   Corbett  vs.  Cronkhite,  239  111.  9. 
Where  such  a  contract  recites  an   adequate  consideration,   the 
burden  of  proof  is  upon  party  seeking  to  avoid  it  to  impeach  such 
recital  by  a  clear  preponderance  of  evidence. 

McFarlane  vs.  Williams,   107  111.  33. 
The  statements  as  to  amount  and  receipt  of  consideration  in  a 
deed,  are  formal  recitals,  the  legal  operation  of  which  is  to  pre- 
vent a  resulting  trust,  and  may  be  explained,  varied  or  contra- 
dicted by  parol  evidence, 

Lloyd  vs.  Sandusky,  203  111.  621. 

Delivery : 

While  parol  evidence  is  not  admissible  to  vary  the  terms  of  a 
written  instrument,  yet  such  evidence  is  always  competent  to  show 
that  by  reason  of  the  circumstances  under  which  the  instrument 

was  executed,  it  did  not  take  effect. 

Bellville   Savings  Bank   vs.   Bornman,    124    111.    200;    Biederman   vs. 
O 'Conner,  117  111.  493;  Hartley  vs.  Gilhofer,  109  App.  527;  Demes- 
ney  vs.  Gravelin,  50  111.  93;  Weaver  vs.  Snow,  60  App.  624;  Mich. 
Life  Ins.  Co.  vs.  Beaver,  26  App.  350. 
Where  a  grantor  executes  a  deed  and  delivers  it  to  a  third  per- 
son to  be  delivered  to  a  grantee  upon  some  future  event,  it  is  not 
the  grantee's  deed  until  the  second  delivery. 
Fitch  vs.  Miller,  200  111.  170. 
So  parol  is  admissible  to  show  chattel  mortgage  was  delivered 

conditionally. 

VanNorman  vs.  Young,  228  111.  425. 
But  where  a  contract  ready  for  delivery  is  handed  to  obligee  with 
intention  of  passing  the  title,  there  is  a  valid  delivery  and  parol 
evidence  is  not  admissible  to  show  contract  was  not  to  be  operative 
until  performance  of  some  condition. 

Eyan  vs.  Cook,  172  111.  302;  Eyan  vs.  McArdle,  159  App.  579. 
And  possession  of  a  written  agreement  by  a  party  thereto,  after 
its  execution  by  the  other  party,  raises  presumption  of  delivery 
which  can  only  be  overcome  by  clear  and  satisfactory  proof. 

Dunlop  vs.  Lamb,  182  111.  319. 

It  cannot  be  shown  by  parol  that  bond  was  delivered  to  principal 

on  condition  that  another  sign  as  co-surety  before  delivery  to  obligee, 

if  fact  was  unknown  to  such  obligee. 

Comstock  vs.  Gage,  91  111.  328;  Smith  vs.  Peoria  Co.,  59  111.  412. 

Usury : 

Parol  testimony  is  admissible  to  establish  fact  that  a  contract  is 

usurious. 

Kidder  vs.  VanDershoot,  114  111.  133;  Brand  vs.  Henderson,  107 
111.  141;  Hewitt  vs.  Dement,  57  111.  500;  McGuire  vs.  Campbell, 
58  App.  188. 


PAROL  923 

The  form  of  contract  is  not  conclusive  on  question  of  usury,  and 

resort  to  extrinsic  evidence  may  be  had  without  regard  to  whether 

there  is  any  ambiguity  in  the  contract,  for  the  reason  that  the 

charge  of  usury  raises  question  of  illegality  of  transaction,  to  the 

extent  that  usury,  under  the  statute,  renders  contracts  illegal  and 

void. 

Clemens  vs.  Crane,  234  111.  215;  Keeve  vs.  Strawn,  14  111.  94. 

Same  rule  applies  in  adjustment  of  claims  in  probate. 

Cheney  vs.  Eoodhouse,  135  111.  257 ;  Henry  vs.  Caruthers,  196  111.  136. 

So  it  is  competent,  by  party  seeking  to  enforce  contract,  to  show 

by  parol  that  agreement  was  result  of  accident  or  mistake. 

Lurton   vs.   Jacksonville  Loan   Assn.    187   111.   141;    WoUschlager   vs. 
McEldowney,  96  App.  34. 

Illegal  Agreements: 

A  contract,  sealed  or  not  sealed,  though  on  its  face  honest  and 

lawful,  may  be,  nevertheless,  shown  to  be  illegal  and  contrary  to 

public  morals. 

Eyan  vs.  Potwin,  60  App.  637;  Henderson  vs.  Palmer,  71  111.  579. 

And  may  be  so  established  by  proof  of  facts  and  circumstances 
showing  coincidences  which  can  be  accounted  for  upon  no  other 
assumption  than  that  such  an  original  understanding  existed. 
Estate  of  Eamsey  vs.  Whitbeek,   183  111.  550. 

It  is  competent  to  go  behind  the  language  of  a  writing  and 
show  that  the  real  purpose  of  its  execution  is  to  delay  and  defraud 
creditors,  in  violation  of  the  Statute  of  Frauds,  and  this  in  behalf 
of  the  party  ostensibly  bound  by  the  instrument,  and  to  defeat  suit 

for  its  enforcement. 

Tyler  vs.  Tyler,  126  111.  525;   Elwood  vs.  Walter,  103  App.  219. 
Whether  required  by  statute  of  frauds  to  be  in  writing  or  not. 
McLennan  vs.  Johnston,   60  111.   306. 

Mistake : 

—  At  Law:  A  contract  cannot  be  part  in  writing  and  part  in 
parol.  If  there  has  been  some  agreement  omitted  by  mistake  from 
the  written  contract,  the  only  remedy  is  to  secure  a  reformation  of 
the  instrument,  and  such  reformation  cannot  be  secured  in  action 
at  law. 

Schwass  vs.  Hershey,  125  111.  653;   Over  vs.  Walzer,  103  App.   104; 
Hartford  Insurance  Co.  vs.  Webster,  69   111.  392. 

—  Admissions:     And  the  mistake  may  be  shown  by  admissions 

of  party  in  whose  favor  it  is  made. 

Purvines  vs.  Harrison,  151  111.  219. 

—  Mutual:    Mistake  must  be  of  fact  and  not  of  law,  and  must 

be  mutual. 

Gray  vs.  Merchants  Ins.  Co.,  113  App.  537;    Oswald  vs.   Sproehnle, 
16  App.  368. 

—  Settlements:  When  a  settlement  is  relied  upon,  parol  evi- 
dence is  admissible  to  prove  that  some  item  was  omitted  either  by 
fraud,  accident  or  mistake,  even  though  the  settlement  be  evidenced 

by  written  agreement  (e.  g.  promissory  note.) 

Kuch  vs.  Fnlfs,  68  App.  134. 

Cancellation   of  Instruments: 

The  rule  that  parol  evidence  is  inadmissible  to  vary  the  terms 


924  PAROL 

of  a  written  instrunieut  has  uo  application  in  a  suit  to  cancel 

same. 

G.  T.  &  C.  G.  II.  Co.  vs.  Walton,  150  111.  428;  Wilson  vs.  Haeclser,  85 
111.   349;    .McLcunan  vs.  Johustou,   (JO    111.   306. 

Parol  evidence  of  the  circumstances  connected  with  a  transaction 
and  the  declared  intention  of  the  parties  in  executing  a  written 
instrument  is  admissible  for  purpose  of  showing  fraud,  accident  or 

mistake. 

Race  vs.  Weston,  86  111.  91. 

Custom  and  Usage: 

— //(  (fcniral:  Evidence  of  a  usage  may  be  admissible  to  add 
to  or  explain  the  terms  of  a  written  contract,  but  not  to  vary  or  con- 
tradict such  terms,  either  expressly  or  by  implication. 

Turner  vs.  Osgood  C'olortype  Co.,  223  111.  629;  West  Un.  C.  S.  Co.  vs. 

Froiliu-e   Co.,    197    111.   457;    Leavitt   vs.    Kennicott,    157   111.    235; 

Gilbert  vs.  McGinnis,   114  111.  28;   Abendpost  vs.  Hertel,  67  App. 

501;  Steidtman  vs.  Lay  Co.,  234  111.  84. 

But  such  usage  or  custom,  however  extensive  it  may  be,  can  not 

be  noticed  by  courts  unless  established  by  proof, 

Morris  vs.  Jamieson,  205  111.  87. 

— ■  Local  Usage :  Where  a  particular  word  or  phrase  has  a  par- 
ticular or  technical  meaning  in  a  particular  neighborhood,  at  a  par- 
ticuhir  period,  and  that  word  or  phrase  is  used  in  an  instrument 
made  at  that  time  or  place,  it  is  competent  to  show  that  meaning 

bv  parol. 

Broadwell  vs.  Broadwcll,  6  111.  599. 
The  meaning  of  the  word  "product"  in  a  contract  of  bailment 
for  manufacturers  may  be  proven  orally  as  having  a  local  meaning. 
Stewart  vs.  Smith,  28  111.  397. 
It  is  competent  for  a  witness  to  testify  as  to  the  meaning  of  a 
term  used  in  his  trade,  professioji  or  occupation. 

Garrity  vs.  Catholic  Order,  148  App.  189;  Dixon  vs.  Dunham,  14 
111.  324. 
So,  in  determining  the  meaning  of  a  covenant  in  a  contract  where- 
by one  railroad  company  agrees  to  furnish  "necessary  signals  and 
switchmen"  at  its  crossing  over  the  other's  track,  the  court  may 
permit  expert  witnesses  to  testify  as  to  what  would  be  the  character 
of  the  signals  necessary  at  that  point  and  the  duties  of  "switchmen" 

relating  thereto. 

L.  &  N.  Ey.  Co.  vs.  I.  C.  E.  Co.,  174  111.  448. 

Character  of  Transaction: 

—  Execution  of  Listrument:  One  may  write  and  execute  an  in- 
strument by  the  hand  of  another,  when  done  in  his  presence  and 
by  his  direction,  and  the  fact  may  be  proven  by  parol  evidence, 
and  an  action  may  be  brought  upon  the  instrument  wdthout  violat- 
ing the  Statute  of  Frauds. 

Morton  vs.  Murray,   176  111.  54. 

—  Partnership:  The  extent  of  each  partner's  interest  in  part- 
nership real  estate  held  as  partnership  stock  in  trade  for  profit, 
may  be  shown  by  parol,  whether  the  title  is  in  one  of  the  partners 

or  in  all. 

Van  Housen  vs.  Copeland,  ISO  111.  74. 

Parol  evidence  that  a  purchase  of  land  was  made  by  a  firm 
rather  than  by  its  members  as  individuals,   and  that  the  notes 


PAROL  925 

given  therefor  were  for  partnership  debts,  does  not  vary  or  con- 
tradict the  terms  of  such,  notes  where  they  do  not  appear  on  their 
face  not  to  be  a  finn  obligation,  otherwise  than  by  the  fact  that  they 
were  signed  by  the  members  individually  and  not  in  the  firm  name. 

Drefuss  vs.  Union  Natl.  Bank,  164  111.  83. 

—  Purpose  of  Execution:  The  purpose  for  which  a  writing  was 
executed  may  be  shown,  and  where  the  evidence  is  conflicting,  is 
a  question  of  fact  for  jury. 

I.  C.  E.  K.  Co.  vs.  Byrne,  205  111.  9. 

Construction  by  Parties: 

Where  a  contract  is  silent,  doubtful  or  ambiguous,  it  is  proper  to 
show  the  interpretation  put  upon  it  by  the  parties  themselves. 

Con.  Coal  Co.  vs.  Schneider,  163  III.  393;  Eogers  Co.  vs.  Jones,  145 
App.  469;   First  Natl.  Bank  vs.  Eotbschild^  107   App.  133;   Davis 
vs.  Sexton,  35  App.  407;   Eoniono  O.   S.  Co.  vs.  M.  U.  B.  I.  Co., 
173  App.  534;  XI  111.  Notes  988,   §187. 
The  acts  and  conduct  of  the  parties  indicating  the  construction 
placed  by  them  on  their  written  agreement  may  be  considered  in 
determining  the  true  meaning  of  the  contract,  but  vague,  general 
conversations  between  the  parties  in  regard  to  what  they  meant 
by  it  do  not  amount  to  "acts  and  conduct." 
Ingraham  vs.   Mariner,   194  111.   269. 
While  the  interpretation  by  the  parties  to  a  contract,  as  evidenced 
by  their  acts,  will  in  cases  of  doubt,  be  resorted  to  for  purpose  of 
arriving  at  their  true  intention,  this  rule  is  never  allowed  to  govern 
when  the  effect  will  be  to  overthrow  the  plain  terms  of  the  contract. 
West  Ey.  Co.  vs.  Mo.  Mall.  Iron  Co.,  91  App.  28. 
In  action  for  breach  of  contract  to  deliver  coal,  which  defendant 
ascribes  to  its  inability  to  obtain  cars,  proof  that  defendant  took 
upon  itself  the  burden  of  furnishing  cars,  the  contract  being  silent 
upon  that  point,  and  that  it  never  asked  the  purchaser  to  furnish 
cars  or  offered  to  make  deliveries  if  he  would  do  so,  is  competent, 
as  showing  a  construction  of  the  contract  by  the  parties. 
Con.  Coal  Co.  vs.  Jones,  232  111.  326. 
One  suing  for  the  price  of  ten  thousand  pictures,  who  is  met  with 
the  defense  that  only  five  thousand  were  ordered,  may  prove,  as 
bearing  upon  the  contract,  that  as  soon  as  the  order  for  pictures 
was  received,  he  contracted  for  ten  thousand  frames  for  such  pic- 
tures, to  be  delivered  to  the  purchaser. 
Wrigley  vs.   Cornelius,   162  111.   92. 
By  performing  the  acts  required  by  one  instrument,  the  party 
whose  name  appears  thereto  will  be  regarded  as  recognizing  its 
validity,  and  he  will  be  estopped  from  denying  its  execution. 
Boggs  vs.  Alcott,  40   111.  304. 

Surrounding-  Circumstances: 

—  In  General:  Parol  evidence  is  admissible  to  show  the  pur- 
poses and  circumstances  under  which  a  written  contract  was  entered 
into  by  the  parties,  but  never  to  vaiy,  alter  or  contradict  its  terms. 

Seymour  vs.  Bowles,  172  111.  521;  Gardt  vs.  Brown,  113  111.  475. 

While  it  is  true  that  parol  evidence  cannot  be  introduced  to 

contradict  or  vary  the  terms  of  a  valid  written  instrument,  yet 

such  evidence  is  admissible  for  the  purpose  of  explaining  written 

instruments  by  showing  the  situation  of  the  parties  in  their  rela- 


926  PAROL 

tions  to  persons  and  things  around  them,  or  as  is  sometimes  said, 
by  proof  of  the  surrounding  circumstances.  In  such  cases,  oral 
evidence  may  be  resorted  to  for  the  purpose  of  showing  the  cir- 
cumstances surrounding  the  parties  at  the  time  the  instrument  was 
executed,  so  that  the  court  may  view  the  instrument  from  the  stand- 
point of  the  parties  who  executed  it  and  be  thereby  the  better  en- 
abled to  determine  the  sense  in  which  the  words  used  were  intended 
to  be  understood.  The  circumstances  wdiich  both  the  parties  had  in 
view  at  the  time  of  making  the  contract  may  be  referred  to  for  the 
purpose  of  determining  the  meaning  of  doubtful  expressions. 

Gage  vs.  Cameron,  212  111.  146;  Mann  vs.  Bergmann,  203  111.  406; 
Hartshorn  vs.  Byrne,  147  111.  418;  Woods  vs.  Clark,  121  111.  359; 
Black  vs.  W.  St.  L.  &  P.  Ey.  Co.,  Ill  111.  351;  Turpine  vs.  B. 
O.  &  C.  E.  E.  Co.,  105  111.  11;  Gale  vs.  U.  S.  Brg.  Co.,  181  App. 
381;  XII  111.  Notes  520,  §356. 
This  rule  applies  to  ante-nuptial  contracts. 

Collins  vs.  Phillips,  259  111.  405. 
— ■Trusts:    Whether  a  purchase  in  the  name  of  a  wife  or  child 
is  an  advancement  or  not  is  a  ciuestion  of  pure  intention,  though 
presumed,  in  the  tirst  instance,  to  be  a  provision  and  settlement; 
therefore  any  antecedent  or  contemporaneous  acts  or  facts  may  be 
received,  either  to  rebut  or  support  the  presumption,  and  any  acts 
or  facts  so  immediately  after  the  purchase  as  to  be  fairly  considered 
a  part  of  the  transaction,  may  be  received  for  the  same  purpose. 
Pool  vs.  Phillips,  167  HI.  432. 
So  parol  evidence  may  be  received  to  explain  and  complete  the 
trust,  if  it  is  imperfectly  expressed  in  the  writing. 
Kingsbury  vs.  Burnside,  58  111.  310. 
If  the  writing  makes  clear  the  existence  of  a  trust,  the  terms  may 

be  supplied  by  parol. 

Fox  vs.  Pox,  250  111.  384;  Cagney  vs.  O'Brien,  83  111.  72;   Pool  vs. 
Phillips,  167  111.  432. 

—  Conduct  of  Indorser:  Parol  evidence  is  no  more  admissible 
to  vary  or  contradict  the  contract  of  the  indorser  of  a  promissory 
note,  arising  by  operation  of  law  from  an  indorsement  in  blank  by 
the  payee,  than  any  other  written  contract.  Such  evidence  is  proper 
to  establish  a  trust,  or  to  show  the  circumstances  under  which  the 
indorsement  was  made,  as  whether  in  a  transaction  negotiating  the 
note,  or  otherwise,  or  to  prove  fraud  in  obtaining  the  signature, 
but  not  for  the  purpose  of  showing  that  the  parties  intended  a 
different  contract  from  that  implied  by  the  law  from  their  acts. 

Johnson   vs.   Glover,    121   111.   283. 

—  Subsequent  Conduct:  When  written  instruments  are  sub- 
mitted, the  tenor  of  which  is  not  certain  and  which  are  susceptible 
of  variant  meanings,  it  is  admissible  to  show  by  oral  testimony  the 
circumstances  under  which  the  writings  were  made,  as  well  as  the 
subsequent  conduct  of  the  parties  thereunder,  and  the  inference 
to  be  drawn  from  such  situation,  and  such  conduct  is  ordinarily  a 
question  of  fact  to  be  determined  by  a  jury. 

First  Natl.  Bank  vs.  Eotbschild,  107  App.  133. 

Words  and  Terms: 

—  In  General:  If  it  is  not  certain  from  the  face  of  a  contract 
in  what  sense  terms  were  used  by  the  parties,  parol  evidence  is 


PAROL  927 

admissible  to  enable  the  court  to  determine  in  what  sense  such 

terms  were  understood  by  them. 

Irwin  vs.  Powell,  1S8  111.  107;  Salt  Fork  Coal  Co.  vs.  Eldredge  Coal 
Co.,  170  App.  268. 

An  oral  understanding  is  inadmissible  to  vary  terms  of  written 

contract.                                                                                                ...>,. 
Pruett   vs.   O'Gara   Coal   Co.,    165   App.   470.  

Expert  evidence  should  not  be  received  as  to  the  meaning  of  a 

condition  in  a  contract,'  to  understand  which  no  previous  study  or 

habit  is  necessary. 

Lord  vs.  Owen,  35  App.  382. 

It  is  wholly  unnecessary  to  call  a  workman  in  marble  to  prove  the 
legal  meaning  of  a  contract  "to  erect  a  monument,"  or  what  would 
be  understood  by  such  a  contract  in  the  trade,  because  there  could 
be  no  dispute  as  to  its  meaning.  The  law  would  attach  to  this 
language  a  precise  signification. 

Sanford  vs.  Eawliugs,  43  111.  92. 

—  Merchants  and  Dealers:     Parol  evidence  is  admissible  to  show 

that  certain  words  and  phrases  used  in  a  trade  contract  have  a  well 

known  and  established  meaning  among  the  merchants  and  dealers 

engaged  in  the  class  of  trade  which  is  the  subject  matter  of  the 

contract. 

Steidtman  vs.  Lay  Co.,  234  111.  84. 

—  Local  Term:  Where  a  particular  word  or  phrase  has  a  par- 
ticular or  technical  meaning  in  a  particular  neigh])orhood.  or  at  a 
particular  period,  and  that  word  or  phrase  is  use'd  in  an  instrument 
made  at  that  place  or  time,  it  is  competent  to  show  that  meaning 

by  parol. 

Broadwell  vs.  Broadwell,  6  111.  599;  Barrett  vs.  Stowe,  15  111.  423; 
Ball  vs.  Benjamin,  56  111.  105;  Packard  vs.  Van  Schouek,  58  111. 
79;  Stewart  vs.  Smith,  28  111.  397;  L.  N.  R.  Co.  vs.  I.  C.  E.  E.  Co., 
174  111.  448. 

—  Incomplete  Terms:  Where  the  agreement  in  writing  is  ex- 
pressed in  short  and  incomplete  terms,  parol  evidence  is  admissible 
to  explain  that  which  is  per  se  unintelligible,  such  explanation  not 
being  inconsistent  with  the  written  terms. 

Craig  vs.  Chi.  Coach  Co.,  172  App.  564;  Stone  vs.  Mnlvane,  217  111. 
40;   Eazor  vs.  Eazor,  142  111.  375;   XII  111.  Notes  520,   §  361.^ 

—  Presumptions:  Where  local  terms  and  phrases  are  used  in  a 
contract,  the  presumption  is  that  the  parties  employed  them  accord- 
ing to  their  local  significance. 

Meyers  vs.   Walker,   24  111.   134. 

—  Ahbreviations:  Parol  competent  to  show  meaning  of  abbrevi- 
ations used  in  land  descriptions. 

McChesney  vs.  City  of  Chicago,  173  111.  75. 
In  suit  against  express  company,  abbreviations  in  a  receipt  may 

be  explained  by  parol. 

Amer.  Express  Co.  vs.  Lesem,  39  111.  313. 
If  a  word  has  a  well  defined  significance,  it  is  not  competent  to 
change  that  meaning  by  evidence ;  but  if  a  word  has  not  a  definite 
and  ascertained  signification,  its  local  meaning  may  be  proven. 

Galena    Ins.    Co.    vs.    Kupfer,    28    111.    332;    Moore    vs.    Morris,    28 
111.  255. 


928  PAROL 

The  term  "current  funds"  has  a  specific  legal  and  well  known 
meaning  that  camiot  be  contradicted  or  explained. 

Marc  vs.  Kupfer,  34  III.  28G. 

As  has  the  word  "dollars"  in  an  ordinary  check  upon  a  bank. 
Howes  vs.  Austin,  35  111.  396. 

Identity  of  Subject  Matter: 

—  In  General:  A  written  contract  must  speak  for  itself  as  to 
terms,  conditions  and  limitations  of  the  agreement,  but  as  to  the 
parties  and  subject  matter,  extrinsic  evidence  is  always  competent, 
if  necessary  for  their  identification,  without  reference  to  question 
of  latent  or  patent  ambiguity. 

Hedrick   vs.    Donovan,    248    111.    479;    Cumberledge   vs.    Brooks,    235 
111.  249  J   Wilson  vs.  Roots,  119  111.  379. 

Extrinsic  is  always  competent  to  identify  the  subject  matter  of 
a  contract,  and  this  in  no  way  violates  the  rule  that  parol  testimony 
is  never  admissible  to  vary  or  contradict  the  terms  of  a  written 
contract 

Marske  vs.  Willard,   1C9  111.  276;   Bulkley  vs.  Devine,   127  111.  406; 
Ball  vs.   Benjamin,    73    111.    39. 

Parol  evidence  is  admissible  to  identify  subject  matter  of  con- 
tract for  sale  of  real  estate,  even  where  statute  of  frauds  is  pleaded. 
Hedrick  vs.   Donovan,   248   111.   479. 

But  not  unless  contract  describes  the  land  to  be  conveyed  with 

sufficient  certainty  to  enable  it  to  be  located. 

Wetmore  vs.  Watson,   253   111.    88;    Fowler  vs.   Fowler,   204   111.   82; 
Glos  vs.   Wilson   198   111.   44. 
Parol  evidence  cannot  be  considered  to  vary  or  contradict  a  mort- 
gage, but  it  is  competent  to  identify  the  subject  matter  thereof 
referred  to  in  general  terms,  or  to  show  the  situation,  condition  and 
mutual  relations  of  parties,  to  make  clear  the  meaning  of  the  lan- 
guage, which  would  otherwise  be  uncertain. 
Chambers  vs.  Petit,  172  111.  615. 

So  identity  of  mortgagee  assumed  may  be  shown  by  parol. 

Webster  vs.  Fleming,  178  111.  140;  Brosseau  vs.  Lorry,  209  111.  405. 

—  To  Apply  Description:  Parol  evidence  may  be  resorted  to 
for  the  purpose  of  identifying  the  premises  and  applying  the  calls 
of  the  deed  and  contracts  in  suits  for  rectification  and  specific  per- 
formance, and  in  other  actions  and  proceedings  affecting  title. 

Hedrick  vs.   Donovan,   248   111.   479;    Evans  vs.   Gerry,   174  111.   595; 
Halliday  vs.  Hess,  147  111.  588. 
So  where  chattels  are  sold  by  particular  description,  parol  evi- 
dence is  competent  to  prove  identity. 
Morris  vs.  Wibaux,  159  111.  627. 

—  Bounelaries:  "Whenever  the  boundary  line  between  adjoining 
owners  of  land  is  unascertained  or  in  dispute,  they  may  establish 
by  a  parol  agreement  and  possession  in  pursuance  of  the  agreement, 
and  a  line  so  established  will  be  binding  on  the  parties  and  their 

privies. 

Roberts  vs.  Birk,  223  111.  291;  Duggan  vs.  Uppendahl,  197  111.  179; 

Lamont   vs.    Dickinson,    189    111.    628;    Clayton    vs.    Feig,    179    111. 

534;   Sheets  vs.  Sweeny,  136  HI.  336;   XI  111.  Notes  658,   §  21. 

The  effect  of  the  agreement  is  not  to  pass  title  to  real  estate  from 

one  party  to  another,  which  cannot  be  done  by  parol,  but  to  fix  the 

location  of  an  unascertained  or  disputed  boundary,  and  if  the  loca- 


PAROL  929 

tion  of  the  true  boundary  is  known  to  the  owners,  they  cannot  trans- 
fer the  land  from  one  to  another  by  agreement  changing  its  location. 
So,  also,  if  the  intention  of  the  parties  is  merely  to  ascertain  the 
true  line,  and  in  doing  so  an  erroneous  line  is  agreed  upon  by  acci- 
dent or  mistake,  the  agreement  will  not  be  binding  and  the  line  will 
not  be  established  merely  because  of  the  agreement. 

Sounemau  vs.  Mertz,  221  111.  3(52. 

The  rule  as  to  establishing  a  disputed  or  unascertained  boundary 
between  lands  of  adjoining  owners  by  parol  agreement  and  pos- 
session in  accordance  therewith  does  not  apply  to  a  parol  promise 
by  a  grantor  to  his  gi^antee  to  re -plat  the  tract,  and  change  the 
boundary  of  the  lots,  where  the  question  arises  between  such  grantee 
and  a  party  subsequently  purchasing  an  adjoining  lot  according 
to  the  unchanged  plat. 

Grubb  vs.  Boon,  201  111.  98. 

—  Monuments:  Where  land  is  described  by  reference  to  natural 
or  artificial  monuments,  the  monuments  may  be  identified  by  ex- 
trinsic evidence. 

Village  of  Itasca  vs.  Schroeder,  182  111.  192;  Kleiner  vs.  Bowen, 
166  111.  537;  Stevens  vs.  Wait,  112  111.  5-44;  Colcord  vs.  Alexan- 
der, 67  111.  581. 

Condition  of  Subject  Matter: 
Parol  is  competent  to  show. 

Walker  vs.  Johnson,  116  App.  145. 

Identity  of  Persons: 

Extrinsic  evidence  of  every  material  fact  which  will  enable  the 
court  to  ascertain  the  nature  and  qualities  of  the  subject  matter  of 
the  instrument,  or  in  other  words,  to  identify  the  persons  and  things 
to  which  the  instrument  refers,  must  necessarily  be  received. 

Cumberledge  vs.  Brooks,  235  111.  249;  Eiebling  vs.  Tracy,  17  App. 
158;  Graves  vs.  Colwell,  90  111.  612;  Missionary  Soc.  vs.  Cald- 
well, 69  App.  280. 

Where  a  corporation  is  misnamed  in  a  contract  of  guaranty,  proof 
is  admissible  to  show  corporation  intended  to  be  indemnified  by  the 
contract. 

Mall  Iron  Eange  Co  vs.  Pusey,  244  111.  184. 

Capacity  in  Which  Persons  Act: 

—  Negotiahle  Instruments:  Where  there  is  an  ambiguity  on  the 
face  of  an  instrument,  which  pui'ports  to  be  executed  in  some  rep- 
resentative capacity,  rendering  it  doubtful  whether  the  person 
signing  means  to  bind  himself  or  only  bind  the  corporation  or  body 
of  \^'hich  he  is  the  authorized  agent,  parol  evidence  is  admissible  as 
between  the  parties,  to  prove  extrinsic  circumstances  by  which  the 
respective  liability  of  the  principal  or  agent  may  be  determined, 
especially  in  cases  where  the  intention  to  bind  the  one  or  the  other 
was  known  to  the  person  accepting  the  instrument  at  the  time  of 
accepting  it. 

McNeil  vs.  Shober  Litho.  Co.,  144  111.  238;  Scanlan  vs.  Keith,  102 
111.  634;  Decowski  vs.  Grabarski,  181  App.  279;  Teed  vs.  Par- 
sons, 100  App.  342;  Thompson  vs.  Hasselman,  131  App.  257; 
LaSalle  vs.  Toln  Co.,  14  App.  141;  Williams  vs.  Miami  Povrder 
Co.,  36  App.  107;  Contra,  Harris  vs.  Coleman  Co.,  98  App.  27; 
Eev.,  Williams  vs.  Harris,  198  111.  501;  Hypes  vs.  Griffin,  89  111. 
134. 
Ev.— 5  9 


930  PAROL 

Resort  may  be  had  to  extrinsic  evidence  to  show  whether  in- 
strument is  an  individual  or  corporate  act. 
Zion   Church   vs.    Mensch,    178    111.    2125. 

—  Oilier  Contracts:  Resort  may  be  had  to  the  language  of  the 
instrument  and  to  extrinsic  evidence  and  facts  to  sliow  whose  in- 
strument it  was. 

Wabash  Ey.  Co.  vs.  People,  202  111.  9. 
Where  it  is  doubtful  whether  the  contract  is  to  bind  the  principal 
or  agent,  extrinsic  evidence  may  be  received  to  ascertain  who  was 
intended  to  be  bound  as  principal. 

Keely   Brg.   Co.   vs.   Decorating   Co.,   194   III.    580;    Braun   vs.   Hess, 
&  Co.,   187   111.   283. 

But  not  if  the  contract  clearly  binds  the  agent. 

Vail  vs.  N.  W.  M.  Life  Ins.  Co.,  192  111.  567;   O.  &  M.  Co.  vs.  Mid- 
dlctou,  20  111.  629. 

INTERPRETATION  OF  PARTICULAR  WRITINGS. 
Advancements  : 

Under  Statute  of  Descent,  no  material  part  of  proof  necessary 
to  establish  an  advancement  can  be  supplied  by  jjarol. 
Elliott  vs.  Western  Coal  Co.,  243  111.  614. 

Architect's  Certificate: 

Any  evidence  to  contradict  such  eertificate  without  offering  to 
show  fraud  or  mistake  is  inadmissible. 

Concord   Apart.    House    Co.    vs.    O'Brien,    228    111.    3G0;    Lohr    Bot 
tling  Works  vs.   Ferguson,   223    111.    88;    Barbee   vs.    Findley,   221 
111.   251. 

Arbitration  and  Award: 

The  scope  and  effect  of  an  award  must  be  determined  from  the 
language  of  the  submission,  and  the  award  cannot  be  enlarged  by 
parol. 

Pinkstaff  vs.  Steffy,  216   111.  406. 

When  the  written  award  itself  is  in  pursuance  of  the  submission, 
it  cannot  be  enlarged  by  parol  evidence  as  to  show  the  arbitrators 
took  into  consideration  and  settled  matters  not  submitted  to  them. 
Such  evidence  might  be  admissible  in  a  direct  attack  to  set  aside  the 
award  or  in  answer  to  a  suit  ])rought  upon  the  award  in  support 
of  a  plea  denying  the  validity  of  the  award. 
Glatle  vs.  Schmidt,  20  App.  157. 

Assessors'  Schedules: 

Where  an  inspection  of  the  schedules  for  certain  years,  and  of 
the  items  listed  in  them,  tends  to  show  that  a  certain  item  was 
intended  to  be  listed  as  credit,  testimony  of  the  assessors  who 
made  Ihe  assessments  in  such  years,  that  such  items  consisted  of 
notes,  mortgages  and  securities,  is  competent  as  being  in  explan- 
ation of  such  schedules. 

Warner  vs.  Campbell,  238  111.  630. 

Assignment : 

—  Xcgotiahle  Instrument:  Actual  date  of  assignment  may  be 
shown  by  parol. 

Smith  vs.    Nevlin,   89   111.   193;   Bussey  vs.  Hemp,   48   Aop.    195. 

—  Judgment:     The  terms  of  the  assignment  are  to  be  determined 

by  the  recitals  in  it  rather  than  from  any  testimony  showing  them 

to  be  otherwise. 

Aetna  Iron  Co.  vs.  Owen,  62  App.  603. 


PAROL  931 

—  Corporaie  Stock :  Parol  not  admissible  to  vary  legal  effect  or 
terms,  but  in  action  for  conversion,  admissions  of  agent  so  eon- 
verting  are  admissible  to  show  his  liability  for  value. 

McDonald  vs.  Danahy,   196  111.   133. 

Bills  of  Sale: 

—  Consideration:  Recital  of  consideration  may  be  explained 
and  contradicted  by  parol  evidence  which  show^s  that  the  money  has 
not  in  fact  been  paid.  But  such  evidence  cannot  affect  the  legal 
import  of  the  instrument. 

Kimball  vs.  Walker,  30  111.  482;  O'Brien  vs.  Palmer,  49  111.  72. 

—  Property  Sold:     Parol  evidence  is  inadmissible  to  contradict 

the  instrument. 

McClosky  vs.  MeCormick,  37  111.  66, 

Or  extend  to  articles  not  embraced  therein. 

O'Eeer  vs.  Strong,  13  111.  688;   Wolford  vs.  Eusk,   145  App.  40.^. 

In  absence  of  ambiguity,  parol  is  inadmissible  to  show  that  other 

property  not  answering  the  description  in  bill  of  sale  was  included 

or  intended  to  be  included. 

Eockwell  vs.  Martens  Co.,  145  App.   403. 

—  Warranty :  Not  expressed  in  bill  of  sale,  cannot  be  established 
by  parol  evidence. 

Vierling  vs.  Iroquois  Furnace  Co.,  170  111.  189. 

Nor  can  warranty  of  title  contained  in  bill  of  sale  be  avoided  by 
proof  of  declarations  of  vendor  to  vendee  before  sale. 
Koerper  vs.   Jung,  33   App.   144. 

—  As  Mortgage:  It  is  competent,  no  matter  what  the  terms  of 
a  bill  of  sale  are,  to  show  by  parol  evidence  that  the  actual  trans- 
action was  in  legal  effect  a  mortgage  of  chattels. 

Moore  vs.  Foster,  97  App.  233;  Upham  vs.  Eichey,  61  App.  650; 
Natl.  Ins.  Co.  vs.  Webster,  83  App.  470. 

Bill  of  Lading: 

A  bill  of  lading,  in  so  far  as  it  is  a  receipt  of  goods,  may  be 
explained  or  contradicted  by  parol  evidence. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Live  Stock  Bank,  178  111.  506;  I.  C.  E. 
E.  Co.  vs.  Cobb,  72  111.  148;  Bissell  vs.  Price,  16  111.  408;  Wallace 
vs.  Long,  8  App.  504. 

When  goods  are  shipped  under  a  parol  contract  covering  future 
shipments,  bills  of  lading  given  by  carrier  are  only  evidence  of 
dates  and  amounts  of  shij)ments  made  under  the  pre-existing  con- 
tract. 

Baker  vs.  Ey.  Co.,  42  111.  73;  St.  L.  S.  Ey.  Co.  vs.  Elgin  Milk  Co., 
74  App.  619. 

So  a  carrier  may  defend  suit  for  non-delivery  by  showing  it 

received  no  goods  from  plaintiff. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Live  Stock  Bank,   178  111.  506. 

And  may  contradict  statements  in  bills  of  lading  as  to  condition 

in  which  goods  are  received. 

I.  C.  E.  E.  Co.  vs.  Cobb,  72  111.  148. 

Bonds : 

Acceptance  may  be  shown  by  parol. 

Estate  of  Bamsey  vs.  People,  107  111.  572;  Bartlett  vs.  Board  of 
Education,  59  111.  364;  School  Directors  vs.  Kimmell,  31  App. 
537. 

Subject  matter  of  bond  may  be  identified  by  parol  evidence. 
Chi.  Pressed  Steel  Co.  vs.  Clark,  87  App.  658. 


932  PAROL 

Conditions  upon  which  delivery  was  made  cannot  he  shown  by 

parol  evidence. 

Oonistock  vs.  Gage,  91  111.  328. 

Building  Contracts: 

Where  a  building  or  construction  contract  does  not  express  the 
complete  contract  of  the  parties,  parol  evidence  is  admissible  to 
show  the  entire  agreement. 

Donliu  vs.   Daegling,   80  111.   608.  _     . 

An  experienced  builder  and  contractor  may  testify  as  to  the 
accepted  meaning  among  builders,  of  technical  words  used  in  a  con- 
tract for  erecting  a  building,  but  it  is  not  permissible  to  prove  by 
such  witnesses  the  proper  construction  of  the  entire  contract. 
Clark  vs.  Shirk,  170  111.  143. 

Certificate  of  Deposit: 

It  is  proper  for  a  party  to  a  certificate  of  deposit  payable  to  the 
depositor,  according  to  an  indorsement  upon  the  certificate,  on  its 
return,  properly  endorsed,  to  shoAv  by  parol  what  the  contract  re- 
ferred to  in  the  memorandum  in  fact  was,  and  also  what  was  the 
contract  between  the  depositor  and  the  holder  of  the  certificate 
as  to  the  conditions  upon  which  the  money  represented  by  the  certi- 
ficate was  payable. 

Trimble  vs.  First  Natl.  Bank,  101  App.   75. 

Certificate  of  Publication: 

Defects  may  be  aided  by  parol. 

Barnett  vs.  Wolfe,  70  111.   76;   Euo  vs.  Chicago,  66  111.  256. 

Certificate  of  Sale: 

And  sheriff's  deed  may  be  shown  by  parol  to  be  intended  as 

mortgage. 

Trogden  vs.  Trogden,  164  111.  144. 

Certificate  of  Teacher: 

Cannot  be  impeached  by  parol. 

School  District  vs.  -Sterricker,  86  111.  595. 

Certificate  of  Taxes: 

Parol  is  competent  to  show  that  amount  paid  on  tax  certificate 

has  been  repaid. 

Walker  vs.  Glos,  245  111.  253. 

Chattel  Mortgage: 

Identiiy  of  Property:     Parol  evidence  is  admissible  to  identify 

the  chattels  included  in  a  chattel  mortgage.  The  description  of  the 
property  will  be  sufficient  if  it  is  «o  particular  that  it  can  be  identi- 
fied as  that  described  in  the  mortgage,  and  answers  the  general 

description. 

Pike  vs.   Colvin,   67  HI.   227;    Bell   vs.   Prewitt,   62   111.   361;    Hart 
ford  Ins.   Co.  vs.  Hadden,   28   111.   260;    Mattingly  vs.  Darwin,  23 
111.   618. 
—  Conditional  Delivery:     Parol  proof  is  admissible  to  show  that 
a  chattel  mortgage  was  delivered  to  the  mortgagee  upon  the  under- 
standing that  it  was  intended  to  protect  the  mortgagor  against  his 
local  creditors,  and  as  collateral  security  in  case  be  desired  to 
borrow  money  from  the  mortgagee's  bank,  and  that  the  mortgage 
was  not  to  be  enforced  against  the  mortgagor,  who  was  to  have  the 

right  to  sell  the  property  if  he  desired. 

Van  Norman  vs.  Young,  228  111.  425. 


PAROL  933 

Compromise  and  Settlement: 

—  Insfrument  Undo-  Seal:  In  a  composition  agreement  with 
creditors,  if  the  deed  contains  an  absolute  release  of  all  debts  and 
liabilities  for  a  consideration  then  paid  by  the  debtor,  the  creditor 
cannot  be  allowed  to  show  by  parol  evidence  in  opposition  to  the 
terms  of  the  deed  that  a  particular  debt  was  not  intended  to  be 
and  was  not  included  within  its  provisions. 

Meyer  &  Co.  vs.  McKee  &  Co.,  19  App.  109. 

—  Promissory  Note:  When  settlement  is  relied  upon,  parol  evi- 
dence is  admissible  to  prove  some  item  was  omitted  either  by  fraud, 
accident  or  mistake,  even  though  the  settlement  be  evidenced  by  a 

written  agreement. 

Kuck  vs.  Fulfs,  68  App.  134. 

—  Check:  A  receipt  contained  in  a  check  which,  on  its  face,  is 
a  payment  in  full  of  all  demands  to  date,  enclosed  in  a  letter  stat- 
ing that  it  is  in  full  of  account,  and  followed  by  a  subsequent  let- 
ter to  return  it  if  the  creditor  does  not  wish  to  accept  it  in  full 
settlement,  cannot  be  contradicted  by  showing  the  amount  was  re- 
ceived in  part  payment  only,  where  account  is  unliquidated  and 

subject  to  bona  fide  dispute. 

Ostrander  vs.  Scott,  161  lU.  339;  Worth  Coal  Co,  vs.  Parker 
Co.,  157  App.  199;  Coey  vs.  Coey,  150  App.  296;  Critchell  vs. 
Loftus,  100  App.  196;  Eumsey  vs.  Barber,  78  App.  88;  Mexi- 
can Soap  Co.  vs.  Clark,   72  App.  655;   XI  111.  Notes  18,   §4. 

Contracts  Generally: 

—  Of  Sale ':    In  suit  for  specific  performance,  complainant  may 

testify  he  underetood  defendant  was  to  pay  taxes,  for  purpose  of 

showing  offer  to  perform  contract  as  complainant  understood  it. 
Carrier  vs.  Hooper,  247  111.   502. 

Parol  is  competent  to  show  perfonnance. 
Plumb  vs.  Campbell,  129  111.   101. 

—  Variance:  The  rule  that  a  written  contract  cannot  be  varied 
by  parol  applies  only  as  between  parties  or  those  in  privity  with 
them. 

Lane  &  Co.  vs.  W.  U.  Tel.  Co.,  149  App.  562. 

—  Of  Guaranty:     Parol  is  inadmissible  to  show  that  contract 

was  conditional  instead  of  absolute. 

Bradley  vs.  Brown,  146  App.  297;  Contra,  Bates  vs.  Worthing- 
ton,  163  App.  75. 

—  Of  Carriage:  It  is  admissible  to  prove  by  parol  evidence,  out- 
side of  the  mere  ticket  sold,  the  terms  of  the  contract  entered  into 
between  the  carrier  and  the  passenger. 

C.  &  A.  E.  E.  Co.  vs.  Dimser,  161  111.  190. 

—  For  Payment  of  Money:    Parol  is  admissible  to  show  mistake. 

McFarlane  vs.  Williams,  107  111.  33. 

—  Mistake:    Parol  admissible  to  establish  fact  of  mistake  on  bill 

to  reform  contract. 

Ewing  vs.  S.  C.  &  M.  Co.,  110  111.  290. 

—  Terms  Of:    Each  party  may  testify  as  to  his  theory  of,  where 

dispute  arises  as  to  terms  of  oral  contract. 

Hough  vs.  Cook,  69  111.  581;  Iglehart  vs.  Jernegan,  16  111.  513; 
Webster  vs.   Enfield,   10   111.   298. 

—  Alteration:  Parol  is  admissible  to  prove  contract  where  one 
party  fraudulently  alters  same  in  a  material  part. 

Kelly  vs.  Trumble,  74  111.  428. 


934  PAROL 

—  Dale:    Parol  is  admissible  to  show. 

Lamb  vs.  Manning,  171  111.  612;  Blake  vs.  Tash,  44  111.  302;  School 
District  vs.  Stilley,  36  App.  133. 

Deeds: 

—  As  Mortgage:  Parol  evidence  may  be  admitted  to  show  that 
an  absolute  deed,  whatever  may  be  its  covenants,  was  intended  as 

a  mortgage  or  security. 

Caraway   vs.    Sly,    222   111.    203;    Rankin   vs.   Rankin,    216    111.    132; 

Gannon  vs.   Mole,   209   111.   180;   Heaton  vs.  Gaines,   198  111.   479; 

Knowles   vs.    Knowles,    86    111.    1;    Purvain    vs.    Holt,    8    111.    395; 

Gray  vs.  Hayhurst,  157  App.  488;   XIII  111.   Notes  602,    §  33. 

And  may  be  shown  by  admissions  and  declarations  of  grantee. 

Eiicknian  vs.  Allwood,   71  111.   155. 
The  rule  that  a  deed,  absolute  in  form,  may  be  shown  by  parol 
evidence  to  have  been  intended  merely  as  a  security  applies  in 
actions  at  law  Avhere  the  title  is  not  directly  in  issue. 
German  Ins.  Co,  vs.  Gibe,  162  111.  251. 
But  cannot  be  shown  in  defense  to  action  in  ejectment. 

Ladd  vs.  Ladd,  252  111.  43. 
Deed  intended  as  a  mortgage  may  be  rendered  an  absolute  con- 
veyance by  parol. 

Hutchinson  vs.  Page,  246  111.   71. 

—  Terms:  Where  there  is  no  ambiguity  in  the  language  of  the 
deed,  which  has  a  settled  legal  meaning,  it  cannot  be  changed,  ex- 
plained or  added  to  by  oral  evidence. 

Morton  vs.  Babb,  251  lU.  488.     (See  Ambiguity.) 

—  As  Trust:  A  resulting  trust  may  be  established  by  parol, 
and  for  this  purpose, .  declarations  of  one  holding  h'gal  title,  that 
another  person's  money  paid  for  the  land,  are  competent. 

Springer  vs.  Kroeschall,  161  111.  358. 

Where  a  grantee  in  a  deed,  absolute  in  form,  declares  on  his 

answer  to  a  bill  in  chancery,   that  he  holds  the  land  under  an 

express  trust  not  evidenced  by  writing,  but  that  he  is  unable  to 

recall  its  precise  terms  and  conditions,  such  terms  and  conditions 

may  be  proven  by  parol. 

Myers  vs.  Myers,  167  111.  52. 

—  Consideration:  The  statements  in  a  deed  of  the  amount  and 
receipt  of  the  consideration  are  formal  recitals,  the  legal  opera- 
tion of  which  is  to  prevent  a  resulting  trust,  and  they  may  be 
explained,  varied  or  contradicted  by  parol  evidence. 

Brossau  vs.  Lowy,   209  111.   405;   Lloyd   vs.   Sandusky,   203   111.   621; 

Stericher  vs.  McBride,  157  111.   70;   Worrell  vs.  Forsythe,  141  111. 

22;   Booth  vs.  Hynes,  54  111.  363;   Rook  vs.  Rook,   111  App.  398; 

Van  Sickle  vs.  Harmeyer,  172  App.  218. 

But  is  not  admissible  to  vary  or  add  to  the  terms  of  a  deed 

containing  a  covenant. 

:  Barry  vs.  C.  I.  &  St.  L.  Ey.  Co.,  156  App.  9. 

—  Invalidating  Deed:  Acknowledgment  of  payment  of  con- 
sideration in  deed  cannot  be  contradicted  for  purpose  of  wholly 
invalidating  deed  or  impairing  its  legal  eif ect  as  a  conveyance. 

Abernathie  vs.  Rich,  256  111.  166;  Gillespie  vs.  Fulton  Od  Co.,  236 
111.  188;  Poe  vs.  Ulrey,  233  111.  56;  Standard  vs.  A.  E  &  C. 
Ey.  Co.,  220  111.  469;  Windett  vs.  Hurlbut,  115  111.  403;  I.  0.  Ins. 
Co.,  vs.  Wolf,  37  111.  355.  e   ■^   a 

But  parol  is  competent  to  show  consideration  has  failed. 

Russell  vs.  Robbins,  247  111.  510. 


PAROL  935 

—  Sustaining  Deed:  Where  no  consideration  is  expressed  in  a 
deed  of  bargain  and  sale,  extrinsic  evidence  is  admissible  to  show 
the  consideration. 

Eedmond  vs.  Cass,  226  111.  120. 
Parol  is  admissible  to  show  that  incumbrance  formed  part  of 
consideration. 

Brosseau  vs.  Lowy,  209  111.  405. 

Also  to  show  identity  of  incumbrance. 
Webster  vs.  Fleming,  178  111.   140. 

—  Description:  If  the  description  in  the  deed  is  uncertain, 
parol  evidence  of  any  extrinsic  circumstances  is  admissible  to 
identify  and  establish  the  objects  of  the  call  in  the  deed. 

Koelliiig  vs.  People,  196  111.  353;    Kleiner  vs.   Bowen,   166   111.  537; 

Mason  vs.  Merrill,    129  111.  503;    Taylor  vs.  Wright,   121   111.  455; 

Stevens  vs.  Wait,  112  111.  544;  Colcord  vs.  Alexander,  67  111.  5S1: 
XII  111.  Notes  520,   §  3.59. 

Where  latent  ambiguity  in  the  description  in  a  deed  is  made 
manifest  by  other  evidence,  parol  is  admissible  to  make  an  identi- 
fication of  the  land  alienated  by  such  deed.  Parol  evidence  is 
always  admissible  to  explain  a  latent  ambigiiity  and  to  show  what 

property  was  intended. 

Bradish  vs.  Yocum,  130  111.  386. 

But  if  no  uncertainty  or  ambiguity  exists,  parol  evidence  of  the 
acts  and  conversations  of  grantor  and  grantee,  prior  to  execu- 
tion of  deed,  cannot  be  received  to  show  description  in  deed  is 

wrong. 

Duggan  vs.  Uppendahl,  197  111.   179. 

—  Parties:     Identity  of  grantor  and  grantee  may  be  shown  by 

parol, 

Fyffe  vs.  Fyflfe,  106  111.  646;  Graves  vs.  Colwell,  90  111.  612;   Brown 
vs.  Metz,  33  111.  339. 

—  Interest:    Where  there  are  two  grantees,  parol  competent  to 

show  interest. 

Kuepper  vs.  Mette,  239  111.  586. 

—  Reservation :  Or  exception  cannot  be  shown  by  parol  in  con- 
tradiction of  terms  of  the  deed. 

McLaughlin  vs.   Johnson,   46   111.   163;    Smith  vs.   Price,   39   111.   29; 
Damery  vs.  Fergiisou,  48  App.   224. 

So  a  provision  of  a  trust  deed  for  a  release  of  part  of  the  prem- 
ises upon  certain  payments  cannot  be  varied  by  parol  evidence  that 

the  lots  to  be  released  were  to  be  sold  to  l>ona  fide  purchasers. 
Lane  vs.  Allen,  162  111.  426. 

—  Date:     Parol  evidence  is  admissible  to  contradict  the  date 

of  a  deed  as  not  the  date  of  its  delivery. 

Eedmon  vs.  Cass,  226  111.  120;   Blake  vs.  Fash,  44  111.  302. 

—  Acceptance:    Where  a  clause  in  a  deed  for  land  is  binding 

upon  the  grantee,  by  his  acceptance  and  enjoyment  under  the  deed 

as  a  contract,  in  absence  of  fraud  or  mistake,  the  deed  cannot  be 

explained  or  contradicted  by  parol  evidence,  but  must  speak  for 

itself. 

Kershaw  vs.  Kershaw,  102  111.  307. 

While  oral  testimony  is  inadmissible  to  add  to  or  vary  or  change 

the  terms  of  a  deed,  it  may  be  admitted  to  show  the  condition  of 


936  PAROL 

the  property  with  a  view  to  arrive  at  the  true  intent  of  parties  in 
terms  used  by  them. 

Cook  vs.  Whiting,  16  111.  480. 

Where  the  language  of  a  deed  is  indefinite  or  obscure,  oral  testi- 
mony is  admissible  to  show  the  circumstances  surrounding  the 
parties,  to  enable  the  court  to  read  the  deed  in  the  light  in  which 
it  was  written,  but  not  to  contradict  or  vary  the  language  used. 
Seymore  vs.  Bowles,  172  111.  521. 

—  Delivery:  The  question  of  delivery  may  be  determined  by 
parol  evidence,  though  the  deed  be  recorded. 

Ward    vs.    Couklin,   232    111.    553;    Abranis   vs.   Beale,    224   111.    496; 
Konser  vs.  Konser,  219  111.  466. 

While  it  is  not  competent  to  control  the  effect  of  a  deed  by  parol 
evidence  when  it  has  taken  effect  and  been  delivered,  it  is  com- 
petent to  show  that  the  deed,  although  in  grantee's  hands,  has 
never,  in  fact,  been  delivered. 

Potter  vs.  Barringer,  236  111.  224. 

As  that  it  was  delivered  in  escrow. 
Demesney  vs.  Gravelin,  56  111.   93. 

Conditions  upon  which  deed  is  placed  in  escrow  may  be  proved 
by  parol. 

Osby  vs.  Reynolds,  260  111.  576. 

—  Recording:  Parol  evidence  is  competent  as  to  time  of  fil- 
ing. 

Harpham   vs.   Little,   59   111.    509;    Nattinger   vs.    Ware,   41    111.    245; 
Eeed  vs.  Kemp,  16  111.  445;  Cook  vs.  Hall,  6  111.  575. 

—  Bill  to  Correct  31istake:    Parol  proof  may  be  received  to  show 

mistake  in  a  deed. 

Stanley  vs.    Marshall,   207   111.   20. 

And  the  mistake  may  be  sh-own  by  the  admissions  of  the  party 

in  whose  favor  it  has  been  made. 

Purvines  vs.  Harrison,  151  111.  219. 

—  Right  to  Redeem:  Parol  competent  to  show  right  to  re- 
deem. 

Conant   vs.    Eiseborough,    139    111.   383;    Burton    vs.    Perry,    146    Til. 
71. 

Declaration  of  Trust: 

Parol  admissible  to  show  whose  name  should  have  been  inserted 
in  blank  as  to  name  of  cestui  que  trust. 
Fast  vs.  McPherson,  98  111.  496. 

Diagrams : 

Of  proposed  improvement  may  be  explained  by  parol. 
Hyde  Park  Conirs.  vs.  Andrews,  87  111.  229. 

Emplojrment  Contract: 

—  In  General:  After  parties  reduce  to  writing  their  agreement, 
as  finally  determined  upon,  all  prior  negotiations  leading  up  to 
the  execution  of  the  writing  are  merged  therein,  and  parol  evi- 
dence is  not  admissible  to  explain,  modify  or  enlarge  its  terms. 

Davis,  vs.  Fidelity  Ins.  Co.,  208  111.  375. 

But  if  part  is  omitted,  the  writing  not  purporting  to  be  the 
whole  agreement,  parol  evidence  is  competent  to  supply  portion 
omitted.  ■:-^<i^\)l:u- 

Van  Kirk  vs.  Sehott,  54  App.  681. 


PAROL  9;J7 

—  Subsequent  Agreements:  So  a  subsequent  agi'cement  for 
additioual  eonipeusation  may  be  shown  by  parol. 

Convert  vs.  Bishop  Co.,  152  App.  516. 
Where  a  written  agreement  provided  that  one  of  the  parties 
was  to  render  certain  specified  services,  and  "other  services,"  but 
did  not  indicate  what  the  "other  services"  w^ere  to  be,  parol  evi- 
dence is  admissible  to  show  what  other  services  were  to  be  ren- 
dered. 

Scott  vs.  Schnadt,  70  App.  25. 

—  Rescission:     May  be  shown  by  subsequent  writings. 

Gould  vs.  Magnolia  Metal  Co.,  207  111.  172. 

—  Abandonment:  May  be  shown  by  acts  and  conduct  incon- 
sistent wath  contract  of  employment. 

N.  Y.  Life  Ins.  Co.  vs.  Ehling,  219  111.   72. 

Insurance  Policy: 

Where  it  appears  by  extrinsic  evidence  that  the  words  used 
in  an  insurance  policy  to  designate  the  beneficiary  fail  to  correctly 
describe  any  person  related  or  known  to  insured,  further  extrin- 
sic evidence  may  be  received  to  aid  in  determining  who  is  the 
intended  beneficiary. 

Hogan  vs.  Wallace,  166  111.  328. 

Parol  is  admissible  to  prove  intention  and  understanding  of 
parties  to,  where  language  is  susceptible  of  conflicting  interpre- 
tations. 

Amer.  Ins.  Co.  vs.  Meyers,  118  App.  484. 

Inventory : 

Parol  evidence  incompetent  to  show  different  value  of  estate, 
without  stating  whether  more  or  less  than  inventory. 

Alirahams  vs.  Wooley,  243  111.  365. 

Judgments : 

—  Existence  of  Order:  Fact  that  a  .judgment  was  ordered  by 
judge  at  a  previous  term  cannot  be  shown  by  parol. 

Tynan  vs.  Weinhard,  15:5  111.  598;  Hospital  vs.  Strong,  233  111.  159. 

—  To  Shoiv  Contents:  Where  a  judgment  is  pleaded  or  of- 
fered in  evidence  in  bar  of  a  claim,  and  it  is  uncertain  from  the 
record  what  was  adjudicated  at  the  time  the  judgment  was  entered, 
parol  evidence  is  admissible  to  show  what  matters  were  in  con- 
troversy, what  testimony  was  given  and  what  questions  were 
submitted  to  the  court  for  its  determination  at  the  time  judg- 
ment was  entered,  but  such  evidence  will  never  be  received  for 
purpose  of  impeaching  or  contradicting  the  record. 

Eiibel  vs.  Title  Guaranty  Co.,  199  111.  110;  Wilson  vs.  People,  260  111. 
145. 

—  Collateral  Attach:  The  judgment  of  a  court  of  general  jur- 
isdiction can  only  be  attacked  in  collateral  proceedings  by  the 

record  itself. 

Sielback  vs.  Grotham,  248  111.  435. 

—  Justice  of  Peace:  It  is  not  competent  to  prove  by  parol 
that  a  judgment  was  rendered  by  a  justice ;  his  docket  or  a  tran- 
script of  it  is  the  best  evidence. 

Walter  vs.   Kirk,   14  111.   55. 


938  PAROL 

Lease: 

—  In  General:  Parol  evidence  tending  to  vary  the  terms  of  a 
written  lease  is  inadmissible  as  between  the  parties  thereto. 

Slaughter  vs.  Johnson,  128  App.  417;  Smith  vs.  McEvoy,  98  App. 
33U;  Fish  vs.  liyau,  88  App.  524;  Lord  vs.  Haufe,  77  App.  91; 
Broughtou  vs.  Mitchell,  147  App.  281. 

All  parol  negotiations  of  the  parties  at  the  time  of  its  execu- 
tion are  presumed  to  be  merged  in  the  lease. 
Hartford  Deposit  Co.  vs.  Eector,  190  111.  380. 
When  both  the  amount  of  the  rent  to  be  paid  and  the  property 
rented  are  provided  for  in  a  lease,  it  is  proper  to  refuse  to  allow 
defendant,  in  suit  for  rent,  to  prove  that  he  bought  the  furniture 
in  the  building  leased,  and  that  plaintiff  carried  off  part  of  such 
furniture  and  refused  to  return  it. 
McMullen  vs.  Moffitt,  68  App.  160. 

But  where  terms  used  are  of  doubtful  meaning  or  contract  is 
ambiguous  extrinsic  evidence  may  be  admitted  to  ascertain  the 
true  intent.  The  acts  and  conduct  of  parties,  whether  contempora- 
neous or  subsequent,  circumstances  surrounding  them  at  time  it 
was  made  and  preliminary  negotiations  may  in  some  cases  be 
considered  for  the  purpose  of  determining  the  meaning  and  in- 
tention of  the  parties  iu  the  use  of  the  words  employed  in  the 

Chi.  And.  Assoc,  vs.  Fine  Arts  Bldg.,  244  111.  532;  Gale  vs.  IT.  S. 
Brg.  Co.,  181  App.  381;  Street  vs.  Chi.  Wharfing  Co.,  157  111.  GU5. 

—  Abandonment:  Evidence  is  admissible  to  show  that  a  con- 
tract under  seal  has  been  abrogated,  canceled  and  surrendered 
by  an  executed  parol  contract,  but  not  to  change  its  terms;  and 
the  question  whether  a  sealed  instrument  has  been  so  abrogated 

is  one  of  fact  for  a  jury. 

Alsehuler  vs.   Schiff,   164  111.  298. 

—  Title  of  Landlord:  The  rule  that  a  tenant  may  not  deny  his 
landlord's  title  has  no  application  when  the  tenant  at  the  time 
of  executing  the  lease  creating  the  relation,  was  in  possession  of 
the  premises  under  another,  and  was  induced  to  execute  the  lease 
in  question  by  artifice  and  fraud. 

Young  vs.  Heffernan,  67  App.  354. 

—  Identity  of  Premises:  Parol  evidence  is  competent  to  show 
what  was  said  and  done  before,  as  well  as  after  a  lease  was  exe- 
cuted and  delivered,  in  order  to  indicate  what  was  intended  to 
pass  by  the  demise,  and  to  identify  the  subject  matter  of  the 
lease. 

Parish  vs.  Vance,  110  App.  57;  Buckley  vs.  Devine,  127  111.  406; 
Paugh  vs.  Paugh,  40  App.  143. 

—  Suretyship:  Parol  evidence  is  not  admissible  to  show  that 
a  sealed  signature  to  a  lease,  the  party  signing  not  being  men- 
tioned in  the  lease,  was  made  as  surety. 

Doyle  vs.  Dunne,  144  App.  14. 

—  Location  of  Premises:  Referred  to  in  lease  as  boundary  of 
lands  leased,  may  be  proven  by  parol. 

Kamphouse  vs.   Gaffner,   73   111.   453. 

—  Consideration :    May  be  shown  by  parol. 

Morris  vs.  Tillson,  81  111.  607. 


PAROL  939 

Letters : 

—  Intent  of  W7'iter:  The  meaning  of  a  letter  cannot  be  varied 
by  parol.  The  extent  to  which  the  writer  of  a  letter  may  be  per- 
mitted to  testify  in  regard  thereto  is  to  show  the  circumstances 
under  which  it  was  written,  but  he  cannot  testify  as  to  his  inten- 
tion or  purpose  in  writing  it  and  thereby  avoid  its  effect  as  a 
statement  or  declaration  of  the  facts  contained  in  it. 

Harrison  vs.  Tbaekaberry,  248  111.  512;    Davis  vs.  Fidelity  Ins.  Co., 

208  111.  375;   Brant  vs.  Gallup,   111   111.  487;   Smith  vs.  MayfieM. 

163    111.   447. 

It  is  not  proper  to  permit  a  party  to  testify  what  he  meant  by 

expressions  used  in  a  letter  or  to  say  what  he  intended  or  what 

he  did  not  intend  by  such  expressions.      The   letter  is  the   only 

proper  evidence  of  these  facts  or  what  his  meaning  or  intention 

was. 

Sutter  vs.  Eose,  109  111.  66. 

—  To  Connect  Letters:  If  an  agreement  is  evidenced  by  more 
than  one  letter,  all  of  them  are  to  be  read  together  and  construed 
as  one  contract,  and  all  letters  executed  at  same  time  and  relating 
to  same  subject  matter  are  admissible. 

Parol  evidence  of  a  conversation  refeiTcd  to  in  a  letter,  which  is 
part  of  a  contract,  is  admissible  to  explain  meaning  of  letter. 
Gould  vs.  Magnolia  Metal  Co.,  207  111.  172. 

—  Explanation:     Letters  which  are  not  contractual  and  which 

do  not  form  the  basis  of  action  or  defense,  may  be  explained  or 

contradicted  by  parol. 

Cleveland  Seed  Co.  vs.  Moore,  142  App.  615;  Bernhard  vs.  Trimble, 
45  App.  56;  C.  B.  &  Q.  E.  B.  Co.  vs.  Bartlett,  20  App.  96. 

—  Contents:  The  contents  of  letters  cannot  be  proven  by 
parol  if  no  effort  has  been  made  to  obtain  production  of  origi- 
nals. 

Worthing  vs.  Hall,  153  App.  587;  Huling  vs.  Cen.  Pub.  Co.,  108 
App.  549. 

License : 

Existence  of  government  license  may  be  proven  by  parol. 
People  vs.  Peterson,  153  App.  480. 

Maps : 

Parol  evidence  is  incompetent  to  contradict  map,  when  given  by 

party  who  introduced  same. 

Schneider  vs.  Sulzer,  212  111.  87. 

Master's  Report  of  Sale: 

Where  master's  report  of  sale  is  silent  as  to  some  details,  parol 
is  admissible  as  to  manner  of  conducting. 

Hughes  vs.  Frisby,  81  111.   188. 

Messages : 

Parol  evidence  of  contents  of  telegrams  is  not  competent  in 
absence  of  proof  of  loss  or  destruction. 

Young  vs.  People,  221  111.  51;  Anheuser-Busch  Assn.  vs.  Hut- 
machev,  127  111.  652;  C.  &  St.  L.  Ey.  Co.  vs.  Mahoney,  82  HI.  73; 
Chisholm  vs.   Beaver  Lake  Co.,   18  App.  131. 

Mortgages : 

—  In  General:  Parol  evidence  is  admissible  to  show  true  char- 
acter of  mortgage,  and  for  what  purpose  and  real  consideration, 


940  PAROL 

but  not  for  the  purpose  of  changing  or  varj'ing  the  terms  of  the 
contract. 

Schultz  vs.   Plankington   Bank,    141    111.    IIG. 

Although  it  be  for  a  definite  sum,  and  secures  the  payment  of 
notes  for  definite  amounts,  it  may  be  shown  that  the  mortgage  was 
simply  one  of  indemnity.  But  parol  cannot  be  admitted  to  en- 
large it  from  specified  kinds  of  indebtedness  to  others  not  therein 

embraced. 

Union  Natl.  Bank  vs.  International  Bank,  22  App.  652. 

—  Priority:     Oral  agreement  as  to  priority  of  mortgages  may 

be  shown  where  mortgages  themselves  contain  no  agreement  in 

respect  thereto. 

Birkenhead   vs.   Brown,   47   App.    216. 

—  Third  Parlies:  A  contemporaneous  parol  agreement  not  in- 
cluded in  a  mortgage  may  be  shown  by  third  person,  although  such 

proof  contradicts  the  express  terms. 

Aleshir  vs.  Lee  County  Bank,  105  App.  32. 

—  Identity  of  Property:  Parol  is  inadmissible  to  show  that 
other  property,  not  answering  description  in  mortgage,  was  in- 
tended to  be  included  therein. 

Hulton  vs.  Arnett,  51  111.  198;  Patchin  vs.  Crossland,  145  App.  589. 

—  Fraud:    May  be  shown  by  parol. 

Hodson  vs.   Eugene  Glass  Co.,   156  111.   397;   Belohradskv  vs.   Kuhn, 
69  lU.  547. 

—  Mortgage  Debt  Assumed:  The  fact  that  a  mortgage  debt 
upon  the  property  was  assumed  by  the  purchaser  as  a  part  of 
the  consideration,  may  be  shown  by  parol,  although  the  deed  con- 
tains full  covenants  of  warranty  and  makes  no  reference  to  the 

mortgage. 

Brosseau  vs.  Lowy,   209  111.   405. 

If  the  identity  of  the  mortgages,  liens,  taxes  and  claims  of  any 
and  every  description,  assumed  by  the  grantee,  are  left  in  doubt 
by  the  terms  of  the  deed,  parol  evidence  is  admissible  to  show 
what  claims  were  embraced  in  the  language  used,  since  it  is  pre- 
sumed they  w^ere  assumed  as  part  of  the  consideration. 
Gage  vs.  Cameron,  212  111.   146. 

Negotiable  Instruments: 

A  negotiable  instrument  must  contain  an  unconditional  ac- 
knowledgment of  indebtedness  or  promise  to  pay,  and  the  amount 
and  the  person  to  whom  it  is  to  be  paid  must  be  certain.  If  it  is 
necessary  to  resort  to  extrinsic  evidence  to  fix  the  amount,  the 
instrument  is  not  negotiable.  So,  also,  if  it  does  not  appear  from 
the  face  of  the  paper  to  whom  it  is  payable. 

Equitable    Trust    Co.    vs.    Harger,    258    111.    615;    Smith   vs.    Myers, 
207    111.    126. 
A  previous  or  contemporaneous  agreement  that  a  note  is  not 
to  be  paid  according  to  its  terms,  cannot  be  proven  by  parol. 

Murc-hie  vs.  Peck,  160  111.   175;  Bassett  vs.  Lawrence,  94  App.  591; 
Hensley   vs.   Mitchell,   147   App.   161. 
Maker  of  a  note  cannot  show  against  payee  an  oral  contempora- 
neous agreement  which  makes  the  note  payable  on  a  contingency. 
Scluiltz  vs.   Meyer,   181   App.   335. 
Illegality  may  be  shown  by  parol. 
Henderson  vs.  Palmer,  71   111.  579. 


PAROL  941 

Parol  is  competent  to  show  terms  of  agreement  made  collateral 
to  note,  which  provides  out  of  what  funds  same  is  to  be  paid. 

Saffer  vs.  Lambert,  111  App.  410. 

Consideration  for  indorsement  may  be  impeached  by  parol. 

Harris    vs.    Galbraith,    43    111.    309;    Peabody    vs.    Munsen,    211    111 
324. 

As  to  interest,  may  be  explained  by  parol. 
Bradshaw   vs.    Combs,    102    111.    42S. 

Options : 

When  option  estimates  quantity  of  land,  precise  amount  to  be 
determined  by  a  survey,  option  cannot  be  changed  by  parol  so 
as  to  bind  proposed  vendor  to  accept  estimate  as  correct. 
Star  in    vs.    Kraft,    174    111.    120. 

Ordinances : 

—  Descriptive  Term:  Parol  evidence  is  admissible  to  explain 
local  or  trade  meaning  of  word  used  in  ordinance. 

Union  Trac.  Co.  vs.  Chicago,  223   111.  37;    Union   Trac.  Co.  vs.  Chi- 
cago, 222  111.  144;  Kuester  vs.  City  of  Chicago,  187  111.  21. 

—  Passage:  Irregularities  in  the  adoption  of  an  ordinance 
may  be  explained  by  parol.  Book  of  ordinances  or  certificate  of 
clerk  is  prima  facie  only,  but  not  conclusive. 

C.  &  A.  Ey.  Co.  vs."  Wilson,  225  111.  50. 

—  Motives  in  Passing:  Parol  evidence  is  inadmissible  which 
goes  merely  to  the  motive  by  which  a  municipality  is  actuated  in 
passing  an  ordinance. 

City  of  Amboy  vs.   I.   C.  R.  E.   Co.,   236   111.   237;    People  vs.   Wei- 
boldt,   233   111.   572. 

—  Legality:  "Whether  ordinance  received  concurrence  of  ma- 
jority of  board  cannot  be  shown  by  parol. 

People  vs.   Ehoades,  231   111.   270. 

Partnership  Contracts: 

—  Intention:  Intention  of  the  parties  is  not  to  be  determined 
from  previous  understandings  or  agreements,  but  must  be  ascer- 
tained from  the  instrument  itself,  which  they  execute  as  their 
final  agreement. 

Pierpont  vs.   Lamphere,   104   App.   232;    Evans  vs.   Hanson,   42   111. 
234;   Taft  vs.  Schwamb,  80  HI.  289. 

—  Existence  of  Partnership:  A  stranger  may  prove  a  part- 
nership by  the  acts  and  admissions  of  the  partners,  although  writ- 
ten articles  of  partnership  may  exist  between  them. 

Kaskaskia  Bridge  Co.  vs.  Shannon,  6  111.  15. 

—  Meinhers  of  Firm:  Where  a  written  instrument  bears  the 
name  of  but  one  person,  it  is  competent  to  establish  by  parol  proof 
that  the  contract  is  that  of  the  co-partnership,  and  that  the  firm 
entered  into  the  contract  in  the  name  and  style  of  the  individual. 

Dangherty  vs.  Heekard,  189  111.  239;  H.  E.  &  E.  Ey.  Co.  vs.   Walsh, 
85  111.  58 ;  Barber  vs.  Garvey,  83  111.  184. 

—  Land  Trading  Partnership:  And  the  extent  of  each  party's 
interest  may  be  sho^^Ti  by  parol. 

Speyer   vs.    Desjarding,    144    111.    641;    Frankenstein    vs.    North,    79 
App.  669. 

And  this  whether  the  title  is  in  one  partner  or  all, 
VanHausen   vs.   Copeland,   180   111.   74. 


942 


PAROL 


Passenger : 

it  is  competent  to  prove  by  parol  the  relation  of  carrier  and 
passenger.    The  ticket  itself  need  not  be  produced. 

Chi.  City  Ey.   Co.  vs.  Carroll,  206  ill.   318;   E.  J.  &  E.  Ky.  Co.  vs. 
Thonias,  115  App.  508. 

Plats :  ^    , 

When  the  plat  of  a  city  does  not  contain  a  statement  of  the 
width  of  the  street,  and  is  in  other  respects  defective  as  statutory 
proof  of  a  dedication  at  common  law,  supplemental  evidence  tend- 
ing to  explain  it  and  to  show  dedication  at  common  law  is  com- 
petent. 

Hudson  vs.   Miller,  97   App.   74. 

Pledge : 

Parol  is  inadmissible  to  contradict. 

Fairbanks  vs.  Mer.  Nat.  Bank,  132  111.  120. 

Power  of  Attorney: 

Parol  evidence  is  competent  to  enlarge  or  explain  where  same 
is  ambiguous,  though  such  ambiguity  result  from  failure  to  fill 

blank  form. 

Packer  vs.  Roberts,  140  111.  9;  Sturges  vs.  Keith,  57  111.  451. 

But  if  executed  in  connection  with  other  writing,  both  are  to 

be  construed  together. 

Woods   vs.    Clark,    121    111.   359. 

Principal  and  Surety: 

Parol  is  competent  to  show  character  of  parties  signing. 

McDavitt    vs.    McLean,    202    111.    354;    Kennedy    vs.    Evans,    31    111. 
258;   Trustees  vs.  Southard,  31  App.  359. 
But  in  action  on  bond,  sureties  cannot  contradict  recitals  of 
bond  as  to  character  of  principal. 

Spreyne  vs.  Garfield  Lodge,  117  App.  253. 

Receipts : 

—  Mere  Receipts:    While  a  receipt  is  ordinarily  very  high  and 

satisfactory  evidence  of  the  truth  of  its  recitals,  still  it  is  always 

competent  to  explain  same  by  parol. 

Starkweather  vs.  Maginnis,  191J  111.  274;  Paris  vs.  Lewis,  85  111. 
597;  Reading  vs.  Travers,  83  111.  372;  FitzGeiald  vs.  Coleman,  114 
App.  25;  O'Brien  vs.  Palmer,  49  111.  72;  Rose  vs.  Stoddard, 
181  App.  405;  XII  111.  Notes  516,  §  331. 

—  In  Full:     And   this  though   plaintiff   is   suing   for  balance 

after  giving  receipt  in  full. 

McKiunie  vs.   Lane,    230   111.    544. 

And  it  may  be  shown  why  receipts  were  in  name  of  another 

person. 

Starkweather  vs.   Maginnis,   196   111.   274. 

—  Where  Contractual:     A  mere  receipt  may  he  explained  or 

contradicted,    but   it    is    otherwise    with    written    agreements.      A 

written  agreement  may  be  both  receipt  and  agreement  and  in  such 

case  the  portion  operating  only  as  receipt  may  be  explained  like 

any  other  receipt,  but  not  so  with  the  part  which  contains  the 

contract  of  the  parties. 

MeClosky  vs.  McCormick,  37  111.  66;  Andrnss  vs.  Mann,  92  111.  40; 
Loeb  vs.  Flannery,  148  App.  471 ;  Hossack  vs.  Moody,  39  App, 
17;   Zickert  vs.   Times  Square  Auto.  Co.,  181  App.  676. 

—  Warehouse  Receipts:    A  warehouse  receipt,  given  by  a  ware- 


PAROL  943 

houseman,  for  grain  received  in  store,  is  the  contract  of  the  par- 
ties, and  parol  evidence  is  not  admissible  to  vary  its  terms. 
Leonard   vs.   Dutton,   51   111.    482. 

—  Insurance  Policy:    An  insurance  company  cannot  contradict 

the  receipt  of  the  premium  contained  in  policy,  for  the  purpose 

of  avoiding  the  contract. 

I.  C.  Ins.  Co.  vs.  Wolf,  37  111.  355;   Teutonic  Ins.  Co.  vs.  Anderson, 
77  111.  384;  Union  Life  Ins.  Co.  vs.  Winn,  87  App.  257. 

—  Shipping  Receipts:  A  shipping  receipt  reciting  the  ship- 
ment of  cattle,  may  be  contradicted  by  carrier  to  show  it  had 
never  received  the  cattle  of  the  consignor. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Live  Stock  Bank,  178  111.  505. 

Records : 

—  Public  Officials:  Oral  evidence  is  not  admissible  to  impeacli 
the  records  of  the  office  of  the  secretary  of  state,  showing  that  a 
bill  was  received   from  the   Governor  marked   returned   without  i 

approval,  and  accompanied  by  a  veto. 

People  vs.  Eose,  254  111.  332;   People  vs.  McCullough,  2J0  111.  488; 
People  vs.  Seeberger,   164  App.   159. 
Parol  is  incompetent  to  show  levy  of  taxes. 

Fagan  vs.  Eosier,  68  III.  84. 
Record  of  county  clerk  cannot  be  amended  by  parol  testimony 

of  county  clerk. 

Godfrey  vs.  Phillips,  209  111.   584. 

Contents  of  lost  record  of  mortgage  may  be  proven  by  parol. 
People  vs.  Cotton,  250  111.  338. 

—  Judicial  Records:    Can  not  be  corrected  by  parol  in  collateral 

proceedings. 

Kelley  vs.  Fahrney,  145  App.  81;  Bishop  vs.  Welch.  149  App.  491. 

Parol  is  incompetent  to  contradict  certified  transcript  of  record 

in  probate  court. 

Wilkinson   vs.    Service,    249   111.    146. 
Where  record  of  a  judgment  has  been  lost  or  destroyed,  may  be 

proven  by  parol. 

Forsythe  vs.  Vehmeyer,   176  111.  359. 
Number  of  terms  of  court,  names  of  judges,  whether  there  were 
juries  in  attendance,  may  be  sho^^^l  by  parol  in  collateral  pro- 
ceedings. 

Massey  vs.  Westcott,  40  111.  160, 
Upon  petition  under  Insolvent  Debtors  act  for  the  release  of 
a  person  imprisoned  under  a  capias  ad  satisfaciendum,  issued  on 
a  judgment  in  action  of  trover,  parol  is  inadmissible  to  show  mal- 
ice in  the  original  transaction  out  of  which  the  suit  arose. 
Keller  &  Fink  vs.  Norton,  228  111.  356. 
But  debtor  may  introduce  evidence  to  disprove  malice  in  orig- 
inal transaction  where  judgment  is  silent  and  declaration  on  one 
count  did  not  make  malice  gist  of  action. 
Sawyer   vs.    Nelson,    160    111.    629. 
Where  the  record  of  a  proceeding  to  condemn  a  leasehold  inter- 
est shows  the  items  going  to  make  up  the  judgment  for  compen- 
sation and  damages,  parol  evidence  is  inadmissible  in  subsequent 
suit  for  rent,  to  explain  fact  not  appearing  in  the  record  of  the 

judgment. 

Eubel  vs.  Title  Guaranty  Trust  Co.,  199  111.  110. 


944  PAROL 

When  a  settlement  of  a  former  suit  is  shown  by  way  of  bar  to 
a  subsequent  suit,  plaintiff  may  introduce  parol  evidence,  not 
contradicting  the  record,  to  show  that  the  prior  suit  and  settle- 
ment did  not  relate  to  same  transaction  as  subsequent  suit. 

A.  T.  &  S.  F.  Ry.  Co.  vs.  Jones,  110  App.  G2G. 

AVhere  the  record  shows  it  was  written  up  on  the  day  the  judg- 
ment was  rendered,  this  will  import  verity,  and  cannot  be  contra- 
dicted by  parol. 

Lawyer  vs.  Langhams,  85  111.  138. 
AVliere  records  of  proceeding  by  an  administrator,  for  an  order 
to  sell  land,  have  been  destroyed,  and  there  is  no  written  evidence 
of  same,  parol  evidence  is  admissible  to  show  same. 
Felix  vs.  Caldwell,  23.5  111.  159. 

—  Drainage  Commissioners:  Records  of  proceedings  by  drain- 
age commissioners  required  to  be  kept  by  law,  cannot  be  varied 

by  parol. 

People  vs.  Carr,  231  111.  502. 

—  Eiglrway  Commissioners:     Cannot  be  varied  by  parol. 

Seass  vs.  Monroe,  146  App.  56;   Ey.     Co.   vs.  Leaf  River,  135  App. 
559;    People   vs.    Madison   County,    125   111.    334. 

—  Corporate  and  Lodge  Records:  Parol  is  inadmissible  to  ex- 
plain, contradict  or  enlarge  entries  made  in  records  of  municipal 
corporations,  made  in  pursuance  of  law. 

Paxton  vs.  Bogardus,  201  111.  628. 
Verbal  evidence  is  competent  to  prove  decision  of  directors  of 
a  corporation,   notwithstanding  a  record,   purporting  to   contain 

minutes  of  the  meeting,  is  offered. 

Housely  vs.  Feilchenfeld  &  Co.,  152  App.   68. 
Where  there  is  an  omission  to  make  any  record  of  corporate 
proceedings,  parol  evidence  is  admissible  to  show  same. 

Mandel   vs.    Swan   Land   Co.,    154   111.    177;    People   vs.   Mayor,    179 
111.   615. 
Parol  evidence  is  inadmissible  to  show  proceedings  of  lodges, 
where  a  written  record  of  such  proceedings  exists. 
Swisher  vs.  Fidelity  &  Deposit  Co.,  164  App.  243. 

—  Family  Records:  Parol  evidence  is  inadmissible  to  show 
contents  of  family  record,  w^here  same  is  not  shown  to  have  been 

lost. 

Kreitz  vs.   Behrensmeyer,   125   111.   141. 

—  Justice  of  Peace:  Parol  testimony  is  incompetent  to  con- 
tradict the  entries  in  a  justice's  docket,  and  thus  render  a  judg- 
ment valid  which  otherwise  would  be  void, 

Burma  vs.  Muir,   152  App.  505. 
Justice's  docket  cannot  be  impeached  by  extrinsic  evidence. 

Reddish  vs.  Shaw,  111  App.  337;  Downey  vs.  People,  117  App.  591; 

Garfield  vs.   Douglas,  22   111.    100. 

It  is  not  competent  to  show  by  parol  that  a  justice  intended  to 

enter  a  different  judgment  than  the  one  which  he  recorded  in  his 

docket.     Parol  is  admissible  to  show  what  was  adjudicated  upon, 

but  not  what  the  adjudication  was.  " 

Zimmerniann    vs.    Zimmermann,    15    111.    85;    Birma    vs.    Muir,    152 
App.  505. 

Res  Judicata: 

When  particular  order  does  not  show  there  was  a  hearing  and 


PAROL  945 

adjudication  upon  the  merits,  parol  is  competent  to  ascertain  what 
was  adjudicated  upon. 

People  vs.  Becker,  253  111.  131;  People  vs.  Wilson,  260  111.  145; 
Sawyer  vs.  Nelson,  160  111.  629;  Langmuir  vs.  Landes,  113  App.  134. 

Return  of  Process: 

Parol  admissible  to  amend. 

Spellmeyer  vs.  Gaff,  112  111.  29;  Kemp  vs.  Northern  Trust  Co., 
108  App.  242;  Pa>Tie  vs.  Taylor,  34  App.  491;  Garfield  vs.  Douglas, 
22  111.  100;  Zimnierniann  vs.  Zinmiermann,  15  111.  85. 

But  not  as  against  third  persons. 

Eivard  vs.  Gardiner,  39  111.  125. 
Nor  if  officer  deceased. 

Wilson  vs.  Greathouse,  2  111.  174. 

Rules : 

—  Employer's  Rules:  Permitting  counsel  to  read  a  rule  of 
defendant  company,  which  in  itself  is  competent,  instead  of  offer- 
ing the  printed  rule,  is  not  error  unless  specifically  objected  to. 

C.  &  A.  E.  E.  Co.  vs.  Logue,  158  111.  621;  St.  L.  &*A.  T.  H.  By.  Co. 
vs.  Bauer,  156  111.  106. 

Nor  can  complaint  be  made  of  permitting  rule  to  be  sho\\Ti  by 
parol,  where  proven  without  objection  upon  cross  examination  of 
complaining  party's  own  witness. 

Peterson  vs.  E.  &  A.  S.  Ey.  Co.,  142  App.  34. 

—  Of  Court:  The  record  in  which  the  rules  of  court  are  en- 
tered is  the  only  competent  evidence  to  prove  their  existence. 
Printed  rules  and  testimony  that  they  were  adopted  by  the  judges, 
is  incompetent. 

Eoby  vs.   Title  Guaranty   Co.,    166   111.   336. 
-Filing  of  a  certified  copy  of  a  general  order  for  opening  of 
depositions   does  not   bring  such   order  before  Appellate   Court; 
that  can  only  be  done  by  bill  of  exceptions. 

Sturtevant  Co.  vs.  Sullivan,  69  App.  47. 
Rules  of  court  must  be  proven  by  the  record,  and  their  non- 
existence by  the  testimony  of  the  clerk  of  the  court.  The  affidavit 
of  counsel  to  the  effect  that  there  was  no  general  rule  or  order  of 
court  for  opening  of  depositions  does  not  establish  non-existence 
of  such  rule  or  order. 

Hughes  vs.  Humphrey,  102  App.  194. 

Sales  Contracts: 

—  In  General:  Parol  evidence  is  inadmissible  to  vary  the  con- 
tract. All  prior  negotiations  and  conversations  are  presumed 
merged  in  the  contract. 

Tichenor  vs.   Newman,   186   111.   264;    Osgood  vs.   Skinner,    111   App. 
606;    Schneider  vs.   Turner,   130  111.   28. 

A  party  cannot  accept  a  part,  only,  of  a  written  proposition, 
for  a  contract,  and  at  the  same  time  rely  upon  a  portion  of  the 
antecedent  verbal  offers;  and  if  such  party  acts  under  a  written 
proposal,  and  avails  himself  of  all  the  rights  and  privileges  it  con- 
fers, this  will  show  an  acceptance. 
Pickerl  vs.  Eose,  87  111.  263. 

A  contract  cannot  be  part  in  writing  and  part  in  parol.  If 
there  has  been  some  agreement  omitted  from  the  written  contract 
by  mistake,  the  only  remedy  is  to  secure  a  reformation  of  the  in- 

Ev. — 6  0 


946  PAR(3L 

strumeiit,  and  such  reformation  cannot  be  secured  in  an  action 

at  law. 

Over  vs.  Walzer,   103  App.   104. 

A  written  contract  which  purports  to  be  a  complete  and  final 

statement  of  the  entire  transaction  is  the   only  evidence  of  its 

terms  and  conditions. 

Osgood  vs.  Skinner,  211  111.  229;  Hill  vs.  Hatfield,  72  App.  534. 

The  rule  is,  that  when  the  writings  show,  upon  an  inspection,  a 

complete  legal  obligation,  without  any  uncertainty  or  ambiguity 

as  to  the  object  or  extent  of  the   engagement,  it  is  conclusively 

presumed  that  the  whole  agreement  of  the  parties  was  included  in 

the  writings. 

Telluride  Power  Co.  vs.  Crane  Co.,  208  111.  218. 

But  parol  is  admissible  to  show  misdescription  of  property. 
McCormack  vs.  Sage,  87  111.  484. 

Where  an  unambiguous  written  contract  to  convey  lands  is 
silent  as  to  any  proposed  dedication  of  abutting  land  for  street, 
proof  of  a  prior  parol  agreement  to  make  such  dedication  is  inad- 
missible. 

Sehneiter  vs.  Siilzer,  212  111.  87. 

Where,  so  far  as  appears  from  a  written  contract  for  the  ex- 
change of  a  stock  of  goods  for  a  farm,  the  deliveries  of  the  pos- 
session by  the  respective  parties  were  to  be  concurrent,  such  con- 
tract cannot  be  varied  by  proof  of  a  parol  agreement,  made  at 
same  time  the  written  contract  was  signed,  that  immediate  pos- 
session of  the  stock  of  goods  should  be  given, 
Robinson  vs  Yetter,  238  111  320. 

—  licservaiion:  Where  a  written  contract  provides  for  sale 
of  a  lumber  company's  output  of  a  certain  described  stock  ex- 
cept such  portions  of  said  stock  as  such  company  might  need  to 
supply  its  yard  in  a  certain  town,  there  being  nothing  definite  in 
the  contract  as  to  the  probable  quantity  or  character  of  stock  so 
reserved,  testimony  as  to  what  was  said  at  the  time  the  contract 
was  signed,  as  to  the  probable  quantity  and  character  of  the 
lumber  which  would  be  required  at  such  yard  does  not  vary  the 

terms  of  the  written  contract  and  is  admissible. 
Chi.  Trust  Co.  vs.  Lumber  Co.,  242  111.  468. 

—  Fact  of  Sale:     Fact  of  sale  may  be  proven  by  letters. 

Elevator  S.  D,  Co.  vs.  Brown  Iron  Works,  153  App. '313. 

So  "bought  and  sold  notes,"  executed  in  regular  course  of  busi- 
ness, are  competent  evidence  to  establish  contract. 

Murray  vs.  Doud,  107  111.  368;  Eau  Claire  Co.  vs.  Western  Brok.  Co., 
213  111.  561. 

—  Condition  of  Goods:  It  is  admissible,  in  suit  for  price  of 
perishable  commodity,  alleged  to  have  been  spoiled,  to  prove  that 
like  commodity,  made  at  same  time,  was  in  good  condition  after 
sale,  as  tending  to  show  that  those  sold  were  also  good. 

Luetgert  vs.  Volker,  153  111.  385. 

Where,  in  action  for  damages  for  a  refusal  to  order,  receive 
and  pay  for  goods,  it  appears  that  the  buyer  had  not  repudiated 
the  contract  for  defect  in  quality,  evidence  is  inadmissible  to 
show  defect  in  goods  received  and  disposed  of. 

Kingman  &  Co.  vs.  Hanna  Wagon  Co.,  176  111.  545. 


PAROL  947 

Wliere  article  is  sold  under  contract,  proof  that  same  was  of 
average  quality  is  incompetent. 

Bracewell  vs.  Self,  109  App.  140. 

—  Quantity:  Where,  in  action  for  pictures  sold,  there  is  a 
question  as  to  the  number,  the  seller  may  prove  that  upon  receipt 
of  the  order  he  contracted  for  so  many  frames,  to  be  delivered  to 
the  buyer. 

Wrigley  vs.  Cornelius,  162  111.  92. 

—  Agent's  Signature:  AA^'here  evidence  clearly  identifies  a  bill 
of  lading  as  the  one  issued  for  goods  in  question,  and  assigned  to 
party  to  suit,  it  is  not  essential  to  prove  signature  of  transporta- 
tion company's  agent  issuing  bill,  or  that  person  signing  it  was 
agent. 

Sanitary  Can  Co.  vs.  Hines,  149  App.  244. 

—  Conversation  of  Parties:  Where  a  sale  of  goods  is  by  deliv- 
ery on  a  written  order,  evidence  is  admissible  to  show  subsequent 
conversation  fixing  a  detail  of  the  contract  as  to  which  writing  is 

silent. 

Story  vs.  Carter,  27  App.  287. 

Settlement : 

When    amounts   and   calculations    concerning   same   have   been 

shown  to  third  person,   such  amounts  and  calculations  may  be 

proven  by  such  person. 

Weaver  vs.  Crocker,  49  111.  461. 

Statutes : 

Statute  of  foreign  state  cannot  be  proven  by  parol. 

Hoes  vs.  VauAlstyne,  20  111.  202 ;  MeDeed  vs.  McDeed,  67  111.  545. 

But .  construction  given  such  statutes   in   tribunals  where  they 

are  in  force,  may  be  given  in  evidence  by  witnesses  learned  in  such 

law. 

Hoes  vs.  VanAlstyne,  20  111.  202;  McDeed  vs.  McDeed,  67  111.  545; 
Canale  vs.  People,  177  111.  219. 

Subpoena : 

The  contents  of  a  subpoenae  and  the  date  when  it  is  returnable 
cannot  be  proved  orally  when  the  witness  has  the  subpoenae  in 
his  possession,  but  does  not  produce  it. 
People  vs.  Venard,  168  App.  254. 

Subscriptions : 

—  Stock  Subscription:  Parol  evidence  is  incompetent  to  show 
that  stock  subscriptions,  on  their  face  unconditional,  were,  in  fact, 

conditional. 

Corwith  vs.  Culver,  69  111.  502;  Merrick  vs.  Consumers  Heat  Co.,  Ill 
App.  153. 
Nor  to  show  contemporaneous  secret  agreement  between   sub- 
scriber and  corporation. 

Stone  vs.  Vandalia  Coal  Co.,  59  App.  536;  Lyon  vs.  Taylor,  49  App.  639. 

Parol  evidence   is  admissible  to   show  that  written   agreement 

was  to  take  effect  on  conditions.     Such  proof  is  not  admitted  for 

purpose    of    changing    terras,    but    for    pui-pose    of    determining 

whether  contract  has  legal  existence. 

G.  W.  Tel.  Co.  vs.  Lowenthal,  154  111.  261;  O.  O.  &  F.  E.  E.  Co.  vs. 
Hall,  1  App.  612. 

—  Booh  Suhscription:  Evidence  offered  to  show  that  the  book 
was  not  prepared  in   accordance  with   certain   representations  of 


948  PAROL 

person  who  took  the  subscription,  is  inadmissible  as  being  an  at- 
tempt to  vary  terms  of  a  written  instrument  by  parol. 
Williams  vs.  Gottschalk,  231   111.   175. 

—  Church  Subscription:  An  unconditional  subscription  for 
the  erection  of  a  church  cannot  be  varied  by  parol  proof  of  a  rep- 
resentation that  the  building  would  be  erected  upon  a  certain 

site. 

Howell  vs.  Trustees,  61  App.  121. 
Summons  : 

When  service  is  by  summons,  parol  is  inadmissible  to  aid,  but 
not  so  with  publication. 

Barnett  vs.  Wolf,  70  111.  76;  Trevor  vs.  Colgate,  181  111.  129. 

Trusts : 

It  is  not  necessary,  in  order  that  a  writing  shall  be  deemed  suffi- 
cient to  manifest  a  trust,  that  it  shall  have  been  framed  for  the 
purpose  of  acknowledging  the  trust.  It  is  sufficient  if  the  recog- 
nition or  admission  of  it  is  even  incidentally  made  in  writing  as  in 
the  course  of  a  correspondence,  or  in  a  receipt  or  a  memorandum, 
provided  the  object  and  nature  of  the  trust  appear  with  sufficient 
certainty  from  such  document.     Parol  is  admissible  as  to  terms 

thereof. 

Mosher  vs.  Funk,  194  111.  351;  Kellogg  vs.  Peddicord,  181  111.  22; 
Moore  vs.  Pickett,  62  111.  158;  Whetsler  vs.  Sprague,  224  111.  461; 
Union  Mut.  Ins.  Co.  vs.  Campbell,  95  111.  267;  Kingsberry  vs.  Burn- 
sides,  58  111.  310.     (See  Trusts.) 

Voluntary  Settlement : 

Parol  evidence  is  admissible  to  show  condition  of  property,  to 
ascertain  intention  of  parties  in  using  certain  terms. 

Cook  vs.  Whiting,  16  111.  480;  Seymore  vs.  Bowles,  172  111.  521. 

Warranty : 

—  In  General:  Where  there  is  a  written  contract  containing 
no  warranty,  parol  evidence  is  inadmissible  to  show  a  separate  oral 

warranty. 

Fuchs  vs.  Kittredge,  242  111.  88;  Eobinson  vs.  McNeill,  51  111.  225; 
McMillan  vs.  DeTamble,  93  App.  65;  Banning  vs.  Caldwell,  43  App. 
175;  International  Filter  Co.  vs.  Crystal  Ice  Co.,  157  App.  96;  Chi„ 
Port.  Cement  Co.  vs.  Hofman,  168  App.  71. 
But  if  writing  is  a  mere  memorandum,  and  does  not  purport 
to  be  complete,  such  warranty  may  be  shown. 
Ruff  vs.  Jarrett,  94  111.  475. 

—  Fraud:  Although  a  contract  for  the  sale  of  land  may  be 
evidenced  in  writing,  in  suit  to  cancel  same  for  fraud  consisting 
of  false  representations  made  to  induce  the  trade,  the  rule  that 
parol  evidence  is  inadmissible  to  contradict,  vary  or  add  to  the 

writings,  does  not  apply. 

G.  T.  &  C.  G.  R.  R.  Co.  vs.  Walton,  150  111.  428;  Wilson  vs.  Haecker, 
85  111.  349. 
So  in  such  proceedings,  the  false  representations  made  by  the 
vendor  are  admissible,  not  to  vary  the  contract  but  to  show  fraud. 
Hicks  vs.  Stevens,  121  111.  186. 

Wills: 

—  In  General:  While  extrinsic  evidence  is  not  admissible  to 
import  into  a  will  an  intention  not  expressed  in  it,  it  is  competent 
to  show  the  fact  or  circumstance  referred  to  by  the  testator,  when 


PAROL  949 

necessary  to  identify  the  subject  of  disposition  or  object  of  the 
testator's  bounty.  In  construing  a  will,  the  court  should  always 
endeavor  to  read  its  expressions  in  the  sense  in  which  they  have 
been  employed  by  the  testator,  and  for  this  purpose,  may  consider 
it  in  the  light  of  the  facts  and  circumstances  surrounding  the 
testator  at  the  time  the  will  was  made. 

Wallace  vs.  Foxwell,  250  111.  616;   Wallace  vs.  Noland,  246  III.  535; 

Gaiio  vs.  Gano,  239  111.  539;  Perry  vs.  Bowea,  151  111,  25:  XIV  111. 

Notes  1060,  §§257  et  seq. 

Court  may  use  parol  testimony  to  put  itself  in  testator's  place, 
but  not  to  frame  a  new  will. 

Masou  vs.  Ely,  38  111.  138;  Smith  vs.  Dennison,  112  111.  367. 
—  Identity  of  Beneficiary:    Where  extrinsic  evidence  is  offered 
which  raises  a  latent  ambiguity  in  the  language  of  the  will,  parol 
evidence  is  competent,  including  declarations  of  the  testator,  to 
ascertain  his  intention. 

Decker  vs.  Decker,  121  111.  341 ;  Bradley  vs.  Eees,  113  111.  327. 
But  declarations  cannot  be  received  as  to  intention  of  testator  as 
regarding  disinheriting  unborn  child. 

Peet  vs.  Peet,  229  111.  341;  Lurie  vs.  Eadnitzer,  166  111.  309;  Hawhe 
vs.  C.  &  W.  I.  E.  E.  Co.,  165  111.  561. 

To  aid  the  context  of  the  instrument  by  extrinsic  proof  of  the 
circumstances  and  situation  of  the  testator,  when  will  was  executed, 
is  constantly  permitted  at  the  court's  discretion,  and  this  con- 
stitutes a  proper, — indeed,  often  an  indispensable, — matter  of 
inquiry  when  construing  a  will,  for  whatever  a  will  may  set  forth 
on  its  face,  its  application  is  to  persons  and  things  external,  and 
hence  is  admitted  evidence,  outside  the  instrument,  of  facts  and 
circumstances  which  have  any  tendency  to  give  effect  and  opera- 
tion to  the  terms  of  the  will,  such  as  the  names,  descriptions  and 
designation  of  beneficiaries  named  in  the  will;  the  relation  they 
occupy  to  the  testator ;  whether  the  testator  was  married  or  single, 
and  who  were  his  family ;  what  was  the  state  of  his  property  when 
he  made  his  will  and  when  he  died,  and  other  like  collateral  cir- 
cumstances. Such  evidence,  being  explanatory  and  incidental,  is 
admitted,  not  for  the  purpose  of  introducing  new  words  of  a  new 
intention  into  the  will,  Init  so  as  to  give  an  intelligent  construc- 
tion to  the  words  actually  used,  consistent  with  the  real  state  of 
the  testator's  family,  and  property, — in  short,  so  as  to  enable  the 
court  to  stand  in  the  testator's  place,  and  read  the  will  in  the 
light  of  those  surroundings  under  which  it  was  written  and  exe- 
cuted. 

Peet  vs.  Peet,  229  111.  341. 

For  the  purpose  of  determining  the  object  of  a  testator's  bounty, 
a  court  may  inquire  into  every  material  fact  relating  to  the  per- 
son who  claims  to  be  interested  under  a  will,  in  order  to  identify 
the  person  intended  by  the  testator  as  a  legatee. 

Parol  evidei^ce  is  admissible  of  any  extrinsic  circumstances 
tending  to  show  what  person  or  persons  or  things  were  intended 
by  the  party  or  to  ascertain  his  meaning  in  any  other  respect. 
A  nickname  may  be  shown  as  may  also  a  name  gained  by  reputa- 
tion. 

Coon  vs.  McNelly,  254  111.  39. 


950  PAROL 

—  Identity  of  Subject  Matter:  Extrinsic  evidence  cannot  be 
heard  to  alter,  detract  from  or  add  anything  to  the  provisions  of 
a  will.  But  in  case  of  a  latent  ambiguity  parol  evidence  is  admis- 
sible for  purpose  of  identifying  the  property  intended  to  be  de- 
vised. 

Bowen  vs.  Allen,  113  111.  53. 

"While  words  may  not  be  added  to  a  will  or  inserted  in  lieu  of 
other  words  stricken  therefrom,  yet  if  in  a  will  there  is  a  mis- 
description of  the  subject  matter  of  the  devise,  and  if,  after  strik- 
ing out  that  portion  of  the  description  which  is  false,  enough  of 
the  description  remains,  when  read  in  the  light  of  the  circum- 
stances surrounding  the  testator  at  the  time  the  will  was  executed, 
to  identify  the  property  he  intended  to  convey,  the  remaining 
portion  of  the  description  may  be  so  read  and  the  testator's  pur- 
pose given  effect. 

Lawrence  vs.  Lawrence,  255  111.  365;  Collins  vs.  Capps,  235  111.  560; 

Felkel  vs.  O'Brien,  231  111.  329;  Douglas  vs.  Bollinger,  228  111.  23; 

Huffman  vs.  Young,  170  111.  290. 

But  the  court  has  no  power  to  reform  a  will  or  correct  a  mis- 
take therein  by  inserting  or  changing  words,  and  if,  after  the 
rejection  of  the  words,  there  is  not  sufficient  description  to  iden- 
tify the  property,  the  devise  will  not  be  given  effect.  No  new  term 
can  be  incorporated  into  the  will.  Parol  is  not  admissible  to  show 
mistake  in   description,   where   description  given   is  sufficient   to 

identify  other  lands. 

Collins  vs.  Capps,  235  111.  560;  Lomax  vs.  Lomax,  218  111.  629;  Vestal 
vs.  Garrett,  197  111.  398;  Bingel  vs.  Voltz,  142  111.  214;  Kurtz  vs. 
Hibuer,  55  111.  514;  Crabtree  vs.  Dwyer,  257  111.  101. 

Where  devise  of  real  property  contains  two  descriptions,  one 
of  w^hich  is  incomplete  but  not  incorrect,  parol  evidence  is  admis- 
sible to  identify  the  premises. 

Lawrence  vs.  Lawrence,  255  111.  365;  Morrell  vs.  Morrell,  236  111.  640; 
Decker  vs.  Decker,  121  111.  341;  Emmert  vs.  Hays,  89  111.  11. 

But  if,  after  rejecting  the  surplusage,  the  description  can  only 
be  made  to  apply  to  lands  of  testator  by  addition  of  words,  or  if 
there  ])e  but  one  description  and  it  is  wrong,  parol  proof  cannot 
be  made  to  identify  the  subject  matter  of  the  devise. 
Graves  vs.  Eose,  246  111.  76. 
When  the  devise  of  "the  homestead"  is  followed  by  a  descrip- 
tion which  is  incomplete,  but  not  incorrect,  parol  evidence  is  com- 
petent to  prove  the  legal  description  of  the  homestead. 
Morrell  vs.  Morrell,  236  111.  640. 

—  Contract  to  Devise:  A  verbal  agreement  by  a  party  to  make 
no  will  which  would  deprive  a  certain  relative  of  the  estate  to 
which  such  relative  would  be  entitled  by  descent  is  in  effect  an 
agreement  to  devise  lands  and  void  under  the  Statute  of  Frauds. 
The  fact  that  an  oral  agreement  to  devise  part  of  an  estate  may 
include  personal  property  as  well  as  land,  does  not  make  the  con- 
tract valid  as  to  the  personalty  where  such  contract  is  indivisible. 

Dicken  vs.  McKinley,  163  111.  318. 
(A  person  may  make  a  contract  to  dispose  of  his  property  by 
will  in  a  particular  way,   and   such  contract,  when  based  upon 
sufficient  consideration  and  clearly  established,  will  be  enforced  in 


PARTIES  AND  PERSONS  AS  WITNESSES  951 

equity:     Klussman  vs.  Wessling,  238  111.  568;  Oswald  vs.  Nehls, 
233  111.  438;  Jones  vs.  Abbott,  228  111.  34.)  *^-.^ 

—  Latent  Ambiguity:    Parol  admissible  to  explain,  only  where 

ambignity  is  latent. 

Karsten  vs.  Karsten,  254  111.  480;   Hayward  vs.  Loper,  147  111.  41; 
Hawhe  vs.  C.  &  W.  I.  R.  Co.,  165  111.  561. 
"Where  a  legatee  is  named  in  a  will,  and  there  is  no  legatee  of 
that  exact  name,  parol  evidence  is  admissible  to  show  what  per- 
son or  society  was  intended  by  the  testator. 
Missionary  ^oc.  vs.  Cadwell,  09  App.  280. 
Where  there  is  a  gift  to  a  society  for  charity  without  clearly  spec- 
ifying the  particular  society  and  there  are  two  or  more  societies 
carrying  on  same  charity  a  latent  ambiguity  exists  and  extrinsic 
evidence  is  admissible  to  determine  the  particular  society  intended 

by  donor. 

Hitchcock  vs.  Board  of  Home  Missions,  259  111.  288. 

AVhere  a  will  contains  no  latent  ambiguity,  the  testator's  in-, 
tention  must  be  determined  from  language  of  will  itself,  and  ex- 
trinsic evidence  cannot  be  resorted  to. 

Hawhe  vs.  C.  &  W.  E.  E.  Co.,  165  111.  561. 

Where  an  ambiguity  in  a  will  is  not  latent,  extrinsic  evidence 

is  inadmissible  to  explain  the  will  or  to  show  the  intention  of  the 

testator. 

Hayward  vs.  Loper,  147  111.  41. 

Where  a  will,  when  applied  to  the  property,  reveals  a  latent 

ambiguity,  the  extrinsic  evidence  to  remove  the  ambiguity  does 

not  include  the  declarations  of  the  testator  made  at  the  time  of  the 

execution  of  the  will. 

Mason  vs.  Ely,  38  111,  138;  Smith  vs.  Dennison,  112  111.  367. 

PARTIES  AND  PERSONS  INTERESTED  AS 

WITNESSES 

See  Witnesses,   Credibility,   Bias  and   Hostility,   Impeach- 
ment, Detectives,  Accomplices,  Cross  Examination,  Expert  and 
Opinion. 
Credibility: 

—  Parties  of  Record:  The  interest  of  a  party  to  the  action  may 
properly  be  considered  in  determining  his  credibility  as  a  witness. 

(Instruction  approved.) 

Hanchett  vs.  Haas,  219  111.  546;   N.  Chi.  St.  Ey.  Co.  vs.  Anderson, 
176  111.  635. 
Where  both  parties  to  the  record  are  natural  persons  an  in- 
struction should  not  single  out  one  of  them  and  make  no  reference 
to  the  other.    Rule  otherwise  where  one  is  a  corporation. 

N.  Chi.  St.  Ey.  Co.  vs.  Wellner,  206  111.  272;  Hartshorn  vs.  Harts- 
horn, 179  App.  421. 
As  distinguished  from  prejudice  or  bias  resulting  from  friend- 
ship, hatred,  consanguinity  or  other  domestic  or  social  relation, 
an  "interest"  in  the  result  of  the  suit  is  a  legal,  certain  and  im- 
mediate interest,  either  in  the  cause  itself  or  in  the  record  as  an 
instrument  of  evidence,  to  be  used  in  the  witness'  own  future 

litigation. 

Chi.  City  Ey.  Co.  vs.  Mager,  185  111.  336. 


952  PARTIES  AND  PERSONS  AS  WITNESSES 

—  Criminal  Action:  And  same  rule  applies  to  defendants  who 
testify  in  criminal  cases. 

People  vs.  Scarbak,  245  111.  435;  Doyle  vs.  People,  147  111.  394:  Sei- 
bert  vs.  People,  143  111.  571;  Rider  vs.  People,  110  111.  11. 

—  Other  Persons  Interested:  It  is  always  proper  for  the  jury 
in  determining  credibility  of  witness  to  consider  any  interest 
which  he  is  shown  to  have  in  the  suit. 

Bennett  vs.  Chi.  City  Ey.  Co.,  243  111.  420;  Donnelly  vs.  Doughertv, 
174  111.  582;  Dowd  vs.  Chi.  City  Ry.  Co.,  153  App.  85. 

Fact  that  a  witness  is  an  employe  may  be  shown. 

Cicero  St.  Ey.  Co.  vs.  Eollins,  195  111.  219;  Donnelly  vs.  Dangherty, 
174  111.  582;  I.  C.  E.  E.  Co.  vs.  Haskins,  115  111.  300;  C.  B.  &  Q.  Ey. 
Co.  vs.  Triplett,  38  111.  482 ;  St.  L.  A.  &  T.  H.  E.  E.  Co.  vs.  Walker,  39 
App.  388. 

The  mere  fact  of  a  present  or  former  employment  of  a  witness 
by  one  of  the  parties  is  not  an  element  in  determining  his  credi- 
bility, or  the  weight  of  his  testimony,  unless,  in  addition,  it  be 
shown  that  he  has  an  interest  in  the  result  of  the  litigation. 
Dowd  vs  Chi.  City  Ey.  Co.,  153  App.  85. 

The  jury  cannot  disregard  the  testimony  of  an  unimpeached 
witness  simply  because  he  is  or  has  been  in  the  employ  of  the  de- 
fendant. 

Christiansen  vs.  Graver  Works,  223"  111.  142 ;  C.  P.  &  St.  I>.  Ey.  Co.  vs. 
Eollins,  195  111.  219;  I.  C.  E.  E.  Co.  vs.  Haskins,  115  111.  300; 
Eandall  vs.  E.  S.  D.  &  E.  Co.,  158  App.  56;  West  Chi.  St.  Ey.  Co. 
vs.  Eafferty,  85  App.  819. 

Proof  of  Interest: 

—  On  Direct  Examination:  When  interest  disqualified  a  wit- 
ness, proof  of  such  interest  was  not  confined  to  his  cross  examina- 
tion, and  although  our  statute  has  removed  the  disqualification, 
interest  may  still  be  shown  to  affect  the  witness'  credibility,  and 
by  the  same  kinds  of  evidence,  admissible  to  prove  tlie  fact  when 
it  resulted  in  his  disqualification. 

City  of  Aurora  vs.  Scott,  82  App.  616. 

—  Cross  Examination:  It  is  always  proper  in  cross  examina- 
tion to  interrogate  a  witness,  within  reasonable  limits,  as  to  any 
matter  of  fact  calculated  to  affect  his  credibility  as  a  witness  or 
the  weight  of  his  testimony  and  especially  is  this  true  as  to  mat- 
ters which  pertain  to  his  relationship  to  the  parties;  his  interest 
in  the  result  of  the  suit ;  the  effect  of  his  testimony  upon  himself, 
his  interests  or  his  character,  and  the  like. 

Chi.  City  Ey.  Co.  vs.  Carroll,  206  111.  318;  I.  C.  R.  E.  Co.  vs.  Burke, 
112  App.  415. 

And  by  whom  he  is  employed  and  whether  he  is  to  be  paid, 
to  show  his  interest. 

West  Skokie  Drainage  Dist.  vs.  Dawson,  243  111.  175;  MacMahon  vs. 
Chi.  City  Ry.  Co.,  239  111.  334. 
And   it  is  error   to   refuse   to   allow   cross   examination   as   to 
amount  which  witness  received  for  his  services  and  his  interest 

in  the  suit. 

Kerfoot  vs.  City  of  Chicago,  195  111.  229. 

Witness  may  be  asked  if  he  is  indebted  to  party  calling  him. 

Moline  Wagon  Co.  vs.  Preston,  35  App.  358;  People  vs.  Darr,  262 
111.    202. 


PARTITION  953 

PARTITION 

See  Witnesses. 
JUDICIAL  PARTITION. 
Right  to: 

—  In  General:    Owners  of  the  fee  are  entitled  to  partition  as  a 

matter  of  right,  except  where  the  interests  of  minors  are  involved, 

and  the  chancellor  can  see  that  the  partition  will  result  injuriously 

to  their  interests. 

Whittaker  vs.  Ehoads,  242  111.   146;   Hall  vs.  Garbert,  213  111.  208; 
Miller  vs.  Lauuing,  211  111.  620. 

And  this  imperative  right  extends  to  reversioners  and  remaind- 
er-men owning  land  in  fee,  subject  to  life  estate,  even  though  they 
are  not  entitled  to  possession. 

Whittaker  vs.  Ehoads,  242  III.  146;  Deadman  vs.  Yantis,  230  111.  243; 
Drake  vs.  Merkle,  153  111.  318. 
Court  may  withhold  decree  until  expiration  of  time  for  filing 

claims  in  probate  court. 

Fisher  vs.  Butz,  224  111.  379. 

—  Title :  A  partition  lies  though  legal  title  is  wholly  in  com- 
plainant. 

Bissell  vs.  Pierce,  184  111.  60. 

—  Contract:  Equity  will  not  award  partition  at  suit  of  one  in 
violation  of  his  own  agreement  or  in  violation  of  a  condition  or 
restriction   imposed   upon   the   estate   by   one   through   whom   he 

claims. 

Cox  vs.  Johnson,  242  111.  159;   Ingraham  vs.   Mariner,  194  111.  2G9; 
Hill  vs.  Eeno,  112  111.  154.  Heiuinger  vs.  Meissmer,  261  111.  105. 

And  this  though  verbal  contract,  and  notwithstanding  Statute 
of  Frauds,  where  contract  has  been  so  far  performed  that  its  repu- 
diation by  one  party  would  perpetrate  a  fraud  upon  the  others. 
Martin  vs.  Martin,  170  111.  639. 

Weight  and  Sufficiency: 

—  Undivided  Interest:  A  complainant  in  partition  must  show 
he  owns  an  undivided  interest  in  the  property  sought  to  be  par- 
titioned, as  alleged  in  the  bill. 

Owen  vs.  Village  of  Brookport,  208  111.  35. 

—  Motives:  The  right  to  have  partition  decreed  between  the 
owners  of  land  is  an  absolute  right,  resulting  from  the  mere 
existence  of  the  relation  of  joint  tenants  and  tenants  in  common. 
Therefore  the  motive  which  may  have  moved  a  party  to  seek  a 
decree  in  partition  is  wholly  immaterial. 

Trainor  vs.  Greenough,  145  111.  543. 

—  Disagreement  of  Parties:  Partition  act  requires  that  peti- 
tion for  partition  of  land  shall  particularly  describe  the  premises 
and  set  forth  the  rights  of  all  parties  interested  therein  so  far  as 
known,  including  tenants  for  years,  for  life,  and  all  persons  who, 
upon  any  contingency,  may  be  or  become  entitled  to  any  beneficiary 
interest  "in  the  premises,  and  pray  for  the  partition  of  the  same. 
That  is  all  that  is  required  to  be  alleged  and  proven.  It  is  not 
necessary  to  allege  and  prove  the  inability  of  tenants  to  agree  upon 

a  division.  ^,,  ^^„ 

Trainor  vs.  Greenough,  145  111.  543;  Hall  vs.  Garbert,  213  lU.  208. 


954  PARTITION 

—  Color  of  Title :  A  party  claiming  ownership  under  color  of 
title,  possession  and  payment  of  taxes  for  seven  years,  cannot 
maintain  partition  by  such  prima  facie  title.  He  must  show  par- 
ties claiming  adverse  title  are  under  no  disability  and  that  their 

title  is  completely  barred. 

Boss  vs.  Cabb,  48  111.  111. 

—  Tenants  in  Common:  Under  section  1  of  the  partition  act, 
providing  where  land  is  held  in  tenancy  in  common,  any  per- 
son interested  therein  may  compel  a  partition,  a  person  is  not 
entitled  to  partition  unless  he  can  show  that  he  owns  an  inter- 
est as  tenant  in  common. 

McConnel  vs.  Pierce,  210  111.  627;  Euddell  vs.  Wren,  208  111.  508. 

—  Common  Source:  Where  all  parties  to  a  bill  for  partition 
claim  through  a  common  source,  proof  of  title  in  the  person  under 
whom  they  claim  is  not  necessary  and  this  especially  where  the 
pleadings  admit  that  such  person  was  seized  in  fee  of  the  prem- 
ises. 

O'Melia  vs.  Mullarky,  124  111.  506. 

—  Possession:  To  maintain  suit  for  partition,  it  is  not  neces- 
sary that  partitioner  should  prove  right  of  possession. 

Deadman  vs.  Yaiitis,  230  111.  243;  Miller  vs.  Lanning,  211  111.  620; 
ScoviUe  vs.  Hilliard,  48  111.  453. 

Solicitor's  Fees: 

Are  properly  allowed  where  bill  correctly  states  interests  of 
parties,  and  defendant  fails  to  present  any  substantial  defense. 
Washburn  vs.  Scott,  233  111.  569. 

Submitting  the  question  of  a  reasonable  solicitor's  fee  in  par- 
tition to  attorneys  called  before  the  court  by  its  own  motion,  and 
basing  allowance  upon  their  testimony  is  ground  for  reversal.  Wit- 
nesses should  be  sworn  and  question  determined  by  the  court 
upon  such  testimony,  which  should  be  preserved  in  the  record  by 

certificate  of  evidence. 

McMullen  vs.  Eevnolds,  209  111.  504;  Burrows  vs.  Merrifield,  243  111. 
362 ;  Metheny  vs.  Bohn,  164  111.  495. 

PAROL  PARTITION. 

Effect : 

Tenants  in  common  may  make  parol  partition  of  their  real 
estate,  and  though  such  partition  cannot  transfer  the  legal  title, 
it  will  be  enforced  in  equity,  if  followed  by  a  several  possession 
in  accordance  with  the  agreement  of  partition. 

Ater  vs.  Smith,  245  111.  57;  Duffy  vs.  Duffy,  243  111.  476;  Sontasr  vs. 
Bigelow,  142  111.  143;  Shapard  vs.  Rinks,  78  111.  188;  Nicholas  vs. 
Padfield,  77  111.  253. 

Weigfht  and  Sufficiency  of  Evidence: 

A  mere  severance  of  possession  between  tenants  in  common  may 
be  inferred  from  far  less  proof  than  would  be  required  to  show  a 

sale  of  land  to  a  stranger. 

Thomlin  vs.  Hilyard,  43  111.  300. 
Acts  and  declarations  may  be  sufficient  to  prove  partition. 

Markel  vs.  Wakeman,  107  111.  251. 
After  acquiescence  in  a  partition  of  lands  for  a  great  period  of 
time  without  any  question  of  its  validity,  it  will  be  presumed. 


PARTNERSHIP  955 

if  necessary  to  sustain  same,  that  proper  partition   deeds  were 

executed  by  the  parties  in  interest. 

Lavallc  vs.  Strobel,  89  111.  ;{70. 
The  execution  of  deeds  in  part  performance  of  oral  contract 
for  partition,  does  not  prevent  the  introduction  of  oral  evidence 
of  the  terms  of  the  contract. 

Lacy  vs.  Guard,  60  App.  72. 

PARTNERSHIP 

See  NoN  Joinder. 
EXISTENCE  OF  PARTNERSHIP. 

Queotion  of  Fact : 

The  question  of  partnership  or  no  partnership  is  one  of  fact. 
James  vs.  Bergevin,  83  App.  607. 

Presumptions : 

—  Sharing  Profits:  Where  parties  agree  to  share  the  profits 
of  a  business,  the  law  will  infer  a  partnership  between  them  in  the 
business  to  which  the  agreement  relates.  This  presumption  will 
control  until  rebutted  by  proof  to  the  contrary. 

Miller  vs.  Meers,  15.5  111.  284;  Lockwood  vs.  Doane,  107  111.  235;  Butler 
vs.  Merrick,  24  App.  628. 

—  Possession  of  Note  as  Joint  Payees:    The  possession  of  a  note 

by  one  of  two  joint  payees  is  not  evidence  that  the  payees  are 

partners,  Imt  is  simply  prima  facie  evidence  of  the  title  disclosed 

upon  the  face  of  the  note. 

Eyhiuer  vs.  Feickert,  92  111.  305. 

—  U.se  of  Firm  Name :  That  parties  do  business  together  under 
a  firm  name,  coupled  with  the  fact  that  each  gives  his  personal 
attention  to  the  business,  raises  a  strong  presumption  that  they 

are  partners. 

Haug  vs.  Haug,  193  111.  645. 
There  is  no  presumption  of  law  or  fact  that  a  firm  name  in- 
cludes more  than  one  person,  and  if  it  is  desired  to  show  the 
names  of  the  plaintiffs,  the  fact  of  partnership  must  be  put  in 

issue  by  verified  plea. 

Robinson  vs.  McGarrity,  28  111.  423;  W.  Chi.  Park  Comrs.  vs.  Schil- 
linger,  117  App.  525. 

Burden  of  Proof: 

—  In  General:  The  burden  of  proving  the  existence  of  a  part- 
nership is  upon  party  alleging  it. 

Turber  vs.  Page,  143  111.  622;  Smith  vs.  Knight,  71  111.  148. 
When  one  of  several  defendants,  who  are  sued  as  partners,  puts 
the  partnership  or  joint  liability  in  issue  by  the  general  issue  prop- 
erly verified,  the  burden  of  proof  to  show  the  partnership  or 
joint  liability  is  upon  plaintiff  and  not  upon  such  defendant  to 
show  that  he  was  not  a  partner,  or  liable  as  a  joint  maker  of  the 

note  sued  upon. 

Kennedy  vs.  Hall.  68  111.  165;  Walker  vs.  Wood,  170  111.  463;  Edwards 
vs.  Cleveland  Dryer  Co.,  83  App." 643. 

Where  plea  denying  partnership  is  put  in  issue  by  replication 

thereto,   the   burden   of  proving  existence  of  partnership    is   on 

party  so  replying. 

Meyer  vs.  Krohn,  114  111.  574. 


956  PARTNERSHIP 

In  absence  of  plea  denying  partnership  1)urden  of  proving  that 
no  partnership  existed  is  upon  defendants. 
Bredhoff  vs.  Lcpinan,  181  Apji.  247. 

—  Continuance:  Where,  to  all  outward  appearances,  and  in 
their  relations  to  third  persons,  there  has  been  a  dissolution  of  the 
partnership  and  a  transfer  of  the  firm  property  to  one  partner, 
one  asserting  the  continuance  of  a  secret  partnership  has  the  bur- 
den of  proof. 

Wright  vs.  Cudahy,  168  111.  86, 

Admissibility  of  Evidence: 

—  Admissions  and  Declarations  of  Partners:  Partnership  may 
be  proven  by  evidence  that  each  of  the  alleged  partners  liad  ad- 
mitted its  existence. 

Gordon  vs.  Bankard,  37  111.  147. 

Such  declarations  are  always  competent  to  bind  the  declarant, 
and  it  is  not  requisite  that  all  be  present  when  the  declaration  is 
made  by  one,  in  order  that  the  same  be  admitted  against  him. 
Eogers  vs.  Suttle,  19  App.  163. 

But  the  declarations  of  a  purchaser  of  goods,  to  the  vendor,  that 
some  other  person  not  present  is  jointly  interested  in  the  purchase, 
is  no  evidence  whatever  against  such  person  to  establish  the  part- 
nership. 

Gardner  vs.  N.  W.  Mfg.  Co.,  52  111.  367. 

A  stranger  may  prove  the  partnership  by  acts  and  admissions 
of  the  partners,  although  written  articles  of  partnership  may  ex- 
ist between  them. 

Kaskaskia  Bridge  Co.  vs.  Shannon,  6  111.  16. 

Where  action  is  pending  against  two  as  partners,  and  one  of 
the  defendants  puts  the  fact  of  partnership  in  issue  by  proper 
plea,  the  admissions  or  statements  of  his  co-defendant,  made  in 
his  absence,  in  reference  to  the  existence  of  the  partnership,  are 
not,  in  absence  of  other  evidence  tending  to  establish  a  partner- 
ship, admissible  on  the  issue. 

Conlan  vs.  Mead,  172  111.  13;  Hahn  vs.  St.  Clair  Savings  Co.,  50  111. 
456;  Hohenadel  vs.  Ellsworth,  154  App.  484;  Bartlett  vs.  Wilcox, 
68  App.  142;  Montgomery  vs.  Black,  25  App.  22;  XIII  111.  Notes 
1096,  §51. 
Where  sufficient  evidence  has  been  given  to  raise  a  fair  presump- 
tion that  two  or  more  persons  are  partners,   then  the  acts  and 
declarations  of  each  are  admissible  as  evidence  against  the  others, 
for  the  purpose  of  strengthening  the  prima  facie  case  already  made. 
Daugherty  vs.  Heekard,  189  111.  239;   Conlan  vs.  Mead,  172  111.  13; 
Thomas  vs.  Mosher,  128  App.  479. 

And  this  though  not  made  in  the  presence  of  party  sought  to 

be  charged. 

Daugherty  vs.   Heckard, .  189  111.    239 ;    Contra,  Gardner  vs.   N.    W. 

Mfg.  Co.,  52  111.  367. 

Mere  loose   and   casual  remarks,   indefinite  in  their  character, 

will  not,  as  between  the  persons  themselves,  prove  a  partnership, 

but  one  claiming  to  be  the  partner  of  another,  so  as  to  participate 


PARTNERSHIP  957 

in  a  fund  claimed  to  belong  to  a  partnership,  should  establish 
that  relation  by  satisfactory  evidence. 

Walker  vs.  Mathews,  58  111.   19(3. 

The  statements,  whether  written  or  verbal,  of  one  of  several 
partners,  made  after  dissolution  of  the  firm,  although  relating  to 
its  business  before  dissolution,  are  incompetent  to  charge  the 
other  members  of  the  firm. 

Nor  is  the  rule  different  when  the  admissions  sought  to  be  used 
are  made  by  either  a  plaintiff  or  defendant.  A  co-plaintiff,  after 
a  dissolution  of  a  partnership,  is  no  more  an  agent  of  his  co- 
plaintiff  than  is  such  a  defendant  of  the  other  members  of  a  dis- 
solved partnership. 

Wiuslow  vs.  Newlau,  45  111.  145;  Miller  vs.  Neimerick,  19  111.  171. 

Wliere  three  persons  were  sued  as  partners,  only  two  of  whom 

were  served,  the  other  not  appearing,  and  the  principal  question 

in  issue  was  the  existence  of  the  partnership,  the  court  admitted 

in  evidence  the  declarations  of  defendant  not  in  court,  which  was 

held  error,  as  the  declarations  of  defendant  not  a  party  to  the 

trial  were  not  competent  evidence  to  prove  the  partnership. 

Smith  vs.  Hulett,  65  111.  495;  Yoakum  vs.  Benson,  45  111.  435.  (See 
Admissions  and  Declarations.) 

—  Articles  of  Partnership:  AVhere,  by  proper  plea,  the  exist- 
ence of  a  partnership  is  put  in  issue,  the  articles  of  co-partner- 
ship are  admissible. 

Meyer  vs.  Krohn,  114  111,  574, 

—  Books:     To  entitle  firm  books  to  be  received  in  evidence  in 

action  for  accounting,  the  entries  therein  must  have  been  made 

contemporaneously  with  the  transactions  recorded. 
Donaldson  vs.  Donaldson,  142  App.  21. 

Where  one  partner,  acting  as  time  keeper,  made  entries  in  time 
book  kept  by  himself,  which  was  transcribed  in  book  kept  by 
book-keeper  of  firm,  it  was  held,  on  bill  for  accounting,  that  part- 
ner's book  was  inadmissible,  the  book  kept  by  the  book-keeper 
being  the  book  of  original  entry. 

O'Brien  vs.  Hanley,  86  111.  278. 

—  Conduct  of  Parties:     As  between  partners  themselves,   the 

partnership  may  be  shown  by  their  conduct,  the  mode  in  which 

they  have  dealt  with  each  other  and  the  mode  in  which  each  has, 

with  the  knowledge  of  the  other,  dealt  with  other  people. 
VanBuskirk  vs.  VanBuskirk,  148  111.  9. 

Whether  persons  are  partners  as  between  themselves  may  de- 
pend upon  their  contract  with  each  other.  Whether  they  are 
partners  as  to  others,  depends  upon  their  conduct. 

Chi.  T.  &  S.  Bank  vs.  Kinnare,  174  111.  35S ;  Eeynolds  vs.  Eadke,  112 
App.  575 ;  Janes  vs.  Bergevin,  83  App.  607 ;  Elliott  vs.  Swannell, 
154  App.  570. 

—  Intent  of  Parties:  Where  a  partnership  is  claimed  to  exist, 
not  evidenced  in  writing,  the  intention  of  the  parties  is  a  material 
fact,  to  be  ascertained  from  their  conduct  and  declarations ;  but 
when  tlie  agreement  is  in  writing,  its  true  construction  must  be 
determined  from  the  terms  of  the  written  instrument,  and  from 
that  construction  it  is  to  be  found  whether  a  partnership  exists. 

State  Natl.  Bank  vs.  Butler,  149  111.  575;  Smith  vs.  Hart,  179  App.  98. 


958  PARTNERSHIP 

As  between  the  parties,  the  question  of  the  existence  of  the 

partnership  relation  is  one  of  intention,  to  be  gathered  from  all 

the  facts  and  circumstances. 

Natl.  Surety  Co.  vs.  Townsend,  176  111.  156. 

—  Opinion :     Testimony  of  a  witness  that  he  took,  from  what 

the  party  said,  that  such  party  and  another  were  partners,   is 

inadmissible. 

Bragg  vs.  Geddes,  93  111.  39. 

—  Parol:  An  agreement  to  form  a  partnership  for  purpose 
of  dealing  and  trading  in  lands  for  a  profit,  is  not  within  the 
Statute  of  Frauds,  and  the  existence  of  a  partnership  and  the  ex- 
tent of  each  party's  interest  therein  may  be  shown  by  parol. 

Speyer  vs.  Desjardins,  14-4  111.  641;  Vanlloiisen  vs.  Copeland,  79  App. 
139;   Frankenstein  vs.  N'orth,  79  App.   669;   Smith  vs.   Hart,   179 
App.  98. 
And  this  whether  the  title  is  in  one  partner  or  in  all. 

VanHousen  vs.  Copeland,  180  111.  74. 
Where  a  written  instrument  bears  the  name  of  but  one  person, 
presumably  it  is  the  undertaking  of  that  person,  but  it  is  com- 
petent to  establish  by  parol  proof  that  the  contract  is  that  of  a 
co-partnership,  and  that  the  firm  entered  into  the  contract  in  the 

name  and  style  of  the  individual. 

Daugiierty  vs.  Heckard,  189  111.  239;  H.  E.  &  E.  Ky.  Co.  vs.  Walsh, 
85  111.  58;  Barker  vs.  Garvey,  83  111.  184. 

—  Eepufafion:  Evidence  of  general  reputation  is  ina^dmissi- 
ble  to  prove  existence  of  a  partnership. 

Bowen  vs.  Eutherford,  60  111.  41. 

—  Claiming  Insurance  Loss:  Proof  to  effect  that  alleged  firm  sus- 
tained a  fire  loss,  and  made  claim  therefor  iri  a  partnership  capac- 
ity, is  admissible  to  prove  issue  of  partnership. 

Thomas  vs.  Mosher,  128  App.  479. 

—  Under  Pleadings:  Joint  liability  may  be  denied  in  action  of 
assumpsit  under  plea  of  the  general  issue,  even  though  unverified; 
the  effect  of  verification  is  simply  to  cast  the  burden  of  proving  the 
joint  liability  in  the  first  instance  upon  plaintiff. 

Mart'in  vs.  Trainer,  125  App.  474;  Bensley  vs.  Brookway,  27  App. 
410;  Dorman  vs.  Bangs,  3  App.  400;  Eosenberg  vs.  Barrett,  2  App. 
386;  Davidson  vs.  Hill,  1  App.  70;  Bredhoff  vs.  Lepman,  181  App. 
247. 

Weight  and  Sufficiency: 

—  Circumstances:  The  fact  of  a  partnership  actually  existing 
between  certain  parties  may  be  implied  from  circumstances. 

Kelleher  vs.  Tisdale,  23  111.  405. 
The  existence  of  a  partnership  may  be  established  by  circum- 
stantial evidence. 

Loucks  vs.  Paden,  63  App.  545. 

—  EoUling  Out:  A  man  may  so  act  as  to  make  himself  liable 
as  a  partner  whether  he  be  so  in  fact  or  not,  and  when  he  has  so 
acted,  he  estops  himself  from  denying  that  he  is  a  partner,  as  to 
others  who  rely  upon  his  actions  and  give  credit  upon  the  faith 

that  he  is  what  he  seems  to  be. 

Janes  vs.  Bergevin,  83  App.  607. 
Party  must  act  with  knowledge  that  other  is  holding  himself 

out  as  a  partner. 

Hefner  vs.  Palmer,  67  111.  161. 


PARTNERSHIP  959 

Such  knowledge  may  be  inferred  if  party  has  held  himself  out 
"to  the  community." 

Hefner  vs.  I'alnier,  67  111.  161. 

Competency  of  Witnesses: 

Where  a  concern  carries  on  a  particular  business  and  occupies 
certain  offices,  its  employees,  paid  by  it  and  constantly  concerned 
with  its  affairs,  are  competent  witnesses  to  testify  as  to  fact  of 
partnership. 

Clark  vs.  Hoffman,  128  App.  422. 

Where  a  surviving-  member  institutes  suit  in  regard  to  the  part- 
nership concerns,  the  administrator  of  the  deceased  partner  is 
not  a  competent  witness  in  behalf  of  plaintiff,  although  he  may 
release  all  his  interest  in  the  suit,  for,  if  the  party  so  calling  him 
should  be  defeated,  he  would  have  the  right  to  pay  the  costs  out  of 
the  partnership  effects,  and  thus  diminish  the  assets  which  would 
come  to  the  hands  of  the  witness  as  administrator.  To  that  extent 
he  would  have  an  interest  in  the  result  of  the  suit,  and  would  there- 
fore be  incompetent,  notwithstanding  his  release. 
Mvers  vs.  Walker,  31  111.  353. 

LIABILITY  OF  PARTIES. 
Burden  of  Proof: 

—  Joint  Liability:    Where  joint  liability  is  denied  by  part  of 

defendants,  by  plea  verified  by  affidavit,  the  burden  is  upon  plaintiff 

to  show  the  joint  liability  of  all  the  defendants,  including  those 

who  failed  to  file  pleas,  unless  he  shall  amend  his  declaration  and 

dismiss  the  suit  as  to  such  of  the  defendants  as  are  not  shown  to  be 

jointly  liable  with  the  others. 

Powell  Co.  vs.  Finn,  198  111.  567;  De  St.  Auhin  vs.  Laskin,  74  App.  455. 

—  Liahilitij  of  Deceased  or  Retired  Pariner:  Where  a  creditor 
of  a  firm  continues  to  deal  vAih  same  after  the  death  or  retirement 
of  one  partner,  the  burden  is  on  the  representative  of  the  deceased 
partner  or  retiring  partner  to  show  a  release  of  the  liability. 

Hayward  vs.  Burke,  151  111.  121. 

—  Authority  of  Partner  to  Act:     In  non-trading  firm,  burden 

of  proving  authority  of  one  member  to  bind  the  other  rests  upon 

plaintiff. 

Teed  vs.  Parsons,  202  111.  455. 

—  Notes  of  Partner  a  Firm  Transaction:  Party  seeking  to  en- 
force individual  note  of  partner  guaranteed  by  firm,  has  burden 
of  showing  that  it  was  in  fact  a  partnership  transaction. 

Davis  vs.  Blackwell,  5  App.  32. 

AVhen  defendant  shows  a  note  to  have  been  executed  by  a  partner 

in  fraud  of  the  firm,  it  throws  the  burden  of  proof  upon  plaintiff 

to  show  that  he  came  by  the  note  fairly  and  without  knowledge  of 

the  fraud. 

Charles  vs.  Eennick,  156  IlL  327 ;  Wright  vs.  Brosseau,  73  111.  381. 

Presumptions : 

—  Partner's  Authority:  Each  partner  is  presumed  to  have 
authority  to  act  for  the  others  within  the  scope  of  the  business. 

Crane  Co.  vs.  Tierney,  175  111.  79. 
If  a  partner  professes  to  act  for  the  firm  in  the  business  actually 
carried  on  by  it,  third  parties  with  whom  he  deals  are  not  bound 


960  PARTNERSHIP 

bj  the  limitations  contained  in  the  articles  between  the  partners, 

of  which  they  have  no  notice. 

Craue  Co.  vs.  Tierney,  175  111.  79. 
—  Nominal  Partners:     Tlie  presumption  of  authority  continues 
as  to  nominal  partners  who,  by  private  arrangement,  have  ceased 
to  be  actual  partners,  where  third  party  dealing  with  such  part- 
ner has  no  notice  of  such  arrangement. 

T.  &  S.  Bank  vs.  Kinuare,  174  111.  358. 

Partner's  Obligations:    Notes  by  partner  are  presumed  to  be 

his  individual  obligation  and  not  that  of  the  firm. 

Davis  vs.  Blackwell,  5  App.  32. 
Though  purchase  money  notes  be  signed  by  members  of  firm 
individually,  yet  when  it  is  showni  that  cash  payments  were  made 
from  partnership  funds,  the  account  carried  on  firm  books  as  part- 
nership assets,  and  notes  as  partnership  notes,  it  will  be  presumed 
that  such  notes  were  the  firm  obligation,  and  not  that  of  indi- 
viduals signing. 

Dreyfus  vs.  Union  Natl.  Bank,  164  111.  83. 

Admissibility  of  Evidence: 

Partnership  books  are  admissible  to  determine  whether  or  not 
the  transaction  recorded  was  a  firm  transaction. 
Smith  vs.  Hood,  4  App.  360. 

For  purpose  of  detennining  whether  notes  signed  by  members 
of  firm  individually  were  firm  obligations,  the  nature  of  the  trans- 
action out  of  which  they  grew  and  how  it  was  intended  they 

should  operate  may  be  considered. 

Dreyfus  vs.  Union  Natl.  BauK,  164  111.  83, 

Where  retiring  partner  paid  note  which  he  claimed  to  be  a  firm 

indebtedness,  and  included  in  a  list  of  such  obligations  which  were 

to  be  paid  by  the  firm,  the  list  of  such  obligations,  made  at  time 

partner  retired,  is  admissible  to  show  note  was  deemed  a  firm 

obligation. 

Shennefield  vs.  Dutton,  85  IlL  503. 

Weight  and  Sufficiency: 

Fact  that  notes  were  signed  by  members  of  firm  individually 

is  not  necessarily  conclusive  that  they  are  individual  and  not  firm 

obligations. 

Dreyfus  vs.  Union  Natl.  Bank,  164  111.  S3. 

DISSOLUTION. 

Evidence  to  Show  Notice: 

To  escape  liability  upon  contracts  by  commercial  partnership 
made  in  firm  name  after  dissolution  or  change,  notice  must  be  given 
to  those  likely  to  be  affected  thereby ;  as  to  those  with  whom  firm 
has  had  dealings,  actual  notice  is  required;  as  to  others,  a  notice 
by  publication  is  sufficient, 

Bredhoff  vs.  Lepman,  181  App.  247. 

Notice  of  dissolution  may  be  established  by  conversations  between 
retiring  partner  and  salesman  of  opposite  party. 
Meyer  vs.  Krohn,  114  111.  574. 
•      Proof  of  mailing  notice,  properly  addressed,  is  prima  facie  evi- 
dence of  receipt  of  same  by  addressee. 
Meyer  vs.  Krohn,  114  111.  574. 


PATENTS  ''9^1 

Weight  of  Partners'  Testimony: 

Testimony  hy  oJie  ]);irtner  Ihat  firm  was  dissolved  is  without 
force  when  it  is  shown  by  liis  conduct  the  firm  was  contimuHi 
without  change  of  name,  and  by  his  own  written  evidence  that  the 
firm  was  in  fact  not  dissolved. 

Kelly  vs.  Hanes,  2.1.S  111.  163, 

PARTICULAR  ACTIONS. 

Between  Partners: 

—  PrcsvmpHon  o-.s  fo  Comprm^aUon:  In  absence  of  any  ao^ree- 
ment  between  partners  allowing  a  salary  to  one  or  more  of  them, 
it  is  presumed  that  each  is  to  render  his  services  for  the  promotion 
of  the  interest  of  the  firm  without  salary. 

Street  vs.  Thompson,  229  111.  613;  Ligare  vs.  Peacock,  109  111.  94. 

—  Presumption  as  to  Partner's  Interest:  "Wlien  a  partnership 
is  shown,  in  absence  of  proof  to  contrary,  the  law  will  presume 
that  each  partner  has  an  equal  interest. 

Farr  vs.  Johnson,  25  111.  522;  Eoach  vs.  Perry,  16  111.  37;  Henrick- 
son  vs.  Eeinback,  33  111.  299. 

—  Presumption  as  to  Ownership  of  Property:  The  presump- 
tion, until  rebutted,  is  that  the  property,  at  the  termination  of  the 
partnership,  belongs  to  the  firm,  and  if  so,  and  one  partner  has 
appropriated  it  to  his  own  use,  he  must  account  for  it  on  the  set- 
tlement of  the  affairs  of  the  firm. 

Laswell  vs.  Bobbins,  39  111.  210. 

—  Parol  to  Explain  Agreement:  The  written  instrument  must 
be  held  to  embody  final  understanding  and  agreement  between  the 
parties,  whatever  may  have  been  tlie  previous  oral  propositions  or 
agreements. 

Pierpont  vs.  Lamphere,  104  App.  232. 
And  in  absence  of  allegation  of  fraud  or  mistake,  parol  is  in- 
competent. 

Taft  vs.  Schwamb,  80  111.  289. 

—  Partnership  Books:     The  partnership  books  are  presumed  to 

contain  a  true  record  of  the  transactions  between  the  partners. 

Stuart  vs.  McKickan,  74  111.  122;  Grejorg  vs.  Hord,  129  111.  613. 
In  action  for  accounting,  the  several  books,  to  which  the  partners 
have  had  daily  access,  and  in  Avhich  the  firm  accounts  and  repeated 
balances  are  kept  without  complaint  or  objection  to  same  nntil 
after  the  dissolution,  are  admissible  to  show  the  true  statement  of 
affairs  between  the  partners. 

Gregg  vs.  Hord,  129  111.  613. 


PASS  BOOKS 

See  Books  of  Account. 

PATENTS 

Evidence  of  Title: 

A  patent  is  not  the  title  itself,  but  the  evidence  thereof. 

McConnell  vs.  Wilcox,  2  111.  344. 
Ev.— 61 


962  PATENTS 

Senior  and  Junior: 

Where  two  patents  have  issued  for  the  same  lands  to  different 

persons  at  different  times,  the  older  patent  is  the  highest  evidence 

of  title,  and  so  long  as  it  remains  in  force,  is  conclusive  against  a 

junior  patent. 

Bninor  vs.  Manlove,  2  111.  156. 

Certified  Copy: 

A  certified  copy  of  a  patent  for  land  issued  by  the  recorder 
or  any  receiver  or  register  of  any  land  office  is  admissible. 

Wyman  vs.  City  of  Chicago,  254  III,  202;   Lane  vs.  Bonnelman,  17 
111.  95. 

Entry  Book: 

AYhere  a  party  in  ejectment  relies  upon  a  patent  title  and  alleges 

the  loss  of  the  patent,  the  book  filed  in  county  clerk's  office,  giving 

names  of  purchasers  and  date  of  each  entry  of  land  in  the  county, 

not  certified  to  by  the  register  of  the  land  office  is  not  admissible 

in  evidence  to  prove  the  entry  of  the  land. 
Huls  vs.  Buntin,  47  111.  396. 

And  an  entry  cannot  be  proven  by  a  book  certified  by  the  State 
Auditor  to  the  county  clerk. 

Neiderer  vs.  Bell,  174  111.  325. 

Duplicate  Patents: 

Under  school  law  of  1857,  authorizing  Auditor  of  Public 
Accounts,  upon  certain  proof  furnished,  to  issue  in  lieu  of  a  patent 
for  land,  which  had  been  lost  or  destroyed,  "a  duplicate  copy  there- 
of," it  is  not  necessaiy  that  such  copy  should  have  affixed  to  it  the 
seal  of  state,  to  render  it  admissible  in  evidence  for  the  same  pur- 
poses for  which  the  original  might  have  been  offered. 
Jackson  vs.  Berner.  48  111.  203. 

The  statute  which  provides  ''that  purchasers  of  common  school 
lands,  and  their  heirs,  and  assigns,  may  obtain  duplicate  copies" 
of  patents,  does  not  restrict  the  use  of  such  duplicates  as  evidence, 
to  the  purchaser  or  his  heirs  or  assigns.  Wlien  issued,  they  are 
evidence  the  same  as  the  original. 
Eeich  vs.  Berdel,  120  111.  499. 

Impeachment : 

A  patent  cannot  be  impeached  by  parol. 

Briuier  vs.  Manlove,  2  111.  156 ;  Gardner  vs.  Ladue,  47  111.  211. 

Recordation : 

Patents  of  land  from  the  United  States  do  not  come  Avithin  the 
purview  of  the  recording  laws  of  the  different  states,  when  the 
terms  employed  do  not  specially  include  them.  The  original  record 
in  the  general  land  office  from  which  patents  are  issued  gives  notice 

to  the  world  of  their  existence. 

Lomax  vs.  Pickering,  165  111.  431;   Doppelt   vs.  Geliebter,   173  App. 
634. 
Nor  need  a  deed  requiring  President's  approval   or  a   record 

thereof  be  recorded  where  the  land  is  located. 
Lomax  vs.  Pickering,  165  111.  431. 


PAUPER 

See  Domicile. 


PAYMENT  963 

PAYMENT 

Presumptions : 

—  Existence  of  Debt:  The  production  of  a  deed  of  trust  and 
note  secured  by  it,  by  the  payee  or  his  representative,  is  prima  facie 
evidence  that  the  debt  still  subsists. 

Steininetz  vs.  Laug,  81  111.  G03. 

Where  the  existence  of  a  debt  is  admitted,  or  proven,  payment 
will  not  be  presumed. 

Atkinsou  vs.  Linden  Steel  Co.,  138  111.  187. 

—  Possession  of  Note:  The  possession  of  a  promissory  note  in 
the  hands  of  the  personal  representative  of  payee,  unexplained,  is 
prima  facie  evidence  that  it  has  not  been  fully  paid,  and  when  it  is 
produced  in  evidence,  the  burden  of  proof  is  upon  the  maker,  to 
establish  payment,  by  a  preponderance  of  the  evidence. 

Eitter  vs.  Shenk,  101  111.  387. 

Possession  of  note  by  maker  raises  presumption  of  payment. 

Shippen  vs.  Whittier,  117  111.  282;  Tedens  vs.  Shiinieis,  112  111.  263; 
Teeter  vs.  Poe,  48  App.  158;  Allen  vs.  Sawyer,  88  111.  414;  XI  111. 
Notes  629,   §  378. 

But  when  the  evidence  show^s  the  circumstances,  manner  and 
means  of  obtaining  the  possession,  the  j^resumption  or  inference 
of  payment,  if  any,  must  come  from  these,  and  not  from  the  mere 
fact  of  possession.  If  they  show  it  was  wrongfully  delivered  by 
a  party  to  whom  the  payee  had  entrusted  it  for  another  and  differ- 
ent purpose,  such  possession  is  no  evidence  of  payment. 
Teeter  vs.  Poe,  48  App.  158. 

The  presumption  of  payment  does  not  arise  where  the  debtor 
had  the  means  of  obtaining  possession  of  or  of  cancelling  the  obli- 
gation other  than  by  paying  it. 

Grimes  vs.  Hilliary,  150  111.  141. 

—  Possession  of  Mortgage :  The  possession  of  a  mortgage,  given 
to  secure  payment  of  two  notes,  without  the  last  note,  with  an  in- 
dorsement of  full  payment  and  satisfaction  on  the  mortgage,  is 
not  conclusive  evidence  of  payment,  and  may  be  explained,  as,  by 
showing  that  it  was  made  by  the  holder  of  the  mortgage  and  notes 
when  sent  for  collection,  and  not  to  be  delivered  except  on  full 
payment. 

Allen  vs.  Sawyer,  88  HI.  414. 

—-Possession  of  Due  Bill:  Possession  of  due  bill  by  maker  is 
prima  facie  evidence  of  its  payment. 

Tedens  vs.  Schumers,  112  111.  263;  Steiger  vs.  Bent,  111  111.  328. 

—  Time  of  Payment:  When  no  time  is  set,  presumption  is  that 
payment  is  to  be  made  on  delivery  of  property. 

Ainsworth  vs.  Eoush,  109  App.  299. 

—  From  Giving  Check:  Presumption  obtains  that  a  cheek  is 
given  in  payment  of  an  existing  debt,  or  that  money  was  paid  for 
it  at  the  time. 

Kinahan  vs.  Butler,  133  App.  459;    McKenzie  vs.  Barrett,  148  App. 
414;  Chestnut  vs.  Chestnut,  15  App.  390. 


964  PAYMENT 

—  From  Giving  Note :     The  giving  of  a  promissory  note  for  an 

open  account  is  prinm  facie  a  payment  of  the  account. 

Hoodless  vs.  Eeid,  112  111.  105. 

The  mere  giving  of  a  note  does  not  of  itself  extinguish  a  pre- 
cedent debt  whether  it  be  an  account  or  other  demand.  In  such 
case  it  is  a  question  of  intention. 

Eayfield  vs.  Tineher,  180  App.  454;  Archibald  vs.  Argall,  53  111.  307,' 

—  Application  of  Payments:  Application  of  payment  is  pre- 
sumed to  apply  to  debts  first  due  in  point  of  time. 

Sprague  vs.  Hazenwinkle,  53  111.  419;  Dehner  vs.  Helmbacker,  7  App.' 
47. 
Or  from  the  acts  ajid  dealings  of  the  parties,  and  the  nature  of 

the  transaction. 

Lyon  vs.  Williams,  15  App.  27, 

—  Lapse  of  Time:  Presumption  of  payment  may  arise  from 
lapse  of  time,  independent  of  Statute  of  Limitations.  After  a  lapse 
of  twenty  years,  debts  of  whatever  degree,  are  presumed  satisfied. 

Fagan  vs.  Bach,  253  111.  588;  Eiehards  vs.  Carter,  201  111.  165;  Luther 
vs.  Crawford,  116  App.  351. 
But  not  of  mortgage,  until  time  of  limitations  has  expired. 

Locke  vs.  Caldwell,  91  111.  417.-'' ^  -T 
— -From  Receipt  in  Full:     A  receipt  in  full  of  all  demands  is 
prima  facie  evidence  of  the  payments  of  all  notes  and  claims  exist- 
ing at  time  receipt  is  given. 

Marsten  vs.  Wilcox,  2  111.  269. 

—  Recitals  in  Deeds:     The  formal  clause  in  a  deed  reciting  the 

consideration  is  only  prima  facie  evidence  of  payment. 
Koch  vs.  Both,   150  111.  212. 

—  Recitals  in  Patents:  While  the  recital,  in  a  patent  issued  by 
the  state  for  land,  of  the  payment  by  the  purchaser  of  the  pur- 
chase money,  may  not  be  evidence  of  the  fact  between  third  parties, 
yet  when  one,  claiming  under  the  purchaser,  in  applying  for  the 
patent,  places  his  right  to  have  it  issued  to  him  on  the  ground  that 
the  purchaser  has  paid  for  the  laud,  this  will  be  an  admission  by 
him  that  the  purchase  money  was  thus  paid,  and  will  be  binding 
upon  him  in  an  application  for  a  dower  by  the  wdfe  of  one  also 
claiming  under  such  purchase. 

Copies  of  letters  and  other  papers,  from  the  secretary  of  state, 
are  competent  evidence  to  prove  this  admission,  although  for  other 

purposes  they  might  not  be  evidence. 

Stow  vs.  Steele,  45  111.  328. 

—  From  General  Indorsements:     "When  a  general  indorsement 

of  payment  appears  on  a  note,  payment  will  be  presumed  to  have 

been  made  by  the  maker,  who  is  primarily  liable,  and  not  by  an 

assignor  on  the  note,  especially  when  the  indorsement  is  made  by 

assignor  himself,   who  has  the  note   in  his  hands  for  collection 

against  the  maker. 

Shepard  vs.  Calhoun,  72  111.  337. 

—  Failure  to  Demand  Payment:     The  presumption  of  payment 

of  a  promissory  note   does  not  arise  upon   a   failure   to   make   a 

demand  at  maturity,  or  within  any  period  of  time  thereafter  less 

than  that  fixed  by  statute  of  limitations. 
Aultmann  vs.  Conner,  25  App.  654. 


PAYMENT  965 

Burden  of  Proof: 

—  As  Governed  hij  Pleadings:  Payment  if5  an  affirmative  de- 
fense, and  burden  of  proving  it  is  on  party  pleading. 

Turner  vs.  Turner,  104  Apj).  ];  Evans  vs.  Construction  Co.,  142  App. 
375;  Seass  vs.  Wright,  138  App.  6;  Eoss  vs.  Skinner,  107  App  579- 
Howard  vs.  Bennett,  72  111.  1*97;  Atkinson  vs.  Linden  Steel  Co.,  138 
111.  1S7;  Mosely  vs.  Waite,  180  App.  408;  XllI  111.  Notes  1145, 
§  27. 

—  Impeachment  of  Receipt:  Burden  of  impeaching  receipt  is 
upon  party  who  gave  it. 

Long  vs.  Long,  132  App.  409 ;  McElhaney  vs.  People,  1  App.  550. 

—  Payments  Not  Credited:  In  proceeding  to  foreclose  a  trust 
deed,  the  burden  is  upon  defendant  to  prove  alleged  payments  by 
hiiu  not  credited  on  the  note. 

Archibald  vs.  Banks,  203  111.  380. 

—  When-  Existence  of  Debt  is  Admitted:  Burden  is  upon 
debtor  to  prove  payment. 

Atkinson  vs.  Steel  Co.,  138  111.  187. 

—  Authen-ity  to  Make  Payment:     Burden  is  upon  party  alleging. 

Master  vs.  Quincy  Natl.  Bank,  163  App.  645. 

—  Payment  in  Full  or  Upon  Account:     Burden  of  showing  is 

upon  defendant. 

Evans  vs.  Eoss  Construction  Co.,   142   App.   375;   Duffy  vs.  Leavitt. 
81  App.  410.  ' 

Admissibility  of  Evidence: 

—  Under  General  Issue:  Proof  of  payment  may  be  made  under 
general  issue. 

Kassing   vs.   Int.  Bank,   74  111.   16;    Crews  vs.   Bleakley,   16   111.   20; 
O'Brien  vs.  O'Brien,  75  App.  263;   Coulter  vs.  Trav.  Pass.  Assn.^- 
144  App.  255. 

Partial  payment  is  a  defense  pro  tanto  and  may  be  shown  under 
plea  of  payment  or  under  general  issue. 

Hayes  vs.  Smith,  4  111.  427;  Keyes  vs.  Fuller,  9  App.  528. 

—  To  Show  Application:  Parol  evidence  is  competent  to  show 
agreement  between  debtor  and  creditor,  collateral  to  a  note,  as  to 
how  payments  shall  be  applied. 

Saffer  vs.  Lambert,  111  App.  410;  Ebert  vs.  Arends,  190  111.  221. 
Applications  by  either  party  may  be  proven  by  circumstances 
as  w^ell  as  by  express  declarations. 

Bayley  vs.  Wynkoop,  10  111.  449 ;  Snell  vs.  Cottingham,  72  111.  124. 
Where  the  maker  of  a  note,  in  suit  thereon,  testified  that  in  mak- 
ing a  payment  he  directed  it  to  be  applied  on  the  note,  and  plain- 
tiff that  it  was  made  on  an  account,  it  was  held  error  to  allow 
plaintiff  to  give  in  evidence  a  copy  of  the  account,  with  his  indorse-,- 
ment  of  credit  thereof,  made  of  his  owai  motion,  without  the  privity 
of  the  maker  or  his  surety.  The  entry  of  a  payment  on  an  account 
by  a  creditor  is  of  itself  no  evidence  of  any  authority  to  make  such 
application. 

Craig  vs.  Miller,  103  111.  605;  Cf.  Daugherty  vs.  Knowlton,  19  App. 
283. 

—  Parol  Generally:    Payment  may  be  proven  by  parol,  though 
a  receipt  w^as  given. 

Hinehman  vs.  Whetstone,  23  111.  185;  West  Chi.  St.  Ry.  Co.  vs.  Piper, 
165  111.  325  J  Walker  vs.  Glos,  245  111.  253. 


966  PAYMENT 

Although  payment  evidenced  by  a  receipt  may  still  be  proven 

by  a  witness,  yet  he  must  swear  to  the  fact  of  payment  of  his  own 

knowledge,  and  not  to  any  information  he  may  have  derived  from 

the  receipts. 

Keith  vs.  Maffit,  38  111.  303 ;  Loiighry  vs.  Mail,  34  App.  523. 

Conceding  that  on  action  on  note  where  payment  is  alleged,  evi- 
dence of  the  maker  that  he  paid  the  payee  is  not  evidence  without 
a  showing  that  the  payee  owned  the  note  at  the  time,  yet  such 
evidence  is  competent  to  corroborate  the  payee's  evidence  that  he 
paid  an  indorsee  who  owned  the  note. 

Wilson  vs.  Griffith,  171  App.  14. 

'..•■ — Parol  to  Explain  Receipt:     While  a  receipt  is  ordinarily  very 

high  and  satisfactory  evidence  of  the  truth  of  its  recitals,  still  it 

is  always  open  to  explanation  by  parol  testimony. 

Starkweather  vs.  Ma<,dm]is,  196  111.  274;  Ennis  vs.  Pullman  Car  Co., 
165  111.  161;  Paris  vs.  Lewis,  85  111.  597;  FitzGerald  vs.  Colemar, 
114  App.  25. 

—  Letter's:  A  letter  from  a  third  party  (not  the  maker),  to 
the  payee  of  a  note,  containing  a  direction  to  payee  to  pay  the 
note  out  of  proceeds  of  goods  of  such  third  party  in  payee's  hands 
for  sale,  is  inadmissible  as  evidence  of  payment  of  note,  unless  it 
appears  request  was  complied  with. 

King  vs.  Bush,  36  111.  142. 

When  the  question  of  the  payment  of  a  note,  by  giving  a  larger 
note,  was  in  dispute,  and  it  appeared  the  maker  subsequently  gave 
plaintiff  other  notes,  and  had,  long  after  the  maturity  of  the  note 
alleged  to  have  been  so  paid,  written  to  plaintiff,  directing  him  to 
present  the  notes  he  held  against  the  maker,  at  a  certain  bank 
for  payment,  and  plaintiff  accordingly  presented  the  subsequent 
notes,  but  not  the  one  in  dispute  and  they  were  paid,  letter  was 
properly  admitted  on  part  of  defendant  as  part  of  the  res  gestae, 
tending  to  show  note  had  been  paid. 

Smith  vs.  Graves,  63  111.  422. 

—  Checks:  In  action  by  administrator  of  an  estate,  upon  two 
promissory  notes,  when  defendants  plead  partial  payment,  check 
claimed  to  have  been  given  and  accepted  as  payment  is  admissible. 

Bailey  vs.  Eobinson,   149  App.  457. 

—  Declarations  of  Maker  at  Time  of  Payment:     In  suit  upon  a 

note  by  administrator  of  an  estate,  defendant,  in  order  to  prove 

payment,  called  a  witness  to  show  that  he  had  paid  the  witness 

a  certain  sum  for  deceased  on  account  of  his  indebtedness  to  the 

latter.     It  was  held  that  what  defendant  said  to  the  witness  at 

time  of  such  payment  was  competent  testimony  for  himself  as  part 

of  the  res  gestae. 

Kicherson  vs.  Sternburg,  65  111.  272. 

—  Indorsements  and  Credits:     After  a  note  is  barred  by  statute, 

the  endorsement  of  a  payment  thereon  by  the  payee  is  incompetent 

evidence. 

Wellman  vs.  Miner,  179  111.  326;  Conley  vs.  Pierson,  9  111.  108. 

Same  rule  applies  though  indorsements  are  of  payments  made 

prior  to  bar. 

Lowery  vs.  Gear,  32  111.  383. 


PAYMENT  967 

A  payment  by  a  joint  debtor  will  not  toll  the  statute  as  to  co- 
debtor. 

Kallonbach  vs.  Dickinson,  100  ill.  427. 

Where  endorsements  of  payment  on  a  note  are  in  handwriting 
of  payee,  payments  must  be  sliown  by  payee  to  have  been  made  in 
fact  by  maker  or  some  one  autliorized  by  him. 

Waughop  vs.  Bartlett,  1G5  111.  1:2-1;  Drury  vs.  Henderson,  36  App.  521. 

Credit  given  by  an  administrator,  on  a  personal  claim  filed  by 
himself  against  the  estate,  of  a  certain  sum  as  paid  by  deceased 
during  his  lifetime,  to  the  administrator  on  account,  under  the 
terms  of  the  alleged  contract  on  which  the  claim  is  based,  is  not  of 
itself  evidence,  as  against  the  heirs,  either  of  the  existence  of  the 
alleged  contract  or  fact  of  payment. 
Smythe  vs.  Evans,  209  111.  376. 

—  Hahits:  Proof  that  deceased  was  in  the  habit  of  making 
prompt  and  punctual  payments  of  demands  against  him,  is  only 
admissible  in  aid  of  presumption  of  payment  arising  from  lapse 
of  time. 

Parker  vs.  Parker,  52  App.  333 ;  Cf.  Orr  vs.  Jason,  1  App.  439 ;  Thorp 

vs.  Goeway,  85  111.  611;  Chi.  Trust  Co.  vs.  Ward,  113  App.  327. 

But  such  evidence  is  not  admissible,  nor  is  evidence  concerning 

habits  of  deceased  in  ''not  going  much  in  debt,  and  of  promptly 

paying  his  debts,"  when  not  in  aid  of  presumption  of  payment 

from  lapse  of  time. 

Jones  vs.  Cline,  84  App.  428. 

Evidence  is  admissible  to  show  that  deceased  was  prompt  to  pay 
his  debts,  as  tending  to  rebut  any  circumstantial  or  other  evidence 
that  his  books  were  improperly  kept. 
Mark  vs.  Miles,  59  App.   102. 

—  Statements  of  Creditor:  Where  two  persons  are  jointly  in- 
debted to  a  third,  either  has  the  right  to  pay  the  debt  and  call 
upon  his  co-debtor  to  repay  his  moiety.  The  payment  may  be 
proven  by  either  the  verbal  or  written  confession  of  person  to 
whom  payment  ought  to  have  been  made,  and  his  receipt  is  prima 
facie  evidence  that  payment  has  been  made. 

Ballance  vs.  Frisby,  3  111.  65. 

—  Books   of  Account:     In  action  by  payee  against  maker  of 

promissory  notes,  where  it  appeared  there  were  mutual  dealings 

between  the  parties,  and  defendant  presented  in  evidence  the  receipt 

of  plaintiff,  subsequent  to  date  of  notes,  in  full  of  all  demands,  he 

had  the  right  to  give  in  evidence  his  books  of  account  for  purpose 

of  showing  by  entries  therein  how  he  had  paid  the  notes,  and  so 

account  for  the  giving  of  the  receipt  by  plaintiff. 
Taliaferro  vs.  Ives,  51  lU.  247. 

Weight  and  Sufficiency: 

—  In  General:  Where,  in  suit  to  foreclose  mortgage  executed 
by  a  husband  and  wife,  payment  is  pleaded,  testimony  by  the  wife 
that  on  the  morning  payment  was  alleged  to  have  been  made,  the 
husband  took  with  him,  when  he  and  plaintiff  started  to  the 
bank,  the  requisite  sum  of  money  to  pay  the  mortgage,  and  by 
the  husband  that  he  made  the  payment  at  the  bank,  with  evidence 
showing  an  indorsement  of  payment  on  the  note,  with  plaintiff's 


968  PAYMENT 

admission  to  a  disinterested  person  that  the  note  had  been  paid, 
is  sufficient  to  warrant  a  finding  of  payment. 
Keller  vs.  Butterworth,  103  App.  87. 

—  Receipt:  A  written  receipt  is  evidence  of  the  highest  and 
most  satisfactory  character,  and  to  do  away  with  its  force,  testi- 
mony should  be  convincing.     It  must  be  overcome,  if  at  all,  by  a 

clear  preponderance  of  the  evidence. 

Ennis  vs.  Pullman  Car  Co.,  165  111.  161;  Neal  vs.  Handley,  116  111,  418; 
Eosenmiller  vs.  Lampe,  89  111.  212;  Eeed  vs.  Phillips,  5  111.  40;  XIII 
111.  Notes  1147,  §  34. 

—  Indorsement  by  Holder  of  Note:     An  indorsement  of  partial 

payment  on  a  note,  made  by  the  holder,  without  the  privity  of  the 

maker,  is  not,  of  itself,  and  uncorroborated,  sufficient  evidence  of 

payment  to  defeat  a  defense  created  by  the  Statute  of  Limitations. 

Declarations  of  a  party,  in  his  own  favor,  can  never  be  received 

in  evidence.     If  a  payee's  declarations  that  he  received  a  partial 

payment  are  not  admissible  in  evidence,  equally  so  is  his  written 

acknowledgment  of  such  payment. 

Wellman  vs.  Miner,  179  111.  326;  Simmons  vs.  Nelson,  48  App.  520; 
Treadway  vs.  Treadway,  5  App.  478. 

—  Recitals  Indorsed  on  Note:    A  statement  on  the  back  of  a 

note  secured  by  deed  of  trust,  that  a  release  of  the  trust  deed  was 

made  and  delivered  by  the  order  of  the  holder,  which  is  cancelled, 

where  no  release  is  shown,  and  the  note  and  deed  are  found  among 

the  papers  of  deceased  payee,  is  not  sufficient  to  show  payment, 

or  a  release  of  the  deed  of  trust. 

Steinmetz  vs.  Lang,  81  111.  603. 

—  Financial  Condition  of  Creditor:    Where  defendant  sought 

to  prove  payment  of  debt  sued  for  by  administrator,  to  intestate 

in  his  lifetime,  testimony  in  behalf  of  the  plaintiff  as  to  how  much 

money  intestate  had  two  weeks  before  his  death,  is  not  admissible 

as  such  proof  would  have  no  tendency  to  show  the  defendant  had 

not  paid  him  money. 

Trude  vs.  Myers,  82  111.  535. 

—  To  Show  Application:  The  mere  fact  that  a  party  has  shown 
payment  to  the  other  party,  does  not  conclusively  establish  that 
such  payment  was  made  and  received  upon  the  particular  obli- 
gations in  suit,  but  such  question  is  to  be  determined,  as  a  matter 

of  fact,  from  all  the  facts  and  circumstances  in  evidence. 
Robinson  vs.  Bailey,  113  App.  123. 

—  Accptance  and  Payment  of  Chech:  In  action  by  adminis- 
trator on  note  given  by  deceased,  proof  that  defendant  gave  de- 
ceased a  check  for  a  certain  sum,  that  the  check  was  paid,  that 
deceased  mentioned  the  matter  of  the  check  to  a  person  that  day 
and  asked  if  he  could  *' re-loan"  the  money,  is  sufficient  to  prove 
payment,  when  coupled  with  proof  tending  to  show  that  deceased, 
at  the  time,  held  no  note  against  defendant  except  the  one  sued 
on. 

Bailey  vs.  Eobinson,  233  111.  614. 

Dep-ee  of  Proof: 

Party  claiming  payment  is  required  to  establish  same  by  a  pre- 
ponderance of  the  evidence. 

Boon  vs.  Estate  of  Bliss,  98  App.  341;  Laswell  vs.  Gahan,  122  App. 
513. 


PECUNIARY  ClRCUMSTANCEy  969 

In  suit  on  due  bill,  in  possession  of  maker,  plaintiff  naust  prove 
defendant  owes  him,  by  a  preponderance  of  the  evidence. 

Tedens  vs.  Schumcrs,  112  111.  263;  Stiger  vs.  Bent,  111  111.  328, 


PECUNIARY  CIRCUMSTANCES 

See  Payment,  Wages,  Earning  Capacity  and  Domestic  Rela- 
tions. 

ADMISSIBILITY  OF  EVIDENCE. 
Assault  and  Battery : 

Evidence  is  admissible  to  show  pecuniary  condition  of  parties. 

Schmitt  vs.  Kinrus,  234  111.  578;  Cochran  vs.  Amnion,  1(5  111.  316; 
Drohn  vs.  Brewer,  77  111.  280;  Jones  vs.  Jones,  71  111.  ,562. 

Defendant  can  introduce  no  evidence  on  the  subject,  even  in 

mitigation  of  damages,  unless  such  proof  is  tirst  introduced  by  the 

plaintiff. 

Mullen  vs.  Spangenberg,  112  111,  140, 

Criminal  Conversation: 

Evidence  of  pecuniary  circumstances  of  parties  is  proper. 

Peters  vs.  Lake,  66  111.  206;  Eea  vs.  Tucker,  51  111.  110;  Yundt  vs. 
Hartrunft,  41  111.  9 ;  Browning  vs.  Jones,  52  App.  597. 

Such  evidence  should  be  contined  to  period  reasonably  close  to 
the  date  of  injury. 

Geringer  vs.  Novak,  117  App.  160. 

Where  case  is  tried  several  years  after  injury,  it  is  error  to 

admit  proof  of  plaintiff's  bankruptcy  at  the  time  of  trial. 
Peters  vs.  Lake,  66  111.  206. 

Bastardy : 

Evidence  of  poverty  of  mother  is  incompetent. 
Corcoran  vs.  People,  27  App.  638. 

Trover : 

In  determining  whether  money  found  on  the  person  is  the  fruit 

of  a  crime,  evidence  is  admissible  of  prior  pecuniary  circumstances 

and  money  had  in  bank,  as  well  as  deposits  made  afterwards. 
Stuart  vs.  Harris,  69  App.  668. 

Libel  and  Slander: 

It  is  always  permitted  to  prove  plaintiff's  condition  in  life  as 

bearing  upon  the  question  of  damages. 

Peltier  vs.  Miet,  50  111.  511;  Hosley  vs.  Brooks,  20  111.  116;  XIII  111. 
Notes  296,  §  72. 

And  likewise  of  defendant. 

Slaughter  vs.  Johnson,  181  App.  693 ;  Gallagher  vs.  Singer  Sewing 
Machine  Co.,  177  App.  198;  Flagg  vs.  Eoberts,  67  111.  48""; 
Hinz  vs.  Granpner,  138  111.  158;  Dowie  vs.  Priddle,  116  App,  184; 
XIII  111,  Notes  297,  §  79, 

In  an  action  against  a  publisher  of  a  journal  for  publishing  a 

libelous  article  of  which  the  publisher  was  not  the  author,  in  fixing 

the  amount  of  damages  to  be  awarded  as  compensation  to  plaintiff 

for  the  injury  received,  the  jury  have  no  right  to  consider  the 

wealth  and  standing  of  defendant.     The  extent  of  the  circulation 

of  the   newspaper   and   its   character   and   standing   for   fairness, 

justice  and  truth,  it  seems,  mav  be  considered  on  such  question. 
Storey  vs.  Early,  86  111,  461, 


970  PECUNIARY  CIRCUMSTAKCES 

Seduction : 

In  an  action  by  a  father  for  debauching  his  infant  daughter, 
it  is  competent  to  show  pecuniary  circumstances  and  position  in 
society  of  both  plaintiff  and  defendant. 

But  this  is  not  for  the  purpose  of  ascertaining  what  amount 
of  damages  the  defendant  is  able  to  pay,  but  with  a  view  to  ascer- 
taining the  extent  of  plaintiff's  injury,  perhaps  fixing  a  standard 
of  exemplary  damages. 

White  vs.  Miirtland,  71  111.  250;  Grable  vs.  Margrave,  4  111.  372. 

Sale  to  Defraud  Creditors : 

Evidence  is  admissible  on  alleged  sale  to  defraud  creditors  to 
prove  the  alleged  purchaser's  financial  condition  about  the  time 

of  the  transaction. 

Fabian  vs.  Traeger,   215  111.   220;   Kingman  vs.   Reineimer,   166   111. 

208. 

Where  conveyance  is  attacked  as  in  fraud  of  creditors,  it  is 

competent  to  prove  grantor  was  insolvent  or  financially  embarrased. 

Clark  vs.  Harper,  215  111.  24;  Beach  vs.  Miller,  130  111.  162;  Ramsey 

vs.  Nichols,  73  App.  643. 

Testamentary  Capacity : 

Evidence  as  to  financial  condition  of  person  having  claim  on 
testator's  bounty,  if  such  condition  was  known  to  testator,  is 
admissible  in  connection  with  the  will  itself  in  determining  ques- 
tion of  testamentary  capacity, 

Wetzel  vs.  Firebaugh,  251  111.  190;  Healea  vs.  Keenan,  244  111,  484; 
Dillmau  vs.  McDaniel,  222  111.  276. 
Rule  peimiitting  evidence  of  pecuniary  circumstances  of  bene- 
ficiary of  will,  and  those  who  might  be  benefited  by  overthrowing 

it  does  not  apply  to  gifts  accompanied  by  delivery. 
Crum  vs.'Thornley,  47  111.  192. 

Gambling  Transactions: 

The  fact  that  the  purchase  of  stock  through  a  broker  is  much 
larger  in  amount  than  the  purchaser  is  able  to  pay  for,  which  fact 
is  known  to  the  broker,  is  competent  as  tending  to  show  that  the 

stock  was  not  to  be  delivered  to  the  purchaser. 

Jamieson  vs.  Wallace,  167  111.  388. 

Forgery : 

Proof  of  the  financial  responsibility  of  plaintiff  and  likewise  of 

the  maker  of  a  note  claimed  to  be  a  forgery,  is  incompetent  upon 

such  question. 

Stitzel  vs.  Miller,  157  App.  401. 

Money  Had  and  Received : 

Where  no  issue  of  fraud  is  in  the  case,  the  fact  that  defendant 
sued  for  borrowed  money  had  at  that  time  a  much  greater  sum  on 
deposit  in  a  certain  bank  is  not  competent  as  tending  to  support 

the  defense  that  such  money  was  not  borrowed. 

Agat  vs.  Apfelbaum,  155  App.  572;  Contra,  Sager  vs.  St.  John,  109 
App.  358. 

Default  Insurance  Premium: 

Evidence  inadmissible  to  prove  that  insured  at  time  of  alleged 
default  had  money  and  was  a  man  of  large  means. 
Ballah  vs.  Peoria  Life  Assn.,  159  App.  222. 


PECUNIARY  CIRCUMSTANCES  971 

Claim  Against  Estate: 

The  financial  condition  of  the  parties  at  the  time  of  the  alleged 
execution  of  a  note  claimed  to  be  a  forgery  are  competent  upon  the 
question  of  genuineness. 

Orr  vs.  Jason,  1  App.  439;  Gregory  vs.  Gregory,  Admr.,  129  App.  96; 
Cbi.  T.  &  T.  Co.  vs.  Ward,  113  App.  327;  Thorpe  vs.  Goeway,  85 
111.  611. 

So  where  claim  was  filed  to  recover  an  amount  alleged  to  be  due 
from  deceased  to  phiintiff  arising  out  of  transactions  covering  a 
period  of  years  and  where  the  books  kept  by  deceased  had  been 
offered  in  evidence,  it  is  admissible  to  show  that  deceased  was 
prompt  to  pay  his  debts  and  was  reputed  to  be  a  man  of  credit, 
as  rebutting  any  circumstantial  or  other  evidence  that  the  books 
were  improperly  kept  or  that  he  had  not  included  all  his  items  of 
account  therein. 

Mark  vs.  Miles,  59  App.  102, 

Breach  of  Promise: 

Evidence  of  the  pecuniary  circumstances  of  defendant  is  properly 
admissible  in  evidence  on  trial  of  an  action  for  breach  of  promise 
to  marry.  And  in  such  suit  it  is  not  error  to  admit  evidence  of  the 
pecuniary  circumstances  of  defendant  at  time  of  the  engagement, 
as  it  tends  to  show  what  he  was  worth  at  the  time  of  trial.  He 
may  show  he  has  sustained  loss,  if  such  be  the  fact,  and  thus  show 
himself  to  be  worth  less. 

Douglas  vs.  Gausman,  68  111.  170;  Sprague  vs.  Craig,  51  111.  288. 

Dram  Shop  Act: 

In  action  under  Dram  Shop  Act,  financial  condition  of  plaintiff 
and  of  relative  who  supported  her  is  competent. 

Nagle  vs.  Keller,  141  App.  444;  Mayer  vs.  Smith,  121  111.  442. 

And  pecuniary  circumstances  of  deceased  husband  at  time  of 
decease  is  admissible. 

Flynii  vs.  Fogarty,  106  111.  263;  Clears  vs.  Stanley,  34  App.  338. 

It  is  error  to  permit  defendant,  in  action  under  section  9  of 
Dram  Shop  act,  for  loss  of  support,  to  show  that  plaintiff  had 
received  certain  money  as  life  insurance  upon  the  death  of  the 

husband. 

Whiteside  vs.  O'Connors,  162  App.  108;  Deel  vs.  Heilgenstein,  244  111. 
239. 

Notes  and  chattel  mortgages  are  competent  as  attending  to  show 

the  straits  to  which  the  family  of  the  intoxicant  were  reduced. 
DeHaven  vs.  U.  S.  Brew.  Co.,  153  App.  126. 

Negligence : 

—  Action  for  Wrongful  Death:     Proof  of  the  resources  of  the 

widow  or  next  of  kin,  or  their  financial  condition  at  time  of  or  since 

the  death  of  the  deceased  is  not  admissible. 

Brennen  vs.  C.  &  C.  Coal  Co.,  241  111.  610;  C.  C.  C.  &  St.  L.  R.  Co. 
vs.  Kinnare,  203  111.  388. 

Questions  concerning  earnings  of  deceased,  number  of  children, 

and  whether  the  wife  and  children  were  supported  by  deceased  are 

proper. 

Kulvie  vs.  Brunsen  Coal  Co.,  253  111.  386;  Claffy  vs.  Chi.  Dock  Co., 
249  111.  210;  Preble  vs.  Wabash  E.  Co.,  243  111.  340;  Swift  &  Co. 
vs.  Foster,  163  111.  50;  Bonato  vs.  Peabody  Coal  Co.,  156  App.  196; 
Beyer  vs.  P.  B.  &  C.  Co.,  156  App.  47 ;  XII  111.  Notes  60,  §  48. 


972  PEDIGREE 

It  is  material  error  to  admit  evidence  that  an  adult  son  of  de- 
ceased was  a  cripple  unable  to  do  hard  work,  and  depended  upon 

deceased  for  support. 

C.  p.  &  yt.  L.  E.  Co.  vs.  Woolridge,  174  111.  330;  P.  &  Ft.  W.  C.  Ry. 
Co.  vs.  Powers,  74  111.  341. 

Defendant  cannot  prove,  in  abatement  of  damages,  that  widow 

and  next  of  kin  are  entitled  to  receive  any  sum  as  beneficiaries  of 

a  policy  of  insurance  on  the  deceased. 

I.  C.  E.  Co.  vs.  Prickett,  210  111.  140;  P.  C.  &  St.  L.  E.  Co.  vs.  Thomp- 
son, 56  111.  138. 

Nor  is  evidence  of  pension  paid  to  wndow  admissible   though 

deceased  husband  may  have  been  employe  of  defe.ndant. 
DevUie  vs.  City  of  Chicago,  172  Aj^p.  240. 

—  Injury   to   Plaintiff:     The    domestic   relations,    the    financial 

standing,  or  circumstances  of  the  parties,  or  the  dependency  of 

others  upon  plaintiff  is  wholly  irrelevant  and  the  admission  is  error. 
IM'^.Carty  vs.  Spring  A'alley  Coal  Co.,  232  111.  473;  Jones  &  Adams  Co. 
vs.  George,  227  111.  64;  Merrill  vs.  Mich.  Cent.  E.  Co.,  158  App. 
38;  City  of  Joliet  vs.  Conley,  119  111.  489;  Penn.  Co.  vs.  Keane, 
143  111.  172;  City  of  Chicago  vs.  O'Brennan,  65  111.  160;  Cowen  vs. 
E.  St.  L.  Ey.  Co.,  169  App.  236. 

Proof  of  benefits  received  under  policy  of  accident  insurance 

is  incompetent. 

Con.  Coal  Co.  vs,  Shepard,  112  App.  458;  Cox  vs.  City  of  Chicago,  83 
App.  450.  ■'■•^'' 

—  Insurance  of  Defendant:     It  is  not  proper  for  an  attorney  to 

directly  inform  a  jury  that  a  defendant  is  insured  against  liability, 

and  cannot  be  permitted  to  accomplish  the  same  result  indirectly 

in  examination  of  jurors,  and  must  not  ask  questions  tending  to 

inform  jury  that  the  defendant  is  so  insured. 
Mithen  vs.  Jeffery,  259  111.  372. 


PEDIGREE 

See  Heirship,  Descent  and  Distribution. 
Defined : 

The  term  pedigree  embraces  not  only  the  descent  and  relation- 
ship but  also  the  facts  of  birth,  marriage  and  death,  and  the  dates 

or  times  when  these  events  happened. 

Havrick  vs.  Modern  Woodmen,  158  App.  570. 

Presumptions  and  Burden  of  Proof: 

A  child  born  in  lawful  wedlock  is  presumed  to  be  legitimate, 
and  this  presumption  is  not  overcome  by  proof  of  ante-nuptial 

conception. 

Zackman  vs.  Zackman.  201  111.  380;  People  vs.  Griffin,  142  App.  58S; 
Smith  vs.  Henline,  174  111.  184;  Drehnan  vs.  Douglas,  102  111.  341. 

The  fact  that  one  was  brought  up  in  the  family  of  persons  living 
together  as  husband  and  wife,  as  their  of¥-spring,  and  was  recog- 
nized as  their  child  by  them  and  others,  imposes  the  burden  of  dis- 
proving his  right  to  inheritance  upon  persons  attacking  it  and 

claiming  to  be  the  lawful  heirs. 

Metheny  vs.  Bohn,  160  111.  263 ;  111.  Land  Co.  vs.  Bonner,  75  111.  315. 


PEDIGREE  973 

Hearsay  Evidence  in  General: 

Pedigree  and  family  history  may  be  proven  by  hearsay  evidence. 
Havrick   vs.   Modern   Woodmen,   158    App.   570;    Savage   vs.    Luther, 
1G5  App.   1;   Modern   Woodmen  vs.  Graber,  128  App.  585;   Cuddy 
vs.  Brown,  78  111.  415. 

The  usual  rule  is  that  if  the  declarant  is  dead,  his  declarations 
are  not  excluded  by  the  fact  that  living  members  of  the  same  family 
can  be  examined  on  the  same  point.  In  cases  of  pedigree  the  hear- 
say testimony  is  not  confined  to  ancient  facts,  but  extends  also  to 
facts  which  have  recently  transpired.  Such  evidence  has  been 
held  primary, — admissible  on  the  ground  that  it  is  the  best  obtain- 
able. 

Jarchow  vs.  Grosse,  257  111.  36;  Overruling  Greenwood  vs.  Spiller, 
3  111.  502. 

Declarations : 

—  In  General:     In  no  case  are  declarations  admissible  unless 

declarant  is  shown  to  be  dead. 

Jareliow  vs.  Grosse,  257  111.  36;  Harland  vs.  Eastman,  107  111.  535; 
XII  111.  Notes  501,  §  213. 

—  By  Whom  Musi  he  Made:  Declarations  to  establish  pedigree 
must  be  of  members  of  the  family  and  not  of  third  persons. 

Champion  vs.  McCarthy,  228  111.  87. 

—  B  elation  ship:     Where  it  is  sought  to  reach  the  estate  of  the 

declarant  himself,  and  not  to  establish  a  right,  through  him,  to  the 

property  of  others,  his  declarations,  with  reference  to  his  family 

and  kindred,  are  admissible  though  the  relationship  is  not  shown 

by  other  evidence. 

Jarchow  vs.  Grosse,  257  111.  36. 

—  By  Persons  ^¥hose  Pedigree  Is  in  Issue:  The  declarations 
of  the  party  whose  pedigree  is  in  issue,  if  dead,  are  admissible  to 
prove  his  pedigree,  if  not  self-serving,  and  at  all  times  if  disserving. 

Havrick  vs.  Modern  Woodmen,  158  App.  570;  Cuddy  vs.  Brown,  78 
111.  415. 

—  By  Relatives  of  Deceased:  May  be  proven  by  the  decla- 
rations of  deceased's  blood  relatives,  or  of  husband  or  wife  of  the 
party  whose  pedigree  is  in  issue,  when  made  ante  litem  motam. 

Havrick  vs.  Modern  Woodmen,  158  App.  570;  Savage  vs.  Luther,  165 
App.  1;  Modern  Woodmen  vs.  Graber,  128  App.  585;  Cuddy  vs. 
Brown,  78  111.  415. 

—  By  Parent  of  Deceased:  Traditions  and  declarations  of  de- 
ceased parents  are  admissible. 

Metheny  vs.  Bohn,  160  111.  263 ;  Chilvers  vs.  Eace,  196  111.  71. 

Declarations  of  the  supposed  parent  and  deceased  members  of 
his  or  her  family  may  be  proven  to  establish  the  parentage  where 

the  relationship  is  illegitimate. 

Champion  vs.  McCarthy,  228  111.  87. 
A  declaration  claimed  to  have  been  made  to  a  witness  for  the 
complainant  in  a  partition  suit  by  the  father  of  the  witness,  to  the 
effect  that  the  complainant  and  witness  were  both  sons  of  the 
declarant,  but  that  they  had  different  mothers,  and  that  a  certain 
woman  was  complainant's  mother,  is  not  admissible  to  sustain 
the  complainant's  claim  that  he  was  the  illegitimate  son  of  such 

woman. 

Champion  vs.  McCarthy,  228  111.  87. 


974  PENALTIES 

Reputation  of  Deceased: 

The  oi'diuary  rule  is  tliat  it  is  the  general  reputation  among  the 

kindred  of  a  deceased  person  that  is  admissible  in  proof  of  death, 

but  this  rule  has  been  relaxed  in  cases  where  the  deceased  left  no 

kindred  that  are  known,  and  in  such  cases,  reputation  among  the 

acquaintances  of  the  deceased  is  sufficient  proof  of  the  fact. 
Einghouse  vs.  Keever,  49  111.  470. 

Weight  and  Sufficiency  of  Evidence : 

Wliere   title   claimed   was   as   children   of  deceased   life   tenant, 
relationship  is  established  by  the  uncontradicted  declarations  of 
the  life  tenant  that  they  were  her  children,  and  by  testimony  that 
they  had  always  lived  with  her  during  their  childhood. 
Chilveis  vs.  liace,  196  111.  71. 

Heirship  is  sufficiently  established  where  it  is  shown  ancestor 
came  from  foreign  country;  that  he  had  frequently  spoken  to 
friends  of  his  relatives;  and  claimants  proved  their  father  lived 
in  same  locality;  that  it  was  common  repute  that  they  had  an 
uncle  in  America  of  same  name  as  deceased ;  that  names  of  claim- 
ants'  near  relatives  corresponded  with  those  of  deceased's  relatives, 

so  far  as  he  had  given  their  names. 
Cuddy  vs.  Brown,   78  111.  415. 

Competency  of  Witnesses : 

The  husband  of  a  grandchild  will  not  be  allowed  to  testify  to 
any  specific  thing  which  his  wife,  or  her  uncle,  still  living,  have 
said  in  his  hearing,  as  to  death  of  wife's  grandfather,  and  what 
heirs  survived  him ;  nor  can  he  be  allowed  to  state  his  conclusions 
from  such  unsworn  statements,  unless  all  of  them  taken  together, 
with  their  surroundings,  enable  him  to  say  that  such  was  the  ac- 
cepted state- of  the  case  in  the  family,  or  such  was  the  uncontra- 
dicted repute  in  the  family. 

Harland  vs.  Eastman,  107  111.  535. 


PENALTIES 

See  Intent,  Obstructing  Highway,  Dramshops. 
BURDEN  OF  PROOF  AND  PRESUMPTIONS. 
In  General: 

—  Offense:     In  prosecution   for  penalties   and   forfeitures,   the 
offense  must  be  established  by  full  proof. 

Eubanks  vs.  Town  of  Ashley,  36  111.  177. 

It  is  incumbent  on  plaintiff  to  prove  every  step  in  the  chain  of 
facts  upon  which  its  right  of  recovery  rests. 

Bull  vs.  City  of  Quincy,  9  App.  127;  Newlan  vs.  Trustees  of  Aurora, 
14  III.  364. 
All  facts  necessary  to  constitute  an  affirmative  case  must  be 
set  out  and  proven.     No  intendments  are  allowed  in  favor  of  the 

People  or  of  the  person  for  whose  benefit  the  suit  is  brought. 

People  vs.  Fesler,  145  111.  150 ;  Gilbert  vs.  Bone,  79  111.  341 ;  Waddle 
vs.  Duncan,  63  111.  223 ;  Reinecke  vs.  People,  15  App.  241 ;  People 
vs.  Mut.  Ins.  Co.,  72  App.  568;  Whitecraft  vs.  Vandever,  12  111.  235. 

—  Where  License   Required:     In   prosecutions   for  penalty   for 
doing  an  act  which  the  statute  does  not  permit  to  be  done  by  any 


PENALTIES  975 

person  except  those  who  are  duly  licensed  therefor,  when  the  act 
is  proven,  the  burden  is  on  the  party  to  show  such  license,  and 

negative  of  the  license  is  not  required. 

Prentice  vs.  Crane,  234  111.  302;  Harbaugh  vs.  City  of  Monmouth, 
74  111.  367;  Chandler  vs.  Smith,  70  App.  658;  People  vs.  Kolher, 
146  App.  541;  People  vs.  Williams,  121  111.  84;  Abhau  vs.  Grassie, 
262  111.  636. 

Intent : 

The  word  wilfull  as  used  in  the  penal  statute  means  not  merely 
voluntary  but  with  bad  purpose. 

Palmer  vs.  People,  109  App.  269. 

In  proceedings  under  the  statute  relating  to  animals  running 

at  large,  to  impose  the  penalty,  some  guilty  intention  to  violate  the 

law,  or  wilful  neglect  of  the  duty  imposed  must  be  shown. 

Bulpit  vs.  Mathews,  145  111.  345;  Palmer  vs.  People,  109  App.  269. 

Court  says,  "A  criminal  offense  consists  in  violation  of  a  public 
law  in  the  commission  of  which  there  shall  be  a  union  or  joint  oper- 
ation of  act  and  intention,  or  criminal  negligence.  Within  this 
definition,  defendant  was  guilty  of  no  crime.  There  is  an  entire 
absence  of  proof  of  wrongful  intent  or  criminal  negligence." 
(Note:  Statute  does  not  provide  "knowingly,  wilfully  or  inten- 
tionally.") 

Storey  vs.  People,  70  App.  562 ;  C.  M.  &  St.  P.  Ey.  Co.  vs.  People,  132 
App.  531. 

ADMISSIBILITY  OP  EVIDENCE. 

In  General: 

Rules  applicable  to  the  particular  civil  action  obtain. 

Maguire  vs.  Town  of  Xenia,  54  111.  299;  Town  of  Lewistown  vs.  Proc- 
tor, 27  111.  413. 

Depositions : 

May  be  introduced  in  evidence. 

I.  M.  Fire  Ins.  Co.  vs.  People,  65  App.  355. 

In  cases  of  misdemeanors  depositions  may  be  taken  by  consent. 
Richardson  vs.  People,  31  111.  170. 

Defendant  as  Witness : 

A  witness  is  not  bound  to  answer  any  question,  either  in  a 
court  of  law  or  equity,  the  answer  to  which  will  expose  him  to  any 
penalty,  fine,  forfeiture  or  punishment,  or  which  will  have  a  tend- 
ency to  expose  him  to  any  penalty  or  forfeiture,  or  which  would  be 
a  link  in  a  chain  of  evidence  to  convict  him  of  a  criminal  offense. 
Lamsen  vs.  Boyden,  160  111.  613;  Minters  vs.  People,  139  111.  363. 

If  agent  of  defendant,  over  defendant's  objections,  is  required 
to  give  answers  tending  to  criminate  himself,  which  he  does  with- 
out claiming  his  privilege,  defendant  cannot  assign  error  thereon 

on  appeal. 

N.  Y.  Life  Ins.  Co.  vs.  People,  195  111.  430. 

Whenever  a  witness  is  excused  from  giving  testimony  upon  the 

ground  that  his  answer  will  tend  to  criminate  him  or  subject  him 

to  fines,  penalties  or  forfeitures,  he  cannot  be  compelled  to  produce 

books  or  papers  which  will  have  the  same  effect. 

Manning  vs.  Securities  Co.,  242  111.  584;  Lamsen  vs.  Boyden,  160  III. 
618 ;  People  vs.  "Western  Mfg.  Co.,  40  App.  428. 

Pamphlet: 

AVhere  a  person  is  sued  in  debt  for  a  penalty  for  practicing 
medicine  without  a  license,  a  pamphlet,  not  supported  by  testimony. 


976  PERJURY- 

showing  the  treatment  employed  by  such  defendant  is  incompetent 

in  his  behalf. 

People  vs.  Trenncr,  144  App.  275. 

WEIGHT  AND  SUFFICIENCY. 
Debt  to  Recover  Penalty: 

—  In  General:     In  an  action  of  debt  for  the  recovery  of  a  pen- 
alty, more  than  a  mere  preponderance  of  the  evidence  is  necessary 

in  order  to  authorize  a  recovery. 

A.  T.  &  S.  F.  R.  Co.  vs.  People,  227  111.  270;  City  of  Waverly  vs. 
Goss,  138  App.  68;  Gunkel  vs.  Bachs,  10;5  App.  494;  T.  P.  &  W. 
E.  P.  Co.  vs.  Foster,  43  111.  480;  XIll  111.  Notes  1151,  §  14. 

Proof  need  not  be  beyond  reasonable  doubt. 

I.  M.  Mut.  Fire  Iiis.  Co.  vs.  People,  65  App.  355. 

—  Otstrueting  Highway:     Clear  preponderance  of  evidence  is 

all  that  is  required. 

Town  of  Partridfje  vs.  Snyder,  78  III.  519;  Town  of  Havana  vs. 
Biggs,  58  111.  483;  Town  of  Lewistown  vs.  Proctor,  27  111.  413. 

—  Violation  of  Ordinance:     In  action  to  recover  penalty  or  fine 

for  the  violation  of  a  town  ordinance,  it  is  error  to  instruct  the 

jury  that  a  preponderance  of  the  evidence,  only,  is  required. 
Euth  vs.  City  of  Abingdon,  80  111.  418. 

The  law  does  not  require  the  same  completeness  of  proof  in 
actions  for  penalties  that  is  required  in  criminal  prosecutions ;  nor 
is  a  mere  preponderance  sufficient ;  but  the  evidence  must  be  of  such 
a  character  as  to  bring  home  to  the  jury  a  reasonable  and  well- 
founded  belief  in  the  guilt  of  the  defendant,- — a  belief  upon  which 
they  would  be  willing  to  act  in  the  more  important  affairs  of  life. 
Sloan  vs.  People,  108  App.  545 ;  Webster  vs.  People,  14  111.  365. 


PERJURY 

INDICTMENT. 
Jurisdiction : 

An  authority  to  administer  oath  must  be  expressly  averred,  or 
in  absence  of  such  express  averment,  such  facts  must  be  set  out  as 
will  make  them  judicially  appear. 

Hereford  vs.  People,  197  111.  222;  Maynard  vs.  People,  135  111,  416. 

And  if  tribunal  is  court  of  limited  jurisdiction,  it  must  appear 
that  court  was  legally  constituted  and  subject  matter  of  inquiry 
was  within  its  jurisdiction. 

Kizer  vs.  People,  211  111.  407. 

Materiality  of  Testimony: 

Must  be  averred. 
"  Wilkinson  vs.  People,  226  111.  135. 

But  this  need  not  be  by  setting  out  the  testimony.     It  may  be 

done  by  an  express  averment  to  that  effect. 

People  YS.  Threewit,  251  111.  509;  Greene  vs.  People,  182  111.  278; 
Pollard  vs.  People,  69  111.  148;  Kimmell  vs.  People,  92  111.  457; 
Xril  111.  Notes  1154,  §§  11,  12. 

Corruptly  Given: 

Should  allege  that  the  false  testimony  was  corruptly  given,  and 
it  is  not  enough  to  aver  that  defendant  "unlawfully,  wilfully  and 
feloniouslv  testified,"  etc. 

Wilkinson  vs.  People,  226  111.  135. 


PERJURY  977 

ELEMENTS  OF  OFFENSE. 

The  witness  must  have  testified  corruptly,  wilfully  and  falsely 
to  a  material  matter  in  issue,  and  must  have  known  his  testimony 
to  be  false  when  he  gave  it,  and  gave  such  testimony  with  deliber- 
ate intention  of  misleading  the  court  or  jury. 

Young  vs.  People,  134  111.  37;  Coyne  vs.  People,  124  111.  17. 

Proof  must  show  that  the  false  testimony  was  corruptly  given, 
and  it  is  not  sufficient  to  aver  that  defendant  ''unlawfully,  know- 
ingly, wilfuHv  and  feloniously  testified,"  etc. 
Wilkinson  vs.  People,  226  111.  135. 
If  a  witness  believes  that  what  he  testified  to  is  true,  and  does 
not  know  of  its  alleged  falsity,  he  will  not  be  guilty  of  perjury. 
Coyne  vs.  People,  124  111.  17, 

While  there  can  be  no  perjury  where  accused  honestly  believes 
in  truth  of  that  which  he  testified  to,  the  belief  must  be  reasonable 
and  not  capricious ;  and  if  in  the  circumstances  a  reasonable  man 
could  not  entertain  such  a  belief,  the  oath  may  be  regarded  as  in- 
tentionally false. 

Johnson  vs.  People,  94  111.  505. 

The  fact  of  a  belief  on  part  of  accused,  in  the  truth  of  his  testi- 
mony, is  matter  for  jury,  and  it  is  not  for  court  to  say  that  the 
declarations  of  accused,  upon  which  he  deposes,  where  not  enough 

to  create  an  honest  belief. 

Johnson  vs.  People,  94  111.  505. 

MATERIALITY  OF  TESTIMONY. 
Burden  of  Proof: 

The  evidence  must  show  that  the  testimony  was  material  to  the 
matter  then  being  investigated,  or  point  in  question,  before  a  trib- 
unal or  body  authorized  by  law  to  investigate,  and  it  devolves  upon 
prosecution  not  only  to  affirmatively  so  state,  but  also  to  show 

its  materiality. 

Wilkinson  vs.  People,  226  111.  135;  Kizer  vs.  People,  211  111.  407. 

Question  of  Law : 

The  materiality  of  the  testimony  on  which  perjury  is  assigned 

is  a  question  of  law  for  the  court. 

People  vs.  Threewit,  251  111.  509;  Wilkinson  vs.  People,  226  111.  135. 

But  it  may  become  a  mixed  question  of  law  and  fact. 

Young  vs.  People,  134  111.  43. 

Effect  of  Testimony  Immaterial: 

It  is  the  act  of  false  swearing,  in  respect  to  a  matter  material 
to  the  point  of  inquiry,  which  constitutes  the  crime,  and  not  the 
injury  which  it  may  have  done  to  individuals,  or  the  degree  of 
credit  which  was  given  to  the  testimony.  Effect  of  testimony 
alleged  to  be  false  is  immaterial  and  will  not  supply  or  constitute 
an  equivalent  for  a  want  of  materiality  in  the  testimony  charged  to 

be  false. 

Pollard  vs.  People,  69  111.  148. 

ADMISSIBILITY  OF  EVIDENCE. 

Regularity  of  Appointment  of  Officer : 

The  appointment  of  officer  before  whom  the  testimony  is  given, 

cannot  be  questioned.  ^ 

Hereforrl  vs.  People,  197  111.  222;  Greene  vs.  People,  182  111.  278. 
Ev.— 62. 


978  PERJURY 


Ofificial  character  of  the  officer  administering  the  oath,  may  be 

established  by  parol  evidence  of  his  acting  dc  facto. 
Hereford  vs.  People,  197  111.  222. 

Testimony  Not  Assigned: 

Where  alleged   that   accused  did   not   make   certain   answers   to 

questions  in  a  particular  conversation,  evidence  that  he  made  Ihe 

answers  at  another  conversation  which  was  not  called  to  attention 

of  accused  on  original  trial,  and  with  respect  to  which  he  did  noc 

testify,  not  admissible. 

Kiser  vs.  People,  211  111.  407. 

Records  of  Other  Proceedings: 

Wiiere  charge  is  false  swearing  in  criminal  prosecution  for  con- 
spiracy to  extort  money  by  bringing  damage  suit,  it  is  error  to 
admit  the  record  of  the  civil  suit,  and  testimony  relating  to  such 
suit,  and  conversations  with  accused,  in  no  way  tending  to  prove 
the  falsity  of  his  testimony  in  conspiracy  case,  upon  which  indict- 
ment is  based. 

Wilkinson  vs.  People,  226  111.  135. 

Hearsay : 

On  allegation  of  perjury,  on  examination  touching  sufficiency 
as  bail,  mere  hearsay  evidence  in  respect  to  large  amounts  of  sup- 
posed indebtedness  against  accused,  and  that  he  was  insolvent,  and 
that  there  was  an  incumbrance  upon  a  lot  of  hay  owned  b}^  him, 
which  he  testified  was  unincumbered,  is  error. 
Pollard  vs.  People,  69  111.  148. 

WEIGHT  AND  SUFFICIENCY. 

Official  Character  of  Person  Administering  Oath: 

In  order  to  warrant  a  conviction,  it  is  requisite  that  it  be  proven 
that  the  person  before  whom  the  oath  was  taken,  was  authorized 
by  law  to  administer  it. 

Proof  of  persons  habitually  acting  in  that  capacity,  is  perhaps 
only  pnma  facie  evidence  of  that  fact,  and  until  rebutted,  it  is 
sufficient  without  his  producing  his  appointment  or  commission. 
Morrell  vs.  People,  32  111.  499 ;  Van  Dusen  vs.  People,  78  111.  645. 

On  charge  of  perjury  in  making  an  affidavit,  the  oath  being 
administered  by  a  township  assessor  to  a  party  being  assessed  by 
him,  if  the  proof  fails  to  show  that  the  affidavit  was  sworn  to  in 
the  assessor's  township,  where  he  alone  had  power  to  act,  no  con- 
viction can  be  had. 

Van  Dusen  vs.  People,  78  111.  645. 

Fact  of  Swearing: 

Where  perjury  alleged  committed  before  a  master  in  chancery, 

proof  that  defendant  was  sworn  as  a  witness  sufficiently  establishes, 

in  absence  of  evidence  to  the  contrary,  that  a  binding  oath  was 

administered  to  him. 

Greene  vs.  People,  182  HI.  278. 

Form  of  Oath :  4 

Immaterial. 

Greene  vs.  People,  182  111.  278. 

Venue : 

On  allegation  of  perjury  in  making  an  affidavit,  if  the  state 
and  county  are  given  in  the  venue  of  the  affidavit,  this  is  ample  evi- 


PERJURY  979 

dence,  in  absence  of  contrary  proof,  to  show  that  the  oath  was 
administered  in  the  county  named  in  the  venue. 
Van  Dusen  vs.  Peoiile,  78  111.  (545. 

Testimony  on  Which  Perjury  Assigned: 

—  Exact    Words:     Exact    words    need    not    be    proven.      It    is 

sufficient  to  prove  the  substance  of  them. 

Martinatis  vs.  People,  223  111.  117;  Hereford  vs.  People,  197  111.  222. 

—  Two  Witnesses:  Two  witnesses  are  not  necessary  to  disprove 
the  facts  sworn  to  by  defendant.  If  any  material  circumstances 
be  proven  by  other  witnesses  in  confirmation  of  the  witness  who 
gives  the  direct  testimony  of  perjury  it  may  turn  the  scale  and 
warrant  a  conviction.  A  conviction  may  be  had  upon  the  direct 
testimony  of  one  witness  and  proof  of  declarations  of  the  accused 
inconsistent  with  the  oath  upon  which  perjury  was  assigned. 

Hereford  vs.  People,  197  111.  222;   Mackin  vs.  People,  115  111.  312; 
Craudall  vs.  Dawson,  6  lU.  556. 

—  Sliort-TIancl  Reporter:     Testimony  given  by  accused  may  be 

proven  by  official  reporter  of  the  court  who  took  same,  by  reading 

a  tj'pe-written  transcript  of  the  stenographic  notes  taken  at  the 

trial. 

Hereford  vs.  People,  197  111.  222. 

—  Record:  If  the  assignment  be  of  evidence  on  the  trial  of  a 
cause,  in  addition  to  the  production  of  the  record,  the  previous 
evidence  and  state  of  the  cause  should  be  proven  or  at  least  so 
much  of  it  as  shows  the  matter  sworn  to  was  material. 

Wilkinson  vs.  People,  226  111.  135;  Young  vs.  People,  134  111.  37. 

—  Cross  Examination :  Perjury  may  he  assigned  upon  a  cross 
examination  only  where  the  testimony  in  chief  is  material  to  the 
issue,  and  the  cross  examination  affects  the  credibility  of  the  wit- 
ness. And  there  must  be  proof  from  which  it  can  be  determined 
whether  the  cross  examination  was  in  any  way  material,  or  even 
proper  in  view  of  the  testimony  in  chief. 

Wilkinson  vs.  People,  226  111.  135. 

—  Assignment  on  Direct:  A  defendant,  on  trial  on  charge  of 
bastardy,  was  sworn  in  behalf  of  prosecuton,  and  on  his  examin- 
ation in  chief  denied  having  had  any  carnal  intercourse  with  pros- 
ecuting witness.  On  the  next  daj,  without  having  been  sworn 
again,  he  testified  in  his  own  behalf,  still  denying  such  intercourse, 
and  purjury  assigned  was  in  respect  to  his  direct  examination. 
Prosecution  was  permitted  also  to  prove  his  denial  on  the  second 
examination.  Held,  that  while  such  evidence  was  not  admissible 
as  proof  of  a  substantive  crime,  no  error  in  admitting  it  as  show- 
ing that  defendant  made  no  retraction  during  his  examination. 

Maynard  vs.  People,  135  HI.  416. 

—  Different    Assignment:    Where    there    are    several    distinct 

assignments  upon  same  testimony,  it  is  sufficient  if  any  one  of  them 

be  proven. 

Wilkinson  vs.  People,  226  HI.  135 ;  Hereford  vs.  People,  197  111.  222. 

—  Particular  Instances:  Indictment  alleged  that  on  examin- 
ation it  became  a  material  question  whether  prosecutrix  and  cer- 
tain man  were  together  at  a  certain  time  and  place,  and  that 
defendant  falsely  did  depose  that  "on  or  about"  date  named,  the 
prosecutrix  and  such  persons  were  together  at  such  place,  making 


980  PERJURY 

the  time  material.  Proof  failed  to  show  satisfactorily  that  defend- 
ant stated  on  his  examination  that  prosecutrix  and  such  person 
were  together  or  on  at)ont  the  date  alleged,  at  place  charged,  or 
anywhere  else  at  that  date.  For  this  defect  in  the  proof,  a  judg- 
ment of  conviction  was  reversed. 
Roberts  vs.  People,  99  111.  275, 
In  action  of  replevin,  plaintiff  read  in  evidence  a  bill  of  sale 
from  defendant  to  him,  after  which  defendant  proved  by  a  witness 
that  the  signature  to  the  bill  of  sale  was  not  in  his  handwriting, 
and  thereupon  plaintiff  had  defendant  sworn  and  called  him  as  a 
witness  and  asked  him  whether  the  signature  to  the  bill  of  sale  was 
his,  and  he  answered,  "  No. "     Testimony  was  material  and  perjury 

might  be  assigned  thereon. 

Cronk  vs.  People,  131  111.  56. 
IMiere  perjury  alleged  is  in  giving  false  testimony  before  a  grand 
jury  upon  investigation  as  to  commission  of  a  supposed  crime,  and 
the  person  implicated  in  its  perpetration,  it  is  not  necessary  for 
prosecution  to  prove  the  crime  had  actually  been  committed  in 
respect  to  which  accused  falsely  testified,  in  order  to  show  his 
testimony  was  material.  On  an  investigation  before  a  grand  jury, 
of  an  alleged  crime,  any  testimony  tending  to  establish  either  that 
such  crime  was  in  fact  committed,  or  that  it  had  not  been  com- 
mitted, is  material,  and  perjury  may  be  assigned  upon  the  testi- 
mony of  a  witness  before  that  body,  which  is  wilfully  false  m 
respect  to  any  fact  tending  to  establish  or  disprove  the  commission 

of  such  a  crime. 

Mackin  vs.  People,  115  111.  312. 

In  action  to  foreclose  a  mortgage  for  a  whole  debt  declared  due 

by  its  holder,  upon  non-payment  of  interest  coupons,   testimony 

in  support  of  a  defense  that  the  amount  of  interest  was  tendered 

to  complainant  is  material  to  the  issues,  and  if  falsely  given,  is 

perjury. 

Greene  vs.  People,  182  111.  278. 

Where  charge  is  that  accused  gave  false  testimony  that  at  a  cer- 
tain time  and  place  named,  a  person  offered  to  give  him  a  certain 
amount  if  he  would  kill  another  person,  the  time,  place  and  amount 
are  material  parts  of  his  testimony,  as  they  give  strength  to  the 

statement  of  the  offer  to  hire  the  witness. 
Henderson  vs.  People,  117  111.  265. 

SUBORNATION  OF  PERJURY. 

What  Constitutes : 

It  is  subornation  of  perjuiy  in  an  attorney  to  procure  false  evi- 
dence knowing  it  to  be  false,  with  intention  of  deceiving  the  court. 
Beattie  vs.  People,  33  App.  651;  Brown  vs.  People,  145  App.  263. 

In  order  to  convict  of  endeavoring  to  incite  or  procure  another 
to  commit  perjury,  it  must  be  shown  that  accused  urged  the  wit- 
ness to  give  false  testimony,  knowing  that  such  witness,  as  well  as 
himself,  was  aware  of  its  falsity.  It  must  appear  that  the  witness 
would  have  been  guilty  of  perjury  if  he  had  given  the  proposed  false 
testimony,  which  could  not  be  unless  he  knew  it  to  be  false. 

If  the  proposed  witness  believes  what  he  is  asked  to  testify  to  is 
true,  and  does  not  know  of  its  alleged  falsity,  he  will  not  be  guilty 


PHOTOGRAPHS  981 

of  perjury  if  he  swears  to  it ;  and  in  such  case  the  person  soliciting 
the  witness  to  so  testify  cannot  be  convicted  of  endeavoring  to  pro- 
cure such  witness  to  commit  perjury. 
Coyne  vs.  People,  124  111.  17. 


PHOTOGRAPHS 

See  Stereoscopic  Views. 
In  General: 

Photographs  stand  on  the  same  footing  as  a  diagram,  map,  plan 
or  model,  and  a  photograph  is  a  legitimate  mode  of  proving  condi- 
tions which  can  be  shown  by  a  representation  of  that  sort.  It 
rests,  to  some  extent,  upon  the  credit  of  the  witnesses  in  the  same 
way  as  a  map,  plat  or  plan. 

Henke  vs.  Deere  &  Mansur  Co.,  175  App.  240. 

The  preliminary  proof  of  the  correctness  and  the  accuracy  of  the 
instrument  is  addressed  to  the  court,  and  as  a  rule  its  discretion 

is  not  subject  to  exception. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Monaglian,  140  111.  474;  Henke  vs. 
Deere  &  Mansur,  175  App.  240;  C.  &  A.  Ey.  Co.  vs.  Vipoad,  112 
App.  558. 

Discretion  of  trial  court  is  subject  to  review. 

L.   E.   &  W.   Ey.   Co.   vs.   Wilson,   189   111.   89;    City   of   Chicago   vs. 
Hutchinson,  129  App.  239;  C.  E.  I.  &  P.  Ey,  Co.  vs.  Lawrence,  96 
App.  635. 
Mere  proof  by  witness  who  had  never  seen  photograph  until  day 
of  trial,  that  it  was  a  correct  and  substantial  representation,  is  not 
sufficient  where  there  is  no  evidence  as  to  who  made  the  photo- 
graph or  of  his  skill,  the  kind  of  instrument  used,  or  how  it  was 
used  or  that  it  was  a  picture  of  the  locus  in  quo,  or  when  it  was 

taken. 

Eyan  vs.  City  of  Chicago,  181  App.  642. 

Properly  excluded  where  taken  by  an  amateur  and  conditions 

were  changed. 

C.  C.  C.  &  St,  L.  Ey.  Co.  vs.  Monaghan,  140  111.  474. 

Photographs  are  not  admissible  where,  for  purpose  of  taking, 

scene  or  objects  have  been  arranged  by  one  party,  as  claimed  to 

exist  at  time  of  the  occurrence  sought  to  be  illustrated. 

Grant  vs.  C.  &  N.  W.  Ey.  Co.,  176  App.  292;   Ellis  vs.  Flannagan, 
253    111.    397. 

Jury  may  take  photographs  to  jury  room. 

Smith  vs.  Eichelberger,  175  App.  231 ;   Williams  vs.  City  of  Carter- 
ville,  97  App.  160. 

Scene  of  Accident: 

—  Admissibility  in  General:     As  a  general  rule,  in  personal  in- 
jury suits,  photographs  are  admissible  as  evidence. 

C.  &  A.  E.  E.  Co.  vs.  Myers,  86  App.  401 ;  City  of  LaSalle  vs.  Evans, 
111  App.  69;  Wabash  E.  E.  Co.  vs.  Prast,  101  App.  167. 
Photographs  may  be  received  in  evidence  under  certain  circum- 
stances, to  assist  the  jury  in  understanding  the  case,  provided  they 

are  verified  by  proof  as  being  true  representations  of  the  subject. 

City  o"f  Chicago  vs.  Hutchinson,  129  App.  239;   City  of  Chicago  vs. 
Vesey,  105  App.  191. 


982  PHOTOGRAPHS 

Photographs  are  admissible  where  scene  has  not  been  changed. 

Sanijjles  vs.  C.  B.  &  q.  By.  Co.,  233  111.  564. 
Where  it  is  not  shown  that  photographs  lead  to  or  develop  any- 
thing new  or  strengthen  proof,  their  re.jeetion  is  not  error. 

Schneider  vs.^'Chi.  City  Ky.  Co.,  80  App.  306. 

—  Preliminary  Proof:  Where  it  is  not  shown  to  be  a  correct 
representation  of  place  of  injury  as  it  was  prior  to  accident  and 
injury,  photograph  should  not  be  admitted. 

First    Nat'l    Bank   vs.    Miller,    235    111.    135;    Iroquois   Fur.    Co.   vs. 
McCrea,  191  111.  340;  XII  111.  Notes  513,  §  308. 

It  is  improper  to  receive  photograph  in  evidence  in  absence  of 
clear  proof  that  the  conditions  at  the  time  of  taking  were  the  same 
as  when  the  accident  occurred. 

Wabash  R.  E.  Co.  vs.  Farrell,  79  App.  508. 

Photographs  of  place  of  accident  taken  subsequent  to  injury  are 
admissible  where  conditions  of  place  have  not  changed  between 
time  of  accident  and  taking  the  photograph. 

C.  &  E.  I.  E.  E.  vs.  Lawrence,  96  App.  635. 

Photographs  of  crossing  where  accident  occurred,  shown  by  one 
who  took  them,  and  another  witness,  to  be  correct  view  of  the  place 
at  the  time,  are  properly  admissible. 

Wabash  E.  E.  Co.  "vs.  Prast,  101  App.  167. 

—  As  to  Time  When  Taken:  Photographs  of  scene  of  accident, 
taken  soon  after  injury,  are  admissible  where  conditions  have  not 
changed  between  time  of  accident  and  time  of  taking  photographs, 
and  there  is  nothing  in  the  photographs  themselves  or  in  the  evi- 
dence, tending  to  discredit  them  as  accurate  representations  of  the 
scene  at  the  time  the  injury  occurred. 

L.  E.  &  W.  Ey.  Co.  vs.*  Wilson,  189  111.  89. 

Photographs,  notwithstanding  they  may  have  been  taken  a  year 
after  the  occurrence  of  transaction  which  they  are  offered  to  parti- 
ally represent,  may  be  competent  to  show  surroundings,  etc.,  where 
they  are  properlv  substantiated. 

C.  &  E.  l!  E.  E.  Co.  vs.  Crose,  113  App.  547. 

Photograph  of  scene  of  accident,  taken  nine  months  afterwards, 
when  the  natural  surroundings,  as  shown  by  the  evidence,  had 
changed,  is  inadmissible. 

C.  &  A.  E.  E.  Co.  vs.  Corson,  198  111.  98. 

Where  photographs  offered  are  shown  to  be  correct  representa- 
tions of  the  premises  where  accident  happened,  except  that  snow 
was  on  the  ground  at  time  they  were  taken,  some  three  weeks  after- 
wards, they  are  properly  admitted. 

FitzGerald  vs.  Hedstrom,  98  App.  109. 

But  where  at  time  of  accident  there  was  about  four  feet  of  snow, 

which  had  entirely  disappeared  when  photographs  were  taken,  they 

were  properly  excluded. 

Grimm  vs.  E.  St.  L.  Ey.  Co.,  180  App.  92. 

—  Partial  View:  Photographs  of  highway  and  railroad  at  cross- 
ing where  accident  occurred,  are  admissible  even  though  they  do 
not  cover  every  possible  view  which  might  be  had  thereof,  and  show 
only  the  steep  approaches  to  the  crossing  and  not  the  level  sur- 
faces of  the  road  at  the  crossing. 

111.  Southern  Ey.  Co.  vs.  Hayer,  225  111.  613. 


PHOTOGRAPHS  988 

The  admission  of  photographs  sliOM'ing  in  part  Uie  scene  of  acci- 
dent is  not  erroneous  where  omitted  portion  is  made  the  subject 

of  evidence. 

111.  Southern  Ry.  Co.  vs.  Haycr,  128  App.  SI.'}. 
Photosii-aphs  of  liroken   fence  boards,  the  broken   boards  being 
in  court  and  offered  in  evidence,  are  not  admissible. 
C.  M.  &  St.  P.  Ry.  Co.  vs.  Kendall,  49  App.  398. 

—  Jury  May  Talr:  A  photograi)h  of  a  sich'walh  upon  which 
accident  occurred,  shown  to  be  correct,  is  properly  admitted  and 
may  be  taken  by  the  juiy  to  their  room  when  they  retire  to  con- 
sider their  verdict. 

Williams  vs.  City  of  Carterville,  97  App.  160. 

—  Weight:  When  photographs  are  pi-operly  identified  and  con- 
nected with  the  event  which  they  purport  to  portray,  they  are  evi- 
dence of  a  satisfactory  and   conclusive  nature. 

City  of  LaSalle  vs.  Evans,  111  App.  69. 

Documents : 
Photographs  which  are  mere  duplicate  of  documents  already  in 

evidence  are  inadmissible. 

Howard  vs.  111.  T.  &  S.  Bank,  189  111.  568. 

But  an  enlarged  photograph  verified  and  which  makes  propor- 
tions plainer,  is  admissible  although  original  is  in  evidence.  In 
such  case,  the  enlarged  photograph  is  not  merely  secondary  evi- 
dence. 

Howard  vs.  111.  T.  &  S.  Bank,  189  111.  568. 

If  proper  foundation  is  laid  showing  that  original  instrument, 
bearing  a  signature,  which  is  to  be  used  in  evidence,  is  out  of  the 
jurisdiction  of  the  court,  and  cannot  be  obtained,  and  preliminary 
proof  as  to  accuracy  is  made,  a  photographic  copy  of  the  document 

is  admissible. 

Stitzel  vs.  Miller,  250  111.  72. 
A  photogi-aphic  copy  of  a  forged  note  is  admissible  where  orig- 
inal is  so  faded  as  to  become  illegible,  on  proof  that  it  is  an  exact 
copy  of  the  words  of  the  original,  when  it  is  not  offered  to  prove 
the  handwriting  of  the  signatures  but  merely  the  wording  of  the 
note.  If  material  to  show  that  it  is  an  exact  similitude  with  the 
original  with  respect  to  form,  shading  and  coloring,  the  testimony 
of  an  artist  or  expert  might  be  required. 
Duffin  vs.  People,  107  111.  113. 

Contract  by  Reference: 

Where  photographs  are  relied  upon  to  supplement  scale  draw- 
ings, they  should  be  identified  as  a  part  of  the  contract  or  as 
illustrative  thereof,  so  that  there  could  be  no  question  as  to  their 

purpose. 

Snead  Iron  Works  vs.  Trust  Co.,  225  111.  442. 

Real  Property: 

A  photograph  of  real  estate  showing  how  it  existed  prior  to 
change  in  grade  of  street  upon  which  it  is  situated  is  competent. 
Village  of  Grant  Park  vs.  Trail,  115  App.  291. 

But  photographs  illustrating  flood  conditions  are  not  admissible 

in  absence  of  proof  as  to  depth  of  water,  volume  and  length  of  time 

conditions  existed. 

Zinzer  vs.   Sanitary  District,   175   App.  9. 


984  PHOTOGRAPHS 

Rooms: 

In  contest  of  will,  where  it  is  claimed  will  was  signed  by  wit- 
nesses so  as  to  be  beyond  range  of  vision  of  testatrix,  a  photograph 
of  the  room,  taken  some  time  after  death  of  testatrix,  with  the 
furniture  of  the  room  arranged  by  a  person  present  at  time  of  at- 
testation, assisted  bv  an  incompetent  witness,  is  inadmissible. 
Ellis  vs.  Flanagan,  253  111.  397. 

Machinery : 

Photographs  taken  by  an  experienced  photographer  a  few  hours 

after  accident,  where  no  change  in  immediate  surroundings,  are 

admissible. 

Henke  vs.  Deere  &  Mansur  Co.,  175  App.  240. 

Photographs  of  similar  machinery  of  same  make  are  admissible 

where  proof  shows  them  to  be  fair  representations  of  the  machine 

on  which  the  accident  occurred. 

Smith  vs.  Eichelberger,  175  App.  231. 

Persons : 

Photographs  taken  after  death  of  person,  and  tintype  of  per- 
son alleged  to  be  the  insured,  are  admissible  on  issue  of  identity 
as  to  person  taking  examination  for  life  insurance. 

Schwartz  vs.   Berkshire  Life   Ins.   Co.,   91   App.  494.  • 

Photographs  of  injured  person,  taken  soon  after  injury,  and 
shown  by  the  testimony  to  be  correct  representations  of  such  party 

as  he  appeared  at  the  time,  are  competent. 

Peoples  Gas  Light  Co.  vs.  Amphlett,  93  App.  194. 
Admitting,  in  action  for  personal  injuries,  a  photograph  of  plain- 
tiff taken  nine  years  before  trial,  to  show  good  health,  held  revers- 
ible error. 

City  of  Eoek  Island  vs.  Drost,  71  App.  613. 

Admitting   in   murder   trial   a  photograph  of   deceased,   whose 

identity  as  person  killed  was  admitted  by  defendant,  is  not,  of  itself, 

ground  for  reversal,  even  though  the  evidence  is  unnecessary^  and 

might  properly  have  been  excluded. 
Eoberts  vs.  People,  226  111.  296. 

Articles : 

Not  error  in  excluding,  where  article  itself  is  introduced. 
Chi.  Mil.  St.  Ky.  Co.  vs.  Kendall,  49  App.  398. 

Of  Injury: 
Photograph  of  injuries  is  admissible  in  evidence. 
Fuller  vs.  Kelso,  163  App.  576. 

Thought  it  may  tend  to  excite  sympathy. 

Peoples  Gas  Light  Co.  vs.  Amphlett,  93  App.  194. 

To  Show  Injury: 

—  Admissibility  in  General:     Photographs  taken  by  the  X-ray 

process  are  admissible  in  evidence  after  proper  preliminary  proof 

of  their  correctness  and  accuracy  has  been  made. 

C.  &  J.  Elec.  Co.  vs.  Spenee,  213  111.  220;  Hayviood  vs.  Bering  Coal 
Co.,  145  App.  506;  Eckles  vs.  Boylan,  136  App.  258;  XII  111.  Notes 
510,    §  279. 

Wliere  X-ray  photograph  of  injured  member  has  been  admitted, 

an  X-ray  photograph  of  a  normal  like  member,  though  of  another 

person,  is  admissible. 

Mcllwain  vs.  Gaebe,  128  App.  209. 


PHYSICAL  EXA:\[TNATI0N  985 

—  Preliminary  Proof:  AVliero  witness  testified  that  he  is  a 
physician  and  surgeon  of  experience  in  practice  of  his  profession 
and  in  making  of  X-ray  photographs;  that  he  was  competent  to 
make  same ;  that  he  made  the  original  negatives  and  prints,  and 
that  they  are  correct  representations  of  what  they  purport  to  he, 
it  is  sufficient  preliminary  proof  to  authorize  their  admission  in 
evidence. 

Chi.  aty  Ey.  Co.  vs.  Smith,  226  111.  178. 

So  where  expert  testifies  he  was  an  X-ray  expert  and  regularly 
engaged  in  taking  such  photographs  for  pliysicians;  that  he  took 
the  negative  from  which  the  photograph  was  developed  and  it  was 
an  accurate  and  correct  representation  is  sufficient. 
C.  &  J.  Elec.  By.  Co.  vs.  Speiice,  213  111.  220. 

A  witness  properly  qualifies  as  an  expert  in  taking  of  X-ray 
pictures  where  she  testifies  that  she  is  superintendent  of  the  dis- 
pensary of  a  medical  school,  that  part  of  her  work  consists  in  tak- 
ing X-ray  pictures,  that  she  had  had  one  year's  experience,  and 

that  she  had  taken  about  five  hundred  pictures. 
Krauss  vs.  Ballinger,  171  App.  534. 

A  prima  facie  showing  sufficient  to  justify  the  admission  of  an 
X-ray  picture  in  evidence  is  made  when  expert  testifies  she  made 
the  exposure,  developed  the  negative  and  printed  the  picture  there- 
from, and  that  the  picture  is  a  correct  representation  of  the 
negative. 

Krauss  vs.  Ballinger,  171  App.  534. 

—  Result  of  Ohscrvation  by  Experts:  A  witness  who  has  quali- 
fied as  an  expert  in  the  use  of  an  X-ray  and  fluoroscope  may  be 
permitted  to  give  result  of  his  observations. 

Colesar  vs.  Star  Mining  Co.,  255  111.  532;  McCauley  vs.  Chi.  City  Ey. 
Co.,  163  App.   176;   Judejko  vs.  Chi.  City  Ey.  Co.,   166  App.   140. 

—  Weight:  A  skiagraph  is  by  no  means  conclusive  as  to  con- 
ditions of  actual  injury.  The  skiagraph  is  not  a  picture  of  the 
object  or  substance  itself,  but  of  the  shadow  merely  which  is  east 
by  the  object  or  substance,  and  is  frequently  inaccurate  and  mis- 
leading, owing  to  the  divergence  and  distortion. 

Kruger  vs.  McCanghey,  149  App.  440. 

—  Jury  May  Take:  Photographs  or  skiagraphs  given  in  e\'i- 
dence  may  be  taken  by  the  jury  to  their  room  upon  retirement  to 
consider  their  verdict. 

C.  &  J.  Elec.  Co.  vs.  Spence,  213  111.  220. 


PHYSICAL  EXAMINATION 

See  Exhibition  of  Injury. 
POWER  TO  ORDER. 

injury  to  Person: 

The  court  lias  no  power  to  require  the  injured  party  to  submit 
to  an  examination  by  medical  experts. 

Pronskevitch  vs.  C.  &  A.  E.  Co.,  232  111.  136;  Eichardson  vs.  Nelson, 
221  111.  254;  P.  D.  &  E.  E.  E.  Co.  vs.  Eiee,  144  111.  227;  Joliet 
St.  Ey.  Co.  vs.  Call,  143  111.  177 ;  Parker  vs.  Enslow,  102  111.  272 ; 
P.  C.  C.  &  St.  L.  E.  Co.  vs.  Story,  104  App.  132;  XII  111.  Notes 
39,  §  163. 


986  PHYSICAL  EXAMINATION 

ADMISSIBILITY  OF  EVIDENCE. 
Willingness  of  Party  to  Submit : 

—  Right  to  Question:    Plaintiff  may  be  asked  as  to  willingness 

to  submit  to  physical  examination. 

Jimget  vs.  A.  E.  C.  By.  Co.,  177  App.  435;  Schlechte  vs.  Chi.  E.  T. 
Co.,  157  App.  181;  Sertaut  vs.  Crane,  142  App.  49;  Simpson  vs. 
Peoria  Ey.  Co.,   179  App.   307. 

—  Form  of  Question:  "Are  you  willing  to  be  examined  by  a 
doctor  appointed  either  by  the  court,  or  by  myself,  in  the  presence 
of  your  own  doctor,  as  to  your  present  ailment  on  account  of  this 
injury,  either  here  or  at  your  home  or  at  any  place  that  will  suit 

your  convenience?"     Held  proper. 

Schlecte  vs.  Ghi.  E.  T.  Co.,  157  App.  181. 
"Are  you  willing  to  submit  to  an  examination  by  physicians  to 

be  selected  by  defendant?"     Held  improper. 

Cole  vs.  E.  St.  Louis,  158  App.  494;  Junget  vs.  A.  E.  C.  Ey.  Co.,  177 
App.  435;  Contra,  Sertaut  vs.  Crane,  142  App.  49. 
Sustaining  objection   to   question   as   to   whether  plaintiff  was 
willing  to  be  examined  by  a  doctor  appointed  by  the  court  is  pre- 
judicial error. 

Junget  vs.  A.  E.  C.  Ey.  Co.,  177  App.  435. 

Plaintiff'  was  asked  in  presence  of  jury  if  he  were  willing  to  sub- 
mit to  an  examination  by  physicians  appointed  by  the  court.  On 
objection  the  trisl  court  ruled  defendant  might  ask  him  if  he  were 
willing  to  submit  to  an  examination  of  his  left  side,  left  hand  and 
the  left  side  of  his  head,  by  physicians  appointed  by  the  court, 
in  order  that  they  might  show  results  of  their  examination.  De- 
fendant refused  this  offer,  and  court  sustained  objection  to  ques- 
tions as  to  willingness  to  submit  his  whole  body  to  the  examination 
of  physicians  in  order  that  they  might  testify.     Held,  not  error. 

Gutlirie  vs.   Empire  Coal  Co.,   150  App.   530. 
"Are  you  willing  to  allow  some  specialist  on  nervous  diseases, 
which  you  claim  is  your  present  physical  ailment,  to  make  a  per- 
sonal examination  of  you  on  behalf  of  defendant  for  the  purpose 
of  testifving?"     Held  improper. 

City  of  Chicago  vs.  McNally,  128  App.  375;  Affd.,  City  of  Chicago 
vs.  McNally,  227  111.  14. 

Refusal  to  Submit  at  Trial: 

The  motion  papers  requesting  examination  are  not  competent. 

P.  C.  C.  &  St.  L.  E.  Co.  vs.  Story,   104  App.   132. 
Nor  where  plaintiff  refuses  personal  examination  is  evidence  com- 
petent as  to  whether  such  examination  would  be  harmful  or  not. 

C.  &  E.  I.  E.  E.  Co.  vs.  Stewart,  104  App.  37;  Cf.  Schlecte  vs.  Chi.  E.  T. 
Co.,  157  App.  181. 

Refusal  to  Submit  Before  Trial: 

Plaintiff' 's  refusal  to  submit  to  medical  examination  by  physi- 
cians selected  and  chosen  by  defendant,  but  in  presence  of  her 
physicians,  held  not  competent  to  be  shown  as  admission  against 

I.  C.  E.  Co.  vs.  Downs,  122  App.  545;   Cf.,  Schlechte  vs.  Chi.  E.  T. 
Co.,  157  App.  181. 

Urine  for  Analysis : 

Where  plaintiff  in  a  personal  injury  case  claimed  to  have  Bright 's 
Disease  as  a  result  of  the  injury,  and  a  physician  testified  in  his 
behalf  to  finding  albumen  in  plaintiff's  urine,  plaintiff's  refusal  to 


PHYSICIANS  AND  SURGEONS  987 


..  r 


furnish  a  sample  of  his  urine  for  test  hy  defendant's  expierts  wlas 

held  proper  evidence   for   the  consideration  of  the   jury   and   its 

exclusion  was  error. 

City  of  Freei)ort  vs.  Tsbcll,  93  111.  381. 


PHYSICAL  EXHIBITS 

See  Demonstrative  Evidence,  Exhibition  of  Injury,  Physical 
Examination,  View  by  Jury. 


PHYSICIANS  AND  SURGEONS 

See   Expert  and    Opinion,   ]\Iedical  and   Surgical    Services, 
Mental  and  Physical  States,  Penalties. 
ACTION  FOR  SERVICES. 
Burden  of  Proof  and  Presumptions: 

Plaintiff  must  establish  contract  of  employment  and  rendering 

of  services. 

Dorion  vs.  Jacobson,  113  App.  563, 

One  under  no  obligation  to  provide  or  pay  for  medical  attend- 
ance cannot  be  held  responsible  therefor  in  the  absence  of  a  promise 
to  pay,  relied  upon  by  the  physician. 
Dorion  vs.  Jacobson,  113  App.  563. 

A  physician  is  to  be  deemed  the  proper  judge  of  the  necessity 
of  frequent  visits  to  the  patient,  and  the  court  will  presume  that 
all  the  professional  visits  made  by  him  were  necessary.  Hence,  in 
an  action  for  his  services,  he  is  not  called  upon  to  prove  the  neces- 
sity of  making  the  number  of  visits  he  did.  The  physician  being 
responsible  for  the  want  of  care  and  faithful  attendance,  a  con- 
trary rule  would  work  great  hardship  to  him  and  subject  him  to 
undue  perils. 

Where  a  physician  is  called  by  a  party  to  heal  him  or  his  wife,, 
and  he  takes  charge  of  the  case  and  attends  from  day  to  day,  evi- 
dently in  view  of  the  responsibility  for  skillful  and  proper  treat- 
ment' he  must,  in  the  first  instance,  determine  how  often  he  ought 
to  visit  the  patient,  and,  so  long  as  the  party  employing  him 
accepts  his  services  and  does  not  discharge  him  or  require  him  to 
come  less  frequently,  or  fix  the  times  when  he  wishes  him  to  attend, 
he  cannot  afterwards,  be  heard  to  say  the  physician  came  oftener 

than  was  necessary. 

Ebner  vs.  Mackey,  186  111.  297;   Gibson  vs.  O'Grara  Coal  Co.,  151 
App.  424. 

When  the  services  are  performed  on  request,  and  no  agreement 
is  made  in  respect  to  them,  the  law  raises  an  implied  promise 
to  pay  so  much  as  the  person  performing  the  duties  reasonably 
deserves  to  have,  and  upon  such  implied  undertaking  the  action 

will  lie. 

Starrett  vs.  Miley,  79  App.  658. 
When  a  person  calls  a  physician  for  care  of  another,  rendered 
by  the  sudden  injury  unable  to  act  for  himself,  and  to  whom  he 


988  PHYSICIANS  AND  SURGEONS 

stands  in  no  relationship,  which  creates  any  obligation  to  furnish 
necessary  medical  aid,  and  no  express  undertaking  is  entered 
into,  the  law  does  not  presume  from  the  mere  summoning  of  the 
physician  and  requesting  him  to  care  for  the  injured  person,  any 
implied  promise  by  the  one  acting  to  pay  for  services  of  the  physi- 
cian summoned. 

Starrett  vs.  Miley,  79  App.  658. 

In  a  controversy  concerning  defendant's  liability  to  pay  plain- 
tiff's bill  for  services  as  physician,  to  a  third  person,  plaintiff  testi- 
fied defendant  said  to  him,  ' '  Doctor,  you  take  care  of  the  girls  and 
attend  to  them  and  I  will  pay  you  for  your  entire  services,  for 
those  you  have  rendered  heretofore  and  what  you  may  hereafter 
render,"  and  defendant  testified  that  he  said,  "Give  this  girl  the 
attention  she  requires  and  I  will  see  that  she  has  some  money  to 
pay  her  bills. ' '  It  was  held  that  under  this  evidence  the  jury  were 
warranted  in  returning  a  verdict  for  services  rendered  after  the 

conversation. 

Thomas  vs.  Leavy,  62  App.  34. 

Where  a  surgeon  has  been  employed  by  a  station  agent  of  a  rail- 
road company  to  attend  an  employe  injured  while  in  service  of  com- 
pany, although  he  may  not  have  express  authority  to  do  so,  yet 
slight  acts  of  ratification  by  the  company  will  authorize  a  jmy  in 
finding  the  employment  was  the  act  of  the  company. 
C.  &  St.  L.*E.  E.  Co.  vs.  Mahoney,  82  111.  73. 
In  action  to  recover  fees  for  medical  services,  evidence  must  show 
same  to  be  customary  charge  for  such  services. 
Weinlander  vs.  Volkman,  153  App.  137. 

Family  Expense: 

Medical  attendance  upon  the  family  is  a  family  expense,  and  both 

husband  and  wife  are  jointly  liable  therefor. 

West   Chi.   St.   Ry.   Co.  vs.   Carr,   170   111.   478;    Yoimkm  vs.   Essick, 
29  App.  575. 
Bill  of  physician  for  services  rendered  at  request  of  the  husband 
to  himself  in  his  last  illness  is  a  family  expense  for  which  an  action 
will  lie  against  the  widow  to  charge  her  separate  property. 
Cole  vs.  Bentley,  26  App.  260. 
Wife  is  liable  for  services  rendered  family  by  physician  although 
charged  on  plaintiff's  books  to  her  deceased  husband. 
Glaubensklee  vs.  Low,  29  App.  409. 

DEFENSE. 
Right  to  Practice : 

—  Presumption:     In  suit  for  professional  services,  a  license  or 

due  qualification  under  the  law  will  be  presumed. 

Co.  of  Jo  Daviess  vs.  Staples,  108  App.  539 ;  Good  vs.  Lasher,  99  App. 
653;  City  of  Chicago  vs.  Wood,  24  App.  40;  Cf.,  Tichenor  vs. 
NewTTian,  186  111.  264;  N.  Chi.  St.  Ey.  Co.  vs.  Cotton,  140  111.  486; 
Byrne  vs.  Panesi,  77  App.  164;  XIII  111.  Notes  1163,  §  27. 

—  When  Not  Material:     The  fact  that  a  physician  and  surgeon 

is  not  licensed  to  practice  in  Illinois  is  not  material  where  the  action 

is  predicated  upon  notes  given  for  services  rendered. 
Brunswick  vs.  Hurley.  131  App.  235. 

—  What  Sufficient  to  Shoiv  Bight:    Wliere  physician  suing  for 
fees  testified  without  objection  that  he  was  a  physician  of  twenty 


PHYSICIANS  AND  SURGEONS  989 

years  practice  and  a  graduate  of  a  medical  institution,  etc.,  the 
defendant  cannot  urge  upon  appeal  that  judgment  should  be  re- 
versed because  of  failure  to  allege  and  prove  he  was  a  licensed  phy- 
sician and  surgeon  with  his  license  duly  recorded  as  required  by 

law. 

Dorion  vs.  Jacobson,  113  App.  563. 

"Physician  testified  without  objection  that  he  had  practiced  for 
a  number  of  years,  that  he  had  a  certificate  as  required  by  State 
Board.  It  was  shown  that  his  name  appeared  on  register  of  phy- 
sicians in  county  clerk's  office.  This  is  enough  as  against  defend- 
ant, who  called  him  and  thereby  recognized  his  right  to  exercise 
functions  of  his  profession. ' ' 

C.  &  A.  E.  Co.  vs.  Smith,  21  App.  202. 

And  question  of  license  cannot  be  raised  for  first  time  on  appeal, 
Hudson  vs.  Madison,  75  App.  442. 

Contract  of  Corporation: 

A  contract  by  a  coal  company  for  the  services  of  a  physician  to 
treat  one  of  its  employes  while  w^orking  in  its  mines,  is  not  ultra 

Gibson  vs.  O'Gara  Coal  Co.,  151  App.  424. 

The  burden  of  proof  is  upon  party  pleading  ultra  vires. 
Gibson  vs.  O'Gara  Coal  Co.,  151  App.  424. 

RIGHT  TO  PRACTICE 

Criminal  Prosecution: 

In  case  of  prosecution  and  behalf  of  the  public,  license  or  due 

qualification  is  not  presumed,  and  it  rests  with  defendant  to  prove 

same. 

Williams  vs.  People,  121  111.  84;  People  vs.  Koehler,  146  App.  541. 

As  Between  Third  Persons: 

Between  third  persons,  the  question  of  the  physicans's  quali- 
fications, arising  onlj-  collaterally,  his  right  to  practice  is  presumed. 
It  being  shown  that  he  is  a  physician  and  surgeon  by  profession 
and  that  he  had  practiced  in  the  state  for  a  length  of  time,  is 

prima  facie,  at  least,  to  establish  the  proper  qualification. 

Chi.  St.  Ey.  Co.  vs.  Cotton,  140  111.  486;  City  of  Chicago  vs.  Wood, 

24  App.  40. 

—  Purchaser  of  Medical  Practice:     The  purchaser  of  a  medical 

practice  may  sue  for  damages  for  breach  of  seller's  undertakings 

Avithout  showing  affirmatively  that  he  had  a  license  from  State 

Board  of  Health  to  practice  medicine  in  Illinois. 

Tichenor  vs.  Newman,  186  111.  264. 

MALPRACTICE. 
Burden  of  Proof: 

Burden  is  upon  plaintiff  to  show  want  of  ordinary  skill  and  dil- 
igence and  to  show  that  injury  resulted  from  a  failure  to  possess 

these  requisites. 

Goodman  vs.  Bigler,  133  App.  301;   MeKee  vs.  Allen,  94  App.   147; 
Chase  vs.  Nelson,  39  App.  53;  XIII  111.  Notes  1162,  §  20. 
So  burden  is  upon  plaintiff  to  show  that  injury  did  not  result 
from  his  disobedience  of  instructions  as  shown  by  evidence  to  have 

been  given  by  phvsician. 

Mcllwain  vs.  Gaebe,  128  App.  209. 


990  PLATS 

Admissibility  of  Evidence : 

Evidence  relative  to  payment  of  defendant  for  services  is  irrele- 
vant. 

Mcllwain  vs.  Gaebe,  128  App.  25. 

Physician  may  be  asked  whether  he  exercised  his  best  knowledge 

and  skill. 

Fisher  vs.  Niceolls,  2  App.  484. 

But  an  expert  cannot  be  asked  whether  or  not  defendant  has  been 
guilty  of  malpractice. 

Hoeiner  vs.  Koch,  84  111.  408. 

The  professional  skill  of  the  defendant  is  put  in  issue  and  the 
burden  of  proof  is  upon  plaintiff  to  show  w^ant  of  it.  The  only 
proper  way  of  showing  this  is  by  proof  that  he  did  not  exercise  it 
in  the  treatment  of  the  plaintiff,  and  the  possession  or  want  of 
proper  skill  can  not  be  proven  by  general  reputation.  Nor  is  evi- 
dence admissible  on  behalf  of  defendant  to  prove  his  reputation  in 
the  community  and  among  the  profession,  as  being  a  skillful  and 

learned  physician. 

Hoitzman  vs.  Hoy,  118  111.  534. 

Affirmative  proof  of  negligence  or  lack  of  skill  and  that  injuries 
complained  of  resulted  therefrom,  is  usually,  and.  especially  in  eye 
cases,  can  only  be  made  and  established  by  the  testimony  of  experts 
skilled  in  the  medical  profession  and  cannot  be  made  by  lay  wit- 
nesses. 

Phebus  vs.  Mather,  181  App.  274, 

The  recovery  of  a  judgment  before  a  justice  of  the  peace  for  the 
fees  of  a  physician  for  services  in  attending  a  woman  does  not  bar 
a  suit  by  the  woman  for  malpractice,  where  she  did  not  appear 
before  the  justice  and  attempt  to  defeat  the  claim  for  fees  by  set- 
ting up  such  malpractice. 

Barton  vs.  Southwiek,  258  111.  515. 

Weight  and  Sufficiency  of  Evidence : 

The  jury  cannot  draw  the  conclusion  of  unskill fulness  from  proof 

of  the  result  of  the  treatment.     That  the  treatment  was  improper 

must  be  shown  by  affirmative  evidence. 

Phehiis  vs.   ]\lather,   181   App.   274;   Doyle  vs.  Owen,  150  App.  415; 
Sims  vs.  Parker,  41  App.  284;   M'oline  vs.  Chresty,  180  App.  334. 


PLATS 

See  Diagrams,  Surveys,  Field  Notes  and  Monuments,  Bound- 
aries. 
Recording : 

Since  the  presumption  always  is  that  public  authorities  do  their 

duty,  it  will  be  presumed,  until  contrary  is  shown,  that  a  plat  was 

correctly  copied  in  the  public  records. 

City  of  Peoria  vs.  C'ont.  Nntl.  Bank,  224  111.  43. 

Admissibility  of   Certified  Copies: 

—  Certified  hy  Surveyor:  A  plat  certified  by  the  surveyor, 
acknowledged  by  the  owners  of  the  land,  and  recorded  in  com- 
pliance with  the  statute,  is  admissible,  notwithstanding  the  surveyor 


PLATS  991 

testifies  he  did  not  make  the  survey,  but  does  not  deny  making  the 

certificate. 

Allmendinger  vs.  McHie,  189  111.  308. 

—  Impeachment  of  Certificate:     A  surveyor  is  not  a  competent 

witness  to  impeach  his  own  certificate  to  a  plat. 

Allmendiuger  vs.  Mc-Hie,  189  111.  308. 

—  Certified  by  Recorder:  A  certified  cop}'  of  a  plat  shown  by 
the  testimony  of  abstractors  and  surveyors  to  be  correct,  is  properly 
admitted  upon  proof  that  the  proper  custodian  of  the  original  plat 
had  searched  for  the  same  in  the  vault  where  plats  were  kept,  and 
in  all  places  where  it  would  likely  be  found,  without  success. 

McDonald  vs.  Stark,  176  III.  456. 

But  such  copy  is  not  admissible  where  no  proof  is  made  that  the 

original  plat  was  not  within  the  control  of  the  parties. 
People  vs.  Wiemers,  225  111.  17. 

Nor  is  it  admissible  where  there  is  no  evidence  to  show  original 

plat  was  made  by  authority  of  owner  of  premises,  nor  signed  or 

acknowledged  by  him  but  merely  has  the  surveyor's  certificate  ex- 

planatoiy  of  the  diagTam. 

Dale  vs.  Metzmaker,  63  111.  38, 

Admissibility  of  Plat  to  Aid  Deed: 

^\liere  a  conveyance  refers  to  a  plat,  such  plat  becomes  a  j^art  of 

the  conveyance  just  as  if  it  had  been  copied  into  the  deed,  and  is 

regarded  as  furnishing  the  true  and  correct  description  of  the  di- 

mensiojis  and  boundaries  of  the  land. 

Bead  vs.  Bartlett,   255   111.   76;   People  vs.   New,  214  111.   287;    XII 
111.  Notes  106,  §  100. 

And  such  plat  is  admissible  to  identify  and  locate  lot  or  premises. 
Black  vs.  C.  B.  ic  Q.   R.  E.  Co.,  237  111.  500;   Maun  vs.  Bergmaun, 
208   111.   406;    Allmendinger   vs.   McHie,   189   111.   308;    Prouty  vs. 
Tilden.  164  111.  163. 

Admissibility  to  Show  Common  Law  Dedication: 

The  making  of  a  plat  laying  off  the  land  into  lots  and  blocks, 
separated  by  streets  and  alleys,  and  the  sale  of  lots  thereafter  by  the 
owner,  is  evidence  of  a  common  law  dedication  of  the  streets  to  the 

public,  even  though  plat  is  not  execnted  in  conformity  with  statute. 

Nelson  vs.  Eandolpli,  222   111.   531;    Maywood  vs.   Maywood,   118   111. 

61;  Gosselin  vs.  City  of  Chicago,  103  111.  623;  Alvord  vs.  Ashley, 

17  111.  363. 

So  where  a  plat  of  a  city  does  not  contain  a  statement  of  the  width 

of  a  street  and  is  in  other  respects  defective  as  statutory  proof  of  a 

dedication  at  common  law,  supplemental  evidence  tending  to  explain 

it  and  to  show  a  dedication  at  common  law  is  competent. 
Hudson  vs.  Miller,  97  App.  74. 

Admissibility  to  Show  Streets: 

Books  and  memorials  kept  by  public  officers,  even  though  not 

required  by  statute,  if  they  are  necessary  and  appropriate  to  the 

discharge  of  the  duties  of  the  office,  are  considered  as  public  records. 

So  county  plat  books,  though  prepared  without  any  authority  of 

law,  but  where  kept  for  a  long  period  of  time,  are  admissible  to 

show  existence  or  non-existence  of  streets. 

Watts  vs.  Village  of  River  Forest,  227  111.  31. 


992  PLEDGE 

So  a  plat  attached  to  a  petition  for  public  improvement  may  be 
admitted  to  aid  in  location  of  description  of  part  of  street  to  be  im- 
proved. 

Nieholes  vs.   People,   171   111.   376. 

Admissibility  of  Secondary  Evidence: 

Where  preliminary  proof  shows  that  proper  search  was  made  by 
the  proper  custodians  of  the  original  plats,  in  the  vault  where  they 
were  kept,  and  in  all  places  where  they  would  likely  be  found,  and 
such  search  was  unavailing,  secondary  evidence  of  plats  is  admis- 
sible. 

McDonald  vs.  Stark,  176  111.  456. 

Explanation  of  Plat : 

A  survey  may  be  admitted  in  evidence  in  explanation  of  a  plat. 
Wiggins  Ferry  Co.  vs.  Louisville  R.  E.  Co.,  178  111.  473. 

As  Explanatory  Evidence: 

Explanatory  maps,  plats  and  diagrams  may  be  introduced  in 
connection  with  the  testimony  of  witnesses  in  verification  thereof. 
Prussner  vs.  Brady,  136  App.  395 ;  Chi.  City  Ey.  Co.  vs.  McLaughlin, 
146  111.  353;  Brown  vs.  Galesburg,  132  111.  648. 
The  diagrams,  drawings  or  models  are  not  introduced  as  evi- 
dence in  themselves,  but  for  the  purpose  of  enabling  the  jury  to 
understand  and  apply  the  evidence  in  the  case. 
Reinke  vs.  Sanitary  District,  260  111.  380. 
Plats,  maps  and  gauge  readings  from  the  official  records  of  the 
War  Department  are  competent  but  not  conclusive  evidence. 
Harney  vs.  Sanitary  District,  260  111.  54.     (See  Diagrams.) 


PLEDGE 

Defined: 

A  pledge  is  a  lien  created  by  the  owner  of  personal  property 

by  the  mere  delivery  of  it  to  another,  upon  an  express  or  implied 

understanding  that  it  shall  be  retained  as  security  on  an  existing 

or  future  debt.    If  the  pledgee  is  in  possession  of  the  thing  pledged, 

though  for  another  purpose,  the  pledge  becomes  effectual  without 

further  delivery. 

Farson  vs.  Gilbert,  114  App.  17. 

Presumption : 

—  Delivenj  of  Note  of  Third  Person  to  Creditor:  The  pre- 
sumption is  that  it  was  not  the  intention  of  the  parties  that  it 
should  operate  as  an  immediate  and  absolute  satisfaction  and  dis- 
charge of  the  debt,  and  that  nothing  short  of  an  actual  agreement 
or  some  evidence  from  which  a  positive  inference  of  discharge  can 
be  made,  will  suffice  to  produce  such  an  effect ;  and  that  it  is  the 
general  principle  that  the  acceptance  of  collateral  security  has  no 
effect  whatever  on  the  legal  rights  and  liabilities  of  the  parties,  as 
respects  the  original  debt,  either  to  impair  or  suspend  the  right  of 

action. 

Wilhelm  vs.  Schmidt,  84  111.  183. 


PLEDGE  "  993 

The  taking  of  note  of  a  third  person  for  a  pre-existing  debt  is 
no  payment  unless  proof  shows  express  agreement  to  take  the  note 
as  payment. 

S.  &  G.   Co.   vs.   Gates,   I.   W.,   124   111.   623;    Wilhelm   vs.   Schiiiidt, 
84    111.    183;    Chisholm   vs.   Williams,    128   111.    115. 
The  question  of  payment  is  one  of  fact. 
Tyler  vs.  Hyde,  80  App.  123. 

Delivery : 

—  In  General:  A  pledge,  strictly  speaking,  can  only  be  made 
by  delivery.  i  • 

Atkinson  vs.  Foster,  134  111.  472 ;  XIV  111.  Notes  62,  §  6. 
Actual  or  symbolical  possession  of  personal  property  in  the 
pledgee  is  essential  to  its  pledge.  Ordinarily,  actual  and  physical 
possession  of  the  property  is  delivered  to  and  retained  by  the  pled- 
gee, but  may  be  by  symbol,  e.  g.,  bill  of  lading  or  warehouse  re- 
ceipt, but  it  is  a  necessary  condition  to  the  existence  of  such 
symbolical  possession  by  tbe  pledgee  and  it  nuist  be  shown  that 
the  property  itself  is  in  the  possession  of  some  person  or  corpo- 
ration other  tlian  pledgor. 

Union  Trust  Go.  vs.  Trumbull,  137  111.  146. 
If  it  be  shown  that  wdien  property  Avas  pledged  it  was  in  posses- 
sion of  pledgee,  it  w\\\  render  the  pledge  effectual. 

Paisous  vs.  Overmeyer,  22  111.  58;   Farson  vs.  Gilbert,  114  App.  17. 

—  Chose  in  Action:  "Incorporeal  property,  such  as  negotiable 
instruments,  stock  in  incorporated  companies,  and  choses  in  action 
g'enerally,  is  capable  of  being  pledged  by  written  transfer  of  the 
title.  Such  transfer  of  the  title  performs  same  office  as  delivery 
of  possession  does  in  case  of  a  pledge  of  corporeal  property.  The 
transfer  of  title  in  writing  constitutes  the  evidence  of  pledgee's 
right  of  property  in  the  thing  pledged.  And  it  seems  to  be  almost 
the  universal  decision  that,  technically  speaking,  incorporeal  prop- 
erty is  incapable  of  being  pledged  wdthout  written  transfer  of  title 
or  its  equivalent." 

Eioe  vs.  Gilbert,  173  111.  348. 

Written  Transfers: 

—  Parol  Evidence:  While  a  transfer  of  stock,  absolute  in  form, 
may  be  shown  by  parol  evidence  to  be  really  a  pledge  to  secure  a 
debt,  yet  when  that  kind  of  evidence  is  relied  upon,  it  should  be 
clear  and  convincing. 

Travers  vs.  Leopold,  124  111.  431. 
Parol   evidence  is  not  admissible   to   contradict  a   contract   of 
pledge,  such  as  a  statement  in  a  promissory  note  that  certain  stock 
had  been  transferred  as  collateral  security. 

Fairbanks  vs.  Merrhants  Nat'l  Bank,  132  111.  120. 

The  particular  contract  is  to  govern  the  rights  of  the  parties. 
Union  Brew  Co.  vs.  Interstate  Bank,  240  111.  454. 

Defense  to  Collateral  Note: 

The  holder  of  a  note  indorsed  as  collateral  security,  not  being 
protected  except  as  to  amount  of  debt  secured,  it  follows  that  in 
suit  on  the  note,  evidence  tending  to  show  that  maker  is  not  liable 
to  payee  upon  the  note  is  admissible. 

In  action  on  a  note  by  a  party  who  has  received  same  as  col- 
lateral securitv  for  a  debt,  the  current  of  authorities  is  in  favor 
Ev.— 63 


994  POSITIVE  AND  NEGATIVE 

of  the  rule  reqiiiring  the  maker,  when  sued,  to  show  the  amount 

of  the  debt  secured. 

Gammon  vs.  Huse,  9  App.  557. 


POLICE  RECORDS 

Admissibility : 

An  entry  in  an  accident  book  kept  by  the  police  at  a  station  near 
the  place  of  injury  is  not  admissible  in  an  action  for  damages  for 
such  injury  where  the  entry  is  not  made  at  the  time  of  the  acci- 
dent, by  witnesses  thereof,  but  from  reports  of  police  made  from 

hearsay. 

Penn.  Co.  vs.  McCaffery,  173  111.  169. 

Record  of  charge  on  which  persons  were  booked  at  police  station 
is  inadmissible  in  prosecution  for  keeping  disorderly  house. 
People  vs.  Newbold,  260  111.  196. 


POSITIVE  AND  NEGATIVE 

See  Negative  in  Issue,  Burden  of  Proof,  Intestacy,  Marriage, 
Presumptions. 
Positive  Defined: 

Evidence  is  positive  when  a  witness  states  that  an  event  did 

or  did  not  occur. 

Frizzel  vs.  Cole,  42  111.  362 ;  C.  B.  &  Q.  K.  Co.  vs.  Saeh,  136  App.  425; 
XII  111.  Notes  534,  §  465. 
Wliere  a  witness  swears  that  a  partieular  act  did  occur  at  a 
specified  time  and  place,  or  that  a  particular  language  was  spoken 
by  a  person  to  whom  he  refers,  this  is  affirmative  evidence.     But 
if  another  witness  were  at  the  same  place,  at  the  same  time,  and 
should  swear  that  he  did  not  observe  the  act,  or  hear  the  language 
of-  which  the  other  speaks,  this  would  be  called  negative  evidence. 
But  suppose  the  latter  witness  were  to  state  that  his  attention  was 
fully  excited  to  what  occurred  and  what  was  said,  and  that  the  act 
of  which  the  other  spoke  did  not  occur,  or  that  the  language  was 
not  usod  by  the  person  to  whom  it  was  attributed,  this  would  be 
as  fully  affirmative  evidence  as  the  other. 
Frizzel  vs.  Cole,  42  111.  362. 
Where  witnesses  having  equal  opportunity  with  others  testify- 
ing to  the  contrary,  to  hear  and  know  whether  or  not  a  gong  was 
sounded,  testify  that  it  was  not,  their  evidence  is  deemed  affirm- 
ative. 

Chi.  Con.  Trac.  Co.  vs.  Gervens,  113  App.  275;  Grabill  vs.  Een,  110 
App.  587. 
Where  two  classes  of  witnesses  are  of  equal  intelligence,  and 
have  equal  opportunities  of  knowing  the  fact,  and  their  attention 
has  been  directed  to  it,  then,  although  one  testifies  that  the  occur- 
rence did  take  pace,  and  the  other  that  it  did  not,  the  latter  testi- 
mony is  not  to  be  treated  as  negative. 

West  Chi.  St.  Ry.  Co.  vs.  Mueller,  165  111.  499;  E.  R.  I.  &  St.  L. 
Ey.  Co.  vs.  Hiilmer,  72  111.  235;  C.  &  A.  Ry.  Co.  vs.  Pelligreen,  65 
App.  333;   Chi.  Cou.  Trac.  Co.  vs.  Gervens,  113  App.  275. 


POSITIVE  AND  NEGATIVE  995 

''The  witnesses  who  testified  that,  in  their  opinion  the  deceased 
was  sane ;  the  witnesses  who  testitied  that,  in  their  opinion,  he 
lacked  testamentary  capacity ;  the  witnesses  who  testified  to  facts 
and  circumstances  from  which  an  inference  of  mental  unsoundness 
might  be  drawn ;  the  expert  witnesses  who  testitied,  in  response 
to  hypothetical  questions  that  he  was  sane,  and  the  expert  wit- 
nesses who  testified,  in  response  to  hypothetical  questions,  that 
he  was  of  unsound  mind,  were  all  witnesses  who  gave  affirmative 
or  positive  evidence." 

Dillman   vs.   McDanicl,   222   111.   291. 

If  witnesses  with  proper  opportunities  of  knowing,  being  faith- 
worthy,  state  positively  that  an  individual  did  not  strike, a  blow, 
it  is  not  negative  proof,  and  is  as  much  entitled  to  weight  as  the 
affirmative  testimony  of  others  who  state  that  they  saw  him  strike 
the  blow. 

Couglin  vs.  People,  18  111.  266. 

Putting  the  form  of  a  statement  in  the  affirmative,  as  that  wit- 
nesses did  see  a  government  mound  or  ditch  at  a  certain  place, 
does  not  necessarily  make  the  testimony  stronger  than  that  of  a 
witness  who  avers  in  the  negative  form  that  he  did  not  see  a  mound 
or  ditch  at  the  point  in  question.  If  it  is  proven  that  both  saw 
the  same  point  at  the  same  time,  the  latter,  in  effect,  may  aver 
as  conclusively,  though  in  the  negative  form  of  sentence,  that  there 

is  no  mound  or  ditch  there,  as  the  former  avers  there  is. 

Eockwootl  vs.  Poundstone,  38  111.  199. 

Where  one  witness  swears  an  agent  of  railroad  company  pur- 
chased wood  for  the  company,  and  the  agent  swears  he  did  not, 
there  is  no  negative  testimony  by  either  witness.  Testimony  of 
witness  that  he  did  not  make  the  purchase  is  as  much  positive  as 

if  he  had  testified  he  did. 

G.  W.  Ky.  Co.  vs.  Hanks,  25  111.  241. 

Where  witnesses,  with  attention  directed  to  the  fact,  testify  pos- 
itively that  no  bell  was  rung  or  whistle  sounded  until  instant  of 

collision,  their  evidence  is  not  negative  in  its  character. 
C.  B.  &  Q.  Ey.  Co.  vs.  Lee,  87  111.  454. 

Preference  the  law  gives  positive  over  negative  is  when   one 

swears  positively  that  a  thing  happened,  and  anothers  swears  he 

did  not  see  or  hear  it,  it  being  quite  possible  that  it  may  have 

happened  although  the  other  may  not  have  seen  or  heard  it. 
Frizzell  vs.  Cole,  42  111.  362. 

Admissibility  of  Negative  Testimony: 

—  In  General:  A  party  establishing  his  claim  or  defense  is  not 
restricted  to  either  circumstantial  or  positive  evidence,  but  may 
avail  himself  of  either  or  both  at  his  election. 

Union  Natl.  Bank  vs.  Baldenwick,  45  111.  374:  Duffield  vs.  Delancy, 
36  111.  258. 

Evidence  of  witnesses  working  nearby  that  they  did  not  hear 
warning  is  admissible. 

Eblin  vs.  Amer.  Car  Co.,  238  111.  176. 

Whether  evidence  of  this  character  be  admissible  depends  largely 

if  not  entirely  upon  the  circumstances  of  each  case. 
Lyoas  vs.  Chicago  City  Ky.  Co.,  258  111.  75. 


996  POSITIVE  AND  NEGATIVE 

Where  it  is  in  proof  that  certain  instructions  were  given  employe, 
a  number  of  times,  about  getting  out  of  way  of  trains,  it  is  im- 
proper to  permit  other  witnesses  to  testify  they  were  never  given 

such  instructions.  «  1" 

C.  &  N.  W.  Ey.  Co.  vs.  Moranda,  108  111.  576. 

Nor  is  evidence  admissible  to  show  negligence  at  a  dilferent  time 
and  place. 

Sugar  Creek  Co.  vs.  Peterson,  177  111.  324. 
Evidence  that  defendant's  conductor  made  no  report  of  acci- 
dent is  inadmissible. 

W.  Chi.  St.  Rj.  Co.  vs.  Lieserowitz,  197  111.  007. 

Wliere  grantee  in  deed  is  alleged  to  be  fictitious  person,  testi- 
mony is  competent  to  show  that  no  such  person  lived  in  locality 

claimed. 

Phelps  vs.  Nazworthy,  226  111.  254. 

—  As  to  Signals:  Testimony  that  witnesses  did  not  hear  the 
locomotive  bell  ringing,  although  they  did  not  know  definitely 
whether  it  was  ringing  or  not,  is  admissible  upon  question  of  ring- 
ing of  the  bell. 

C.  &  A.  R.  R.  Co.  vs.  Pulliam,  208  111.  456. 

—  Witness  May  State  He   Would  Have  Heard:     Persons  who 

state  their  location  and  their  previous  experience  in  noticing  and 

hearing  railroad  bells  and  whistles  are  competent  to  testify  that  if 

bell  had  been  rung  or  whistle  sounded  at  time  of  accident,  they 

would  have  heard  it. 

Farley  vs.  Wabash  R.  R.  Co.,  153  App.  493;  E.  J.  &  E.  R.  R.  Co. 
vs.  Reese,  70  App.  463;  C.  &  A.  R.  R.  Co.  vs.  Dillon,  123  111.  570. 

—  Means  of  Knoivlcdgc:     It  is  proper  to  inquire  of  a  witness 

if  certain  conditions  existed  or  persons  present,  whether  he  would 

have  known  it. 

Penn.  Co.  vs.  Bovlan,  104  111.  595;  P.  C.  C.  &  St.  L.  R.  R.  Co.  vs. 
Story,  104  App.  132;  Barnett  vs.  Chi.  City  Ry.  Co.,  167  App.  87. 

Weight : 

—  General  Ride :    "Where  Avitnesses  are  equally  credible,  positive 

testimony  is  entitled  to  greater  weight  than  negative. 

C.  &  A.  R.  R.  Co.  vs.  Robinson,  106  Til.  142;  C.  B.  &  Q.  R.  R.  Co. 
vs.  Diekison,  88  111.  431;  C.  &  A.  R.  R.  Co.  vs.  Gretzner,  40  111. 
74;  111.  Sou.  R.  R.  Co.  vs.  Hamell,  128  App.  152;  C.  R.  I.  &  P.  R.  R. 
Co.  vs.  Jones,  135  App.  380;  C.  B.  &  C^.  R.  R.  Co.  vs.  Sack,  136 
App.  425;  Hauk  vs.  Peoria  Ry.  Co.,  154  App.  473;  XII  111.  Notes 
534,  §465. 

Positive  evidence  as  to  the  fact  that  a  bell  was  rung  or  a  whistle 

sounded  or  of  any  other  fact  not  improbable  in  itself,  is  entitled 

to  more  weight  than  negative  evidence  in  relation  to  such  facts. 

C.  B.  &  Q.  R.  R.  Co.  vs.  Stumps,  55  Til.  367;  C.  R.  I.  &  P.  R.  R. 
Co.  vs.  Still,  19  111.  500;  Hauk  vs.  Peoria  Rv.  Co.,  154  App.  473; 
C.  &  E.  I.  R.  R.  Co.  vs.  Eganoff,  112  App.  223. 

—  Opportunity:  More  weight  will  often  be  attached  to  the 
question  whether  witnesses  are  in  so  favorable  a  position  for  observ- 
ing a  fact  if  it  occur,  that  it  could  not  have  occurred  without  their 
observing  it,   than  to  the  affirmative  or  negative   form   of  their 

testimony. 

billman  vs.  McDaniel,  222  111.  291  ;  C.  B.  &  Q.  R.  R  Co.  vs.  Cauff- 
mann,  38  IIJ.  424;  Rockwood  vs.  Poundstone,  38  111.  199. 


POSSESSION  997 

— ■Circumstances  May  Be  Considered:  "While  the  unreasonable- 
ness or  absurdity  of  a  line  of  conduct,  or  of  acts  claimed,  is  not 
sufiicient  to  overcome  positive  evidence  that  the  line  of  conduct 
was  pursued  or  tliat  the  acts  were  done,  yet,  if  the  evidence  be  so 
imperfect  or  conflicting  that  the  truth  cannot  be  clearly  perceived, 
the  unreasonableness  or  absurdity  of  what  is  claimed  to  have  been 
the  conduct  or  acts  of  the  parties  may  W  of  controlling-  importance. 
Kuowles  vs.  Knowles,  86  111.  1;  Parkiu  vs.  C.  P.  &  St.  L.  Ey.  Co., 
149  App.  421. 

—  Want  of  Recollection:     The  statements  of  a  witness  that  he 

does  not  remember  having  an  alleged  conversation  with  another, 

will  not  be  regarded  as  a  contradiction  of  the  affirmative  testimony 

of  the  latter  that  such  conversation  was  had. 
VanPelt  vs.  Hutchinson,  114  111.  435. 


POSSESSION 

See  Payment,  Title,  Trespass,   Trover^  Ejectment,   Owner- 
ship, Cloud  on  Title. 
Presumptions : 

—  Chattels  Generallij:  Party  in  possession  of  personal  property 
is  presumed  to  be  the  owner  of  it,  possession  being  one  of  the 
strongest  evidences  of  title  to  personal  property. 

Gilbert  vs.  Natl.  Cash  Kegister,  176  111.  288;  Comer  vs.  Comer,  120 
111.  420;  Peters  vs.  Smith,  42  111.  417;  Bergen  vs.  Eiggs,  34  111, 
170;  Eoberts  vs.  Haskell,  20  111.  59;  Downey  vs.  Arnold,  97  App.  91. 

Likewise  possession  of  agent. 

Barton  vs.  People,  135  111.  405. 

When  possession  and  ownership  are  shown  to  exist  they  are  pre- 
sumed to  continue  but  are  not  presumed  to  have  existed  back  of 
the  time  they  were  proven  to  have  existed. 
Eengel  vs.  Schoden,  178  App.  151. 

—  Negotiable  Instruments:  Possession  of  a  negotiable  instru- 
ment is  prima  facie  evidence  of  ownership  by  the  possessor. 

Kavanaugh  vs.  Bank  of  America,  239  111.  404;  Henderson  vs.  Danis- 
son,  157  111.  379;  Brownell  vs.  Dixon,  37  111.  198;  Henry  vs.  Eddy, 
34  111.   508;   Burnap  vs.   Cook,   32   111.   168. 
When  a  note  past  due  is  in  the  hands  of  the  maker,  the  law 
will  presume  from  this  fact  alone,  unexplained,  that  it  has  been 
paid. 

Shippen  vs.   Whittier,   117   111.   282;    Zimpleman  vs.   Deeder,   80   111. 

614;  Walker  vs.  Douglas,  70  111.  445;  Teeter  vs.  Poe,  48  App.  158. 

But  the  presumption  does  not  arise  where  the  debtor  had  the 

means  of  obtaining  possession  of  or  cancelling  obligation  other 

than  by  paying  it. 

Grimes  vs.  Hilliary,  150  111.  141 ;  Teeter  vs.  Poe,  48  App.  158. 
Possession  of  mortgage  by  mortgagee  is  prima  facie  evidence 

of  ownership  of  notes  secured.  ^  ,  ^    ,  ^     m 

Mantonya  vs.  Outfitting  Co.,  172  111.  92 ;  Morris  vs.  Cat.  Dock  Co.,  91 

App.  437. 


998  POSSESSION 

The  possession  of  a  promissory  note  in  the  hands  of  the  payee, 
unexplained,  is  prima  facie  evidence  that  it  has  not  been  fully 
paid. 

Lewis  vs.  Lewis,  150  App.  354;  Kitter  vs.  Schenk,  101  111.  387;  Stuiu- 
baugh  vs.  Hallam,  48  111.   306. 

Where  an  attorney,  bringing  a  suit  upon  a  promissory  note, 
produces  same  at  the  trial,  this,  of  itself,  affords  a  strong  presump- 
tion of  his  authority  to  sue  upon  it. 

Eeed  vs.  Curry,  35  111.  536;   Williams  vs.  Butler,  35  111.  544. 

—  Title  to  Real  Property:  It  is  presumed  that  a  claimant  of 
property  who  is  in  possession,  holds  the  title  thereto. 

Glos  vs.  Huey,  181  111.  149;  Harland  vs.  Eastman,  119  111.  22. 

In  an  action  to  quiet  title,  proof  of  possession  under  claim  of 
ownership,  is  prima  facie  evidence  of  such  ownership  in  the  claim- 
ant so  in  possession. 

Euppe  vs.  Glos,  243  111.  414;  Glos  vs.  Huey,  181  111.  149. 

—  Continuance  of  Possession  of  Peal  Property:  On  proof  of  a 
person's  possession  of  land  at  a  particular  time,  there  may  be  a 
presumption  of  a  continuance  of  such  possession  thereafter,  but 
not  of  prior  possession. 

Glos  vs.  Kemp,  192  111.  72;  White  vs.  White,  105  111.  313. 

Where  a  party  in  possession  of  land  conveys  same,  in  absence 

of  proof  to  contrary,  it  will  be  presumed  that  the  grantee  continued 

in  the  possession  of  same  as  the  grantor  had  done  before. 
Shell  vs.  German  Coal  Co.,  139  111.  21. 

—  Corporate  Stock:  Possession  of  stock  certificates,  endorsed 
in  blank,  is  prima  facie  proof  of  ownership. 

Coffey  vs.  Coffey,  179  111.  283. 

—  Delivery  of  Deeds:    Where  a  deed  duly  executed  is  found  in 

the  possession  of  the  grantee  named  therein,  it  is  presumed  to  have 

been  properly  delivered. 

Spencer  vs.  Eazor,  251  111.  278;  Schroeder  vs.  Smith,  249  111.  574; 
Inman  vs.  Swearingen,  198  111.  437;  Dunlop  vs.  Lamb,  182  111. 
319;  McCann  vs.  Atherton,  106  111.  31. 

—  Of  Stolen  Property:  The  possession  of  property  recently 
stolen  is  prima  facie  evidence  that  the  person  in  possession  com- 
mitted the  theft.  The  rule  in  regard  to  possession  of  stolen 
property  immediately  after  the  theft  being  evidence  of  guilt 
applies  in  cases  of  burglary  as  wtII  as  cases  of  larceny. 

People  vs.  Everett,  242  111.  628;  People  vs.  Deluce,  237  111.  541; 
Williams  vs.  People,  196  111.  173;  Magee  vs.  People,  139  111.  138; 
Langford  vs.  People.  134  111.  444;  Smith  vs.  People,  103  111.  82; 
Sahliuger  vs.  People,  102  111.  241 ;  Comfort  vs.  People,  54  111.  404. 

But  possession  of  stolen  property  immediately  after  the  theft,  in 
order  to  be  prima  facie  evidence  of  guilt,  must  be  exclusive  and 
such  as  to  indicate  that  the  possessor  took  the  property.  And  if 
the  place  where  the  goods  were  foujid  was  accessible  to  others  cap- 
able of  stealing,  the  inference  cannot  be  drawn,  though  the  fact  is 
entitled  to  consideration  in  connection  with  other  facts  in  the 
case.  The  presumption  arising  from  the  possession  of  recently 
stolen  property  may  be  overcome  by  the  proof  of  any  facts  incon- 
sistent with  the  theory  of  guilt,  such  as  the  good  character  of  the 
accused,  or  his  conduct  at  the  time  he  was  found  in  possession. 
The   presumption   of  guilt   which   arises  from   the   possession   of 


PRESCRIPTION  999 

goods  recently  stolen  may  be  rebutted  by  an  explanation  or  account 
given  by  the  accused  as  to  how  he  acquired  the  possession.  And 
the  burden  is  not  upon  accused  to  satisfactorily  explain  such  recent 
possession. 

Miller  vs.  People,  229  111.  376;  Watts  vs.  People,  204  111.  2.33; 
Conkwright  vs.  People,  35  111.  204;  Cf.,  Padfield  vs.  People,  14U 
111.  (360. 

Admissibility  of  Evidence: 

—  Real  Property:  Where  a  party  is  in  the  actual  possession  of 
a  part  of  a  tract  or  a  piece  of  land,  claiming  to  be  the  owner  of  it, 
the  paper  title  under  which  he  claims  is  evidence  of  the  extent  of 
his  possession. 

Poole  vs.  City  of  Lake  Forest,  238  111.  305. 
The  nature  of  one's  possession  may  be  as  well  characterized  by 
his  acts  as  by  oral  declarations.  It  is  not  essential  that  there  should 
be  proof  that  the  party  in  possession  made  oral  declarations  of 
claim  of  title,  but  it  is  sufficient  if  the  proof  shows  that  he  has  so 
acted  as  to  clearly  indicate  that  he  did  claim  title.  No  mere  words 
could  more  satisfactorily  assert  a  claim  of  title  than  a  continued 
exercise  of  acts  of  ownership  over  the  property.  Using  and  con- 
trolling property  as  owner  is  the  ordinary  mode  of  asserting  a 
claim  of  title,  and  it  is  the  only  proof  of  which  a  claim  of  title  to 
a  very  large  proportion  of  property  is  susceptible. 

Lyons  vs.  Stroud,  257  111.  350 ;  Kich  vs.  Naffziger,  248  111.  455. 

A  witness  may  be  asked  who  was  in  *'the  possession"  and  who 
was  "in  control"  of  premises.  Any  inference  necessarily  involv- 
ing certain  acts  may  be  stated  without  the  facts,  when  the  inference 
is  equivalent  to  a  specification  of  facts.  Control  is  a  statement  of 
collective  facts  involving  management  and  acts  of  ownership.  If 
it  is  desired  to  know  on  what  witness  founded  his  conclusions 

of  facts,  such  inquiry  may  be  made. 

Knight  vs.  Knight,  178  111.  553;   Fisher  vs.  Beimehoff,  121  111.  426. 

Transfer  of  possession  may  be  proven  by  parol. 

Eich  vs.  Naffziger,  255  111.  98;  Weber  vs.  Anderson,  73  111.  439. 

—  Personal  Property:  Party  may  prove  acts  of  his  own  tend- 
ing to  show  character  of  claim  after  he  took  possession  as  owner. 

Martin  vs.  Duncan,  181  111.  120. 


PREJUDICE 

See  Bias  and  Hostility,  Credibility,  Cross  Examination. 


PREPONDERANCE 

See    Evidence,    Penalties,    Reasonable   Doubt,    Weight   and 
Sufficiency,  Reformation  of  Instruments. 


PRESCRIPTION 

See  Dedication. 


1000  PRESUMPTIONS 

PRESUMPTIONS 

DEFINED. 

Presumptions  are  inferences  which  common  sense  draws  from 
the  known  course  of  events,  or  from  circumstances  usually  occur- 
ring in  such  cases. 

Sears  vs.   Vaughn,   230   111.   572;    Merchants  Bank  vs.    Nichols,   123 
App.  430;  XII  111.  Notes  476,  §23. 
Presumptions  are  inferences  as  to  the  existence  of  facts  drawn 
from  existence  of  some  other  fact. 

Garner  vs.  Chi.  Trac.  Co.,  150  App.  149. 

Legal  presumptions  are  rules  estahlished  hy  the  common  law  or 
statute,  and  are  founded  upon  the  first  principles  of  justice  or  the 
laws  of  nature,  or  the  experienced  course  of  human  conduct  and 
affairs,  and  the  connection  usually  found  to  exist  between  certain 
things. 

Where  one  fact  is  proven  or  ascertained,  another,  its  uniform 
concomitant,  is  universally  and  safely  presumed;  it  is  this  uni- 
formly experienced  connection  which  leads  to  its  recognition  by 
law,  without  other  proof.  Many  of  these  presumptions  are  con- 
clusive because  they  have  been  found  to  be  so  general  and  uniform 
as  to  render  it  expedient  for  the  common  good  and  this  connec- 
tion should  be  taken  to  be  inseparable  and  universal.  They  have 
been  adopted  hy  common  consent  from  motives  of  public  policy, 
for  the  sake  of  greater  certainty,  and  the  promotion  of  the  quiet 
and  peace  of  community,  and  therefore,  all  opposing  evidence  is 
forbidden. 

McCagg  vs.  Heacock,  34  111.  476, 

EFFECT. 

A  presumption  of  fact  has  the  force  and  effect  of  a  prima  facie 
ease  and  relieves  temporarily  the  party  in  whose  favor  it  arises 
from  presenting  further  evidence.  It  is  not  evidence  of  itself  but 
a  legal  rule  or  conclusion  which  may  be  rebutted  directly  by  evi- 
dence or  shown  not  to  apply  to  the  particular  facts  in  the  case. 
Seilback  vs.  Grothman,  248  111.  435. 

Legal  presumptions  do  not  shift  the  burden  of  proof.     Their 

only  effect  is  to  create  the  necessity  of  evidence  to  meet  the  prima 

facie  case  created  thereby,  and  which,  if  no  proof  to  contrary  is 

offered,  will  prevail. 

Helbig  vs.  Citizens'  Ins.  Co.,  234  111.  251. 

As  a  general  rule  the  burden  of  proof  rests  upon  the  party  who 

would  be  defeated  if  no  evidence  at  all  w^ere  offered. 
Stephens  vs.  St.  L.  Union  Trust  Co.,  260  111.  364. 

The  mere  existence  of  a  fact  wliieh  must  be  affirmatively  shown 

is  never  presumed  from  the  mere  absence  of  facts  showing  the 

negative. 

Rumbold  vs.  Eoyal  League,  206  111.  513. 

Primarily,  a  rebuttable  legal  presumption  affects  only  the  burden 

of  proof,  but  if  that  burden  is  shifted  back  upon  the  party  from 

whom  it  first  lifted  it,  then  the  presumption  is  of  value  only  as  it 

has  probative  force,  except  it  be  that  on  the  entire  case  the  evidence 

is  equally  balanced,  in  which  event  the  arbitrary  power  of  the 


PRESUMPTIONS  1001 

presumption  of  law  would  settle  the  issue  in  favor  of  the  proponent 
of  the  presumption. 

Bradsliaw  vs.  People,  153  111.  156. 
Regarded  in  its  evidential  aspect,  a  given  presumption  of  law 
may  have  either  more  or  less  of  probative  value,  dependent  upon 
the  character  of  the  presumption  itself,  and  upon  the  circumstances 
of  the  particular  case  in  which  the  issue  uu\y  arise.  Some  legal 
presumptions  are  more  probable  and  inherently  stronger  than 
others.  So,  also,  differing  circumstances  may  give  differing  de- 
grees of  probability  to  one  and  the  same  legal  presumption. 
Graves  vs.  Cohvell,  90  III.  612. 

HOW  MUST  ARISE. 

The  facts  from  which  a  presumption  is  to  arise  nuist  be  estab- 
lished by  direct  evidence  as  if  they  were  the  very  facts  in  issue. 
Chicago  vs.  Carlin,  141  App.  118. 

Presumptions  are  derived  from  the  circumstances  of  the  case 

through   common  experience   and   the   ordiriary   reasoning  powers 

without  the  aid  of  artificial  rules  of  law. 
Sonntag  vs.  O'Hara,  73  App.  432. 

Where  there  is  clear  and  incontestable  proof  of  a  fact,  no  pre- 
sumptions can  be  indulged  except  such  as  arise  from  the  proof. 
C.  B.  &  Q.  By,  Co.  vs.  Patteu,  74  111.  91. 

PRESUMPTION  ON  PRESUMPTION. 

One  presumption  cannot  be  the  basis  for  a  second  presumption; 
that  is,  a  presumption  of  fact  is  not  alone  a  legitimate  foundation 

for  a  second  presumption  of  fact.  J  . 

Keavern   vs.   People,   224   111.   170;    Condon  vs.    SchoenfeW,   214   111. 

226;  111.  Steel  Co.  vs.  Bycyzuski,  106  App.  331;   Morris  vs.  J.  St. 

L.  R.  E.  Co.,  10  App.  389;  Smith  vs.  E.  St.  L.  Ey.  Co.,  169  App. 

132;  XII  111.  Notes  476,  §  23. 

For  there  is  no  open  and  visible  connection  between  the  facts 

out  of  which  the,  first  presumption  arises  and  the  fact  sought  to 

be  established  by  the  dependent  presumption. 

Such  a  mode  of  arriving  at  a  conclusion  of  fact  is  generally,  if 
not  universally,  inadmissible.  No  inference  of  fact  or  of  law  is 
reliable,  drawn  from  premises  which  are  uncertain.  Whenever  cir- 
cumstantial evidence  is  relied  upon  to  prove  a  fact,  the  circum- 
stances must  be  proven,  and  not  themselves  presumed. 
Globe  Ace.  Ins.  Co.  vs.  Gerisch,  163  111.  625. 

PARTICULAR  PRESUMPTIONS. 
Abbreviations : 

Initial  letter  of  name  will  be  presumed  to  be  an  abbreviation  of 

full  name.  A 

Feld  vs.  Loftus,  240  111.  105;  Lee  vs.  Mendall,  40  111.  359;  Cf.  Elves 
vs.  Mars,  25  Dl.  350. 
There  is  no  presumption  of  sex  from  the  use  of  initials. 
People   vs.    Martin,   180   App.   578. 

Abduction: 

That  female's  previous  life  and  conversation  were  chaste. 

Bradshaw  vs.  People,  153  111.  156;  Slocum  vs.  People,  90  111.  274. 

Absent  Witness: 

The  unexplained  failure  to  call  and  examine  as  a  witness  a  per- 
son who  has  knowledge  of  the  facts  in  issue,  and  who,  under  the 
circumstances,  would  be  expected  to  be  produced,  and  is  avail- 


1002  PRESUMPTIONS 

able,  gives  rise  to  a  presumption  against  the  party.     ''This  rule 

does  not  apply  where  the  omission  is  to  call  a  witness  who  might 

equally  as  well  have  been  called  by  the  other  party." 

Village  of  Princeville  vs.  Hitchcock,  101  App.  588;  Amer.  Steel 
Foundry  vs.  Kistner,  136  Ap^).  48. 

Where  neither  party  to  a  civil  suit  calls  an  available  witness, 
whatever  presumption  will  be  indulged  from  the  failure  to  call 
such  witness  will  be  against  the  party  to  whose  interests  such  wit- 
ness would  most  likely  incline. 

Zimmermaiin  vs.  Zimmermaiin,  149  App.  231. 

Accident : 

The  mere  happening  of  an  accident  does  not  raise  presumption 
of  nesflisrence. 

O'Caliagban  vs.  Delhvood  Park,  242  111.  336;  E.  &  S.  Trac.  Co.  vs. 
Wilson,  217  111.  47;  Kennedy  vs.  C.  &  C.  Coal  Co.,  180  App.  42; 
XllI  JIL  Notes  953,  §§141  et  seq. 

Account  Stated: 

In  ordinary  business  transactions,  if  an  account  is  transmitted 
from  one  party  to  another  and  no  objection  is  made,  in  a  reason- 
able time,  it  will  be  presumed  to  be  a  stated  account. 

State  vs.  I.  C.  E.  E.  Co.,  246  111.  188;   Wurlitzer  vs.  Dickerson,  153 
App.  36;  Pickham  vs.  I.  I.  &  M.  Ey  Co,  153  App.  288;  Green  vs. 
Smith,  52  App.   158. 
Will  be  presumed  to  be  made  up  of  legal  and  proper  items. 

Sutphen  vs.  Cnshman,  35  111.   186. 
Assent  of  parties  that  account  is  correct  may  be  presumed  from 

circumstances. 

Neagle  vs.  Herbert,  73  App.  17. 

Account  sent  in  usual  and  customary  way  is  presumed  to  have 

been  duly  received. 

Dick  vs.  Zimmerman,  105  App.  615. 

Acknowledgment : 

—  Certificate:    Is  presumptive  evidence  of  the  material  facts 
'  therein  stated,  limited  to  those  matters  to  which  officer  is  required 

to  certify. 

Walker  vs.  Shepard,  210  111.  100;  Warrick  vs.  Hull,  102  111.  280; 
Hagan  vs.  Waldo,   168  111.   646. 

—  AutJiority  to  Take:     A  justice  of  the  peace  in  a  sister  state 

is  not  presumed  to  have  power  to  take  acknowledgment. 
Buckmaster  vs.  Job,  15  111.  328. 

—  Seal:  Presumption  is  that  notary  attached  his  official  seal, 
where  his  certificate  so  recites  and  original  deeds  are  not  produced. 

Baker  vs.  Baker,  159  111.  394. 

Ademption : 

Where  difference  between  amount  of  legacy  and  sum  paid  to 

legatee  by  testator  in  his  lifetime,  after  making  of  will,  is  slight, 

legacy  is  presumed  adeemed. 

Tanton  vs.  Keller,  167  111.  129. 

Adjournment  of  Court: 

Presumed  to  be  regular. 

White  vs.   People,  81  111.   333. 

Adoption : 

Jurisdiction  will  not  be  presumed. 

Kennedy  vs.  Borah,  226  111.  243;  Watts  vs.  Dull,  184  111.  86; 
Cf.  Barnard  vs.  Barnard,  119  111.  92. 


PRESUMPTIONS  1003 

Special  act  providing  for  adoption  of  child  and  making  it  lieir 
is  presumed  to  have  been  enacted  at  request  of  adopting  parents. 

Sales  vs.  Christy,   187  111.  420. 

Adultery : 

Innocence  presumed. 

Jenkins  vs.  Jenkins,  86  111.  340;  Carter  vs.  Carter,  62  111.  439; 
Port  vs.  Port,  70  111.  484. 

Advancements : 

Presumption  is  that  conveyance  of  hushand  to  wife  is  by  way 
of  advancement. 

Lewis  vs.  McGrath,  191  111.  401;  Stubbings  vs.  Stubbings,  248  111. 
406. 

But  such  presumption  is  not  conclusive. 

Baekseits  vs.  Leicbtweis,  256  111.  357. 

Or  where  money  is  paid  by  parent  and  conveyance  taken  in  name 
of  child,  presumption  is  that  of  advancement. 

Brennaman  vs.  Schell,  212  111.  356;  Euans  vs.  Curtis,  190  111.  197. 

Adverse  Possession : 

Cannot  be  made  out  by  inference  or  implication. 

Horn  vs.  Metzger,  234  111.  240;  White  vs.  Harris,  206  111.  584. 

AUbi: 

—  As  to  Time  Pieces:  Wliere  an  alibi  depends  vitally  upon 
accuracy  of  different  time  pieces,  presumption  is  of  slight  discrep- 
ancy in  time  pieces  rather  than  untruthfulness  of  witnesses. 

Painter  vs.  People,  147  111.  444. 

—  Failure  to  Prove:  Should  create  no  presumption  against 
defendant. 

Miller  vs.   People,   39   111.   457. 

Alterations  and  Erasures: 

—  Date  of  Alteration:  The  law  indulges  no  presumption  as  to 
when  a  change  in  a  written  instmment  was  made,  but  requires  the 
party  offering  an  altered  instrument  in  evidence,  if  the  alteration 
is  material,  to  explain  such  alteration  satisfactorily  to  the  court, 
before  the  instrument  will  be  admitted  in  evidence. 

Gage  vs.  City  of  Chicago,  225  111.  218;  Catlin  Coal  Co.  vs.  Lloyd, 
180  111.  398;  Milliken  vs.  Marlin,  66  111.  13;  DeLong  vs.  Soueie, 
45   App.    234. 

—  Apparent:  An  alteration  apparent  on  the  face  of  note  must 
be  presumed  prima  facie  to  have  been  made  after  the  instrument 
was  executed,  and  the  burden  of  proof  is  upon  holder  to  show 
contrary. 

Lowman  vs.  Auberry,  72  111.  619;  McAllister  vs.  Avery,  17  App. 
568 ;  Hodge  vs.  Gilman,  20  111.  437 ;  Schwartz  vs.  Herrenkind, 
26    HI.    209. 

The  law  presumes  alteration  was  made  after  deed  was  executed, 
and  it  is  for  party  claiming  under  it  to  show  it  was  not,  or  other- 
wise explain  it. 

Pyle  vs.  Oustatt,  92  111.  209;  Montag  vs.  Lynn,  23  111.  551;  Sisson 
vs.  Pearson,  44  App.   81. 

In  absence  of  explanation,  alteration  of  contract  presumed  to 

have  been  subsequent  to  execution  and  delivery  of  instrument. 
Walters  vs.  Short,  10  HI.  252. 

Erasure  of  material  words  in  a  proposed  contract  is  presumed 

to  have  been  made  for  a  definite  purpose. 
Wilson  vs.  Espert,  90  App.  117. 


1004  PRESUMPTIONS 

Ancient  Documents : 

Due  execution  presiimod. 

Koch  vs.  Streuter,  232  111.  594;  Smith  vs.  Eankin,  20  111.  14. 
The  existence  of  a  valid  power  of  attorney  will  be  presumed  in 
favor  of  ancient  deed  whicli  purports  to  be  executed  by  attorney 

in  fact. 

Renter  vs.  Stuekart,  181  111.  529;  Cf.  Fell  vs.  Young,  63  111.  106. 

—  Genuineness:  Presumed  to  be  genuine  without  express  proof 
of  execution,  if  found  in  proper  custody,  and  free  from  just 
grounds  of  suspicion  and  corroborated  by  evidence  of  ancient  or 
modern  corresponding  enjoyment  or  by  other  equivalent  or  ex- 
planatory proof.  In  such  case,  witnesses  to  instrument  are  pre- 
sumed to  be  dead  and  instrument  is  presumed  to  have  constituted 
a  part  of  the  actual  transfer  of  the  property  mentioned  in  it. 

Eeuter  vs.  Stuekart,  181  111.  529. 

A  party  producing  such  papers  must  do  everything  in  his  power 

to  raise  presumption  of  genuineness. 
Smith  vs.  Rankin,  20  111.   14. 

—  Puhlw  or  Statutory  Poiver  to  Make:  Jurisdiction  of  trib- 
unal ordering  document  to  be  made  must  be  shown. 

Koeh  vs.  Streuter,  232  111.  594 ;  Fell  vs.  Young,  63  III.  106. 

Anti-Saloon  Territory : 

Presumption  is  that  votes  cast  at  election  to  provide  for  were 

legal. 

People  vs.  Walker,  154  App.  3;   People  vs.  Joyce,  154  App.   13. 

Animals : 

—  Vicious:  The  keeping  of  an  animal  known  to  be  vicious, 
likely  to  attack  and  injure  men,  is,  of  itself,  such  negligence  as 
will  render  the  keeper  liable  for  injuries  done  by  it. 

Ahlstrand  vs.  Bishop,  88  App,  424;  Hammond  vs.  Melton,  42  App. 
186. 

—  Savage  Beasts:  Owner  is  conclusively  presumed  to  have 
notice  of  dangerous  and  vicious  character. 

Ahlstrand  vs.  Bishop,  88  App.  424 ;  We.st  Chi.  St.  Ey.  Co.  vs.  Walsh, 
78  App.  595;   Moss  vs.  Partridge,  9  App.  490. 

Ante-Nuptial  Contract: 

If  provision  made  is  disproportionate  to  means  of  intended 
husband,  presumption  is  raised  in  favor  of  wife,  that  execution  of 
agreement  was  brought  about  by  designed  concealment  by  in- 
tended husband  of  amount  of  property  owned  by  him. 

Miner  vs.  Phee,  254  111.  60;  Warner  vs.  Warner,  235  111.  448;  Col- 
bert, vs.  Rings,  231  111.  404;  Murdock  vs.  Murdock,  219  111.  123; 
Achilles  vs.  Achilles,  151  111.   136. 

Apportionment  of  Debts: 

Presumed  that  court  made  just  and  equitable  apportionment  to 

each  party  concerned. 

Dauel  vs.  Arnold,  201  111.  570. 

Arbitration  and  Award: 

Every  reasonable  intendment  and  presumption  is  in  favor  of 

validity  of  award. 

McDonald  vs.  Bond,  195  111.  122;  Seaton  vs.  Kendall,  171  111.  410; 
Haywood  vs.  Harmon,  17  HI.  477 ;  XI  111.  Notes  376,  §  63. 

No  presumption  will  be  indulged  to  overthow  it. 

Merritt  vs.  Merritt,  11  111.  565;   Shear  vs.  Mosher,  8  App.  119. 


PRESUMPTIONS  1005 

—  Matters  Suhmitted:  An  award  will  be  presumed  to  be  with- 
in terms  of  siil)mission. 

Hubbard  vs.  Fiiiuan,  29  111.  90. 
And  if  submission  be  general  and  award  of  one  or  more  things 
only,  it  will  be  presumed  that  nothing  else  was  before  arbitrators. 
Tucker  vs.   Page,  69   HI.    179. 

—  Adjournment:  Adjournment  will  be  presumed  to  have  been 
for  good  cause,  in  absence  of  contrary  showing. 

Poppers  vs.  Knight  69  App.  578. 

Assent : 

— -Of  Shipper:  Where  a  contract  limiting  the  liability  of  car- 
rier is  contained  in  a  bill  of  lading,  which  is  both  receipt  and  con- 
tract, presumption  is  that  consignor  did  not  assent,  although  signed 

by  him. 

Wabash  E.  R.  Co.  vs.  Thomas,  222  111.  337 ;  C.  C.  C.  &  St.  L.  Ey.  Co. 
vs.  Patton,  203  111.  376. 

—  Conveyance:     When  conveyance  is  voluntary  settlement,  or 

to  one  not  sui  juris,  assent  will  be  presumed. 

Spencer  Vs.  Razor,  251  111.  278;  Baker  vs.  Hall,  214  111.  364;  Chap- 
lin vs.  Nott,  203  111.  341;  Chilvers  vs.  Race,  196  111.  71. 
If  deed  creates  a  liability  against  the  grantee  or  imposes  any 
obligation   upon  him,   an   acceptance   cannot  rest  upon   any  pre- 

sumptiort.''''^*  ^^  '^' 

Hill  vs.  Kreiger,  250  111.  408;  Thompson  vs.  Dearborn,  107  111.  87. 

Attorneys : 

—  AulhurUij:     Presumed   that   an   attorney   was   authorized   to 

represent  a  party. 

People  vs.   Parker,  231  111.  478;   Patterson  vs.   N.   Trust  Bank,   230 
111.    334;    Ferris    vs.    Com.    Nat.    Bank,    158    111.    237;    Cigler    vs. 
Keinath,  167  App.  65;  Woodard  vs.  Donovan,  167  App.  503;  XI  HI. 
Notes  486,  §  52. 
Where  record  of  a  case  in  which  judgment  is  rendered  shows 
an  appearance  by  attorney,  that  is  regarded  as  presumptive  evi- 
dence of  authority  of  attorney  to  act. 

Famous  Mfg.  Co.  vs.  Wilcox,  180  111.  246. 
'  Attorneys  of  record  are  presumed  to  have  all  the  general  powers 
that  the  law  infers  from  the  relation. 

Cameron  vs.   Stratton,   14  App.   270. 

'  But  otherwise  of  an  attorricy  not  of  record. 
'  '  Cameron  vs.  Stratton,  14  App.  270. 

—  Negligence:  There  is  no  presumption  that  an  attorney  is 
guilty  of  want  of  care  arising  merely  from  his  failure  to  be  suc- 
cessful.   He  is  entitled  to  presumption  that  he  has  done  his  duty. 

Priest  vs.  Dodsworth,  235  111.  613. 

Dealings  and  Contracts  with  Clients:     A  contract  made  by 

an  attorney  with  his  client  in  relation  to  the  interest  acquired  by 
him  in  the  subject  matter  of  pending  litigation  is  presumptively 

fraudulent.  .    ' 

Reed  vs.  Boyle,  234  HI.  105;  Day  vs.  Wright,  233  111.  218;  Fran- 
cisco vs.  Dove,  231  111.  402;  Willin  vs.  Burdette,  172  111.  117; 
Roby  vs.  Colehour,  135  111.  300. 

Bailment:  ^ 

Wliere  goods  are  placed  in  hands  of  bailee  in  good  condition, 


1006  PRESUMPTIONS 

and  returned  in  damaged  state  or  not  returned  at  all,  negligence 

will  be  presumed. 

Edgerton  vs.  C.  E.  I.  &  P.  Ey.  Co.,  240  111.  311;  Funkhouser  vs. 
Waggoner,  62  111.  59;  C.  &  A.  E.  E.  Co.  vs.  P.  &  P.  U.  Ey.  Co., 
157  App.  583 ;  Hudson  vs.  Bradford,  91  App.  -lb.     But  see  Bryan 

■'■''•  vs.  C.  &  A.  Ey.  Co.,  169  App.  181. 

Banks  and  Banking: 

—  Deposit:     Is  presumed  to  be  general. 

Meadowcroft  vs.  People,  163  111.  56;  Wetherell  vs.  O'Brien,  140  111. 
146;  Mut.  Ace.  Assn.  vs.  Jacobs,  141  111.  261. 

—  Signature:    A  bank  is  presumed  to  know  the  signature  of  a 

depositor. 

Chi.  Natl.  Bank  vs.  N.  W.  Bank,  40  App.  640, 

Bastardy: 

In  bastardy,  it  being  proven  that  the  woman  gave  birth  to  a 

child  at  a  given  date,  it  may  be  presumed  that  child  was  born  alive 

and  is  still  living. 

Mann  vs.  People,  35  111.  467;  Lewis  vs.  People,  87  App.  588, 

Bill  of  Exceptions: 

In  chancery,  presumed  to  contain  all  evidence,  but  not  so  in  law. 
Eyan  vs.  Sanford,  133  111.  291. 

Boundaries : 

The  adoption  of  a  division  line  may  be  presumed  from  acts  and 

declarations  of  parties  and  their  acquiescence  for  a  considerable 

time. 

Sonneman  vs.  Murtz,  221  111.  362;  Sheets  vs.  Sweeney,  136  111.  336; 
Fisher  vs.  Bennehoff,  121  111.  426;  Thomas  vs.  Sayles,  63  111.  363. 

Breach  of  Promise: 

Where  there  is  a  general  promise  to  marry,  law  will  imply  that 
it  is  to  be  performed  within  a  reasonable  time, 
Blackburn  vs.  Mann,  85  111.  222. 

Buildings : 

Are  presumed  to  be  part  of  realty, 
Goff  vs.  O 'Conner,  16  111.  421. 

Carriers : 

—  Injury  to  Passenger:  If  an  injury  to  passenger  is  caused 
by  apparatus  wholly  under  control  of  carrier,  and  furnished  and 
applied  by  it,  and  the  accident  is  of  such  character  as  does  not 
ordinarily  occur  if  due  care  is  used,  law  raises  presumption  of 
negligence,  but  this  presumption  arises  from  the  nature  of  the 
accident   and   attending  circumstances,    and   not   from  the   mere 

fact  of  the  accident  itself. 

O'Callaghan   vs.   Dellwood  Park,   242   111.   336;    Barnes  vs.   Danville 
St.  Ey.  Co.,  235  111.  566 ;  McFadden  vs.  C.  E.  I.  &  P.  Ey.  Co.,  149 
App.  298;   E.  A.  &  S.  Tlac.  Co.  vs.  Wilson,  217  111.  47;   XI  111. 
Notes  801,  §460. 

—  Injury  to  Goods:  Proof  of  failure  of  goods  to  arrive  at  des- 
tination raises  presumption  against  carrier  of  want  of  ordinary 
care,  and  burden  shifts  to  carrier  to  rebut  such  presumption  by 
proof  sufficient  to  exculpate  it  from  negligence  attributable  to 
it  from  fact  of  non-arrival  at  destination. 

Ellison  vs.  Adams  Express  Co.,  152  App.  1. 
A  common  carrier  is  an  insurer  of  goods  entrusted  to  it,  and 
accountable  for  loss  thereof  or  any  damage  thereto,  vmless  shown 
to  have  happened  by  act  of  God  or  the  public  enemy,  or  to  have 


PRESUMPTIONS  1007 

been  occasioned  by  act  of  shipper  or  some  one  in  his  employ ;  burden 
of  proving  exoneration  is  upon  carrier. 

Mahaffy  vs.  Wise.  Cent.  Ey.   Co.,  147  App.  43. 

Presumption  is  that  merchandise  was  in  good  condition  at  time 
of  receipt. 

Euddell  vs.  B.  &  O.  Ry.  Co.,  152  App.  218:  Ry.  Co.  vs.  Cobb,  72 
111.    148, 

—  Continuance  of  Relation:  Where  relation  of  common  car- 
rier is  once  shown,  continuance  of  that  relation  will  be  presumed, 
and  burden  is  upon  carrier  who  desires  to  show  that  his  liability 
as  such  had  terminated  at  time  of  loss. 

P.  &  P.  U.  Ey.  Co.  vs.  U.  S.  Eoll.  Co.,  136  111.  643. 

—  Routing:  Where  a  shipment  of  goods  is  received  by  carrier 
for  transportation,  over  a  route  designated  by  shipper,  presumption 
arises,  in  absence  of  contrarv,  that  sucli  routing  w^as  over  lines  with 
which  the  carrier  had  theretofore  made  its  own  arrangements  and 
rates. 

Fry  vs.  Sou.  Pacific  Ry.  Co.,  247  111.  564. 

Character : 

In  both  civil  and  criminal  cases,  good  character  is  presumed. 

Kelly  vs.  People,  229  111.  81;   Stowell  vs.  Beagle,  79  111.  525. 

Chattel  Mortgages: 

Presumption  is  that  party  who  acknowledged  mortgaged  con- 
taining words  "acknowledged  before  me  by  mortgagor,"  was  resi- 
dent of  town  where  same  was  taken. 

Gilbert  vs.  Natl.  Cash  Eeg.  Co.,  176  111.  288. 

Check : 

Presumption  obtains  that  a  check  is  given  in  payment  of  an 
existing  debt,  or  that  money  was  paid  for  it  at  the  time. 

Miller  vs.  Pratz,  179  App.  204;  Kinahan  vs.  Butler,  133  App.  459; 
McKenzie  vs.  Barrett,  148  App.  414;  Chestnut  vs.  Chestnut,  15 
App.  390. 

Circuit  Judges: 

Where  a  circuit  judge  is  holding  court  in  another  circuit  than 
his  own,  though  record  does  not  show  why,  it  will  be  presumed  he 

is  doing  so  rightfully. 

Morgan  vs.  Coiies,  81  111.  72;  Reitz  vs.  People,  77  111.  518;  Scott  vs. 
White,  71  111.  287. 

Claims  Allowed: 

Will  be  presumed  to  be  valid  and  that  estate  was  liable  for  same. 
Outright  vs.  Stanfford,  81  111.  240. 

But  if  it  appears  from  the  face  of  the  account,  that  items  were 
improperly  allowed,  no  such  presumption  will  sustain  them. 

Marshall  vs.  Coleman,  187  111.  556;  Bond  vs.  Lockwood,  33  111.  212. 

Color  of  Title: 

Will  be  presumed  to  have  been  acquired  in  good  faith. 

Keeney  vs.  Glos,  258  111.  555;  Peabody  vs.  Burri,  255  111.  592;  God- 
frey vs.   Dickison  Power  Co.,  228   111.   487;    Dawson  vs.   Edwards, 
189  111.  60;   Taylor  vs.  Hamilton,  173  111.  392;   XI  111.  Notes  75, 
§  115. 
In  bill  to  remove  cloud  from  title,  every  presumption  will  be 
indulged  in  favor  of  holder  of  legal  title  and  as  against  him  no 
presumption  in  favor  of  holder  of  color  of  title  will  be  raised. 

Towle  vs.  Quante,  246  111.  568;  LeSoud  vs.  Edwards,  236  111.  169; 
White  vs.  Harris,  206  111.  584. 


1008  PRESUMPTIONS 

Commissions : 

la  an  action  by  a  broker  selling  on  commission  the  customer  will 

be  presumed  to  be  responsil)le. 

Kalinos  vs.   MeCready,   180  App.  325. 

Common  Law: 

Will  be  presumed  to  be  in  force  in  a  sister  state. 

Forsyth  vs.  Barnes,  228  111.  326;  Scliolteu  vs.  Barber,  217  111.  148; 
Eobinson  vs.  Tetter,  143  App.  172;  Edwards  vs.  SchiUinger,  148 
App.  227;  Schlee  vs.  Guckeuheimer,  179  111.  593;  Xll  111.  Notes 
477,  §  33. 

Compromise  and  Settlement: 

— ■R(Cfii)t:     In  full,   is  presumptive  evidence  that  on  date  of 

same  parties  made  full  settlement  and  adjustment  of  their  accounts. 
Burns  vs.  Middleton,  104  111.  411;   Marstou  vs.  Wilcox,  2  111.  269. 

—  Promissory   Note:     The    giving   of   a   note,    of   itself,    unex- 
plained, is  not  presumed  to  be  a  settlement  of  all  demands. 

Eosencrantz  vs.  Mason,  85  III.  262;  Ankeny  vs.  Pierce,  1  111.  262. 

It  is  a  matter  of  intention. 

Eayfield  vs.  Tincher,  180  App.  454. 

Confusion  of  Goods: 

Mingled  by  consent,  presumption  is  that  parties  intended  to  hold 
mass  as  tenants  in  common. 

Dole  vs.   Olmstead,   36   111.   397. 

Consideration : 

Seal  is  presumptive  evidence  of  a  suf^eient  consideration. 

Mills  vs.  Larrance,  186  111.  635;  Euppert  vs.  Frauenkneclit,  146  App. 
397. 

—  Promissory  Note:     Consideration  presumed. 

McMickan   vs.   Safiford,   197   111.   540. 

—  Contract:     The  law  presumes  that  consideration  agreed  upon 

is  adequate. 

Ullsperger  vs.   Myer,   217   111.   262. 

Contested  Elections: 

Presumed  that  election  .judges  performed  their  duty. 
Dooley  vs.  Van  Hohenstein,  170  111.  630. 

—  Eight  to  Vote:     A  person  whose  vote  is  received  by  officers 
in  charge,  will  be  presumed  to  have  been  a  legal  voter. 

Blankenship  vs.  Israel,  132  111.  514;  Webster  vs.  Gilmore,  91  111.  324. 
Presumption  of  right  to  vote  arises  from  act  of  voting. 
Collier  vs.  Ahnlicher,  189  111.  34. 

—  Illegal  Voting:     Will  not  be  presumed. 

Dorsey  vs.  Brigham,  177  111.  250.  (See  Welsh  vs.  Shumway,  232.111. 
54,  that  ])resuniption  is  college  student  is  not  a  legal  voter.) 

—  Party  Affiliation:     Proof  of,  raises  presumption  that  voter 

voted  for  nominee  of  his  party. 

Eexroat  vs.  Schein,  206  111.  80. 

Continuance : 

—  //(  General:     Where  the  existence  of  a  state  of  things  is  once 

established  by  proof,  the  law  presumes  that  such  state  of  things 

continues  to  exist  as  before  until  the  contrary  is  shown  or  until  a 

different  presumption  is  raised  from  the  nature  of  the  subject  in 

question. 

Glos  vs.  Perkins,  188  111.  467 ;  XII  111  Notes  477,  §  34. 


PRESUMPTIONS  1009 

"Where  a  fact  or  relation  is  once  shown  to  exist,  it  will  be  pre- 
sumed, in  general,  to  continue  until  contrary  is  shown. 

Linc'k  vs.  Litchfield,  141  111.  4(39;  liiigor  vs.  McKay,  44  App.  79. 

Note :     This  presumption   has   been   applied   to :    Possession   of 

personal  property. 

Beigeuer  vs.  Leppold,   128  App.  590. 

Real  property. 

Glos  vs.  Kemp,  192  111.  72  j  White  vs.  White,  105  111.  313. 

Matrimonial  state. 

Stoiitonboiough  vs.  Russell,   123  App.  487. 

But  there  is  no  presumption  of  prior  existence  of  such  relation 

from  proof  of  present  existence. 
Erskine  vs.  Davis,  25  111.  251. 

Health. 

Draves  vs.  People,  97  App.   151. 

Residence 

People  vs.  Estate  of  Moir,  207  111.  180. 

Insanity. 

Stitzel  vs.  Farley,  148  App.  635;  Titconib  vs.  A^an  Tyle,  84  111.  371; 
Severus  vs.  Broii'ey,  155  App.   10. 

But  is  not  conclusive. 

In   re    Estate   of   Weedman,    254   111.    504;    County   of   iNIcHenry   vs. 
Town  of  Dorr,  39  App.  240;  Taylor  vs.  Pegram,  151  111.  106. 

Ownership  of  real  property. 

Eggers  vs.  Hardwick,   155  App.   254. 

Solvency  of  building  and  loan  association. 
Col.  B.  &  L.  Assn.  vs.  Kriet,  87  App.  51. 

Defective  condition  of  machinery. 

Pioneer  Cooj^erage  Co.  vs.  Eonianovrie?,  186  111.  9. 

Ordinance  still  in  force. 

St.   L.   A.   &   T.   E.   R.   Co.   vs.   Eggman,   161    111.    155;    Earlville   vs. 
Riley,   141  App.  359. 

Foreign  statute  still  in  force. 

Miami  Powder  Co.  vs.  Tlotehkiss,   17  App.  622. 

Continuance  of  life. 

Reedy  vs.  Millizen,  155  111.  636;   C.  &  A.  E.  E.  Co.  vs.  Keegan,  185 

111.  70;   Lowe  vs.  Foulke,   103  111.  58. 

Presumption  is  that  one  who  has  been  twice  married  has  not 

committed  a  criminal  offense  and  this  presumption  of  innocence 

prevails  over  the  presumption  of  continuance  of  life  of  former 

spouse.  '  •'  ;■• 

Stein  vs.  Stein,  66  App.  526;  Johnson  vs.  Johnson,  114  111.  611. 

Good  standing  of  member  of  beneficiary  association. 
Eoyal  Circle  vs.  Acliterrath,  204  III.  549. 

Market  price  next  day. 

Nash  vs.  Classem,  55  App.  356. 

Terms  of  contract  for  services. 

Hears  vs.  O  'Donoghiie,  58  App.  345. 

Closed  gates  along  railroad  right  of  wav. 
C.  &  A.  Ey.  Co.  vs.  Patterson,  72  App.  428. 
Place  where  body  was  found  after  explosion  raises  no  presump- 
tion that  deceased  was  there  before. 

Drennan  vs.  C.  &  C.  Coal  Co.,  241  111.  610. 
There  is  no  presumption  that  things  were  in  the  past  in  the  con- 
Ev.— 64 


1010  PRESUMPTIONS 

dition  that  they  are  in  the  present.     The  presumption  runs  for- 
ward, not  backward. 

Cantwell  E.  B.  Co.  vs.  Horst,  61  App.  330. 

Rule  is  applicable' to  possession  and  ownership. 

Kengel  vs.  Schoder,   178  App.  151. 

Proof  of  a  certain  state  or  condition  of  things  at  a  given  time 

will  raise  a  presumption  of  fact  strong  enough  to  support  a  finding 

that  it  continued  for  a  longer  or  shorter  time  thereafter,  or  until 

shown  to  be  changed  according  to  the  nature  and  surroundings 

of  the  subject. 

C.  &  A.  Ey.  Co.  vs.  Patterson,  72  App.  428. 

Presumption  does  not  prevail  that  land  vacant  and  unoccupied 
three  years  prior  to  filing  of  bill  to  remove  cloud  is  vacant  at  time 
of  filing, 

Glos  vs.  Perkins,   188  HI.  467. 

It  is  doubtful  whether  such   presumption   of  continuance   will 

prevail  when  applied  to  an  annual  office  like  that  of  city  attorney. 
Linck  vs.  City  of  Litchfield,  141  111.  469. 

Continuance  of  Cause: 

AVhere  transcript  fails  to  show  reason,  presumption  is  the  con- 
tinuance M'as  granted  by  justice  for  legal  cause. 
Subin  vs.  Isidor,  88  App.   98. 

Contracts : 

—  Contents:     A  written  contract  is  presumed  to  embody  all  the 

agreements  of  the  parties. 

Grubb  vs.  Milan,  249  111.  456;  Farrar  vs.  Hinch,  20  111.  647. 

And  that  party  signing  knew  its  contents, 
Kingman  vs.  Eeinemer,  166  111.  208. 

And  that  possessor  of  document  knew  its  contents. 
Kogan  vs.  Arnold,  135  App.  287. 

—  Delivery:     Presumption   is  that   contract   was   delivered   on 

day  of  its  date. 

City  of  Paxton  vs.  Bogardus,  201  111.  628. 

—  Legality:     There  is  no  presumption  that  contract  is  illegal  or 

criminal. 

Clemens  vs.  Crane,  234  111.  215. 

The  presumption  of  law  is  in  favor  of  legality  of  a  contract,  and 

therefore,  if  it  be  reasonably  susceptible  of  two  meanings, — one 

lawful  and  the  other  not, — that  interpretation  shall  be  given  it 

which  will  support  and  give  it  operation. 
Paul  vs.  Paul,  71  App.  671. 

—  Freedom  of  Parties:     Presumption  is  in  favor  of  freedom  of 

parties  to  contract  with  reference  to  particular  matter  in  hand. 
Schaeppi  vs.  Bartholomae,  118  App.  316. 

—  Performance:  It  is  presumed  a  contract  is  to  be  performed 
where  it  is  made,  unless  contrary  appears. 

Lewis  vs.  Headly,  36  111.  433. 
Of  second  contract,  in  absence  of  proof,  presumed  to  be  on  same 

terms  as  first. 

Bacon  vs.  Cobb.  45  111.  47. 

—  Interest  of  Parties:     A  contract  is  presumed  to  express  actual 

and  entire  interest  of  parties. 

Carpenter  vs.  Plagge,  1-92  111.  82. 


PRESUMPTIONS  1011 

—  Rescission:  Of  former  contract  is  presumed  where  evidence 
shows  later  inconsistent  contract. 

Gray  vs.  B.  &  O.  Ey.  Co.,  120  App.  159:   Stowe  vs.  Eussell,  36  111. 
18. 

—  Foreign   State:     Contract  made   in   foreigTi   state  presumed 

made  in  accordance  with  laws  of  such  state. 
Miller  vs.  Wilson,  146  111.  523. 

Where  a  contract  is  to  be  performed  in  a  sister  state,  it  must 

be  presumed  that  the  parties  contracted  with  reference  to   the 

laws  of  such  state  where  contract  is  to  be  performed,  rather  than 

with  reference  to  the  laws  of  the  state  where  contract  was  made. 
Abt  vs.  American  Bank,  159  111.  467. 

Conveyance : 

Where  a  party  conveys  land  which  he  does  not  own,  but  does 
own  other  land  in  the  same  section,  presumption  is  he  intended 
to  convey  land  he  owned. 

Caldwell  vs.  McGee,  162  App.  171;  Dougherty  vs.  Purdy,  18  HI.  206. 

Corporations: 

—  De  Facto:  An  association  may  be  regarded  as  a  de  facto 
corporation  when  there  is  a  law  authorizing  the  creation  or  corpo- 
rations of  its  class  and  powers,  and  where  there  is  an  attempt  in 
good  faith  to  comply  with  the  law. 

Cozzens  vs.  Chi.  Brick  Co.,  166  111.  213;  Marshall  vs.  Keach,  227  111. 
35;   Dean  and  Son  vs.  W.  B.  Conkey  Co.,   180  App.   162. 

—  Execution  of  Instrument:  Execution  of  instrument  by  de- 
fendant to  plaintiff  as  corporation  is  presumptive  evidence  of  ex- 
istence of  corporation. 

West   Side  Auction   Co.  vs.   Conn.   Ins.  Co.,   186   111.   156;    Smith  vs. 
Mayfield,  163  111.  447;  Brown  vs.  Mortgage  Co.,  110  111.  235. 

Where  instrument  is  duly  executed  by  one  having  authority, 
the  seal  used  will  be  presumed  to  be  proper  seal. 
Phillips  vs.  Coffee,  17  111.   153. 

—  Certificate  of  Stock:  Issued  by  secretary,  is  presumptive 
evidence  of  its  regularity. 

Hall  vs.  E.  H.  &  E.  Co.,  70  111.  673. 

Holder  under  assignment  is  presumed  to  be  rightfully  in  pos- 
session. 

Coffey  vs.  Coffey,  179  HI.  283. 

—  Capital  Stock  Subscription:  All  presumed  to  be  on  same 
basis. 

Melvin  vs.  Lamar  Ins.  Co.,  80  111.  446. 
Final  certificate  of  complete  incorporation  is  prima  facie  proof 
that  the  full  amount  of  capital  stock  has  been  subscribed. 

McCoy    vs.    Columbian    Exposition,    186    111.    356;    Jewell    vs.    Eock 
Eiver  Paper  Co.,  101  111.  57. 

—  Authority  of  President:    An  act  pertaining  to  the  business 

of  a  corporation,  not  clearly  foreign  to  the  general  power  of  the 

president,  done  through  him,  will,  in  absence  of  proof  to  contrary, 

b«  presumed  to  have  been  authorized  to  have  been  done  by  the 

corporate  body. 

Traders  Ins.  Co.  vs.  Johnson,  200  HI.   359;   Glover  vs.  Lee,  140  111. 
102;   Anderson  Transfer  Co.  vs.  FViller,   174  111.   221. 

—  Stock-Holders  Meetings:     Due  notice  will  be  prc^sumed. 

Cushman  vs.  111.  Starch  Co.,  79  111.  281;  Forest  Glen  Co.  vs.  Gade, 
55  App.  181. 


J,' 


1012  PRESUMPTIONS 

County  Judges:  ;  ^.u..^^ 

"Where  a  county  judge  is  holding  court  in  another  county  than 
his  own,  though  the  record  does  not  show  why,  it  will  be  presumed 
he  is  doing  so  rightfully. 

Strieker   vs.  Kubiisky,   35  App.    159. 

Customs  and  Usages : 

—  Foreign  Countries:     Courts  presume  that  customs  of  foreign 
countries  are  the  same  as  those  of  its  own  jurisdiction. 

Dempster  vs.  Stei^ben,  63  App.  126. 

—  Contraet:  AVhere  a  general  custom  exists,  the  presumption 
is  that  parties  contract  wdth  reference  to  it.'  ''f't  or  -.  -U/i 

Steidtman  vs.  Lay  Co.,  234  111.  84;  Taylor  vs.  Bailey,  169  111.  181; 
Cbisholm  vs.  Beaman  Mach.  Co.,  160  III.  101;   Myers  ys.  Walker, 

24    111.     134;    XII    111.    Notes    7,     §22.  rr,o-A    ^r+fPrr     p,     a- 

,  Where  a  territorial  or  local  custom  is  involved,  it  is  regarded  as 

aving  entered  into  contracts  of  those  domiciled  in  the  locality, 

and   perhaps   of   those   permanently   engaged   in   business   in   the 

locality  where  the  custom  exists.  :  2ii 

Swern  vs.  ChurchiU,  155  App.  505. 

Damages : 

In  action  for  wrongful  death,  where  relation  of  husband  and 
wife,  or  parent  and  child  exists,  the  law  presumes  pecuniary  loss 

from  fact  of  death.  ^^-^ 

Fischer  vs.  C.  &  W.  I.  E.  R-X::)©'.;  171  App.  347;  N.  Chi.  St.  Ey.  Co. 
vs.  Brodie,  156  111.  317. 

And  where  deceased  left  lineal  descendants,   damages  will  be 

presumed. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Dukeman,  130  App.  105. 

Pecuniary  loss  to  a  mother  who  is  entitled  to  earnings  of  minor 
son,  will  be  presumed  without  proof. 
Bradley  vs.   Sattler,   156   111.   603. 

"Where  deceased  is  a  minor  and  leaves  father  entitled  to  his 
services,  law  presumes  pecuniary  loss  from  his  death. 

C.  &  E.  I.  E.  E.  Co.  vs.  Huston,  196  111.  480;  Savage  vs.  Hayes  Bros., 
142  App.  316;  City  of  Chicago  vs.  Seholton,  75  111.  468;"  Stafford 
vs.  Eeubeus,  115  111.  198. 
But  where  next  of  kin  are  collateral  kindred  of  deceased,  and 
have  not  been  receiving  pecuniary  assistance  from  him,  and  are 
Qot  in  a  situation  to  recpiire  it,  it  is  immaterial  how  near  the  rela- 
tionship may  be,  only  nominal  damages  can  be  given. 

Dukeman  vs.  C.  C.  C.  &  St.  L.  E.  E.  Co.,  237  111.   104;   Ehoads  vs. 
l,)0-i.  C    &  A.  E.  E.  Co.,  227  111.  328;' Eomeo  vs.  Western  Coal  Co.,  157 

App.  67 ;  Smiley  vs.  E.  St.  L.  &  S.  Ey.  Co.,  169  App.  29. 

Where  it  appears  deceased  left  a  father  and  mother^  a  presump- 
tion of  pecuniarv  loss  will  be  indulged.  ^qs"-!  lo/r 

Grace  &  Hyde  Co.  vs.  Strong,  127  App.  336;   Huss  vS.  P.  &  E.  Ey. 

,    Co.,   127  App.  242. 

Where  relation  of  parent  and  child  exists,  law  presumes  a  pecun- 

ia,ry  loss  from  death  of  child. 

City  of  Chicago  v.  Keefe,  114  111.  222;  McKechney  vs.  Eedmond, 
94  111.  470;  Nordhaus  vs.  Vandalia  B.  E.  Co.,  147  App.  274; 
Economy  L.  &  P.  Co.  vs.  Sheriaan,  103  App.  145. 

If  relation  of  next  kin  is  lineal,  law  presumes  pecuniary  loss 

from  fact  of  death. 

C.  p.  &  St.  L.  Ey.  Co.  vs.  Woolridge,  174  111.  330.. 


PRESUMPTIONS  1013 

The  law  presumes  damage  to  have  resulted  to  adult  children  from 

the  death  of  their  mother. 

Eautinau  vs.  Chi.  Con.  Co.,  156  App.  457. 
It  is  only  where  the  relation  of  next  of  kin  are  parent  and  child 
or  husband  and  wife  that  the  law  presumes  damages  from  proof 

of  death  caused  by  negligence. 

C.  B.  &  Q.  Ry.  Co.  vs.  Gunderson,  174  111.  495;  C.  &  N.  W.  Ry.  Co.  vs. 

Swett,  45  111.  197. 

In  action  on  benefit  certificate,  providing  for  payment  of  the 

amount  thereof  if  an  assessment  would  yield  that  amount,  the 

damages  are  presumed  to  be  the  full  amount  of  such  certificate,  in 

absence  of  contrarv  proof. 

Gov.  Mut.  Life.  Ins.  Co.  vs.  Kentner,  188  111.  431;  Pegi-am  vs.  Mut. 
Prot.  League,  159  App.  214. 

—  Violation  of  Right:    Where  the  evidence  shows  a  violation 
of  plaintiff's  rights,  actual  damages  will  be  presumedo 

Blanchard  vs.   Burbank,   16  App.   375. 
Where  there  is  any  distinct  legal  wrong,  which  in  itself  consti- 
tutes the  invasion  of  the  right  of  another,  the  law  will  presume 
that  some  damage  follows,  as  a  natural,  necessary  and  proximate 

rGsult 

Polar  Wave  lee  Co.  vs.  111.  H.  S.,  155  App.  316;  C.  W.  D.  Ry.  Co. 
vs.  Rend,  6  App.  243;  McConnell  vs.  Kibbe.  33  111.  175. 
Where  defendant  has  wrongfully  invaded  and  trespassed  plain- 
tiff's rights,  without  authority,  proof  of  damages  is  not  necessary 

as  same  will  be  presumed. 

Sanitarium  vs.  Kenilworth,  220  111.  264;  Brent  vs.  Kimball,  60  111. 
211;  Pfeiffer  vs.  Grossman,  15  111.  53;  Plumleigh  vs.  Dawson,  6  111. 
544;   Polar  Wave  lee  Co.  vs.  Humane  Soc,  155  App.  310.^ 

—  Slander:  The  law  presumes  damages  from  the  speaking  of 
actionable  words  and  also  that  the  speaker  intended  the  injury 

the  slander  is  calculated  to  effect. 
Baker  vs.  Young,  44  111.  42. 
— Bonds:     In  action  for  breach  of  bond  for  payment  of  money, 

introduction  of  bond  does  not  make  prima  facie  case. 
Barrett  vs.  Building  Assn.,  75  App.  98. 

In  action  on  penal  bond,  the  introduction  of  the  bond  makes  a 
prima  facie  case  for  plaintiff  for  full  amount,  as  debt,  and  if  inter- 
est after  maturity  is  recoverable,  that  should  be  allowed  as  damages. 

Hoxsey  vs.  Patterson,  59  111.  522. 

Date: 

—  Deed:     Date  of  a  deed  will  be  presumed  to  be  true  date  of 

execution. 

Darst  vs.  Bates,  51  111.  439. 

And  delivered  on  such  date. 

Kimball  vs.  City  of  Chicago,  253  111.  105;  Bennett  vs.  Milliard,  239 
111.   332;    Redman  vs.   Cass,   226   111.   120;   Walker  vs.  Doane,   131'' 
111.  27. 
But  where  deed  conveys  homestead  there  can  be  no  presumption 
that  the  deed  was  delivered,  on  the  day  it  bears  date  if  the  date  of 
the  deed  is  prior  to  date  of  acknowledgment. 
Callegan  vs.  Callegan,  259  111.  52. 
Acknowledgment  will  not  be  presumed  to  be  date  of  execution 

when  deed  recites  otherwise. 

Jayne   vs.   Gregg,   42   111.   413.  jjiici. 


1014  PRESUMPTIONS 

—  Officer's  Certificate:    Presumption  is  that  certificate  of  public 

officer  was  made  on  day  of  date. 

Kepley  vs.  Scully,  185  111.  52. 

—  Contract:     Presumption   is   that   contract  was   delivered   on 

day  of  its  date. 

City  of  Paxton  vs.  Bogardus,  201  111.  628. 

—  Note:     It  will  be  presumed  that  undated  indorsement  was 
made  at  date  of  note. 

DeClerque  vs.  Campbell,  231  111.  442;   Gridley  vs.  Capen,  72  111.  H; 
Kingslaud   vs.   Koeppe,   137   111.   344. 
And  where  without  date,  presumption  is  that  assignment  was 

of  date  of  note. 

Cook   vs.    Norwood,    106    111.   558;    Smith    vs.    Newlin,    89    111.    193; 
White  vs.  Weaver,  41   111.  409;   Johnson  vs.  Loar,   145  App.  443; 
Bussey  vs.  Hemp,  48  App.  195. 
Is  presumed  assignee  purchased  before  maturity. 

Freehold  Bank  vs.  K.  &  W.   Co.,   148  App.   310. 
Abstracts  of  Title:    An  abstract  is  presumed  to  have  been 

made  and  signed  at  its  date. 

C,  &  A.  R.  E.  Co.  vs.  Keegan,  152  111.  413. 

Death : 

—  Cause:    In  absence  of  proof  of  cause  of  death,  natural  causes 

will  be  presumed. 

Knights  Templars  vs.  Crayton,  209  111.  550;  F.  &  C.  Ins.  Co.  vs. 
Wiese,  182  111.  496;  Amer.  Home  Circle  vs.  Schneider,  134  App. 
601. 

—  Seven  Years'  Absence:  The  unexplained  absence  of  a  person 
from  home  without  having  been  heard  from  for  seven  years  by 
those  who  would  naturally  have  heard  from  him  had  he  been  alive, 
though  diligent  efforts  have  been  made  to  find  him,  raises  a  pre- 
sumption of  death. 

Donovan  vs.  Major,  253  HI.  179;  Kennedy  vs.  Modern  Woodmen, 
243  111.  560;  Policemen's  Ben.  Assn.  vs.  Eyce,  213  111.  9;  Hintz 
vs.  Ahlgren,  170  111.  60;  Eeedy  vs.  Millizen,  155  111.  636;  Johnson 
vs.  Johnson,  114  111.  611;  Modern  Woodmen  vs.  Graber,  128  App. 
585;  XII  111.  Notes  54,  §2. 

—  Continuance  of  Life:    Presumed  to  continue  to  end  of  seven 

years. 

Eeedy  vs.  IMillixen,  155  HI.  636;   Sinsheimer  vs.  Skinner  Mfg.  Co., 

165  HI.   116. 
But  this  only  in  event  of  absence  of  contravening  facts  or  con- 
trolling presumptions. 

.Johnson  vs.  Johnson,  114  111.  611. 
But  death  of  husband  or  wife  may  be  presumed  when  the  other 
spouse  has  married  a  second  time,  thus  allowing  the  presumption 
of  innocence  to  prevail  over  that  of  continuance  of  life. 
Cartwright  vs.  McGown,   121  111.  388. 
And  it  is  not  necessary  that  absence  should  continue  over  seven 

years. 

Johnson  vs.  .Johnson,  114  111.  611;  Harris  vs.  Harris,  8  App.  o7. 

A  person  who  gave  a  power  of  attorney  is  presumed  to  have  been 

alive  five  years  later. 

C.  &  A.  E.  Co.  vs.  Keegan,  185  HI.  70. 
And  where  it  is  shown  that  a  certain  person  was  living  some  years 


PRESUMPTIONS  1015 

before  time  of  suit,  no  presumption  will  be  indulged  that  he  has 

since  died. 

Lowe  vs.  Foulke,  103  111.  58;    Mosheimer  vs.  Ussleman,  36  111.  232. 

And  in  bastardy  proceedings  where  child  is  shown  to  have  been 
once  alive,  will  be  presumed  to  be  alive  at  time  of  trial. 
Lev.is  vs.   People,   87   App.   588. 

Declarations; 

Against  interest,  are  presumed  to  be  true. 
German   Ins.   Co.  vs.  Bartlett,   188  111.   165. 

Decree  in  Chancery: 
Presumed  still  in  force,  in  absence  of  evidence  to  contrary. 

Murphy  vs.   Orr,  32   111.  489. 

Where  evidence  is  taken  orally,  trial  court  is  presumed  to  be 
better  judge  of  credibility  and  sufficiency  of  evidence  than  Supreme 

Court. 

Sehoonmaker  vs.  Pluinmer,  139  111.  612;   Towle  vs.  Wadsworth,   147 

111.  80. 

Dedication : 

May  be  presumed  from  length  of  user  and  acquiescence  of  owner. 

Alden  Coal   Co.  vs.  Challis,  200  111.  222. 
An  acceptance  by  city  or  village  of  some  of  the  streets  and  alleys 
appearing  on  a  plat  is  presumed  to  be  an  acceptance  of  the  entire 
system  of  streets  and  alleys  unless  intention  to  limit  is  shown. 
Kimball  vs.  City  of  Chicago,  253  111.  105. 
Such  presumption  is  not  conclusive. 

Moore  vs.  City  of  Chicago,  261  111.  56. 

Deeds : 

—  Construction:  Wliere  a  deed.is  made  to  two  or  more  grantees 
without  designating  the  proportion  each  is  to  take,  the  law  pre- 
sumes they  were  intended  to  take  equal  shares  and  they  Avill  be 
considered  as  tenants  in  common  with  equal  interests,  until  con- 
trary is  shown. 

Kuepper  vs.  Mette,  239  111.  586. 
Where  grantees  in  deeds  have  same  surname,  if  there  is  no  evi- 
dence showing  they  were  father  and  son,  it  will  not  be  presumed 

that  such  relation  existed. 

Weber  vs.  C.  &  W.  I.  R.  R.  Co.,  246  111.  464. 
Where  a  deed  is  made  to  one  of  two  persons  bearing  the  same 
name  being  father  and  son,  convevance  is  presumed  to  be  to  father. 
'      Dot>  vs.  Doty,  159  111.  46;  Fyffe  vs.  Fyffe,  106  111.  646;  Graves  vs. 
Colwell,  90  111.  612. 
The  law  presumes,  in  absence  of  contrary  proof,  that  a  deed  is 
what  it  purports  to  be,  an  absolute  conveyance. 
Bartoletti  vs.  Hoerner,  154  App.  336. 
A  deed,  properly  acknowledged,  is  presumed  to  be  a  valid  in- 
strument. 

Smith  vs.  Kenny,  89  App.  293. 

Knowledge  of  Contents:     Presumption  is  that  a  grantor,  able 

to  write  could  read  writing,  and  to  have  known  contents  of  his  deed. 
Kennedy  vs.  Kennedy,  194  111.  346;  Doran  vs.  Mullen,  78  111.  342. 

—  Possession  and  Delivery:  Where  a  deed  duly  executed  is 
found  in  possession  of  grantee  named  therein,  it  is  presumed  to 

have  been  properly  delivered.  „        .  -.no  m 

Schroeder  vs.  Smith,  249  111.  574;   Inman  vs.  Swearmgen,   198   iU. 
437;   Dunlop  vs.  Lamb,   182  111.  319. 


1016  PRESUMPTIONS 

Reservation  of  life  estate  creates  a  presumption  that  it  was  in- 
tended deed  should  take  eit'ect  immediately. 

Buc-k  vs.  Garber,  2(51  ill.  378;  Prince  vs.  Prince,  258  111.  304. 

—  Date  of  Delivery:     Presumption  is  that  deed  was  delivered 

on  day  of  it.s  date. 

Kimball  vs.  City  of  Chicago,  2,53  111.  105;  Bennett  vs.  Milliard,  239 
111.  332;  Kedmon  vs.  Cass,  226  111.  120. 

But  is  not  conclusive. 

Kimball  vs.  City  of  Chicago,  253  111.  105;  Whitman  vs.  Henneberry, 
73  111.  109.     (See  Trusts,  Delivery,  AcKNOWLEWiMENTs.) 

—  Parent  and  Child:  Presumption  in  favor  of  delivery  of  deed 
from  parent  to  child  in  case  of  voluntary  settlement,  is  stronger 
than  in  ordinary  cases  of  bargain  and  sale. 

Thurston  vs.  Tubbs,  257  111.  465;   Valter  vs.  Blavka.   195  111.  610; 
Crabtree   vs.   Crabtree,   159   111.   342. 

—  Recordation:  Proof  that  a  deed  has  been  recorded  is  prima 
facie  evidence  that  it  has  been  delivered  by  the  grantor. 

Spencer  vs.  Eazor,  251  ill.   278;   Schroeder  vs.   Smith,  249  111.  574; 
Ackerman  vs.  Potter,  239  111.  578;  Calkins  vs.  Calkins,  220  111.  111. 
But  if  the  deed  creates  a  lia1)ility  against  the  grantee  or  imposes 
any  oljligation  upon  him  an  acceptance  cannot  rest  upon  any  pre- 
sumption but  the  acceptance  must  be  of  an  affirmative  character. 
Hill  vs.  Kreiger,  250  111.  408;  Thompson  vs.  Dearborn,  107  111.  87. 
— 'Execution:     After  long  acquiescence  .in  partition,  execution 

of  partition  deeds  is  presumed. 

Lovalle  vs.  Strebel,  89  111.  370. 
The  date  of  a  deed  will  be  presumed  to  be  the  true  date  of  its 

execution. 

Darst  vs.  Bates,  51  111.  439;  Jayne  vs.  Gregg,  42  111.  413. 

Deliberation : 

A  person  is  presumed  to  do  deliberately  A\hat  he  does,  circum- 
stances in  no  way  intervening  to  control. 
Larmon  vs.  Knight,  140  111.  232. 

Depositions : 

Interrogatories  to  be  propounded  will  be  presumed  to  have  been 
filed  before  date  fixed  for  issuance  of  dedimus. 
Haish  vs.  Dreyfus,  111  App.  44. 

Descent  and  Distribution: 

Person  dying  intestate  presumed  to  leave  heirs  capable  of  suc- 
ceeding to  his  estate.  ^,,    ,^^ 
Harvey    vs.    Thornton,    14   111.    217;    Fell    vs.    Young,    63   111.    106; 
Chicago  vs.  Major,  18  111.  349. 

Destruction  and  Suppression  of  Evidence : 

Where  one  has  destroyed  a  wa-itten  instrument,  it  will  be  pre- 
sumed that  it  was  against  interest  of  spoliator. 

Tanton  vs.  Keller,  167  111.  129;  Downing  vs.  Pate,  90  111.  268;  XII 
111.  Notes,  478,  §  40. 

No  presumption  against  party  failing  to  introduce  Ms  adver- 
sary 's  declarations. 

Law  vs.  Woodruff,  48  111.  399. 
Evidence  that  son  had  possession  of  father's  papers  after  his 
death,  and  deposited  them  in  a  bank,  does  not  raise  presumption 
that  he  destroyed  or  suppressed  notes  and  books  showing  amounts 
advanced  to  liim  by  his  father,  where  there  is  no  competent  evi- 
dence that  such  notes  or  books  existed. 
Scott  vs.  Scott,  191  111.  628. 


PRESUMPTIONS  1017 

Due  Care: 

Where  the  fact  is  not  susceptible  of  direct  proof  it  may  be  in- 
ferred from  circumstances  and  phiintiff  may  be  aided  by  the  pre- 
sumption that  a  person  does  not  voluntarily  incur  danger  or  the 
risk  of  death.  But  that  does  not  affect  the  question  where  tlie 
burden  of  proof  rests.  In  a  case  where  a  person  is  killed  and 
there  are  no  eye  witnesses  to  the  accident  there  is  no  dispute  that 
the  burden  of  proof  rests  upon  the  plaintiff  to  show  due  care  on 
part  of  deceased,  but  if  there  are  no  eye  witnesses  and  no  direct 
proof,  he  is  entitled  to  the  beueiit  of  the  presumption,  which,  how- 
ever, must  be  aided  by  other  proof. 

C.  &  E.  T.  Rv.  Co",  vs.  Heerey.  203  III.  492;  Collison  vs.  I.  C.  R.  R.  Co., 
239  111.   532;    Newell   vs.  C.   C.  C.  &   St.  L.  Ry.  Co.,  261  111.   505. 

Divorce : 

—  Fact  of:  Sometimes  presumed  in  favor  of  second  marriage, 
when  reasonable  time  and  opportunity  to  procure  one  is  shown. 

Cartwright  vs.   McGown,    121    111.   888. 

—  Condonaiion:  Presumed  from  unexplained  delay  in  pro- 
ceeding for  relief. 

Hitchins  vs.  Hitchins,  140  111.  326. 

Elections: 

The  presumption  in  reference  to  giving  of  notice  which  attends 
an  election  under  general  law  does  not  obtain  in  case  of  a  special 

election. 

Southwerth  vs.  Board  of  Education,  238  111.   181. 
Presumption  is,  in  absence  of  evidence  to  contrary,  that  judges 
performed  their  duty  and  made  proclamation. 

Dooley  vs.  VanHolienstein,  170  111.  633. 

Embezzlement : 

If  a  man  commits  the  act  of  embezzlement,  presumption  is  that 

he  means  to  embezzle. 

Spalding  vs.  People,   172  111.  40. 

Employment : 

—  Nature  and  Time  of:     A  general  hiring  will  be  presumed  to 

be  at  will. 

Davis  vs.  Fidelity  Ins.  Co.,  208  111.   375;   Vogel  vs.  Pekoe,   157  111. 
339;   Orr  vs.  Ward,  73  111.  318;  Bougliam  vs.  Paul,  138  App.  455. 

But  such  presumption  may  be  rebutted  by  admissions  of  parties. 

Doerr  vs.  Brune,  56  App.  675. 
Continuing  to  render  services  in  an  employment  after  expiration 
of  a  definite  term,   raises  presumption  of  new  hiring  upon   like 

terms. 

Glucose  Sugar  Co.  vs.  Flinn,  184  111.  123;  Ingalls  vs.  Allen,  132  111. 
170;  Morgan  vs.  McCaslin,  114  App.  427;  Molina  Plow  Works  vs. 
Booth,  17  App.  345. 
An  employment  generally,  fixing  no  term  of  service,  which  con- 
tinues for  several  years,  will  he  treated  as  a  hiring  by  the  year. 
Miller  vs.  Cinnemon,  168  111.  447. 
The  terms  of  a  written  contract  for  services  will  be  presumed 
to  continue  from  year  to  year  so  long  as  the  employment  lasts, 

until  contrary  is  shown. 

Mears'  vs.   O'Donoghue,   58   App.    345. 
But  if  employe  receives  notice  of  reduction  of  wages  thereafter 
to  be  paid,  and  continues  in  service  without  objection,  presumption 
will  be  that  he  consented  to  new  terms  and  performed  services 

thereunder. 

Crane  Mfg.  Co.  vs.  Adams,  142  111.  125. 


1018  PRESUMPTIONS 

But  such  presumption  does  not  arise  where  after  the  termination 
of  the  services  under  the  contract,  the  employer  requested  the  em- 
ploye to  do  certain  other  work,  at  a  different  place,  but  at  the  same 
price,  especially  when  request  is  made  after  considerable  time  has 
elapsed  after  completion  of  service  under  agreement, 
lugalls  vs.  Allen,   132   111.   170. 

Proof  that  services  were  of  slightly  different  character  or  were 
performed  at  a  dilt'erent  place  is  not  sufficient  to  overcome  pre- 
sumption arising  from  a  continuation  in  employment. 
Ingalls  vs.  Allen,   132  111.   170. 

No  time  being  fixed,  the  presumption  is  that  the  services  were 
to  begin  at  once  or  within  a  reasonable  time  after  the  execution  of 

the  contract. 

Barnard  vs.  Babbitt,  54  App.  62. 
—  As  to  Compensation:     Where  extra  work  and  labor  is  per- 
formed or  materials   furnished  of  the   same   character  as   other 
portions  agreed  in  special  contract,  it  will  be  presumed  that  the 
additional  work  was  to  be  paid  for  at  the  same  rate,  but  not  if  the 

work  is  of  a  different  character. 

Chicago  &  G.  W.  E.  Co.  vs.  Vosburg,  45  111.  311. 

Presumption   is   that  services  rendered  by   one   admitted   into 

family  were  gratuitous.  ^,,    ^^^ 

Hefron  vs.  Brown,   155  111.  322;   Collar  vs.   Patterson,   137   lU.  403. 

But  this  presumption  may  be  overcome  and  reverse  established 
by  proof  of  express  or  implied  contract. 
Keyes  vs.  Thornton,  150  App.  523. 

Equitable  Defense: 

The  mere  fact  that  a  note  was  sold  for  a  discount  will  not,  of 
itself,  be  sufficient  to  raise  a  presumption  of  notice  of  equitable 
defense,  where  note  was  assigned  before  maturity  for  a  valuable 

consideration. 

Kimmel  vs.  Nagle,  84  App.  22. 

Examination  of  Title: 

It  is  presumed,  in  judicial  sale,  that  purchaser  wall  examine  the 
title  with  the  same  care  that  a  person  does  who  receives  a  convey- 
ance of  land. 

L.  &  N.  E.  E.  Co.  vs.  I.  C.  E.  E.  Co.,  174  111.  448. 

The  law  presumes  that  every  man  examines  title  to  real  estate 
before  purchasing  or  receiving  a  mortgage. 
Campbell  vs.  McCahan,  41  111.  45. 

Exemptions : 

The  law  does  not  presume  that  a  person  does  not  have  the  prop- 
erty exempted  by  statute,  nor  does  the  mere  claim  that  property 

is  not  enumerated  prove  it  is  exempt. 
McMasters  vs.  Alsop,   85   111.  157. 

Fabrication  of  Evidence : 

The  fabrication  of  evidence  raises  presumption  aganist  party  no 
less  than  when  evidence  has  been  suppressed  or  withheld. 

XJ.  S.  Brew.  Co.  vs.  Euddy,  203  111.   306;   Winchell  vs.  Edwards,  57 
111.   41. 

T'oigft  Prfitenses ! 

Person  advertising  article  to  possess  certain  qualities,  where  such 
representations  are  false,  is  presumed  to  speak  from  knowledge. 
Jackson  vs.  People,  126  111.  139. 


PRESUMPTIONS  1019 

Fiduciary  Relations: 

Presumption  is  against  validity  of  transaction  between  persons 

occupying  fiduciary  relations,  in  favor  of  possessor  of  stronger  will. 
Beech  vs.   Wilton,   244   111.   413;   Fish  vs.  Fish,   235   ill.   396;    Irwin 
vs.  Sample,  213  III.  160. 

Fire  Arms : 

Fire  arms  are  not  usually  discharged  without  the  interventioTi 
of  some  human  agency.  A  presumption,  therefore,  almost  conclu- 
sive in  its  character,  is  raised,  that  when  such  weapons  are  dis- 
charged while  in  the  possession  and  control  of  another,  the  tiring 
is  caused  either  by  design,  carelessness  or  inadvertence  upon  his 

part. 

Harrison  vs.  Allen,  179  App.  520;  Atchison  vs.  Dullann,  16  App. 
42;  Zaeller  vs.  Schmitz,  172  App.  167;  Foster  vs.  Shepard,  164 
App.   199. 

Flight: 

Flight  of  one  accused  of  crime  may  raise  presumption  of  guilt. 
People  vs.  Duncan,  261  111.  339;  Fox  vs.  People,  95  111.  71. 

Foreig-n  Law: 

Common  law  will  be  presumed  to  be  in  force  in  sister  state. 

Forsythe  vs.  Barnes,  228  111.  326 ;   Scholton  vs.  Barber,  217  111.  148 ; 

Eobinson  vs.  Yetter,  143  App.   172;   Edwards  vs.   Schillinger,   148 

App.  227. 
In  absence  of  proof,  it  is  presumed  same  law  prevails  in  sister 

state  as  in  Illinois. 

Eeid   vs.   Northern   Lumber   Co.,    146   App.    371. 

In  absence  of  proof  as  to  statute  laws  of  a  sister  state,  they  will 
be  presumed  to  be  the  same  as  the  lex  fori. 
Nehring  vs.  Nehring,   164  App.  527. 

—  Statute  Gonstruetion:  Foreign  courts  are  presumed  to  con- 
strue substantially  similar  statutes  the  same  as  courts  of  Illinois. 

Clark  vs.  Jackson,  222  111.  13. 

—  Contracts:     Made  in  foreign  state  presumed  to  be  made  in 

accordance  with  laws  of  such  state. 
Miller  vs.  Wilson,   146  111.  523. 
Contract  presumed  to  be  made  in  reference  to  laws  of  state 

where  same  is  to  be  performed. 

Abt  vs.  Amer.  T.  &  S.  Bank,  159  111.  467. 

Fraud : 

Fraud  will  not  be  presumed,  but  must  be  proven  like  any  other 
fact.  Never  presumed  when  transactions  may  fairly  be  reconciled 
with  honesty  and  if  the  weight  of  evidence  is  in   favor  of  any 

honest  motive,  that  conclusion  should  always  be  adopted. 

McKennan  vs.  Mickleberry.  242  111.  117;  Union  Natl.  Bank  vs.  State 
Bank,  168  111.  256;  Kennedy  vs.  Kennedy,  194  111.  346;  Mey  vs. 
Gulliman,  105  111.  272;  XII  "ill.  Notes  760,  §87.  (Exception:  See 
Fiduciary  Eelations.) 

Fraudulent  Conveyances : 

—  Existence  of  DeMs:  It  will  not  be  presumed  that  debts  ex- 
isted at  time  of  transaction. 

Eogers  vs.  Dimon,  106  App.  201;  Bittinger  vs.  Kasten,  111  111.  260; 
Tunison  vs.  Chamberlain,  88  111.  378. 

—  Selling  Price:     Presumed  that  price  paid  was  full  value  of 

property, 

'Jewett  vs.  Cook,  81  111.  260;  Beech  vs.  Miller,  23  App.  151. 


1020  PRESUMPTIONS 

Gaming : 

Where  it  is  shown  that  a  broker  and  his  client  intended  to  engage 
in  a  lietitious  sale,  presumption  has  been  held  to  obtain  that  all 
parties  entered  into  same  with  like  intention. 
Beveridge  vs.  Hewitt,  8  Ai)p.  4G7. 
Intention  may  be  presumed  where  party  making  purchase  never 
demanded  the  purchase  money  but  only  margins. 

Jamieson  vs.  Wallace,  167  111.  388;   Joues  vs.  Jones,  103  App.  382. 

Gifts: 
Presumption  may  arise  from  circumstances. 

Foley  vs.  McMahon,  73  111.  66. 
Presumption  may  arise  froui  the  moral  obligation  to  give. 

Capek  vs.  Kropik,  129  HI.  509;  Bromwell  vs.  Bromwell,  139  111.  424; 
Lux  vs.  Hotf,  47  111.  425. 

—  Hushand  and  Wife:     Improvements  constructed  upon  prop- 
erty of  wife  by  husband  presumed  to  be  gift. 

Maciejewski  vs.  Jarzombek,   243   111.   136. 

—  Parent  and  Child:     In  case  of  gift  from  child  to  parent,  un- 
due influence  may  be  presumed. 

Oliphant  vs.  Liversedge,  142  111.  160. 

Good  Faith: 

On  part  of  holder  of  color  of  title  will  be  presumed. 

Keeney  vs.  Glos,  258  111.  555;  Peabody  vs.  Burri,  255  111.  592. 
Conveyances  are  presumed  to  have  been  made  in  good  faith. 

O'Neal  vs.  Boone,  82  111.  589. 

Guardian  and  Ward: 

Transactions  l)etw^een,  when  assailed  by  ward,  are  presumptively 

fraudulent. 

Baum  vs.  Hartman,  226  111.  160. 

Habits : 

A  presumption  of  due  care  may  arise  from  proof  of  habits  of  care. 

C    &  A.  Ey.  Co.  vs.  Wilson,  225  111.  50;  I.  C.  R.  R.  Co.  vs.  Prickett, 

210   111.' 140;   Parkin   vs.   C.   P.   &  St.   L-.   Ry.   Co.,   149   App.   421, 

aiieago  vs.  Thomas,  141  App.  122;  C.  &  E.  I.  R.  E.  Co.  vs.  Beaver, 

199  111.  34;  C.  B.  &  Q.  E.  R.  Co.  vs.  Gunderson,  174  111.  495. 

Health  and  Physical  Condition: 

Presumption  is  that  a  person  once  able-bodied  remains  so. 

Draves  vs.   People,   97   App.   151. 
A  w^oman  is  presumed  to  be  capable  of  bearing  children  as  long 
as  she  lives,  unless  from  other  matters  than  that  of  age. 
Hill  vs.  Spencer,  196  HI.  65, 

Heirship : 

The  law  raises  no  presumption  that  a  person  will  die  without 

leaving  a  child  or  children. 

Gannon  vs.   Peterson,   193  111.   372. 

Highways : 

If  public  has  ceased  to  travel  a  road  and  has  acquired  another, 
abandonment  of  first  may  be  presumed. 

Highway  Comrs.  vs.   Kinahan,   240  111.   593. 

Homestead : 

—  Investihire:  Where  the  wife  releases  dower  and  homestead 
in  conveyance  by  husband,  if  the  money  is  used  in  purchase  of  new^ 
home,  an  intent  is  presumed  to  invest  her  with  the  same  rights 

therein  that  she  had  in  the  old  one. 

Nance  vs.  Nance,  28  App.  587. 


PRESUMPTIONS  1021 

'     — Release:     It  will  not  be  pre'^uiiled'tiifit  a  wk'ftarity  deed  con- 
tained a  release  of  homestead. 

Mason  vs.  Truitt,  257  111.  18. 

—  Excess  Value:  Tliere  can  be  no  presumption  tliat  value  of 
premises  occupied  as  homestead  exceeds  a  thousand  dollars. 

Muller  vs.  Conrad,   178  111.  276. 

— ■Abandonment:  AVhere  removal  is  shown,  abandonment  will 
be  presumed  unless  contrary  appears. 

Kloss  vs.  Wyzalek,  207  111.  328;  Jackson  vs.  Sackett,  146  111.  646. 

Indebtedness : 

The  law  does  not  presume  existence  of  written  evidence  of  loan 
or  indebtedness. 

i    •,,  Schell  vs.  Weaver,  225  111.  159. 

Identity : 

—  Grantor  and  Grantee:  Where  deed  is  made  to  one  of  two 
persons  bearing  the  same  name,  being  father  and  son,  conveyance 
is  presumed  to  be  to  the  father. 

Doty  vs.  Doty,  159  111.  46;  Fyffe  vs.  Fyffe,  106  111.  646;  Graves  vs. 
Colwell,   90   111.   612. 

Where  a  conveyance  is  made  to  one  bearing  the  same  name  as  the 
prior  owner  and  grantor  thereof,  in  absence  of  evidence  to  con- 
trary, lie  will  be  presumed  to  be  the  same  person. 
Brown  vs.  Metz,  33  111.  339. 

It  may  be  presumed  that  parties  to  conveyances  are  the  same 
persons  where  initials  of  christian  names  are  used  and  they  are  the 
initials  of  christian  names  given  in  full  in  other  deeds  of  same 
premises,  the  surnames  being  the  same. 

Skinner  vs.  Fulton,  39  111.  484;  Ogdon  vs.  Bemis,  125  111.  105. 

—  Surety:    No  presumption  that  judge  approving  conservators 

bond  is  also  surety,  though  names  are  identical. 

Eieliardson  vs.   People,   85   111.   495. 

—  Voter:  There  is  no  conclusive  presumption  of  law  that  a 
signer  of  a  petition  and  a  trustee  voting  thereon  are  the  same  per- 
son, merely  because  they  bear  the  same  name. 

Ferguson  vs.  Trustees,  168  App.  225. 

Where  a  person  of  a  certain  name  voted  at  an  election,  and,  on 

contest  of  the  election,  a  man  of  that  name  was  called  as  a  witness, 

who  showed  he  was  of  foreign  lurth.  and  had  never  been  naturalized. 

it  was  presumed,  as  he  was  found  in  the  same  county,  from  the 

identity  of  the  name,  that  the  witness  was  the  person  who  voted. 
Clark  vs.  Eobinson,  88  111.  492. 

—  Parties  to  Suit:  The  identity  of  a  person  incurring  a  liabil- 
ity and  the  one  being  sued  must  be  proven.  AVhere  that  fact  is 
shown,  and  defendant,  being  a  woman,  is  sued  under  a  different 
name,  her  marriage  may  be  presumed,  unless  put  in  issue  by  a  plea 

in  abatement. 

Berber  vs.  Kertzinger,  23  111.  346. 

■  —  Witness:     The  identity  of  a  witness  with  a  person  convicted 

of  a  crime  is  presumed,  if  the  names  are  the  same. 
Clifford  vs.  Pioneer  Co.,  232  111.  150. 

—  Consignee:  Where  a  person  professing  to  be  the  consignee 
of  an  express  package  is  identified  by  a  trustworthy  person,  as  the 
proper  consignee,  about  the  time  it  may  reasonably  be  expected  the 
consignee  will  call  for  the  package,  and  he  tells  the  person  deliver- 


1022  PRESUMPTIONS 

ing  it  to  write  his  name  in  receipt  book,  such  proof  is  sufficient  to 
raise  presumption  of  proper  delivery  to  the  true  consignee,  which 
the  consignor,  in  action  against  carrier,  must  meet  with  a  pre- 
ponderance of  evidence. 

Ten  Eyck  vs.  Harris,  47  111.  268. 

Infants : 

—  Capacity:     In  civil  case,  presumption  is  infants  do  not  know 

their  rights. 

Tearney  vs.  Fleming,  48  App.  507. 

In  criminal  case,  law  presumes  capacity  at  fourteen. 
Angelo  vs.  People,  96  111.  209. 

—  Ordinary  Intelligence:  A  child  will  be  presumed  to  be 
possessed  of  ordinary  capacity  and  intelligence  of  the  average  child 

of  his  years. 

McGuire  vs.  Gnthman  Trust  Co.,  234  111.  125;   Heiman  vs.  Kinnare, 
190  111.  156. 

—  Emancipation:    Where   minor  brings  suit   for  wages,   after 

becoming  of  age,  and  father,  testifying  as  witness  for  son,  makes 

no  claim  to  wages,  emancipation  will  be  presumed. 

Seott  vs.  White,  71  111.  287;  Aulger  vs.  Badgley,  29  App.  336. 

—  Coiitrihutory  Negligence:  Children  under  age  of  seven  years 
are  conclusively  presumed  to  be  incapable  of  contributory  negli- 
gence. 

Hackett  vs.  Chi.  City  Ey.  Co.,  235  111.  116;   Chi.  City  Ey.  Co.  vs. 
Tuohy,  196  111.  410;  Chi.  City  Ey.  Co.  vs.  Gregory,  58  111.  226. 

Inn-Keepers : 

A  presumption  of  negligence  arises  when  luggage  is  handed  to  an 
authorized  employe  or  agent  of  the  hotel,  for  custody,  and  can- 
not be  afterward  found  or  heard  of. 

Gross  vs.   Saratoga  Hotel  Co.,  176  App.   160. 

Negligence  is  not  to  be  presumed  from  failure  of  guest  to  ask 
for  baggage  for  several  day  after  its  reception  by  inn-keeper. 
Eden  vs.  Dray,   75  App.    102. 

Innocence : 

Presumption  of  innocence  attends  the  accused  at  every  stage  of 
the  proceeding  until  the  jury  agree  upon  a  verdict. 

People  vs.  Ambach,  247  HI.  451;   Flynn  vs.  People,  222  111.  303. 

When  a  person  in  a  civil  case  is  charged  with  a  criminal  offense 

he  is  entitled  to  the  presumption  of  innocence  accorded  him  under 

criminal  prosecution. 

Thompson  vs.  Cornwell,  133  App.  261. 

Insolvency : 

Is  not  presumed,  but  must  be  proven. 

Bittinger   vs.   Kasten,   111   111.    260;    Tunison   vs.    Chamblin,    88   111. 
378;  Eogers  vs.  Dimon,  106  App.  201. 

Insurance : 

—  Benefit  Society:     Good  standing  of  member,  once  shown  to 

exist,  presumed  to  continue. 

Eoyal  Circle  vs.  Achterrath,  204  111.  549. 

—  Cause  of  Death:    In  absence  of  proof,  natural  or  accidental 

causes  presumed. 

Amer.   Home  Circle  vs.  Schneider,   134  App.   600;   Knights  Templar 
vs.  Crayton,  209  111.  550. 


PRESUMPTIONS  1023 

—  By-Laws :  ^Members  of  society  are  presumed  to  know  the  laws 
of  such  society. 

Benes  vs.  Supreme  Lodge  K.  O.  IL,  231  111.  134;  Quinn  vs.  No.  Am. 
Union,   162  App.  319. 

—  Death    Benefit:     Amount    beneficiary    presumed    entitled    to 

recover  presumed  to  be  full  amount  of  certificate. 
Pegram  vs,  Mut.  Prot.  League,  159  App.  214. 

—  Accident  Policy:     Where  evidence   shows  that  insured  had 

suffered  an  injury  which  caused  his  death,  and  there  is  no  proof 

in  the  record  from  which  it  can  be  determined  whether  injury 

was  accidental  or  self-inflicted,   presumption  is   that  injury  was 

accidental. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205;  F.  &  C.  Co.  vs.  Weise, 
182  III.  496. 

Intent : 

A  sane  man  is  presumed  to  contemplate  the  natural  and  probable 

consequences  of  his  own  acts. 

Crosby  vs.  People,  137  111.  325. 

Accused  presumed  only  to  have  intended  the  natural  conse- 
quences of  his  act. 

Lane  vs.  People,  143  App.  571. 

Interest : 

Where  no  specific  rate  is  mentioned,  it  is  presumed  that  legal  • 
rate  was  intended. 

Knobloeh  vs.  Eomies,  34  App.  577;  Prevo  vs.  Lathrop,  2  111.  304. 

Interpreter : 

There  is  no  legal  presumption  that  because  interpreter  has  testi- 
fied for  one  party  that  he  is  thereby  so  far  biased  or  prejudiced  as 
not  to  be  trusted  to  fairly  interpret  between  the  court  and  another 

witness. 

C.  &  A.  Ey.  Co.  vs.  Schenck,  131  111.  283. 

Intestacy: 

It  will  be  presumed  that  a  person  dies  intestate. 

Sielback  vs.  Grotham,  248  111.  435;  Schmidt  vs.  Brown,  226  111.  590; 
Lyon  vs.  Kain,  36  111.  362 ;  Whitham  vs.  Ellsworth,  259  111.  243. 

But  where  will  established,  it  will  be  presumed  he  intended  by 

his  will  to  dispose  of  all  his  property  and  leave  no  part  intestate 

estate. 

Eyer  vs.  Williamson,  256  111.  540 ;  Karsten  vs.  Karsten,  254  111.  480 ; 
North.  Trust  Co.  vs.  Wheaton,  249  111.  606;  Felkel  vs.  O'Brien, 
231  111.  329;  Lewis  vs.  Sedgwick,  223  111.  213;  Welsh  vs.  Shade, 
163  App.  523. 

This  is  only  a  presumption  and  cannot  be  permitted  to  overcome 

the  express  language  of  the  will. 

Jacobs  vs.  Detz,  260  111.  98;   Thomas  vs.  Thomas,  229  111.  277. 

Judicial  Sales : 

It  is  presumed  that  in  a  judicial  sale  the  purchaser  will  examine 
the  title  with  the  same  care  that  a  person  does  who  receives  a  con- 
veyance of  land,  as  the  rule  of  caveat  emptor  applies  to  sales  of 

this  character. 

L.  &  N.  By.  Co.  vs.  I.  C.  E.  E.  Co.,  174  111.  448. 

Judgments : 

—  Regularity:     The  presumptions  of  law  are  in  favor  of  the 


1024  PRESUMPTIONS 

correctness  of  a  judgment  of  a  common  law  court  of  general  jur- 
isdiction. 

City  of  Virginia  vs.  Hall,  96  111.  278;  Kenny  vs.  Greer,  13  111.  432; 
Newconib  vs.  County  of  Champaign,  145  App.  561. 

—  Probate  Court:  The  presumptions  which  aid  judgments  of 
other  courts  of  record  apply  in  part  to  those  entered  in  courts 

of  probate. 

People   vs.   Medart,   166   111.   348;    Chi.   Title   &   Trust   Company  vs. 
Brown,  183  111.  42. 

—  County  Court:     The  county  court  is  a  court  of  record,  and 

has  general  jurisdiction  over  a  certain  class  of  sulgects.     It  is  a 

court  of  limited,   but  strictly  speaking,   not  a  court  of  inferior 

jurisdiction. 

Boyd  vs.  Kimmell,  244  111.  545.  .  .m  -, 

—  Date:  Where  record  shows  it  was  written  up  on  day  of 
rendition  of  judgment,  it  will  import  verity  and  cannot  be  con- 
tradicted by  parol. 

Lawyer  vs.  Langhans,  85  111.  138. 

—  Return  of  Process:     Every  presumption  is  in  favor  of  return 

of  process. 

Kochman  vs.  O'Neill,  202  111.  110;   Owens  vs.  Eanstead,  22  111.  161. 

Where  a  court  of  general  jurisdiction  adjudicates  a  cause,  the 

presumption  is  that  it  had  jurisdiction  of  the  parties,  unless  there 

'is  something  in  the  record  affirmatively  showing  contrary.     The 

fact  that  the  record  is  silent  on  that  ciuestion  is  not  enough  to 

overcome  this  presumption.  -r 

Cigler  vs.  Keinath,  167  App.  65 ;  Wing  vs.  Little,  163  App.  468.  ^ 

If  it  appear  that  service  is  made  in  a  particular  manner,  no  other 
mode  of  service  can  be  presumed,  since  this  would  be  a  contradic- 
tion of  the  record.  ''^ 
Forest  vs.  Fey,  218  111.  165;  Swearingen  vs.  Guliek,  67  111.  208.  -.r 

—  Jurisdiction:  Nothing  is  presumed  to  bo  out  of  jurisdiction 
of  superior  courts,  or  courts  of  general  jurisdiction. 

Swearingen  vs^  Guliek,  67  111.  208.  ■+  r.^irnrtpf, 

—  Courts  of  Record:  All  presumptions  aid  and  come  to  the 
support  of  judgment  rendered  in  open  court  by  courts  of  record. 

Walker  vs.   Newman,   146  App.   450.  tff?T 

,:  — Judgment  hy  Confession:  Same  presumption  will  be  in-{ 
dulged  in  favor  of  judgment  by  confession  entered  in  term  time 
upon  a  cognovit  as  is  indulged  in  the  case  of  original  judgments  of 
courts  of  general  jurisdiction.  -".  •"'-'   i^wtT  ..■ 

State  Bank 'vs.  Barnett,  151  App.  79. 

—  Federal  Court:  In  state  court,  presumptions  in  favor., of 
validity  of.  '■'  ''"^  ^^^^I'^mi/.M-xq  «  vino  ?i  «fit 

'   Eoss-Lewin  vs.  Goold,  211  111.  384;  S.  C,  113  App.  499. 

—  Foreign  Judgments:     A  presumption  of  jurisdiction  obtains 

where  a  court  of  general  jurisdiction  proceeds  to  adjudicate   a 

cause. 

Forest  vs.  Fey,  218  111.  165. 

Jurisdiction : 

—  Supreme  Court  of  Another  State:  Jurisdiction  will  be  pre- 
sumed. 

Van  Matre  vs.  Sankey,  148  111.  536. 

—  Court  of  General  Jurisdiction:     A  presumption  of  jurisdic- 


PRESUMPTIONS  1025 

tion  obtains  where  a  court  of  general  jurisdiction  proceeds  to  ad- 
judicate a  cause. 

Forest  vs.  Fey,  218  111.  165. 

Jurisdiction  to  enter  a  decree  is  presumed  upon  collateral  attack. 

Castle  vs.  Joseph,  184  111.  378. 

Jurisdiction  of  parties  and  regularity  of  proceeding  is  presumed 
after  lapse  of  twenty  years  after  administrator's  sale. 

Robb  vs.  Howell,  180  111.  ISO;  Nickrans  vs.  Wells,  161  111.  76. 

—  Inferior  Tribunal:  No  presumption  or  intendments  are  made 
in  favor  of  jurisdiction  of  inferior  tribunals. 

People  vs.  Seelye.  146  111.  180;  Anderson  vs.  Gray,  134  111.  550;  Cava- 
naugh  vs.  Morris,  160  App.  55. 

Justice  of  Peace: 

—  Jurisdiction:    Where  a  docket  of  a  justice  shows  that  the 

court  has  jurisdiction  of  the  person  and  subject  matter,  nothing 

will  be  presumed  to  be  out  of  the  jurisdiction  of  justice  which  does 

not  affirmatively  appear  so. 

Thatcher  vs.  Maack,  7  App.  635. 

—  Proper  Entries:  It  will  be  presumed  that  justice  who  has 
taken  acknowledgment  of  a  chattel  mortgage  has  entered  in  his 
docket  the  inventory  required  by  law. 

Harlow  vs.  Birger,  30  111.  425. 

—  Default  Judgment:  In  absence  of  an  affirmative  showing 
that  justice  of  peace  did  not  wait  the  full  hour  for  defendant  to 
appear  it  will  be  presumed  that  he  did  his  duty  in  that  respect. 

Wingo  vs.  Ramsey,   149  App.   634;   First   Nat.   Bank  vs.   Beresford, 
78  111.  391. 

Knowledge : 

—  Of  Law:  Every  person  is  presumed  to  know  the  general  law 
of  the  state  wherein  he  resides. 

Russell  vs.  Rumsey,  35  111.  362;  Marshall  vs.  Cook,  38  111.  44, 
Rules  and  regulations  of  boards  of  health  are  not  public  laws 
w^hich  are  conclusively  presumed  to  be  known. 
People  vs.  Tait,  261  111.  197. 

—  Contents  of  ^yill:  Testator  is  presumed  to  have  understood 
the  nature  and  contents  of  his  will. 

Jones  vs.  Abbott,  235  111.  220;  Todd  vs.  Todd,  221  111.  410;  Compher 
vs.  Browning,  219  111.  429. 

Irrespective  of  his  ability  to  write, 
Doran  vs.  Mullen,  78  111.  342. 

And  that  testator  knew  the  law. 

Nangle  vs.  Mullanny,  113  App.  547;  Greenwood  vs.  Greenwood,  178 
111.  387, 

—  Promissory  Notes:     Presumption  that  a  party  signing  a  note 

knew  its  contents  before  signing  is  not  conclusive. 
Kingman  &  Co.  vs.  Reinmer,  166  111.  208. 

—  Customs:  A  party  dealing  in  a  particular  market  is  pre- 
sumed to  know  all  customs  of  such  market  bearing  upon  the  trans- 
action in  which  he  is  engaged. 

Cothran  vs.  Ellis,  107  III.  413. 

One  engaged  in  a  particular  trade  is  presumed  to  know  the  pre- 
valent customs  of  that  trade. 

Deschler  vs.  Beers,  32  111.  368;  Hinckley  vs.  Kersting,  21  111.  247. 
When  a  carrier  has  an  established  custom,  one  who  has  been  in 
Ev.— 65 


1026  PRESUMPTIONS 

the  habit  of  shipping  over  the  road  of  such  carrier  will  be  pre- 
sumed to  have  knowledge  of  such  custom. 

I.  B.  &  W.  Ey.  Co.  vs.  Murray,  72  111.  128. 
—  Danger:     Knowledge   of   servant   of   dangerous   condition   is 
not  presumed,  as  it  is  not  presumed  that  any  one  will  knowingly 

incur  physical  pain  or  death. 

C.  &  E.  1.  K.  E.  Co.  vs.  Hines,  132  111.  IGl;   C.  &  E.  I.  Ey.  Co.  vs. 
Heery,  203  111.  492. 

Lands : 

Quarter  section   presumed  to   contain   one   hundred   and   sixty 
acres,  unless  the  contrary  is  shown  in  the  particular  instance. 
Doyle  vs.   Wiley,   15   111.   576. 

Landlord  and  Tenant: 

Mere  demand  for  possession  does  not  raise  presumption  that  rent 

is  unpaid. 

Streit  vs.  Fay,  230  111.  319. 
A  lessee  is  presumed  to  have  known  provisions  of  building  ordi- 
nance as  well  as  lessor. 

Kiernan  vs.  Bush  Temple  Co.,  229  111.  494. 

Larceny : 

The  unexplained  possession  of  property  recently  stolen  is  prima 
■facie  evidence  that  party  in  possession  committed  the  larceny. 

People   vs.   Everett,   242   111.   628;    People   vs.   Deluce,   237   111.   541; 
WUliams  vs.  People,  196  111.  173;  Cf.  Miller  vs.  People,  229  111.  376. 

Lease : 

Joint  lessees  will  be  presumed  in  absence  of  evidence  to  the 

contrary  to  shai'e  in  the  benefits  of  the  lease. 

Miller  vs.  Mathias,  145  App.  465. 

Legislative  Acts  and  Journals: 

It  is  presumed  acts  are  valid  and  within  power  of  legislature. 

People  vs.  McCullough,  254  111.  9;   People  vs.  Joyce,  246  111.  124. 
Presumption  is  that  legislature  intended  to  obey  statute. 

Eobson  vs.  Doyle,   191  111.  566. 
Presumption  is  that  legislature  knew  its  statutory  limitations  of 

power. 

People  vs.  Ennis,  188  111.  535. 
Legislature  is  presumed  to  enact  laws  with  knowledge  of  prin- 
ciples of  statutory  construction  and  interpretation  as  adopted  by 

courts  and  declared  by  the  legislation. 
People  vs.  Hinrickson,  161  111.  223. 
It  is  presumed  that  a  law,  certified  to  by  secretary  of  state,  is 
in  form  in  which  it  was  passed  by  the  legislature. 

Erford  vs.  City  of  Peoria,   229  111.  546;    I.   C  E.  E.  Co.  vs.  Wren, 
43  111.  77. 

Legitimacy: 
A  child  born  in  lawful  wedlock  is  presumed  legitimate. 

Zackman  vs.  Zackman,  201  111.  380;   Bobinson  vs.  Euprecht,  191  111. 
424;  Smith  vs.  Henlein,  174  111.  184. 
And  this  presumption  extends  to  child  born  in  wedlock,  even 
though  parents  are  living  apart  by  mutual  consent. 
Drennan  vs.  Douglas,  102  111.  341. 

Letters : 
—  Date:     Presumed  to  have  been  written  at  date  appearing  at 

top  of  letter. 

Dowie  vs.   Sutton,   126  App.   47. 


PRESUMPTIONS  1027 

—  Receipt  of:  A  letter,  if  sent  by  post,  properly  stamped  and 
addressed,  will  be  presumed  to  have  been  received  by  the  person 
to  whom  it  was  directed,  if  living  at  such  point  and  usually  receiv- 
ing mail  there, 

Clark  vs.  People,  224  111.  554;  Witson  vs.  Ford,  190  111.  614;  Ashley 
Wire  Co.  vs.  111.  Steel  Co.,  164  111.  149;  Dennison  vs.  Taylor,  142 
111.  45;  E.  L.  Assn.  vs.  Frommhold,  75  App.  43;  XII  111.  Notes 
478,  §  39. 

But  there  is  no  presumption  of  the  delivery  of  a  single  letter  to 
both  of  two  persons  to  whom  it  was  directed,  unless  it  be  a  delivery 
by  way  of  partnership  or  other  agency. 
Dennison  vs.  Taylor,   142  111.  45. 

Libel  and  Slander: 

—  Malice:  AA^here  words,  actionable  in  themselves,  are  not 
spoken  under  privileged  circumstances,  malice  will  be  presumed. 

Gilmer  vs.  Eubank,  13  111.  271;  Conwisher  vs.  Johnston,  127  App. 
607;  Flagg  vs.  Eoberts,  67  111.  485;  Stephens  vs.  News  Co.,  164 
App.  6. 

But  malice  is  not  presumed  from  merely  telling  what  another 
has  said. 

Hill  vs.  Leffler,  133  App.  266. 

—  Character:  Plaintiff's  character  is  presumed  to  be  good 
until  attacked. 

Stowell  vs.  Beagle,  79  111.  525. 
Loans : 

The  law  does  not  presume  existence  of  written  evidence  of  loan. 
Schell  vs.  Weaver,  225  111.  159. 

Sale  of  land  by  devisee  of  life  estate  and  subsequent  loan  of 
money  makes  prima  facie  case  that  money  loaned  was  derived  from 
sale. 

Walker  vs.  Pritchard,  121  111.  221;  Stephenson  vs.  McGlintock,  141 
111.  604. 

Love  of  Life : 

The  presumption  of  law  is  that  all  men  are  possessed  of  the  love 
of  life. 

C.  &  A.   E.   R.   Co.  vs.  Wilson,  225   111.   50. 

And_  that  person  did  not  voluntarily  incur  danger  or  risk  of 
death. 

Chi.  Term.  Co.  vs.  Roddick,  131  App.  515. 
And  that  a  person  will,  in  presence  of  danger,  act  in  accordance 
with  instinct  of  self-preservation. 

Collison  vs.  I.  C.  E.  E.  Co.,  239  111.  532;  Newell  vs.  C.  C.  &  St.  L. 
Ey.  Co.,  261  111.  505. 

Malicious  Mischief: 

Evidence  tending  to  show  that  act  was  done  under  hona  fide 

claim  of  right  repels  presumption  of  malicious  intent. 
Sattler  vs.  People,  59  111.  68. 

Malicious  Prosecution : 

]\Ialice  may  be  presumed  from  want  of  probable  cause. 

McElroy  vs.  Catholic  Press  Co.,  254  111.  290;  Treptow  vs.  Mont- 
gomery Ward  Co.,  153  App.  422 ;  Tumalty  vs.  Parker,  100  App. 
382;  Montrose  vs.  Bradsby,  68  111.  185;  Eoss  vs.  Innis,  35  111.  487. 

But  absence  of  probable  cause  cannot  be  presumed  from  malice. 
Mitchison  vs.  Cross,  58  111.  366;   Eoss  vs.  Innis,  35  111.  487. 


1028  PRESUMPTIONS 

Market  Price: 
Where  the  market  price  of  grain  is  shown  on  a  day  named,  it 

will  be  presumed  to  continue  to  the  next  day. 

Nash  vs.  Classon,  55  App.  356. 

Marriage : 

—  In  General:  There  is  no  presumption  that  a  woman  is  mar- 
ried even  though  she  may  long  have  been  of  marriageable  age. 

Erskine  vs.  Davis,  25  III.  228. 

Subsequent  deed  reciting  grantor  a  bachelor,  while  not  conclu- 
sive, affords  presumption  that  grantor  was  an  unmarried  man  when 
former  deed  was  executed. 

Gibson  vs.  Brown,  214  111.  330. 

It  will  be  presumed  that  a  married  Avoman  resident  of  a  sister 

state  is  subject  to  the  disabilities  imposed  by  the  common  law  with 

respect  to  capacity  to  contract. 

Forsyth  vs.  Barnes,  228  111.   326. 

—  Continuance:  Relation  once  being  shown,  presumption  at- 
taches that  it  continues.        > 

Stantenborough  vs.   Eammel,    123   App.   487. 

—  Ceremony  Proven:    Where  the  celebration  of  a  marriage  is 

shown,  its  validity  is  presumed. 

Winter  vs.  Dibble,  251  111.  200;  Keifsehneider  vs.  Eeifsehneider,  241 
111.  92;  Potter  vs.  Clapp,  203  111.  592;  XII  111.  Notes  396,  §21. 

The  rule  is  same  in  prosecution  for  bigamy. 

Barber  vs.  People,  203  111.  543 ;  SoLel  vs.  People,  212  111.  238. 

So  it  will  not  be  presumed  on  account  of  a  common  law  marriage, 

that  a  subsequent  ceremonial  marriage  was  a  bigamous  one,  since 

the  presumption  is  in  favor  of  innocence. 
Murphy  vs.  People,  213  111.  154. 

It  is  presumed  that  parties  were  competent  to  contract. 

Cartwright  vs.  McGowii,  121  111.  388. 

—  CoJiahiiaiion:     Where  persons  live  and  cohabit  together  as 

husband  and  wife,  and  are  generally  reputed  to  be  husband  and 

wife,  there  is  a  presumption  that  they  have  been  married. 

Land  vs.  Land,  206  111.  288;   Hooper  vs.  McCaffery,  83  App.  341. 

Master  and  Servant: 

The  master  is  presumed  to  use  proper  care  in  the  selection  of  his 

servants. 

C.  &  E.  I.  E.  E.  Co.  vs.  Myers,  83  App.  469. 

The  employe  has  a  right  to  presume  that  the  master  will  exercise 
care  and  prudence  to  prevent  him  from  being  exposed  to  unreason- 
able risks  or  dangers. 

McCulloch  vs.  111.  Steel  Co.,  243  111.  464. 

When  injured  employe  has  been  employed  only  a  few  da^'s  and 
had  not  been  called  upon  before  to  do  tlie  work  in  which  he  Avas 
injured,  it  Avill  not  be  presumed,  as  a  matter  of  laAV,  that  he  assumed 
the  risk. 

Sullivan  vs.  Eefining  Co.,  147  App.  227. 

Master  in  Chancery: 

Presumed  to  consider  only  relevant  and  admissible  evidence. 
Allison  vs.  Perry,  130  111.  9. 


PRESUMPTIONS  1029 

Mortgages:  n.^l/r 

Law  presumes  a  party  intends  to  keep  mortgage  alive  when 
essential  to  his  protection. 

Moffett  vs.  Farwell,  222  111.  543. 

The  law  presumes  that  every  man  examines  title  to  real  estate 
before  purchasing  or  receiving  a  mortgage. 
Campbell   vs.    McCahan,   41    111,  45. 

Motives : 

Where  two  motives  exist  for  an  act  done,  the  one  lawful  and 
the  other  unlawful,  it  is  presumed  that  the  lawful  motive  con- 
trolled. 

Speck  vs.  RUlman  Car  Co.,  121  111.  S3. 

Advice  between  parent  and  child,  as  to  domestic  affairs,  pre- 
sumed to  be  on  good  motive. 

Huliug  vs.  Huliiig,  32  App.  519. 

Municipal  Corporations : 

—  Legal  Existence:  Presumption  indulged  in  favor  of  legal 
existence,  after  long  continued  use  of  corporate  powers  with  acqui- 
escence of  public. 

People  vs.  Pike,  197  111.  449. 

—  Charter  Power:  No  presumption  that  particular  charter 
power  of  municipality  has  been  exercised. 

Diipont  vs.   Sanitary  District,  203  111.   170. 

Names : 

It  will  be  presumed  that  the  initial  of  the  christian  name  is  an 

abbreviation  of  the  full  name. 

Slick  vs.  Brooks,  253  111,  58;  Lee  vs.  Mendall,  40  111.  359. 

Negligence : 

—  Pcrformanee  of  Duty:  There  is  a  presumption  of  law  that 
every  person  will  perform  the  duty  enjoined  by  law  or  imposed 
by  contract,  and  anticipation  of  negligence  in  others  is  not  a  duty 
which  the  law  imposes.  This  presumption  is  not  conclusive  and 
a  party  cannot  regulate  his  conduct  solely  upon  the  presumj)tion 
that  others  will  perform  duties  imposed  upon  them. 

Scblauder  vs.  C.  &  S.  Trac.  Co.,  253  111.  154. 

Nor  can  a  person  presume  a  fact  against  his  own  knowledge. 

Collison   vs.   I.   C.   E.   E.   Co.,   239   111.   532;    Galesburg  vs.   Hall,   45 
App.  290. 

—  Fact  of  Accident:     Negligence  will  not  be  presumed  from 

mere  happening  of  an  accident. 

Barnes  vs.  Danville  St.  Ry.  Co.,  235  111.  566;   Hart  vs.  Washington 
Park  Club,  157  111.  9. 
Negligence  will  not  be  presumed  where  nothing  is  done  out  of 
the  usual  course  of  business,  unless  that  course  is  in  itself  improper. 
C.  &  E.  I.  E.  R.  Co.  vs.  Eeilly,  212  111.  506. 
Where  the  fact  is  not  susceptible  of  direct  proof,  the  presump- 
tion of  law  is  that  a  person  did  not  voluntarily  incur  the  danger 

or  risk  of  death. 

Ry.  Co.  vs.  Eeddick.   131  App.  515. 

No  presumption  of  negligence  on  part  of  owner  of  premises  arises 
from  fact  of  accident  where  plaintiff  was  working  for  an  independ- 
ent company,  and  wire  causing  death  was  so  erected  by  an  inde- 
pendent company. 

Haugh  vs.  Eyerson  &  Sons,  171  App.  414, 


1030  PRESUMPTIONS 

"When  car  or  train  of  carrier  collides  with  some  object  under 

its  control,  presumption  of  negligence  arises. 
Hickey  vs.  Chi.  City  Ky.  Co.,  148  App.  197. 

The  explosion  of  a  steam  boile-r,  causing  injury  to  one  law- 
fully present  who  sustained  no  relation  of  employment  or  duty  to 
the  company,  or  individual  operating  and  controlling  the  boiler,  is 
prima  facie  evidence  of  negligence,  and  places  burden  upon  such 

company  or  individual  of  showing  the  exercise  of  care  and  diligence. 

Morris  Co.  vs.  Burgess,  44  App.  27. 

Such  presumption  is  not  conclusive  but  is  only  prima  facie  evi- 
dence of  negligence  and  may  be  rebutted. 
Schaller  vs.  Ind.  Brew.  Assoc,  225  111.  492. 

—  Incompetency  of  Employe:  The  mere  happening  of  an  acci- 
dent will  not  raise  presumption  of  incompetency  of  employe. 

Smith  vs.  C.  P.  &  St.  L.  E.  R.  Co.,  236  111.  369;  M.  &  O.  Ry.  Co.  vs. 
Godfrey,   155   111.   78. 

—  Res  Ipsa  Loquitor:  Negligence  is  not  be  presumed,  j^'et  the 
injury  itself  may  afford  sufficient  prima  facie  evidence  and  the 
presumption  of  negligence  may  be  created  by  the  circumstances 

under  which  the  injurv  occurred. 

Barnes  vs.  Danville  Ey.  Co.,  235  111.  566;  CM.  City  Ey.  Co.  vs. 
Barker,  209  111.  321. 
When  an  injury  is  shown  aiid  that  it  arose  from  something  with- 
in the  control  of  the  carrier  or  from  some  danger  which  it  was  his 
duty  to  anticipate  and  provide  against,  a  presumption  of  negligence 
on  the  part  of  the  carrier  or  his  servants  arises.  The  presump- 
tion does  not  arise  from  the  injury  itself,  but  from  the  injury  and 
the  cause  or  source  of  it,  but  when  the  injury  is  proven  and  the 
cause  connected  with  the  carrier,  a  prima  facie  case  is  made  out 

for  the  plaintiff. 

Vischer  vs.  N.  W.  El.  R.  R.  Co.,  256  111.  572. 

Whenever  doctrine  of  res  ispsa  loquitor  is  invoked,  it  raises  but 

a  presamption  which  yields  readily  to  evidence. 

Garner  vs.  Chi.  Trac.   Co.,   ISO  App.   149. 

Negligence  is  never  presumed,  but  the  circumstancesi  surround- 
ing a  case  where  the  maxim  res  ipsa  loquitor  applies  amount  to 
evidence  from  which  the  fact  of  negligence  may  be  found. 

•  Chi.  Un.  Trac.  Co.  vs.  Giese,  229  111.  260;  Devaney  vs.  Otis  El.  Co., 
251  111.  28. 

The  mere  happening  of  an  accident,  together  with  the  exercise 
of  ordinary  care  by  plaintiff  d'oes  not  raise  presumption  of  negli- 
gence on  part  of  carrier,  but  the  presumption  does  arise  where  the 
accident  is  shown  to  proceed  from  an  act  of  such  character  that 
when  due  care  is  taken  in  its  performance  no  injury  ordinarily 
results  therefrom,  or  where  it  is  caused  by  the  mismanagement  of 
a  thing  over  which  the  carrier  has  either  control  or  for  the  man- 
agement of  which  it  is  responsible. 

Barnes  vs.  Danville  St.  Ry.  Co.,  235  111.  566. 

By  the  law  railroads  are  bound  to  the  utmost  diligence  and  care 
and  are  liable  for  slight  negligence.  Proof  that  plaintiff  was  a 
passenger,  the  accident,  and  the  injury  make  a  prima  facie  case  of 


PRESUMPTIONS  1031 

negligence.     This  is  done,  and  the  burden  of  explaining  is  thrown 
upon  defendant. 

Chicago  City  Ey.  Co.  vs.  Carroll,  206  111.  318:  Hobson  vs.  St.  L    & 
P.  Ey.  Co.,  180  App.  84. 

Negotiable  Instruments : 

In  an  action  on  a  note  the  execution  of  which  is  not  denied  a 
presumption  exists  that  the  same  was  regularly  issued  for  a  valu- 
able consideration  and  that  the  payee  is  a  bona  fide  holder  and  en- 
titled to  recover  the  full  amount  thereof. 

Goding  vs.  The  McArthur  Co.,  181  App.  373. 
It  will  be  presumed  that  an  undated  indorsement  was  made  at 
date  of  note. 

DeClerque  vs.  Campbell,  231  111.  442;  Gridley  vs.  Capen,  72  111.  11. 

And  before  note  was  delivered. 
White  vs.  Weaver,  41  111.  409. 

Notaries  Public: 

Where  jurat  has  no  venue,  presumption  is  that  notary  admin- 
istered oath  within  his  own  county. 
Hertig  vs.  People,  159  111.  237. 

Certificate  of  notary  as  to  when  affidavit  to  petition  for  change 
of  venue  is  sworn  to  is  presumed  correct,  in  absence  of  contrary 
showing. 

N.  Chi.  St.  Ey,  Co.  vs.  Leonard,  167  111.  618. 

Notary  of  sister  state  will  not  be  presumed  to  have  authority 
to  administer  oaths. 

DesNovers  Shoe  Co.  vs.  First  Nat.  Bank.  188  111.  312;  Trevor  vs. 
Colgate,  181  111.  129;   Ferris  vs.  Com.  Natl.  Bank,   1.58  111.  237. 

But  is  presumed  to  have  authority  to  take  acknowledgments. 
Eamsey  vs.  People,  197  111.  594;  Harding  vs.  Curtis,  45  111.  252. 

Notice : 

After  a  party  has  once  been  brought  into  court,  the  presumption 
is  that  he  is  present  and  cognizant  of  every  step  taken  in  the  case 
until  it  is  terminated,  unless  considerable  time  has  elapsed  with- 
out taking  any  steps  in  the  case. 

Petrie  vs.  People,  40  111.  334;  Berlison  vs.  People,  51  App.  102. 

Novation : 

Not  presumed. 

Potter  vs.  Engine  Co.,  110  App.  420;  Netterstrom  vs.  Gallistel,  110 
App.  352. 

Officers : 

—  Duty:     The  presumption   always  is  that  public  authorities 

do  their  duty. 

State  vs.  I.  C.  E.  E.  Co.,  246  111.  188 ;  Citv  of  Peoria  vs.  Cent.  Natl. 
Bank,  224  111.  43;  Lyman  vs.  City  of  Chicago,  211  111.  209; 
Hogue  vs.  Corbett,  156  111.  540;  Woodward  vs.  Donovan,  167  App. 
503;  People  vs.  Lyons,  168  App.  396;  People  vs.  Walker,  179 
App.  455 ;  XII  111.  Notes  476,  §  24. 

—  Eligihility:     The  election  of  one  to  a  particular  office  raises 

a  strong  presumption  of  his  eligibility. 

Smith  vs.  People,  44  111.   16;   People  vs.  Connell,  28  App.   285. 

Official  Business : 

Presumption  is.   in  absence  of  contrary  showing,   that  official 

business  has  been  transacted  by  board  at  regular  or  special  meeting. 
Eobinson  vs.   School   Directors,  96  App.   605. 


1032  PRESUMPTIONS 

Ordinances : 

—  Existence  of:     Book  purporting  to  be  published  by  authority 
of  council  is  presumptive  evidence  of  existence  of  ordinance. 

Prairie  Du  Rocher  vs.  Milling  Co.,  248  111.  57;  C.  &  A.  Ey,  Co.  vs. 

Wilson,  225  111.  50.  f 

Presumption  is  that  ordinance,  shown  to  have  been  passed,  is  in 

force,  unless  contrary  appears. 

at.  L.  A.  &  T.  H.  Ey.  Co.  vs.  Eggman,  161  111.  155;  Earlville  VB. 
Eadley,  141  App.  359;   Goetz  vs.  Koehler,  20  Apj).  233. 

—  Validity:    Presumption  is  always  in  favor  of  validity  of  an 

ordinance. 

City  of  Chicago  vs.  Shaw  Livery  Co.,  258  111.  409;  Springfield  vs. 
Postal  Tel.  Co.,  253  111.  346;  People  vs.  C.  T.  West.  R.  E.  Co., 
232  111.  292;  Harmon  vs.  City  of  Chicago,  140  111.  374;  Conrad 
vs.  Springfield  Con.  Ey.  Co.,  145  App.  564. 

—  Violation:     Of   ordinance   raises   presumption   of  negligence. 

C,  &  E.   I.  E.  R.  Co.  vs.   Crose,   214  111.  602;   Southern  Ey.  Co.  vs. 
Drake,  107  App.  12;  Winn  vs.  C.  C.  C.  &  S.  L.  Ey.  Co.,  239  111.  132; 
Glaza  vs.  G.  N.  M.  Co.,  167  App.  238 ;  C.  &  E.  1.  E.  E.  Co.  vs.  Moehell, 
193  111.  208. 
But  such  presumption  is  not  conclusive. 

C.  &  W.  I.  E,  E.  Co.  vs.  Zerbe,   110  App.   171. 

Ownership : 

Where  a  promissoiy  note  is  found  in  the  possession  of  the  payee, 

uncancelled,  there  is  a  presumption  that  he  is  the  owner,  and  that 

it  is  unpaid. 

Lewis  vs.  Lewis,  150  App.  354. 

Possession  of  a  negotiable  note  is  prima  facie  evidence  of  owner- 
ship by  possessor. 

Henderson  vs.  Dennison,  157  111.  379;  Henry  vs.  Eddy,  34  111.  508; 
Burnap  vs.  Cook,  32   111.   168. 

And  this  though  note  be  unindorsed. 
Martin  vs.   Martin,   174  111.   371. 

Party  in  possession  of  personal  property  is  presumed  to  be  the 

owner  of  it. 

Gilbert  vs.  Natl.  Cash  Eegister,  176  111.  288;   Comer  vs.  Comer,  120 

111.   420;    Peters   vs.    Smith,    42    111.    417;    Downey   vs.    Arnold,    97 

App.   91;    Johnson   vs.    Milmiue,    150    App.    208;    XIV   111.    Notes 

150,  §27. 

It  is  presumed  that  a  claimant  in  possession  of  real  property, 

holds  the  title  thereto. 

Harland  vs.  Eastman,  119  111.  22;  Metier  vs.  Miller,  129  111.  630. 

But  it   is  presumed  possession   is  in   subordination   to   title   of 

owner  when  entry  is  made  with  consent  of  owner,  and  subservient 

to  his  claim  of  title. 

Timmons  vs.   Kidwell,   138   111.   13. 

Possession  of  certified  copy  of  a  foreign  judgment  affords  no  pre- 
sumption of  ownership. 

Bell  vs.  Farwell,  189  111.  414, 

Name  on  wagon  presumes  ownership. 
Schweinferth  vs.  Dover,  91  App.  319. 

Parent  and  Child: 

—  Custody  of  Child:     Father  is  presumed  to  be  entitled  to  cus- 
tody of  child. 

Sullivan  vs.   People,   224  Til.   468. 

—  Compensation  for  Services:    Where  child  remains  with  parent 
after  arriving  at  majority,  and  remains  in  the  apparent  relation 


PRESUMPTIONS  1033 

as  when  a  minoi',  the  presumption  is  that  parties  do  noi  contem- 
plate payment  of  wages  for  services. 

Switzer    vs.    Kee,    146    111.    577;    Neisli    vs.    Gannon,     198    111.    219; 
Schwachtgen  vs.  Schwachtgeu,  65  App.   127. 

Partnership : 

—  Compensation  for  Services:     The  presumption  is  that  each 

partner  renders  his  services  without  sahiry. 

Street  vs.   Thompson,  229  111.   613;    Ligare  vs.  Peacock,   109  111.  94. 

—  Interest  of  Partners:     Presumed  to  be  equal. 

Hendrickson   vs.    Eeinbach,    33    111.    299;    Farr   vs.    Johnson,    25    111. 
522;  Eoach  vs.  Perry,  16  111.  37. 

—  Property:    Presumed  to  belong  to  the  tirm. 

Laswell  vs.  Eobbins,  39  111.   210. 

—  Books  of  Account:  As  between  partners,  each  partner  is  pre- 
sumed to  have  knowledge  as  to  the  partnership  books,  and  the  books 

are  presumed  to  be  correct. 

Stuart   vs.    McKichan,    74   111.    122;    Donaldson    vs.    Donaldson,    142 
App.  21. 

—  Existence  of:  The  use  of  the  firm  name,  coupled  with  fact 
that  each  gives  his  personal  attention  to  the  business,  raises  pre- 
sumption of  partnership. 

Hang  vs.   Haug,   193  111.  645. 

Participation  in  profits  raises  presumption  of  partnership. 

Miller  vs.   Meers,   155   111.   284;   Lockwood  vs.  Doane,   107   111.   235; 
Straus  vs.  Kohn,  83   App.  497. 

Party  Walls : 

Promise  of  contribution  to  cost  of  erecting  party  Avail  may  be 

implied  from  circumstances. 

Evans  vs.  Howell,  211  111.  85;  Huck  vs.  Flentye,  80  111.  258. 

Pajrment : 

—  Lapse  of  Time:     Presumption  of  payment  may  arise  from, 

independent  of   Statute   of  Limitations.     After   lapse   of   twenty 

years  debts  of  whatever  degree  are  presumed  satisfied. 

Pagan   vs.   Bach,    253    111.    588;    Kichards   vs.   Carter,    201   111.   165; 
Luther  vs.  Crawford,  116  App.  351. 

But  not  of  mortgage  until  time  of  limitation  has  expired. 
Locke  vs.  Caldwell,  91  111.  414. 

On  foreclosure,  absence  of  coupon  interest  note  unaccounted  for 

raises  a  prima  facie  presumption  of  payment. 
Merrich  vs.  Hulbert,  17  App.  90. 

— -Possession:  Of  note  by  maker,  raises  presumption  of  pay- 
ment. 

Shippen  vs.   Whittier,   117   111.   282;    Tedens  vs.   Schumers,   112   111. 
263;  Allen  vs.  Sawyer,  88  111.  414. 

But  does  not  arise  where  debtor  had  means  of  obtaining  pos- 
session or  cancelling  the  obligation  other  than  by  paying  it. 

Grimes  vs.  Hilliary,  150  111.  141;  Teeter  vs.  Poe,  48  App.  158. 

—  Application:     Presumed  to  apply  to  debts  first  in  point  of 

time. 

Sprague  vs.  Hazenwinkle,  53  111.  419. 

—  Time:     When  no  time  is  set,  presumption  is  that  payment  is 

to  be  made  upon  delivery  of  property. 
Ainsworth  vs.  Koush,  109  App.  299. 


1034  PRESUMPTIONS 

— •  Giving  of  Note:    The  giving  of  a  promissory  note  for  an  open 

account  is  prima  facie  a  payment  of  the  account. 
Hoodless  vs.  Reid,  112  111.  105. 

Principle  has  no  application  to  the  giving  of  note  for  borrowed 

money. 

Hoodless  vs.  Eeid,  112  111.  105. 

And  is  a  question  of  intention. 

Eayfield  vs.  Tiueher,  180  App.  454. 

Penalties : 

All  facts  necessary  to  constitute  an  afifirmative  case,  must  be  set 

out  and  proven.     No  intendments  are  allowed  in  favor  of  the  people 

or  the  person  for  whose  benetit  the  suit  is  brought. 

People  vs.  Nesler,  145  111.   150;   Gilbert  vs.  Bone,   79  111.  341;   Peo- 
ple vs.  Mut.  Ins.  Co.,  72  App.  569. 

Perjuries : 

Proof  that  defendant  was  sworn  as  witness  raises  presumption 

that  a  binding  oath  was  administered  to  him. 
Green  vs.  People,  182  111.  278. 

Physicians  and  Surgeons: 

—  Right  to  Practice:     Betw^een  third  persons,  the  question  of 

the  physician's  qualification  arising  only  collaterally,  his  right  to 

practice  is  presumed. 

Chi.  City  Ey.  Co.  vs.  Cotton,  140  111.  486 ;  City  of  Chicago  vs.  Wood, 
24  App.  40. 

And  in  suit  for  professional  services,  right  to  practice  will  be 

presumed. 

Co.  of  Jo  Daviess  vs.  Staples,  108  App.  539;  Good  vs.  Lfashear,  99 
App.  653. 

But  in  prosecutions  on  behalf  of  public  rule  is  otherwise. 

Williams  vs.  People,  121  111.  84;   People  vs.  Koehler,  146  App.  541. 

—  Necessity   for   Visits:     Court   will   presume   all   professional 

visits  were  necessary. 

Ebner  vs.   Mackey,  186  111.   297;   Gibson  vs.   O'Gara  Coal  Co.,   151 
App.  424. 

Plats: 

Record  presumed  to  be  correct. 

City   of   Peoria  vs.   Cen.   Natl.   Bank,   224   111.   43. 

Pledge : 

Presumption  arises  delivery  was  not  intended  to  operate  as  im- 
mediate and  absolute  discharge  of  debt. 

Wilhelm  vs.  Schmidt,  84  111.  183. 

Possession : 

—  Fruits  of  Crime:  Possession  of  propery  recently  stolen  is 
prima  facie  evidence  of  guilt  of  possessor. 

People   vs.   Everett,   242   111.   628;    People  vs.   Deluce,   237   111.   541; 
Williams  vs.  People,  196  III.  173. 

But  possession  immediately  after  theft,  in  order  to  create  such 
presumption,  must  be  exclusive  and  such  as  to  indicate  that  pos- 
sessor took  the  property. 

Miller  vs.  People,  229  111.  376;  Watts  vs.  People,  204  111.  233. 

—  Feal  Property:  It  is  presumed  that  a  claimant  of  real  prop- 
erty, who  is  in  possession,  holds  the  legal  title  thereto. 

Glos  vs.  Ptacek,  226  111.  188;   Glos  vs.  Huey,  181  111.  149;   Harland 
vs.  Eastman,  119  111.  22. 


PRESUMPTIONS  1035 

In  action  of  ejectment,  pi-esumption  of  ownership  arising  from 
possession  under  claim  of  title  is  sufficient  prima  facie  as  against 
mere  intruders. 

Coombs  vs.  Hertig,  162  111.   171. 

There  may  be  a  presumption  of  continuance  of  possession  but 
not  of  prior  possession. 

Glos  vs.  Kemp,  192  111.  72;  Wliite  vs.  White,  105  111.  313;  Burge- 
ner  vs.  Leppold,  128  App.  590;  Eengel  vs.  Schoden,  178  App. 
151. 

^  And  where  conveyance  is  shown,   it  is  presumed  grantee  con- 
tinued in  same  possession  as  grantor. 

Sholl  vs.  German  Coal  Co.,  139  111.  21. 

One  who  is  in  the  actual  and  peaceable  possession  of  lands  will 
be  presumed  to  be  rightfully  in  possession. 

Hammond  vs.  Doty,  184  111.  246;  Fitzgerald  vs.  Quinn,  165  111.  354; 
Gosselin  vs.   Smith,   154  111.   74. 

—  Deeds:     When  a  deed,  duly  executed,  is  found  in  possession 

of  grantee  named  therein,  it  is  presumed  to  have  been  properlj^ 

delivered. 

Sc'liroeder  vs.  Smith,  249  111.  574;  Ingram  vs.  Swearingen,  198  111. 
437. 

—  Insurance  Policy:  Possession  of  life  insurance  policy  raises 
presumption  of  delivery  and  acceptance. 

Richardson  vs.  n!  W.   M.  L.  Ins.  Co.,   143  App.  279. 

—  Ownership:  Party  in  possession  of  personal  property  is  pre- 
sumed to  be  owner  of  it. 

Gillett  vs.  Natl.  Cash  Register,  176  111.  288;  Downey  vs.  Arnold, 
97  App.  91. 

And  it  is  sufficient  evidence  of  o^vnership  in  prosecutions  for 
robbery. 

Howard  vs.  People,  193  111.  615;  Bow  vs.  People,  160  111.  438. 
The   presinnption   that   apparent  head   of  family  is  owner   of 
household  goods  is  rebuttable. 

Gre^nberg  vs.  Stevens,  212  111.  606. 

Presumption  of  ownership  does  not  apply  in  favor  of  one  whose 
possession  is  of  a  subordinate   character,   as  that  of  an  avowed 
agent,  the  possession  in  that  case  being  that  of  the  employer. 
Comer  vs.  Comer,  120  111.  420. 

Possession  of  a  negotiable  note  is  prima  facie  evidence  of  owner- 
'ship  in  possessor. 

Henderson  vs.  Davisson,  157  111.  379;  Hall  vs.  First  Natl.  Bank,  133 
111.  234. 

And  this  though  note  be  unindorsed. 
Martin  vs.  Martin,  174  111.  371. 

When  a  note  past  due  is  in  the  hands  of  the  maker,  it  will  be 
presumed  that  it  has  been  paid. 

Shippen  vs.  Whittier,  117  111.  282;  Zimpleman  vs.  Yeeder,  80  111. 
613;  Teeter  vs.  Poe,  48  App.  158;  Douglas  vs.  Pfeffer,  46  111.  102. 

And  so  when  found  in  possession  of  payee,  uncancelled,  pre- 
sumption is  that  it  was  unpaid. 

Lewis  vs.  Lewis,  150  App.  354;  Ritter  vs.  Schenk,  101  111.  387. 

Power  of  City: 

To  establish  dock  line  on  a  river  does  not  raise  presumption 
that  same  has  been  established. 

DuPont  vs.  San.  Dist.,  203  111.  170. 


1036  PBESUMPTIONS 

Power  Over  Estate : 

Where  party  has  two  or  more  powers  over  same  estate  and  does 
an  act  without  any  reference  to  either  power,  such  act  will  be  pre- 
eumed  an  execution  of  power  which  will  support  the  act. 
GriffiB  vs.  Griffin,  141  111.  373. 

Proceeding-  at  Law : 

Presumption  is  in  favor  of  regularity  of. 
People  vs.  Drainage  Conirs.,  235  111.  278. 

Purpose : 

The  building  of  a  bridge  over  a  watercourse  crossed  by  right  of 
way  raises  no  presumption  that  it  was  built  to  permit  the  passage 
of  stock. 

C.  B.  &  Q.  R.  R.  Co.  vs.  Hammond,  210  111.  187. 

Principal  and  Agent : 

—  Agency:  Evidence  that  one  openly  acts  for  another  under 
circumstances  implying  knowledge  on  part  of  supposed  principal, 
makes  prima  facie  case  of  agency. 

R.  R.  T.  &  St.  L.  R.  R.  Co.  vs.  Wilcox,  66  111.  417;  Dow  vs.  Duncan, 
17  111.  272. 

Agency  of  person  in  legal  proceedings  is  presumed  to  continue 
throughout  proceedings. 

Parker  vs.  Crilly,  113  App.  309. 

—  Good  Faith :  Where  an  agent  is  contracting  in  his  own  in- 
terest and  to  the  probable  detriment  of  his  principal  and  by  the 
contract  he  is  agreeing  to  pay  his  own  debt  to  the  party  with  whom 
he  is  dealing  out  of  the  money  or  property  of  his  principal,  it  will 
not  be  presumed  that  the  agent  will  transmit  to  his  principal  full 
particulars' of  such  a  transaction  or  that  the  principal  authorized 
such  a  transaction. 

Leigh  vs.  Amer.  B.  B.   Co.,  205  111.   147;   Grollman  vs.  Montgomery 
Ward  &  Co.,  181  App.  598. 

—  AutJwrity  of  Agent:  No  inference  of  agent's  authority  to 
sign  a  contract  can  be  drawn  from  evidence  that  agent  had,  in 
presence  of  principal,  on  two  occasions,  drawn  and  signed  con- 
tracts embodying  terms  made  by  principal. 

Fadner  vs.  Hibler,  26  App."  639;  Darst  vs.  Doon,  38  App.  397. 

Authority  of  agent  to  buy  goods  cannot  be  presumed  from 
authority  to  sell. 

Thurber  vs.  Anderson,  88  111.  167. 
Presumptions  relating  to  the  authority  of  agents  of  corporations 
are  no  different  than  those  relating  to  authority  of  agents  of  in- 
dividuals when  circumstances  are  the  same. 
Mer.  Bank  vs.  Nichols  &  Co.,  223  111.  41. 

Public  Documents : 

Presumed  to  be  in  possession  of  holder  of  office. 
Stow  vs.  People,  25  111.  81. 

Quo  Warranto : 

Laches  cannot  be  presumed. 
Kamp  vs.  People,  141  111.  9. 

Recognizance : 

Is  of  itself  evidence  that  it  was  taken  under  the  direction  of  the 

court. 

Chumasero  vs.  Peojjle,  18  111.  405. 


PRESUMPTIONS  1037 

A  recognizance,  when  filed,  becomes  a  matter  of  record,  and 
the  presumption  from  it  is  that  the  charge  was  properly  preferred 
and  investigated,  and  the  proper  decision  made  before  it  was  en- 
tered into  and  acknowledged. 

Shattuck  vs.  People,  5  111.  478. 

Records : 

Presumptions  cannot  be  permitted  to  contradict  express  findings 

of  record. 

Seilbaeh  vs.  Grothman,  248  111.  435. 

Receipts : 

Presumed  true. 

House  vs.  Beak,  43  App.  615. 

There  is  no  presumption  of  law  that  a  receipt  properly  and  fully 
expresses  the  intention  of  the  parties ;  the  only  presumptions  that 
could  or  would  arise  from  the  contents  of  the  writing  are  presump- 
tions of  fact. 

Herkimer  vs.   Nigh,  10  App.   372. 

Recordation : 

It  is  presumed  that  public  officials  who  recorded  instrument 
record<?d  it  correctly. 

City  of  Peoria  vs.  Cent.  Natl.  Bank,  224  111.  43. 

Refusal  to  Produce  Evidence : 

When  a  party  refuses  to  produce  evidence  that  is  within  his 
power,  the  presumption  is  that  the  evidence,  if  given,  would  be 

unfavorable  to  him. 

Montanya  vs.  Eeilly,  184  111.  183;  L.  F.  Water  Co.  vs.  Lake  Forest, 
154  App.  184;  Ilennessy  vs.  Walsh,  142  App.  237;  Century  Furn. 
Co.  vs.  Harty  Bros.,  141  App.  17. 
Such  presumption  or  inference  does  not  arise  unless  the  party 

wilfully  withholds  such  evidence. 

Cartier   vs.    Troy   Lumber   Co.,   138   111.   533;    Princeville   vs.    Hitch- 
cock, 101  App.  589. 

The  court  cainiot  create  any  presumption  of  fact  against  a  party 

who  refuses  to  produce  books. 

Walter  Cabinet  Co.  vs.  Eussell,   250  111.  416. 

If  plaintiff  refuses  to  answer  relevant  questions,  the  presump- 
tion is  that  the  testimony,  if  given,  would  be  unfavorable  to  him. 
Stock  Exchange  vs.' Board  of  Trade,  196  111.  396;  Contra.,  Lowe  vs. 
Massey,  62  111.  47;   Moore  vs.  Wright,  90  111.  470. 

Release : 

AVhere  a  release  is  authorized  to  be  delivered  upon  the  perform- 
ance of  certain  conditions  and  delivery  is  made,  presumed  on  per- 
formance of  conditions  precedent. 

Chi.  Daily  News  vs.  Siegel,  212  111.  617. 

Resulting  Trust : 

—  Conveyance:  Presumption  from  fact  that  deed  was  executed 
to  a  certain  person  is  that  he  purchased  the  land  with  his  own 
money. 

Stambaugh  vs.  Long,  232  111.  377. 

—  Payment  hy  Another:  Where  a  transfer  of  real  property  is 
made  and  the  consideration  therefor  is  paid  by  another  or  for  an- 


1038  PRESUMPTIONS 

other,  a  trust  is  presumed  to  result  in  favor  of  the  person  by  or  for 

whom  such  payment  is  made. 

Baehsei'ts   vs.   Leiehtweis,   256    111.   357;    Brenuaman   vs.    Schell,   212 
111.    356;    Wright   vs.    Wright,    242    111.    71;    Dormau   vs.    Dorman, 
187  111.  154. 
Where  money  is  paid  by  husband  and  conveyance  taken  in  name 
of  wife,  presumption  is  that  same  was  intended  as  a  gift  or  ad- 
vancement. 

Bacheits  vs.  Leichtweis,  256  111.   357;   Stubbings  vs.   Stubbmgs,  248 
111.  406;   Lewis  vs.   McGrath,   191  111.   401;    Smith  vs.   Smith,   144 
111.  299. 
Or  where  money  is  paid  by  parent  and  conveyance  taken  in  name 
of  child,  the  presumption  is  that  of  an  advancement. 

Bachseits   vs.    Leichtweis,   256    111.    357;    Brenuaman   vs.   Schell,    212 
111.  356;  Euans  vs.  Curtis,  190  111.  197. 
But  such  presumption  does  not  arise  where  conveyance  is  of 

Skahen  vs.  Irving,  206  111.  597 ;  Pool  vs.  Phillips,  167  111.  432.    See  also 
Konser  vs.  Konser,  219  111.  466. 

—  Fiduciary   Belations:     Presumption   is   against   validity   of 
transactions   between   persons   occupying  fiduciary   relations  and 

trust  arises  where  proof  of  such  appears. 

Beach  vs.   Wilton,  244  111.  413;   Fish  vs.  Fish,  235  111.  396;   Irving 
vs.   Sample,   213   111.   160. 
But  rule  does  not  apply  where  parent  makes  will  or  other  pro- 
vision for  child. 

Sears  vs.   Vaughn,   230   111.   572;    Bishop   vs.   Hilliard,   227   111.   382. 
(See  Trusts.) 

Residence : 

—  Plaintiff:     Presumption  is  that  plaintiff  resided   in   county 

where  suit  was  brought. 

Trader's  Ins.  Co,  vs.  Humphries,   109  App.   246. 

—  College  Student:     Not  presumed  to  have  right  to  vote,  and 

burden  is  on  him  to  show  residence. 
Welsh  vs.  Shumway,  232  111.  54. 

—  Hushand  and  Wife:     Residence  of  husband  is  presumed  to  be 

residence  of  wife. 

Davis  vs.  Davis,  30  111.  180. 

—  Continuance:     Residence,   once   established,    is   presumed   to 

continue. 

People  vs.  Estate  of  Mohr,  207  111.  180;  Mofifett  vs.  Hill,  131  111.  239. 

But  no  presumption  is  raised  as  to  when  it  began. 
Clough  vs.  Kyne,  40  App.  234. 

Robbery : 

Proof  of  robbery  from  the  person,  raises  presumption  of  owner- 
ship of  money  taken. 

Bow  vs.  People,  160  111.  438;  Howard  vs.  People,  193  111.  615. 

Safety:  ''"' 

In  absence  of  contrary  proof,   an  employe  may  presume  that 

place  of  working  is  reasonably  safe. 

L.   E.  &  W.   Ky.   Co.   vs.   Morrisy,   177  111.   376. 

Sales : 

—  J)i  General:    A  purchaser  is  presumed  to  be  a  purchaser  bona 
fide  for  value  in  absence  of  anything  to  show  the  contrary. 

Sloeum  vs.  O'Day,  174  111.  215. 


PRESUMPTIONS '  1039 

Readiness  and  willingness  to  perform  on  the  part  of  ihe  seller 

may  be  presumed  where  the  market  had  gone  down. 
Morier  vs.  Moran,  58  App.  235. 

The  presumption  is  that  every  sale  is  to  be  consummated  at  once. 
Gettys  vs.  Marsh,  145  App.  291. 

—  Time  of  Payment:  Where  nothing  is  said  as  to  when  pay- 
ment shall  be  made,  it  is  presumed  that  it  is  to  be  made  on  delivery. 

Dwyer  vs.  Duquid,  70  111.  307;  Aiiisworth  vs.  Eoush,  109  App.  299. 

—  Common  Mass:     Where  the  sale  is  of  an  undistinguished  mass 

as  a  part  of  corn  in  a  crib,  uniformity  of  quality,  such  that  the 

property  may  pass,  may  be  presumed. 
Wood  vs.  Roach,  52  App.   388. 

—  Deliver y:  Wliere,  upon  a  sale  of  goods,  no  time  is  fixed,  the 
law  presumes  that  it  shall  be  made  within  a  reasonal^le  time. 

Henkle  vs.   Smith,   21   111.   237;    Lehigh  Valley   Coal  Co.   vs.   Curtis, 
22  App.  394. 
Whenever  the  special  facts  and  circumstances  are  such  that  the 
court  cannot,  by  aid  of  any  legal  rule  or  principle,  decide  upon  the 
legal  quality  of  the  facts,  the  jury  must  draw  the  inference  with 
reference  to  the  ordinary  course  and  practice  of  dealing  under  the 
circumstances  of  the  particular  case. 
Morris  vs.  Wibaux,  159i  111.  627. 

Sanity  and  Insanity: 

The  presumption  of  law  before  inquest  found  is  in  favor  of 

sanity. 

Norton  vs.  Clark,  253  111.  557;  Kelly  vs.  Nusbaum,  244  111.  158;  Isle 
vs.  Cranby,   199   111.  39;   XII  111.  Notes  476,   §26. 
But  settled  insanity,  proved  once  to  have  existed,  is  presumed 

to  continue  until  rebutted. 

In   re   Estate  of  Weedman,   254   111.   504;    Trish  vs.   Newell.   62   111. 
196;    Titcomb   vs.   VanTyle,   84   111.   371;    Stitzel   vs.   Farley,    148 
App.  635. 
If  the  insanity  is  of  a  character  like  to  be  merely  temporary, 
as  if  it  is  the  result  of  sudden  or  violent  disease,  there  is  no  pre- 
sumption of  its  continuance. 

Taylor  vs.  Pegram,  151  111,  106;   Trish  vs.  Newell,  62  111.  196. 

Seals : 

Instrument  bearing  seal  of  corporation,  and  purporting  to  be 
its  act,  is  presumed  to  be  the  act  of  the  corporation,  though  sig- 
nature is  that  of  corporate  officer,  and  not  name  of  corporation. 

Con.  Coal  Co.  vs.   Peers,   150  111.  344;   Sawyer  vs.  Cox,  63   111.   130; 

Phillips  vs.  Coffee,  17  111.  154;  Conkey  vs.  Goldman,  125  App.  161. 

Seal  being  proven  to  be  that  of  corporation,  raises  presumption 

of  authority  to  do  the  act. 

Springer  vs.  Bigford,   160  111.  495;   Phillips  vs.  Coffee,  17  111.  154; 
Ashley  Wire  Co.  vs.  111.  Steel  Co.,  164  111.  149. 
When  signature  of  one  having  authority  executing  the  instru- 
ment is  proven,  and  seal  is  affixed,  presumption  is  raised  that  it  is 

the  seal  of  the  corporation. 

Phillips  vs.  Coffee,  17  111.  154;  Wagg- Anderson  Co.  vs.  Lesher  &  Co., 
78  App.  678. 
Rule  adoped  is  that  is  it  prima  facie  evidence  of  that  fact. 

Reed  vs.  Fleming,  209  111.  390. 
Where   instrument  purports  to  be  sealed  by   all   signers,   and 


1040  *  PRESUMPTIONS 

there  are  several  seals  to  it,  but  not  as  many  as  names,  presumption 
arises  that  each  person  signing  adopted  one  of  the  seals. 

Ryan  vs.   Cook,   172   111.   302;    Trodgen   vs.   Cleveland   Stone   Co.,   53 
App.  206. 

Seduction : 

In  absence  of  proof,  it  will  be  presumed  that  the  father  is  alive, 
and  the  right  of  action  for  loss  of  service  remains  in  him. 
Hobson  vs.  FuUerton,  4  App.  282. 

Settlement : 

Where  one  partner  disposes  of  his  interest  and  subsequently 
purchases  interest  of  his  partner,  it  is  presumed  that  all  former 
accounts  were  settled  or  merged  in  new  agreement. 
Norman  vs.  Huddleston,  64  111.  1. 
When  general  settlement  is  proven,  it  is  presumed  parties  em- 
braced in  such  settlement  all  items  that  each  had  against  the  other, 
and  burden  is  on  party  who  asserts  contrary  to  prove  that  an  item 
omitted  was  not  due,  or  omitted  by  consent  or  accident. 

Straubher   vs.    Mohler,   80   111.    21;    Beebe  vs.    Smith,   194   111.    634; 
Smith  vs.  Smith,  45  App.  215. 

Is  not  conclusive  presumption. 

Bull  vs.  Harris,  31  111.  487;   Hodge  vs.  Boyntou,   16  App.  524. 
A  receipt  purporting  to  be  in  full  settlement  of  a  case  is  prima 
facie  evidence  of  a  full  settlement  and  burden  of  establishing  con- 
trary is  upon  party  seeking  to  impeach  the  receipt. 
McElhaney  vs.  People,  1  App.  550. 
An   adjustment  of  partnership   accounts  is  presumed   to  have 
been  included  in  transaction  in  w^hich  surviving  partner  acquired 

interests  of  deceased  partner. 

Hamilton  vs.  Wells,  182  111.  144. 
Where  estate  has  been  finally  settled,  the  presumption  is  that 
the  administrator  has  paid  out  all  funds  in  his  hands  upon  claims 

and  to  the  distributees. 

Hales  vs.  Holland,  92  111.  494. 

Special  Assessments: 

—  lUgularify:     Presumption  is  they  are  regularly  entered. 

Scott  vs.  People,  142  111.  291. 

—  Notice:     Presumption   is  that  the   several   notices   required 

were  given  to  the  property  holders. 

Brown  vs.  City  of  Chicago,  117  111.  21. 

—  Officers:    Are  presumed  to  do  their  duty. 

Lyman  vs.  City  of  Chicago,  211  111.  209. 
Presumption  is  that  engineer  has  neither  committed  a  mistake 
nor  acted  fraudulentlv  in  making  the  estimate. 

City   of   Chicago  vs.   Underwood,   258   111.   116;    City  of   Chicago   vs. 
MacChesney,  240  111.  174. 

Speed : 

Violation  of  ordinance  raises  presumption  of  negligence. 

C   &  E.  I.  E.  E.  Co.  vs.  Crose,  214  111.  602 ;  C.  &  N.  W.  E.  E.  Co.  vs. 
"jamieson,   112   App.  69;   Glaza  vs.   Oreat   Northern   Mill.  Co.,   167 
App.  238;  C.  &  E.  I.  E.  E.  Co.  vs.  Mochell,  193  111.  208. 

When  law  is  signed  by  speakers  of  both  houses  and  approved 
by  governor,  it  will  be  presumed  to  be  valid. 

I.  C.  E.  E.  Co.  vs.  People,  143  111.  434;  Larrison  vs.  P.  A.  &  D.  Ky. 
Co.,  77  111.  11. 


PRESUMPTIONS  1041 

Where  a  statute  is  adopted  from  another  state,  it  will  be  pre- 
sumed the  legislature  intended  it  to  receive  the  construction  given 
it  by  the  courts  of  that  state,  if  it  had  previously  been  construed, 
unless  in  conflict  with  the  spirit  and  policy  of  our  laws. 

Peo])le  vs.  Griffith,  245  111.  532;  Ehoads'  vs.  C.  &  A.  R.  E.  Co.,  227 
111.  328;  EeQua  vs.  Graham,  187  111.  67, 

Stipulations : 

Agreed   statement   of  facts   presumed   to   contain   all   evidence 
heard  which  might  affect  judgment. 
Hall  vs.  Virginia,  91  ill.  535. 

Suicide : 

Presumption  is  that  all  men  are  possessed  of  love  of  life  and 
against  suicide,  and  death  by  natural  or  accidental  causes  will  be 
presumed. 

Wilkinson  vs.  Aetnae  Ins.  Co.,  240  111.  205;  Knights  Templars  vs. 
Crayton,  209  111.  550;  F.  &  C.  Co.  vs.  Weise,  182  111.  496;  Su- 
preme Lodge  vs.  Stensland,  206  111.  124;  Devine  vs.  Natl.  Safe 
Deposit  Co.,  145  App.  322. 

Attemptecl  suicide  by  one  accused  of  crime,  may  raise  presump- 
tion of  guilt. 

People  vs.  Dimoan,  261  111.  339. 

Surveys  and  Field  Notes: 

—  Of  Public  Lands:     Are  presumed  to  be  correct. 

Town  of  Kane  vs.  Farrelly,  192  111.  521. 

—  Moiwmcnts:  Mentioned  in  description  of  land,  are  presumed 
to  exist. 

Kleiner  vs.  Bowen,  166  111.  537. 

It  is  presumed  that  artificial  monuments  fixed  by  the  surveyor 
are  correct  and  mark  the  true  line. 

Decatur  vs.  Niedermeyer,  168  111.  68. 

Survivorship : 

Where  two  or  more  persons  perish  in  a  common  disaster,  there 
is  no  presumption  of  survivorship. 
Meddeke  vs.  Balder,  198  111.  590. 

Taxes : 

—  Agency:  Payment  of  taxes  by  a  person  having  no  interest 
in  the  land  and  a  subsequent  compensation  by  the  owner,  raises 
presumption  of  agency  and  that  payment  was  made  for  owner. 

Harris  vs.  DeWolf,  136  App.  338;   Paris  vs.  Lewis,  85  111.  597. 

—  Valicliiy:     Presumption  is  that  assessment  was  legallv  made. 

People  vs.  I.  C.  E.  E.  Co.,  252  111.  262 ;  In  re  Maplewood  Coal  Co., 
213  111.   283;   Monticello  Sem.  vs.   Board  of  Eeview,   242   111.   477. 

And  was  levied  for  lawful  purpose. 
People  vs.  Guzenheimer,  237  111.  262. 

And  that  tax  was  just. 

Tolman  vs.  Eaymond,  202  111.  197;  People  vs.  Keener,  194  111.  16; 
People  vs.  A.  T.  &  S.  F.  Ey.  Co.,  261  111.  33. 

—  Special:  It  will  not  be  presumed  that  property  has  been 
specially  assessed. 

'Chicago  vs.   Middlebrook,  143   111.  265. 

AVhere   property   is   listed   as   "all   other   property   required   to 
be  listed,"  it  will  be  presumed  that  such  assessment  was  not  in- 
cluded in  any  of  the  classes  first  listed. 
Holt  vs.  Hendee,  248  111.  288. 
Ev.— 66 


1042  PRESUMPTIONS 

Tax  Deeds: 

Presumption  is  that  they  were  received  in  good  faith. 

L.  S.  &  M.  S.  Ry.  Co.  vs.  P.  F.  W.  &  C.  Ry.  Co.,  71  111.  38;  Peabody  vs. 
Burri,  255  111.  592. 

Technical  Words: 

Are  presumed  to  be  used  technically,  and  words  of  detinite  legal 
meaning  are  to  be  understood  in  their  definite  legal  sense. 
Aetnae  Ins.  Co.  vs.  Koppin,  249  111.  406. 

Tender : 

Amount  if  not  objected  to,  is  presumed  sufficient. 
Conway  vs.  Case,  22  111.  127. 

Timber : 

Where  one  cuts  timber,  knowing  it  not  to  be  upon  his  own  land, 

or  upon  land  from  which  he  had  license  to  cut,  the  law  presumes 

trespass  was  wilful. 

Watkins  vs.  Gale,  13  111.  152;  Whitecraft  vs.  Vandever,  12  111.  234. 

Usury: 

Is  not  presumed. 

Wilson  vs.  Kirby,  88  111.  566. 

Where  agent  accepts  usury,  principal  is  presumed  to  have  known 

and  authorized  it. 

Stevens  vs.  Myers,  11  App.  138;   Affd.  106  111.  549;   Pane  vs.  New- 
comb,  100  111.  611. 

Value : 

—  Knoivledge:    Everyone  is  presumed  to  have  some  idea  of  the 
value  of  such  property  as  is  in  general  use. 

O.  &  M.  R.  E.  Co.  vs.  Irwin,  27  111.  178;  O.  &  M.  E.  E.  Co.  vs.  Tay- 
lor, 27  111.  207. 

—  Auction:    Price  brought  at  successful  auction  presumed  value. 

Curtis  vs.  Baiigh,  79  111.  242. 

—  Services:     Amount  paid  for  services  not  presumed  reason- 
able value. 

Hoover  vs.  B.  &  O.  S.  W.  E.  E.  Co.,  158  App.  292. 

Voluntary  Conveyance: 

In  the  case  of  deeds  executed  to  effect  a  voluntary  distribution 
or  settlement,  the  law  will  presume  a  delivery,  and  this  presump- 
tion is  especially  strong  where  a  father  makes  a  conveyance  for 
the  benefit  of  his  infant  child.  The  burden  of  proof  shifts  in 
such  cases  and  it  is  required  that  anyone  claiming  adversely  to 
such  grantee  must  show  there  was  no  delivery. 
Thurston  vs.  Tubbs,  257  111.  465. 

There  is  no  presumption  of  undue  influence  in  the  case  of  a 

conveyance  by  a  parent  to  a  child. 

Brock'vs.  Stines,  258  111.  346;   Sears  vs.  Vaughan,  230  Til.  572. 

Voter : 

—  Identity:     There  is  no  conclusive  presumption  of  law  that 
a  signer  of  a  petition  and  a  trustee  voting  thereon  are  the  same 

person,  merely  because  they  bear  the  same  name. 

Ferguson  vs.  Trustees,  168  App.  225. 
Where  a  person  of  a  certain  name  voted  at  an  election,  and  on  con- 
test of  the  election  a  man  of  that  name  was  called  as  a  witness,  who 
showed  he  was  of  foreign  birth,  and  had  never  been  naturalized,  it 
was  presumed,  as  he  was  found  in  the  same  county,  from  the 
identity  of  the  name,  that  the  witness  was  the  person  who  voted. 

Clark  vs.  Eobinson,  88  111.  499. 


PRESUMPTIONS  1043 

—  Right  to  Vote:    A  person  whose  vote  is  received  by  officers 
ill  charge,  will  be  presumed  to  have  been  a  legal  voter. 

Blankenship  vs.  Israel,  132  111.  514;  Webster  vs.  Gilmore,  91  111.  324. 

Presumption  of  right  to  vote  arises  from  act  of  voting. 
Collier  vs.  Ahnlieher,  189  111.  34. 

—  Illegal  voting:    AVill  not  be  presumed. 

Dorsey  vs.  Brigbam,  177  111.  250. 

College  student  not  presumed  legal  voter. 
Welsh  vs.  Shumway,  232  111.  54. 

—  Party  Affiliation:     Proof  of  raises  presumption  that  voter 

voted  for  nominee  of  his  party. 

Eexroat  vs.  Sehein,  206  111.  80. 

Waters  and  Watercourses: 

General  presumption  is  that  purchaser's  title  extends  as  far  as 
grantor  owns,  both  in  tidal  and  fresh  waters. 
People  vs.  Economy  L.  &  P.  Co.,  241  111.  290. 

Wills: 

—  Knowledge  of  Contents:  Testator  is  presumed  to  have  under- 
stood nature  and  contents  of  his  will. 

Jones  vs.  Abbott,  235  111.  220;  Waters  vs.  Waters,  222  111.  26;  Todd 
vs.  Todd,   221  111.  410;   Compber  vs.  Browning,  219  111.  429. 

—  Sanity:     Presumption   of  law,   before   inquest  found,   is  in 

favor  of  sanity. 

Norton   vs.    Clark,   253   111.   557;   Kelly  vs.   Nusbaum,   244  111.   158; 
Jobnson  vs.  Jobnson,  187  111.  86. 
The  mental  condition  of  testator,  once  shown  to  exist,  is  pre- 
sumed to  continue,  if  of  a  continuous  nature. 

Todd  vs.  Todd,  221  111.  410;  Taylor  vs.  Pegram,  151  111.  106. 

But  such  presumption  is  not  conclusive. 
In  re  Estate  of  Weedman,  254  111.  504. 

The  fact  that  a  testator  has  been  insane  for  several  j^ears  prior 
to  execution  of  last  will  does  not  raise  presumption  that  insanity 
was  present  at  time  of  publication,  especially  when  it  is  shown 

that  after  a  cure,  no  symptoms  returned. 
Snow  vs.  Benton,  28  111.  306. 
Inequality  of  distribution  raises  no  presumption  of  unsound- 
ness of  mind. 

Abrams  vs.  Wooley,  243  111.  365;  Donnan  vs.  Donnan,  236  111.  341; 
Scbmidt  vs.  Schinidt,  201  111.  191. 
Belief  in  Spiritualism,   Christian   Science  and  Swedenborgian- 

ism  raises  no  presumption  of  insanity. 

Trubey  vs.  Richardson,  224  111.   136;   Owen  vs.  Cnimbaugh,  228  111. 
380 ;  Scott  vs.  Scott,  212  111.  597. 

—  Construction:  It  is  presumed  that  testator  intends  to  dis- 
pose of  entire  estate. 

Felkel  vs.   O'Brien,   231   111.   329;    Hoffner   vs.   Custer,   237   111.   71; 
Lewis  vs.   Sedgwick,   223   111.   213;    Connor  vs.   Gardiner,   230   111. 
258;   XIV  111.  Notes  1060,  §256. 
Testator  is  presumed  to  have  made  will  in  view  of  laws  then 

existing. 

Rudolph  vs.  Rudolph,  207  HI.  266. 

And  presumption  is  that  testator  knew  the  laws  of  the  state. 

Greenwood  vs.   Greenwood,   178   111.   387;    Nangle  vs.   Mullaney,   113 
App.  457. 


1044  PRESUMPTIONS 

It  is  not  to  be  presumed  that  testator  intended  to  do  that  which 

the  law  would  do  without  any  will. 

Anderson  vs.  Anderson,  191  111.  100. 
Presumption  is  tliat  testator  had  knowledge  of  the  fact  that  mar- 
riage invalidated  his  will. 

fc>louiger  vs.  iSloniger,  161  111.  270. 
In  construing  a  will,  it  is  presumed  that  every  w^ord  qualifying 
another  word  is  intended  by  the  testator  to  have  some  meaning, 
and  the  ordinary  meaning  of  the  qualifying  word  is  to  be  given 
to  it  unless  otherwise  required  by  the  context. 
Tea  vs.  Milieu,  257   111.  624. 

—  Due  Execution:  AVliere  attestation  clause  is  perfect  and 
formal,  and  recites  that  all  statutory  requirements  have  been  com- 
plied with,  and  is  signed  by  attesting  witnesses,  the  presumption 
of  regularity  and  compliance  with  statutory  requirements  arises. 

Moore  vs.  Moore,  211  111.  268;  Hobart  vs.  Hobart,  154  111.  610. 
But  where  attestation  clause  does  not  recite  that  testatrix  was 
present,  there  is  no  presumption  that  she  was  so  present. 
Schofield  vs.  Thomas,  2S6  lU.  417. 

An  holographic  will  is  presumed  to  have  been  executed  volun- 
tarily and  without  aid. 

Hannant  vs.  Penstone,  255  111.  274. 

—  Lost  Will:  Where  a  last  will  and  testament,  after  its  execu- 
tion, is  retained  by  the  testator  and  kept  in  his  possession,  and 
later,  after  his  death,  it  cannot  be  found,  the  presumption  is  that 
the  testator  destroyed  it  animo  revocandi,  and  it  will  not  be  pre- 
sumed that  it  has  been  destroyed  by  another  person  without  his 
knowledge  or  authority,  for  that  would  be  presuming  a  crime. 

St.  Mary's  Home  vs.  Dodge,  257  III.  518;  Stetson  vs.  Stetson,  200 
111.  601. 

—  MuUliated  Will:  Where  a  will  is  found  in  a  mutilated  con- 
dition, in  possession  of  testator,  after  latter 's  death,  and  there  is 
no  evidence  fixing  the  spoliation  on  any  other  person,  the  court 
will  presume  that  it  was  done  by  the  testator  with  the  intention  of 

cancelling  the  will. 

Marshall  vs.  Coleman,  187  111.  556. 

Where  will  is  in  possession  of  testator  up  to  the  time  of  his 

decease,  it  is  presumed  that  marks  and  erasures  thereon  were  those 

of  testator. 

Pyle  vs.  Murphy,  180  App.  18. 

Witness : 

No  presumption  arises  against  witness  in  a  criminal  case  who 
does  not  avail  himself  of  the  privilege  of  testifying. 

Miller  vs.  People,  216  111.  309;  People  vs.  Annis,  261  111.  157. 

The  law  raises  no  presumption  that  a  witness  has  testified  to 

the  truth. 

Bleich  vs.  People,  227  111.  80;  Chi.  U.  Trac.  Co.  vs.  O'Brien,  219  111. 
303 ;  Hauser  vs.  People,  210  111.  253. 

Work  and  Services: 

Presumption   is  that  services   rendered  by   one   admitted   into 

family  as  a  relative  were  gratuitous. 

Heflfron  vs.  Brown,  155  111.  322;   Collar  vs.  Patterson,  137  HI.  403; 
Keyes  vs.  Thornton,  150  App.  523.     (See  Ante-Employment.) 


PRINCIPAL  AND  SURETY  1045 

PRINCIPAL  AND  AGENT 

See  Agency,  Ratification,  Witnesses,  Husband  and  Wife,  Ad- 
missions AND  Declarations. 

PRINCIPAL  AND  SURETY 

See  Bonds,  Receipts. 
Burden  of  Proof: 

Plaintiff  has  burden  of  proving  that  act  complained  of  occurred 
during  term  of  bond. 

Mystic  Workers  vs.  U.  S.  G.  Co.,  152  App.  223 ;  Stern  vs.  People,  96 
111.  475. 

A  surety  has  burden  of  proving  facts  discharging  him  from  lia- 
bility. 

Prussing  vs.  Lancaster,  234  111.  462;   Tl-uesdell  vs.  Hunter,  28  App. 

292. 

The  burden  of  proving  unsoundness  of  mind  of  surety  is  upon 

surety.    A  preponderance  of  evidence  is  sufficient. 
Gaar  vs.  Hulse,  90  App.  548. 

Admissibility  of  Evidence: 

—  Parol:  Parol  evidence  is  inadmissible  to  show  that  a  sec- 
ond surety  signed  as  such,  after  execution  of  instrument  by  prin- 
cipal and  another  surety,  on  condition. 

Schroer  vs.  Wessell,  89  111.  113. 

Parol  is  inadmissible  to  show  that  contract  of  guaranty  was 
conditional  instead  of  absolute. 

Bradley  vs.  Brown,  146  App.  297;   Contra,  Bates  vs.  Worthington, 
163  App.  75. 

,.  A  third  party  who,  opposite  a  seal,  affixes  his  signature  follow- 
ing those  of  the  lessor  and  lessee,  does  not  become  a  party  to  the 
lease  if  not  mentioned  therein,  nor  does  such  third  party  assume 
the  obligations  thereof  or  become  surety  with  respect  thereto, 
and  parol  evidence  is  not  admissible  to  show  a  collateral  under- 
taking. 

Doyle  vs.  Dunne,  144  App.  14. 

Where  a  corporation  is  misnamed  in  contract  of  guaranty,  proof 

is  admissi])le  to  show  corporation  intended  to  be  indemnified  by 

contract. 

Mall.  Iron  Eange  Co.  vs.  Pusey,  244  111.  184. 

In  equity,  parol  evidence  is  admissible  to  prove  that  a  party  was 
only  a  surety,  if  it  does  not  appear  from  the  face  of  the  instru- 
ment itself. 

McDavid  vs.  McLean,  202  111.  354;  Kennedy  vs.  Evans,  31  111.  258. 

—  Admissions:     In  suit  on  bond,  an  admission  of  a  principal 

iliat  he  owed  a  certain  amount  is  evidence  of  the  fact,  not  only 

against  himself,  but  against  his  co-obligors. 

Swisher  vs.  Deering,  204  111.  203;  Rhode  vs.  McLean,  101  111.  467; 
People  vs.  Title  &  Guaranty  Co.,  156  App.  488. 

And  if  such  admission  be  proved,  his  successor  in  office  may, 

Avithout  producing  the  books,  testify  that  the  books  showed  that 

the  partv  bad  received  such  amount  and  failed  to  turn  it  over. 

Swift  vs.  Trustees  of  Schools,  189  111.  584. 


1046  PRIVATE  CORPORATIONS 

—  Boohs  and  Becords:  Wliere  the  books  upon  wliicKtlie  entries 
of  a  public  officer  are  made  are  such  as  the  law  requires  to  be 
kept  so  that  they  constitute  the  official  record  of  the  acts  performed 
by  him  in  the  discharge  of  his  official  duties,  such  entries  are,  on 
general  principles,  admissible  in  evidence  for  or  against  all  per- 
sons having  any  interest  in  them  or  the  facts  to  which  they  relate, 

including  the  officer  and  the  sureties  on  his  bond. 

Cassidy  vs.  Trustees  of  Schools,  105  111.  560 ;  Building  Association  vs. 
Cochrane,  103  App.  29. 
And  this  whether  entries  were  made  by  official  or  his  boakkeeper, 
the  presumption  being  that  he  would  not  permit  improper  or  in- 
correct charges  to  stand  uncorrected. 
Cawley  vs.  People,  95  111.  248. 
So  the  report  of  a  county  treasurer,  in  his  handwriting,  pre- 
sented to  the  county  board,  as  well  as  the  record  of  the  board  ap- 
proving same,  are  competent  against  his  sureties  in  action  on  his 

official  bond. 

Stern  vs.  People,  102  111.  540. 

"Where  the  books  upon  which  the  entries  of  a  public  officer  are 
made  are  such  as  the  law  requires  to  be  kept,  so  that  they  consti- 
tute the  official  record  of  the  acts  performed  by  him  in  his  dis- 
charge of  his  official  duties,  such  entries  are  conclusive  upon  prin- 
cipal and  sureties. 

Town   of   Cicero   vs.   Grisco,   240   111.   220;    Cowden   vs.   Trustees   ot 
Schools,   2,35   111.   604;    Longan  vs.   Taylor,   130  111.  412;   Fogarty 
vs.  Eeani,   100  111.  366. 
But  records  which  require  an  adjudication  or  approval  of  a 
court  are  not  conclusive  until  so  approved  or  adjudicated. 
People  vs.  Huffman,  182  111.  390. 

—  Judgments:  A  judgment  against  a  principal,  where  the 
surety  has  been  notified  and  had  opportunity  to  defend,  is  prima 
facie  evidence  as  to  amount  of  damages  in  suit  against  surety. 

Henry  vs.   Heldmaier,   226   111.   152. 
So  a  judgment  against  an  executor  for  money  due  from  him,  as 
such,  to  the  estate,  cannot  be  collaterally  attacked  in  suit  on  bond. 
Nevil   vs.   Woodburn,   160   111.   203. 
Where  a  person  is  responsible  over  to  another,  and  he  is  noti- 
fied of  the  pendency  of  a  suit  involving  the  subject  matter  of  the 
indemnity,  his  liability  will  be  fixed  and  determined  by  the  judg- 
ment rendered  therein,  and  notice  to  him  will  be  implied  where  he 
has  knowledge  of  the  pendency  of  the  suit  and  participates  in  the 

defense  thereof. 

Meyer  vs.  Purcell,  214  111.  62;   Drennan  vs.  Bunn,  124  111.  175. 


PRIVATE  CORPORATIONS 

See  Corporations. 

PRIVATE  WRITINGS 

See  Copies,  Records,  Parol, 


PRIVILEGED  COMMUNICATIONS  1047 

PRIVILEGE  OF  WITNESS 

See  Immunity,  Contested  Elections. 

PRIVILEGED  COMMUNICATIONS 

See  Immunity,  Grand  Jurors,  Compromise  and  Settlement, 
Husband  and  Wipe,  Libel  and  Slander^  Arbitration  and  Award^ 
ATTORNEY  AND  CLIENT. 
The  Relation: 

Where  the  relation  of  attorney  and  client  exists  between  parties, 

communications  between  them  relating  to  matters  in  litigation  and 

connected  with  it  are  incompetent. 

Oliver  vs.   McDowell,    100   App.   45. 

To  entitle  communications  to  be  considered  as  confidential  and 

privileged,  the  relation  of  attorney  and  client  must  exist. 

People  vs.  Barker,  56  111.  299;  Staley  vs.  Dodge,  50  111.  43;  C.  F. 
R.  &  B.  Co.  vs.  Jamieson,  48  111.  281;  DeWolf  vs.  Strader,  26 
111.  225;  City  of  Eockford  vs.  Falver,  27  App.  604;  XIV  111. 
Notes  1133,  §§  164  et  seq. 

In  order  that  the  privilege  exist,  one  must  be  consulted  as  at- 
torney and  not  as  a  mere  friend. 

Smith  vs.  Long,  106  111.  485;   Goltra  vs.  Wolcott,   14  111.   89. 

Facts  obtained  by  one  as  attorney  pending  negotiations  for  em- 
ployment,   though    no   employment   resulted,    are   privileged. 
Thorpe  vs.  Goeway,  85  111.  611. 

Communications  to  one  not  a  licensed  attorney  are  not  priv- 
ileged. 

McLaughlin  vs.  Gilmore,   1  App.  563. 

The  privilege  extends  to  information  acquired  by  means  of  a 

witness'  position,  as  an  attorney's  paid  clerk. 
Kinney  vs.  Bauer,  6  App.  267. 

Party  must  consult  attorney  in  matter  in  which  his  private  in- 
terests are  concerned,  and  make  his  statements  to  him  to  enable  the 

attorney  to  more  correctly  understand  his  cause. 
Granger  vs.  Warrington,  8  111.   299. 

Where  a  party  consults  an  attorney  as  his  legal  adviser,  in  regard 

to  matters  out  of  which  litigation  afterM^ards  arises,  comnninica- 

tions  thus  made  to  the  attorney  are  inadmissible  against  party 

seeking  the  advice. 

Wood   vs.   Thornley,   58   111.   464;    People   vs.   Barker,   56   111.    209. 

Attorney  may  testify  as  to  existence  of  relation.  This  disclosure 
of  that  fact  is  not  a  breach  of  professional  confidence. 
Leindeeker  vs.  Waldron,  52  111.  283. 
Where  two  parties  come  to  an  attorney  to  obtain  his  opinion 
concerning  the  validity  of  a  deed  from  one  to  the  other,  and  make 
a  statement  of  facts  to  him,  there  being  no  employment,  the  rela- 
tion of  attorney  and  client  does  not  exist  so  as  to  exclude  the  com- 
munications. 

Griffin  vs.  Griffin,  125  111.  430;  Lynn  vs.  Lyerle,  113  111.  128. 


1048  PRIVILEGED  COMMUNICATIONS 

Matters  Relating-  to  Communication  and  Privilege: 

—  In  General:     Information  obtained  by  an  attorney  from  his 

client  is  privileged. 

Holmes    vs.    Horn,    120    App.    359. 

Facts  and  circumstances  communicated  to  an  attorney  are  priv- 
ileged. 

Thorp  vs.  Goeway,  85  HI.  611. 

The  rule  as  to  privileged  communications  extends  to  every  com- 
munication which  the  client  makes  to  his  legal  adviser  for  purpose 
of  professional  advice  or  aid  upon  the  subject  of  his  rights  and 
liabilities,  and  it  is  not  essential  that  any  judicial  proceeding  in 
particular  should  have  been  commenced  or  contemplated. 
Rogers  vs.  Daniels,  116  App.  515. 

In  order  to  render  a  communication  between  attorney  and  client 
privileged  it  must  relate  to  some  matter  about  which  the  client  is 
seeking  advice,  or  be  made  to  an  attorney  in  order  to  put  the  at- 
torney in  possession  of  information  supposed  to  be  necessary  to 
enable  him  to  properly  and  intelligently  serve  his  client. 
Champion  vs.   Mt-Carty,   228  111.  87. 

An  attorney  cannot,  against  the  objection  of  his  client,  testify 
to  matters  of  which  he  has  had  communications  from  his  client  in 
a  professional  capacity. 

The  privilege  is  confined  to  confidential  communications  and  does 
not  extend  to  knowledge  of  matters  of  fact  other^vise  acquired, 
though  but  for  the  employment  the  attorney  would  not  have 
acquired  it. 

An  attorney  may  thus  testify  as  against  a  judgment  for  his 
client  rhat  before  it  was  entered  of  record,  the  clerk  issued  execu- 
tion which  the  attorney  took  and  delivered  to  the  sheriff. 
Swaim  vs.   Humphries,  42  App.  370. 

There  is  no  objection  to  having  plaintiff  V  attorney  swear  to  a 

calculation  of  interest. 

Stratton  vs.  Henderson,  26  111.  69. 

An  agreement  made  at  request  of  client  with  opposite  party, 
with  view  to  settlement  is  not  within  the  privilege. 
Thayer  vs.  McEwen,  4  App.  316. 

—  Deed  of  Assignment:  An  attorney  employed  by  a  failing 
debtor  to  draw  up  an  assignment  of  certain  contract  of  debtor, 
(which  assignment  was  attacked  by  creditors  as  fraudulent),  was 
asked  if  the  assignor  said  anything  at  the  time  with  reference  to  the 
intent  or  purpose  of  making  the  assignment,  and  if  so,  what:  Held, 
that  the  question  was  properly  disallowed,  as  calling  for  a  privil- 
eged communication,  made  to  an  attorney. 

HoUenbach  vs.   Todd,    119   111.    543. 

—  Letters  Between:     Letters  from  attorney  addressed  to  client 

are  not  admissible  in  another  case  between  other  parties,  to  show 

that  the  money  sued  for  was  sought  to  be  recovered  from  other 

parties. 

Iglehart  vs.  Jornegan,  16  111.  513. 

—  Bill,  in  Chaneery:  A  bill  in  chancery,  sworn  to  by  a  party, 
and  which,  if  prepared  by  his  attorney  on  the  client's  statements 
of  the  facts,  is  to  be  regarded  as  privileged  communication  in  the 


PRIVILEGED  CO.MMUNlCxVTIONS  1049 

hands  of  the  attorney,  and  not  admissible  in  evidence  against  his 
client. 

Burnham  vs.  Eoberts,  70   111.   19. 

—  Indorsement  of  Note:  An  attorney  cannot  be  compelled  to 
testify  as  to  whether  a  promissory  note  was  indorsed  when  placed 
in  his  hands  for  collection.  The  privilege  extends  not  only  to 
what  he  hears,  but  also  to  what  he  sees  from  his  situation  as  an 
attorney. 

Dietrich  vs.  Mitchell,  43  111.  40. 

—  Proofs  of  Loss:     Statements  made  to  attorney  hired  to  make 

out  proofs  of  loss  for  fire  insurance  are  privileged  communications. 
Helbig  vs.   Citizens   Ins.   Co.,   108   App.   624. 

—  Attorney  as  Serivcner  and  Attesting  Witness:  The  matters 
whicli  come  to  the  knowledge  of  an  attorney  solely  as  scrivener,  at- 
testing witness  or  notary  public,  are  not  privileged. 

Spencer  vs.  Razor,  251  111.  278;   Potter  vs.  Barringer,  236  111.  224; 
DeWolf   vs.   Strader,   26   111.   225. 

Where  the  transaction  between  an  attorney  and  client  is  the  prep- 
aration of  a  deed  or  contract  in  accordance  with  the  directions  of 
the  client,  and  no  legal  advice  is  asked  or  required,  the  reason  or 
motives  moving  the  client  to  make  the  deed  or  contract,  if  stated 

to  the  attornev,  are  not  privileged. 

Oiamp'ion  vs.   MeCarty,   228   111.   87;    Smith  vs.   Long,   106   111.   485; 
DeWolf  vs.  Strader,  26  111.  225. 

—  Fads  From  Other  Sources:  While  an  attorney  is  not  a  com- 
petent witness  to  disclose  confidential  communications  of  his  clients, 
he  may  testify  to  facts  he  learned  or  knows  from  other  sources 
than  from  the  relation  of  attorney  and  client,  and  it  should  appear 
he  derived  his  knowledge  from  the  relation  before  it  is  excluded. 

C.  F.  E.  &  B.  Co.  vs.  Jamieson,  48  111.  281. 

An  attorney  may  testify  to  facts  coming  to  his  knowledge  while 

acting  in  behalf  of  his  client,  in  contest  between  strangers. 

Payne  vs.  Miller,  103  111.  442;   Swaim  vs.  Humphries,  42   App.  370. 

The  statements  of  a  fraudulent  grantor,  made  to  the  attorney 

of  the  grantee,  are  not  privileged. 

Tyler  vs.  Tyler,  126  111.  525;  Griffin  vs.  Griffin,   125  111.  430. 

—  Presence  of  Third  Parties:  Statements  made  by  clients  in 
presence  of  third  parties,  or  the  opposite  party  or  his  attorneys, 
are  not  of  that  confidential  nature  that  the  clients  may  insist  shall 

not  be  disclosed  bv  the  attorneys. 

Scott  vs.  Aultman  Co.,  211  111.  612;   Kissack  vs.  Bourke,  132  App. 
360. 

—  Fraudident  Transactions  Between  Attorney  and  Client:     Rule 

of  privileged   communications  between   attorney   and  client  does 

not  apply  where  they  attempt  to  perpetrate  a  fraud. 
Lannum  vs.   Patterson,   151  App.   36. 

—  Attorney  Personedly  Obligated:  In  suit  on  a  contract  to  pay 
plaintiff  a  portion  of  the  amount  realized  by  defendant  from  cer- 
tain litigation,  the  attorney  who  acted  for  defendant  in  drawing 
the  contract  may  testify  as  to  the  construction  placed  upon  a  cer- 
tain provision  by  himself  and  his  client,  where  the  attorney  has 
bound  himself  personally  to  the  extent  of  his  property,  for  the 

performance  of  the  contract. 

Funk  vs.   Mohr,   185   111.   395. 


1050  PRIVILEGED  COMMUNICATIONS 

Who  May  Claim: 

The  privilege  of  secrecy  as  to  communications  to  an  attorney  is 

that  of  the  client  alone  and  if  the  client  waives  the  privilege,  then 

the  attorney  is  bound  to  answer. 

Scott  vs.   Harris,   113   111.   447;   Lanum  vs.   Patterson,   151   App.  36. 

Attorney  may  claim  protection  of  court  upon  being  interrogated 

as  to  matters  of  privilege. 

C.  F.  B.  &  B.  Co.  vs.  Jameson,  48  111.  281.  , 

Communications  between  attorney  and  testator  may  be  privil- 
eged if  otrered  by  third  persons  to  establish  claims  against  the 
estate,  but  when  the  contest  is  between  the  heirs  next  of  kin,  on 

contest  of  will,  the  rule  is  otherwise. 

Wilkinson  vs.  Service,  249  111.  146. 
Although  statements  made  by  party  to  his  attorney  and  legal 
adviser  are  privileged  when  ofifered  in  evidence  against  the  client, 
if  living,  they  are  not  privileged  after  his  death  in  an  inquiry  to 
ascertain,  as  between  his  devisees  under  his  will,  and  a^  grantee 
claiming  under  his  deed  made  after  the  will,  as  to  what  he  intended 

by  his  deed. 

Scott  vs.   Harris,    113  111.   447. 

Conversations  between  attorney  and  testator  in  relation  to  testa- 
mentary disposition  of  property  are  not,  if  otherwise  competent,  to 
be  excluded  as  privileged  communications  on  bill  to  contest  the  will. 
Norton  vs.   Clark,  253   111.   557. 

Waiver: 

Heirs  and  devisees  of  client  may  waive  the  privilege. 

Wilkinson  vs.  Service,  249  111.   146;    Scott  vs.   Harris,   113  111.  447; 
Fossler  vs.  Schriber,  38  111.  172. 
Where  one  voluntarily  testifies  as  to  communications  with  his 

attorney,  he  may  be  cross  examined  fully. 
'  Swenk  vs.   People,   20  App.   111. 
The  defendant  in  a  criminal  prosecution  cannot  testify  to  a  cer- 
tain fact  communicated  to  an  attorney,  and  then  after  conviction 
assign  as  error  the  admission  of  the  attorney 's  testimony  as  to  such 
fact,  on  the  ground  that  it  was  a  privileged  communication. 
Knight  vs.  People,  192  111.  170. 

Objection: 

The  time  to  object  that  certain  statements  sought  to  be  proven 
are  privileged  is  when  the  opposite  party  attempts  to  examnie  a 
witness  for  the  purpose  of  laying  the  foundation  to  prove  the  state- 

People  vs.  Enright,  256  111.   221. 

ATTORNEY  AND  WITNESS. 

Statements  made  to  an  attorney  by  persons  who  witness  a  murder 

should  not  be   excluded  as  privileged   communications  upon  the 

ground  that  the  attorney  is  appearing  for  the  accused  on  the  trial, 

where  it  is  not  shown  he  was  acting  as  attorney  for  accused  when 

the  statements  were  made. 

People  vs.  Enright,  256  111.  221. 

PUBLIC  OFFICIALS. 
In  General: 

All  communications,  whether  written  or  verbal,  passing  between 


PRODUCTION  OF  DOCUMENTS  1051 

public  officials,  in  reference  to  their  duties,  and  in  the  conduct  of 
the  public  business,  are  absolutely  privileged. 
Haskel  vs.   Perkins,  165  App.   144. 

Election  Officers: 

Cannot  give  evidence  as  to  how  ballot  was  marked,  although 
voter  did  not  swear  to  disability.  """    •'' 

Gill  vs.  Shurtleflf,  183  111.  440. 

WITNESS. 

An  action  for  slander  will  not  lie  for  words  used  by  a  witness  in 
giving  testimony  in  a  judicial  proceeding,   if  the  testimony  was 
pertinent  and  material  to  the  subject  matter  of  inquiry,  notwith- 
standing it  may  be  malicious  or  false. 
McDavitt  vs.  Boyer,  67  App.  452. 


PROBABLE  CAUSE 

See  False  Imprisonment,  Libel  and  Slander,  Malicious  Pros- 
ecution. 


PRODUCTION  OF  DOCUMENTS 

See  Best  and  Secondary,  Immunity,  Refusal  to  Produce  Evi- 
dence, Destruction,  Suppression  and  Fabrication.      i  •  • 
Immunity : 

A  defendant  excused  from  testifying  cannot  be   compelled  to 

produce  criminating  documents. 

Manuiug  vs.   Securities  Co.,   242   111.   584;   Lamson   vs.   Boyden,   160 
111.  613;  People  vs.  Western  Ins.  Assoc,  40  App.  428. 
Party  claiming  immunity  must  specify  in  his  answer  documents 
and  books  he  objects  to  producing,  stating  fully  upon  what  grounds 

his  objections  are  based. 

Manning  vs.   Securities  Co.,   242   111.   584. 

Power  of  Court  and  Scope  of  Order : 

—  Presumption:     If  no  objection  is  made  at  time  of  order,  it 

will  be  presumed  to  be  made  by  consent. 
Morgan  vs.  Corlies,  81  111.  72. 

—  Pfivate  Writings:  The  statute  authorizes  the  court,  upon 
cause  shown  and  proper  notice,  to  require  eitlier  party  to  a  suit 
to  produce  books  and  writings  in  his  possession  or  power,  which 
contain  evidence  pertinent  to  the  issue ;  but  the  court  will  not 
compel  a  party  to  submit  for  inspection  his  books  of  accounts  with 
other  persons  not  parties  to  the  suit,  when  it  is  not  made  to  appear 
that  they  contain  evidence  pertinent  to  the  issue. 

Pynclion  vs.  Day,  118  111.  9. 
The  statute  does  not  give  the  right  to  compel  the  submission  of 
the  books  of  a  party  to  general  inspection  or  examination  for  fish- 
ing purposes,  or  with  view  to  find  evidence  to  be  used  in  other  suits 

or  prosecutions. 

Lester  vs.  People,  150  111.  408. 


1052  PRODUCTION  OF  DOCUMENTS 

Power  of  court  to  compel  production  of  documents  is  not  limited 

to  time  of  trial. 

S.  A.  Tel.  Co.  vs.  F.  &  C.  Co.,  208  111.  562. 

Order  is  properly  refused  wliere  such  documents  would  be  im- 
material. 

Con.   Coal  Co.   vs.  Jones,   120  App.   139. 

Order  is  broad  enough  which  embraces  all  parties  desire  to  show, 
and  books  are  produced  and  examined  l)y  experts  and  brought  to 
trial,  without  producing  all  books  of  firm,  although  asked  for  by 

opposite  party. 

Eigdon  vs.  Conley,  141  111.  565. 
Where  contract  between  plaintiff  and  defendant  authorizes  plain- 
tiff to  inspect  certain  books  of  defendant  at  all  reasonable  tinies, 
court  has  power,  in  case  of  defendant's  refusal,  to  order  production 
of  such  books  before  the  trial,  if  needed  to  enable  plaintiff'  to  pre- 
pare his  case. 

S.  A.   Tel.   Co.  vs.  F.  &  C,  Co.,  208  111.  562;   County  of  Cook  vs. 

Harms,  10  App.  24. 

—  Public  Documents:  Public  records,  in  the  custody  of  public 
officers  acting  under  statutory  duties,  do  not  come  within  principle 
of  rule  in  regard  to  the  production  of  paper  evidence  in  possession 
or  under  control  of  the  opposite  party. 

Dunham  vs.  City  of  Chicago,  55  111.  357. 
The  courts  have  power  to  compel  the  custodian  of  records  and 
public  documents  to  produce  them  in  court  for  inspection,  and 
to  be  used  as  evidence  when  material  and  necessary;  and  when- 
ever it  is  clearly  made  to  appear,  in  proper  manner,  that  their 
production  is  necessary  and  material  for  the  support  of  either  a 
cause  of  action  or  defense,  or  the  promotion  of  public  justice,  the 

power  should  be  exercised. 

Dunham  vs.  City  of  Chicago,  55  111.  357. 
But  where  the  exercise  is  not  so  shown  to  be  necessary,  for  the 
reason  that  certified  copies  could  be  obtained  and  received  in 
evidence,  and  answer  as  well  as  the  originals,  or  Avhen  the  proof 
upon  which  the  application  is  based  attempts  to  show  that  tlie 
originals  have  been  tampered  with  and  falsified,  but  fails  to  show 
how  the  rights  of  the  moving  party  are  affected  by  any  such  acts, 
and  the  court  cannot  see  from  the  facts  stated  that  his  rights  were 
in  any  manner  affected  thereby,  then,  in  either  case,  in  the  exercise 
of  a  legal  discretion,  the  court  may,  from  consideration  of  puljlic 
convenience  and  safety,  properly  refuse  to  require  their  produc- 
tion. 

Dunham  vs.  City  of  Chicago,  55  111.  357. 

Notice  to  Produce: 

—  Reasonable:  To  compel  the  production  of  books  to  be  read 
in  evidence,  the  party  must  have  reasonable  notice. 

First   Natl.   Bank   vs.    Mansfield,   48   111.    494;    Field   vs.   Zemansky, 
9  App.  479;  XII  111.  Notes  493,  §§  135  et  seq. 

And  good  and  sufficient  cause  must  be  shown. 
Meeth  vs.   Rankin  Brick  Co.,  48   App.  602. 

—  When  Unnecessary:  When  the  paper  or  document  wanted, 
if  in  existence  at  all,  must  be  under  the  control  of  the  party  to  the 


PROMISE  TO  REPAIR  1053 

suit,  and  is  one  which  he  must  know  will  be  indispensable  to  his 
adversary,  notice  to  produce  is  not  necessary. 

Con.  Ins.  Co.  vs.  Rogers,   119  111.  474;   Dawes  vs.  Dawes,   116  App. 
36;  C.  C.  C.  &  St.  L.  R.  Co.  vs.  Newlin,  74  App.  638. 

—  Lost  Instrument:  Where  the  proof  shows  that  the  opposite 
party  has  not  the  instrument  in  his  power,  notice  to  him  to  produce 
same  is  not  necessary  to  admit  parol  evidence  of  contents.     Proof 

of  loss  is  sufficient. 

Taylor  vs.   Mclrvin,   94  111.   488;    Stadler  Brew.   Co.  vs.   Weaver,  99 
App.   161;    Rhode  vs.   McLean,   101   111.   467. 

—  Object  of:  The  object  of  requiring  notice  to  produce  docu- 
ment is  that  the  party  may  have  an  opportunity  to  produce  same 
and  not  be  taken  by  surprise.     Where  documents  are  actually  in 

court  in  attorney 's  hands,  notice  is  unnecessary. 
Trusdale  'Mfg.  Co.  vs.  Hoyle,   39  App.   532. 

—  When  Served:  Must  be  served  long  enough  before  the  trial 
to  enable  the  party  to  produce  documents  or  make  due  search  for 
them. 

C.  C.  C.  &  St.  L.  Ry.  Co.  vs.  Newlin,  74  App.  638 ;  Bushnell  vs.  B.  H. 
Colony,  28  111.  204. 

—  Must  Be  Specific :     A  notice  to  produce  liooks  and  papers  must 

describe  the  books  and  papers  intended  with  sufficient  particularity 

to  enable  the  party  to  determine  what  is  wanted. 
Nussbaum  vs.  U.  S.  Brew.  Co.,  63  App.  35. 

Failure  to  Produce: 

See  Refusal  to  Produce  Evidence. 
Copies  of  Documents  Ordered: 

Where  entries  in  book  accounts,  desired  to  be  used  on  trial,  are 
so  intermingled  with  other  transactions  that  an  inspection  of  these 
would  expose  such  outside  matters,  a  verbatim  copy  of  all  matters 
between  the  parties,  giving  page  where  entered,  verified  by  affidavit 
and  certificate  of  clerk  of  court,  upon  actual  examination  and  com- 
parison, is  competent. 

Pynchon  vs.  Day,  118  111.  9. 


PROMISE  OF  MARRIAGE 

See  Breach  of  Promise. 


PROMISE  TO  REPAIR 

Injury  to  Person: 

—  In  General:     Servant  must  complain  of  apprehended  danger 

and  must  intend  to  quit  work  to  render  proof  of  promise  to  repair 

admissible  but  he  need  not  declare  his  intention  in  terms. 
Morden  Frog  Works  vs.  Fries,  228  111.   246. 

By  the  promise  a  new  relation  is  created,  whereby  the  master  im- 

])liedly  agrees  that  the  servant  shall  not  be  held  to  have  assumed 

the  risk  for  a  reasonable  time  following  the  promise. 
Scott  vs.  Parlin  &  Orendorff  Co.,   245  111.   460. 
The  effect  of  a  promise  to  repair,  with  respect  to  the  doctrine 
of  assumed  risk,  applies  only  as  between  master  and  servant,  but 


1054  QUO  WARRANTO 

when  an  employe  of  one  person  has  to  work  ahont  machinery  and 
appliances  owned  by  another,  and  he  complains  to  the  owner  of  a 
defect  which  the  latter  promises  to  repair,  proof  of  the  complaint 
and  a  promise  is  material  in  action  against  the  owner  by  the  em- 
ploye for  an  injury  due  to  the  defect,  as  f^howing  notice  of  the 
defect  to  the  owner  and  the  conditions  under  which  the  employe 
continued  to  work. 

N.  A.  Eestaurant  vs.  McElligott,   227  111.   317. 
—  Burden  of  Proof:     The  burden  of  proof  is  upon  the  servant 
to  show  that  he  was  induced  to  remain  at  work  by  the  promise  to 

repair. 

Morden  Frog  Works  vs.  Fries,  228  111.  246;  Eiehter  vs.  Tegtmeyer, 
167  App.  478. 

Landlord  and  Tenant: 

A  promise  to  repair,  made  after  the  lease  is  executed  is  a  mere 
nvdum  pactum  which  creates  no  liability  upon  the  part  of  the 

landlord  to  make  such  repairs. 

Fowler  Cycle  Works  vs.  Frazier,  110  App.  126;   Blake  vs.  Eanous, 
25  App.  486. 


PUBLICATION 

See  Service. 


QUIETING  TITLE 

See  Cloud  on  Title. 


QUO  WARRANTO 

See  Officers. 
Pleadings : 

—  Counts  Distinct:     Counts  are  distinct,  and  the  allegations  of 

one  count  cannot  be  looked  to  in  passing  upon  the  sufficiency  of 

the  others. 

People  vs.  McDonald,  208  111.  638. 

—  Anticipating  Defense:  The  rules  of  pleading,  in  quo  war- 
ranto, to  question  defendant's  title  to  an  office,  do  not  require  that 
the  pleader  shall  anticipate  that  the  defense  will  justify  under  an 
election,  and  show  in  advance  the  invalidity  of  such  election.  If 
the  election  is  pleaded,  its  invalidity  is  a  matter  to  be  shown  by 
replication. 

People   vs.    Cooper,    139   111.    461;    Lavalle   vs.   People,   68   111.    252; 
Minck  vs.   People,  6   App.   127. 

— •Existence   of  Office:     Legal  existence  of  the  office  must  be 

averred  and  shown.     An  information  will  not  lie  to  try  the  title 

to  an  alleged  office  which  has  no  legal  existence. 

People  vs.  Freeman,  242  111.   152;   Hedrick  vs.  .People,  221  111.  374. 

—  Private  Corporation:  The  effect  of  filing  an  information 
against  a  corporation  by  its  corporate  name,  to  compel  corporation 


QUO  WARRANTO  1055 

to  disclose  by  what  authority  it  exercises  corporate  privileges  is  to 
admit  the  existence  of  the  corporation. 

Peoi^le  vs.  Cent.  U.   Tel.  Co.,  192   111.  SOT. 

—  Municipal  Corporation:  An  information  against  a  city  in  its 
corporate  name  to  determine  the  legality  of  annexation  proceed- 
ings, while  it  admits  the  legal  existence  of  the  corporation,  does 
not  admit  the  legality  of  the  annexation. 

People  vs.  City  of  Peoria,  166  111.  517. 

All  material  facts  set  up  in  plea  and  not  especially  traversed  by 

the  replication,  filed  after  a  demurrer  to  the  plea  is  overruled,  are 

admitted  and  no  proof  of  such  undenied  averments  is  necessary. 

Hepler  vs.  People,  226  111.  275;  People  vs.  Gary,  196  111.  310; 
Launtz  vs.  People,  113  111.  137. 

Estoppel : 

The  proceedings  by  information  in  the  nature  of  a  quo  warranto 
is  a  subject  for  the  exercise  of  legal  discretion.  An  unreasonable 
delay  and  public  interest  will  justify  refusal  to  proceed  to  judg- 
ment. 

Soule  vs.  People,  205  111.  618;  People  vs.  Pike,  197  111.  449;  Peo- 
ple vs.  Hanker,  197  111.  409;  People  vs.  Schnepp,  179  111.  305; 
Trustees  vs.  School  Directors,  88  111.  100;  XIV  111.  Notes  175, 
§22. 

Burden  of  Proof: 

A   defendant   justifying   to   an   information   in   quo   warranto, 

whether  an  individual  or  a  corporation,  has  the  entire  burden  of 

showing  by  what  authority  the  powers  complained  of  are  exercised 

and  the  People  are  entitled  to  a  judgment  of  ouster  if  a  prima  fade 

case  is  not  made  out. 

People  vs.  O'Connor,  239  111.  272;  McGahan  vs.  People,  191  111.  493; 
People  vs.  City  of  Peoria,  166  111.  517;  People  vs.  Brnennemeir, 
168  111.  482;  Chi.  City  Ry.  Co.  vs.  People,  73  111.  541;  Clark  vb. 
People,   15  111.   213;   XIV  111.  Notes  180,   §54. 

Defendant  cannot  put  in  general  denial  of  wrong  and  then  await 
proof  of  relator.  A  plea  of  not  guilty  will  not  prevail.  Defend- 
ant must  disclaim,  avow  or  justify,  his  claim,  and  burden  of  proof 

rests  upon  him  if  his  claim  is  denied. 

Swarth  vs.  People,  109  111.  621;   People  vs.  Burns,  212  111.  227. 

Ordinarily  the  burden  of  proof  is  on  respondent  to  prove  his 

title  as  pleaded,  or  so  much  thereof  as  is  traversed. 
People  vs.  Cent.  Union  Tel.  Co.,  192  111.  307. 

Presumptions : 

—  Village  Organizations:     Municipal  corporations  being  a  public 

necessity,  the  law  will  indulge  a  presumption  in  favor  of  their 

legal  existence  after  long  continued  use  of  corporate  powers  with 

acquiescence  of  the  public. 

People  vs.  Pike,   197  111.   449. 

—  Laches:     Laches  cannot  be  presumed   and   the  existence  of 

such  as  would  bar  prosecution  of  suit  should  be  alleged  and  proven. 
Kamp  vs.  People,  141  111.  9. 

—  Special  Authority  of  Officer:  "When  officers  are  exercising 
a  special  statutory  authority,  no  presumption  of  law  will  be  in- 
dulged in  favor  of  their  acts,  which  must  rest,  for  their  validity, 

upon  the  record. 

People  vs.  McDonald,  20&  111.  638.- 


1056  RAPE 

Sufficiency  of  Evidence: 

After  a  lapse  of  more  than  twenty  years,  during  which  the  ter- 
ritory has  exercised  all  the  functions  of  a  municipal  corporation 
with  public  acquiescence,  strict  proof  of  legal  organization  will  not 
be  required  in  q^io  warranto,  and  defendant  need  make  only  such 
proof  as  the  nature  of  the  ease  will  permit. 
People  vs.  Pike,  197  111.  449. 

Proof  of  city  council 's  findings  of  facts  constituting  the  statutory 

conditions  under  which  the  city  exercised  the  power  of  annexation, 

together  with  proof  of  ordinance  reciting  such  facts,  does  not  make 

out  prima  facie  case. 

People  vs.  City  of  Peoria,  166  111.  517, 

If  the  petition  for  village  organization  is  lost  or  destroyed,  testi- 
mony by  one  of  the  circulators  of  the  petition  that  thirty  legal 
voters  signed  it;  that  the  names  he  had  put  down  from  memory 
on  the  restored  petition  were  substantially  correct,  and  if  he  had 
made  mistakes  in  the  names  there  were  other  legal  voters  who  had 
signed  in  their  stead,  is  sufficient  to  justify  the  court,  after  more 
tlian  twenty  years,  in  finding  there  was  a  legal  petition. 
People   vs.   Pike,   197   111.   449. 

By  introducing  in  evidence,  on  a  quO'  warranto  proceeding,  a  peti- 
tion for  organization  of  a  village,  for  the  purpose  of  contradiction 
of  the  recital  therein  that  the  territory  incorporated  contained 
three  hundred  resident  inhabitants,  such  evidence  not  being  neces- 
sary on  party  of  relator,  he  is  not  thereby  estopped  from  giving 
evidence  to  contradict  such  recital,  and  may  show  by  parol  that  the 
requisite  population  was  wanting,  and  thus  defeat  the  incorpo- 
ration. 

Kamp  vs.  People,  141  111.   9. 


RAILROADS 

See  Eminent  Domain,  Experiments,  Fires,  Freight  Rates, 
Corporations,  Habits,  Identity,  Speed,  Train  Bulletins,  Judi- 
cial Notice,  Safer  Method. 


RAPE 

See    Confessions,    Corpus    Delicti,    Separate    and    Similar 
Offenses. 

BURDEN  OF  PROOF. 
Consent  of  Female: 

Absence  of  consent  of  female  must  be  proven  beyond  reasonable 

doubt. 

Sutton  vs.  People,  145  111.  279. 

Consent  to  carnal  intercourse  cannot  be  legally  given  by  female 

under  age. 

Addison  vs.  People,  193  111.  405. 

Consent  immaterial  where  female  under  age. 
Johnson  vs.  People,  202  111.  53. 


RAPE  1057 

ADMISSIBILITY  OF  EVIDENCE. 
Incapacity  to  Consent: 

^  Absence  of  consent  may  be  shown  by  proving  that  woman  was 
unable  to  consent,  through  idiocy,  unconsciousness  or  the  like ;  the 
law  then  assumes  that  intercourse  is  without  her  consent  and  the 
offense  is  rape. 

Addisou  vs.  People,  193  111.  405;  Shir-n-iu  vs.  People,  69  111.  55. 

Admissions  and  Declarations  of  Defendant: 

Admissions  of  defendant  may  be  shown. 
Johnson  vs.  People,  197  111.  48. 

Intention  of  defendant  mav  ])e  shown  by  his  declarations. 
Latbrop  vs.  People,  197  111.  169. 

Proof  of  effort  of  accused  to  compromise  admissible,  but  not 
what  was  said  in  response  to  such  offer, 
Barr  vs.   People,   113  111.   471. 

Written  admission  made  with  a  view  to  compromise  the  matter 
with  the  injured  party,  on  the  basis  that  she  would  not  prosecute, 
where  defendant  then  under  arrest  and  inducement  held  out  by 
officiating  magistrate,  is  not  admissible. 
Austin  vs.  People,  51   111.  236. 

Where  it  is  sought  to  show  that  defendant  made  an  alleged  dis- 
serving stateinent,  it  is  not  proper,  unless  called  out  on  cross  exam- 
ination, to  permit  witness  to  detail  whole  conversation  in  which 
he  repeated  the  girl's  statements  as  to  the  transaction,  and  the 

language  witness  used  to  defendant  in  characterizing  his  conduct. 
Kevern  vs.  People,  224  111.  170. 

An  admission  or  confession  of  guilt  may  be  implied  where  ac- 
cused, when  confronted  bv  victim,  makes  no  denial. 
Ackersou  vs.  People,  124  111.  563. 

Because  a  defendant  made  no  complaint  against  father  of  female, 
who  had  been  arrested  for  fighting  with  defendant,  when  informed 
if  he  did  make  such  complaint  he  would  be  charged  ^^ith  rape,  is 
not  an  admission. 

People  vs.  Arnold,  248  111.  169. 

Complaints  of  Prosecutrix: 

— ■Corroboration:     AVitness,   provided   complaint   was  made   as 

soon  as  practicable  or  without  any  inconsistent  delay,  may  state 

when,  where  and  to  whom  such  complaint  was  made,  but  cannot 

state  the  name  of  the  person  charged,  nor  any  of  the  details  of  the 

transaction,  as  communicated  bv  prosecutrix. 
Stevens  vs.  People.  158  111. 'ill. 

Complaint  is  not  received  as  admission  by  prosecutrix  as  to  what 
took  place,  but  upon  the  theory  that  the  statement  represents  the 
spontaneous  expression  of  her  outraged  feelings. 
Cunningham  vs.  People,  210  111.  410. 

But  this  rule  does  not  extend  to  complaint  for  taking  indecent 
liberties  with  a  child. 

People  vs.  Scattura,  238  111.  313. 

Evidence   is   competent   only   to   corroborate   the   testimony   of 
prosecutrix  and  not  to  prove  commission  of  the  crime,  and  is  not 
admissible  unless  part  of  the  res  gestae,  where  she  does  not  testify. 
People  vs.  Le-nis,  252  111.  281. 
Ev.— 67 


1058  RAPE 

Complaint  elicited  by  questions  is  hearsay  and  inadmissible. 
Stevens  vs.  People,  158  111.  111. 

—  Not   Who  Committed  Rape:     Fact  that  prosecuting  witness, 

made  complaint  inunediately  after  alleged  rape  may  be  shown  to 

sustain  her  testimony  that  she  did  make  such  complaint,  but  not 

as  to  the  fact  who  committed  the  rape.         It  would  be  proper,  in 

such  case,  to  instruct  the  jury  that  the  telling  of  the  assault  w^as 

a  circumstance  tending  to  sustain  the  truth  of  her  statements  on 

the  trial  that  such  an  assault  was  made. 

People  vs.  Weston,  236  111.  104;  Bean  vs.  People,  124  111.  576. 

Chastity : 

—  Of  Defendant:    Not  admissible  in  chief. 

Dalton  vs.  People,  224  111.  333;  Janzen  vs.  People,  159  111.  440. 

But  defendant  may  prove  his  reputation  in  that  regard. 
Wistrand  vs.  People,  218  111.  323. 

—  Of  Prosecutrix:  Where  the  prosecutrix  is  over  the  age  of 
consent,  and  is  capable  of  consenting  to  sexual  intercourse,  her 
general  reputation  for  chastity  may  be  shown. 

Stevens  vs.  People,  158  ill.  Ill;  Shirwin  vs.  People,  69  111.  55. 
"For  the  reason  tliat  an  unchaste  woman  would  be  more  likely 
to  consent  to  the  act  than  a  virtuous  one,  and  therefore  her  pre- 
vious connection  with  the  accused,  or  her  general  reputation  for 
want  of  chastity  are  proper  ingredients  in  determining  the  ques- 
tion whether  the  particular  act  in  controversy  was  accomplished 
solely  by  force,  or  with  her  virtual  consent." 

Sherwin  vs.  People,  69  111.  55. 

If  the  complaining  witness  is  under  the  age  of  consent,  evidence 

to  show  that  her  reputation  for  chastity  is  bad,  is  not  admissible. 
People  vs.  Gray,  251  111.  431. 

It  is  the  general  rule  that  the  character  of  prosecutrix  may  be 
impeached ;  but  this  must  be  done  by  general  evidence  of  her  repu- 
tation in  that  respect,  and  not  by  particular  instances  of  her  un- 
chastitj'.  So  where  prosecutrix  testified  she  was  unconscious,  and 
did  not  know  that  acccused  committed  the  rape  or  not,  and  pros- 
ecution proved  by  a  physician  who  examined  her  three  weeks  after- 
wards, that  she  did  not  then  bear  evidence  of  virginity,  and  gave  it 
as  his  opinion  that  she  had  carnal  connection  with  a  man  at  some 
time  before,  it  was  competent  to  rebut  the  inference  sought  to  be 
drawn  from  his  evidence  by  either  showing  a  previous  voluntary 
connection  with  accused,  or  particular  instances  of  unchastity 
with  any  other  man,  as  well  as  to  show  by  medical  testimony  that 

the  theory  of  the  physician  testifying  was  unreliable. 
Sherwin  vs.  People,  69  111.  55. 

Declarations  of  Prosecutrix: 

Prosecutrix  may  be  contradicted  by  proof  of  contrary  state- 
ments. 

Austine  vs.  People,  110  111.  248. 

Evidence  that  prosecutrix  had  declared  that  accused  was  not 
guilty,  and  that  the  prosecution  was  carried  on  to  extort  money 
from  him  or  his  friends,  is  material  and  properly  admissible  in- 

defense 

Sherwin  vs.  People,  69  111.  55, 


RAPE  1059 

Proof  that  prosecutrix  admitted  it  was  a  person  other  than  de- 
fendant who  made  the  assault  is  admissible. 
Kennedy  vs.  People,  44  111.  283. 

Subsequent  Conduct  of  Prosecutrix: 

Evidence  of  conduct  of  prosecutrix  subsequent  to  alleged  crime, 
such  as  remaining  with  defendant  after  reaching  company  of 
others,  failing  to  disclose  commission  of  the  crime,  etc.,  are  com- 
petent and  should  be  considered  by  the  jury  in  determining  the 
guilt  or  innocence  of  accused.  But  where  the  crime  is  proven  by 
direct  and  positive  evidence,  the  conduct  of  prosecutrix  is  wholly 
immaterial.  Such  evidence  is  only  admissible  for  purpose  of  cor- 
roborating or  contradicting  her  testimony. 

Sutton  vs.  People,  145  111.  279;  Barney  vs.  People,  22  111.  160. 

Expert  and  Opinion: 

Testimony  by  physician,  based  on  personal  examination  made  of 
person  of  the  girl  six  months  after  alleged  rape,  that  he  found  a 
rupture  of  her  hymen,  is  competent.  The  remoteness  of  the  ex- 
amination from  the  time  of  the  alleged  rape  goes  merely  to  the 
probative  force  of  the  fact  that  the  hymen  was  found  to  be  ruptured 
at  time  of  examination,  and  not  to  its  admissibility. 
Gilford  vs.  People,  148  111.  173. 

Opinions  of  experts,  based  upon  an  assumption  of  fact  of 
rape  in  hypothetical  question,  whether  in  their  opinion  a  hemor- 
rhage was  more  likely  to  have  resulted  from  the  forcible  rape 
or  an  operation,  are  incompetent. 

People  vs.-  Arnold,  248  111.  169. 

Physician  may  state  what  effects  might  result  from  a  rape  but 
should  not  be  allowed  to  give  an  opinion  based  upon  an  examination 
of  prosecutrix,  that  the  condition  he  discovered  was  produced  by 
a  rape. 

People  vs.  Schultz,  260  111.  35. 

Birth  of  Child: 

The  birth  of  a  child  to  prosecuting  witness,  in  itself,  is  not  a 

circumstance  tending  to  prove  crime  of  rape  upon  her. 
Kevern  vs.  People,  224  111.  170. 

Except  where  birth  occur  within  natural  period  of  gestation 
reckoned  from  date  of  act. 

People  vs.  Duncan,  261  111.  339. 

Exhibits : 

Exhibiting  to  jury  the  blood-stained  clothing  of  prosecuting 
witness  is  error  where  hemorrhage  was  proved  and  not  denied,  but 
cause  claimed  by  defendant  to  have  resulted  from  operation  under- 
gone by  witness  shortly  before.  Clothing  was  not  the  instrument 
of  any  crime  and  had  no  tendencv  to  prove  any  fact  denied. 
People  vs.  Arnold,  248  111.  169. 

Evil  Surrounding's  of  Prosecutrix: 

That  a  child  under  fourteen  years  of  age  was  brought  up  in  evil 

surroundings,  among  inmates  and  employees  of  houses  of  ill-fame, 

furnishes  no  defense,  although  act  was  committed  with  her  consent. 
Johnson  vs.  People,  202  111.  53. 

Reputation  of  Defendant  as  Peaceable  Citizen: 

Accused  is  allowed  to  prove  his  general  reputation  for  chastity, 
but  not  his  general  reputation  as  a  peaceable  and  quiet  citizen,  his 
reputation  in  that  respect  not  being  in  issue. 
Wistrand  vs.  People,  218  111.  323. 


1060  RAPE 

Rebuttal  Showing-  Different  Time: 

Prosecutrix  testified  the  rape  was  committed  on  certain  day. 
Defendant  oflt'ered  in  evidence  the  complaint  of  her  brother,  who 
was  not  a  witness,  made  on  later  date,  alleging  the  offense  to  have 
been  committed  on  that  day,  which,  on  objection,  the  court  refused 
to  admit.     The  ruling  of  the  court  was  held  proper. 

Defendant  oifered  to  prove  that  on  date  later  tlian  that  of  alleged 
offense,  a  brother  of  prosecutrix  proposed  the  name  of  accused  for 
leader  of  a  band  of  which  they  were  meml)ers,  which  the  court 
excluded.  The  evidence  was  not  competent,  except  to  impeach  the 
testimony  of  the  brother,  in  case  proper  foundation  had  been  laid. 
Bean  vs.  People,  124  111.  576. 

Similar  Offenses: 

—  In  General:  As  a  general  rule,  proof  of  other  acts  is  inad- 
missible unless  they  are  a  part  of  the  res  gestae. 

People  vs.  Gray,  251  111.  431. 

—  Ixape  Without  Force:  Other  offenses  with  prosecuting  wit- 
ness admissible. 

People  vs.  Gray,  251  111.  431 ;  People  vs.  Ambach,  247  111.  451 ;  People 
vs.  Duncan,  *261  111.  339. 
But  acts  of  intercourse  between  accused  and  others  than  pros- 
ecuting witness  are  not  admissible. 

People   vs.   Gibson,   255    111.   302;    Daltou   vs.   People,   224   111.   333; 
Janzen  vs.  People,  159  111.  440. 
Unless  part  of  res  gestae  showing  means  used  to  obtain  consent 
of  prosecutrix. 

People  vs.  Duncan,  261  111.  339. 

—  Actions  with  Other  Women:  Calling  from  accused,  on  cross 
examination,  the  statement  that  he  had  not  been  in  the  room  up- 
stairs over  a  certain  saloon  at  any  time  since  he  sold  it,  in  wiiich 
room  the  prosecutrix  testified  the  rape  was  committed,  does  not 
open  the  door  to  rebuttal  evidence  that  the  accused  had  been  in 
such  room  with  another  girl,  an  associate  of  prosecutrix,  notwith- 
standing no  objection  was  made  to  the  improper  cross  examin- 
ation. 

Where  proprietor  of  saloon,  in  room  over  w^hich  the  crime  is 
claimed  to  have  taken  place  in  the  daytime,  testified  the  street 
door  was  kept  locked  and  bolted  in  the  daytime,  evidence  that 
accused  was  upstairs  in  the  room  with  another  girl  in  a  certain 
month  is  not  admissible  as  tending  to  disprove  the  testimony  of 
the  proprietor,  there  being  no  evidence  that  the  parties  went 
in  at  the  street  door,  or  that  the  meeting  was  in  the  day  time. 
Dallnii  vs.  People,  224  111.  333. 

Separate  Offenses: 

—  In  General:  Misconduct  other  than  that  charged,  incom- 
petent. 

People   vs.   Arnold,   248   111.    1G9;    Johnson  vs.   People,   202   III.   53; 
Gilford  vs.  People,  87  111.  210. 

—  Larceny:  Prosecutrix  may  detail  the  entire  transaction,  in- 
cluding theft  of  her  money  and  property,  which  does  not  render 
her  evidence  incompetent  as  disclosing  a  separate  offense. 

People  vs.  Eardin,  255  111.  9. 
— ■  Drunkenness  of  Accused:     Intoxication  of  defendant  is  not 

admissible. 

Johnson  vs.  People,  202  111.  53. 


RAPE  1061 

It  is  prejudicial  error  to  permit  the  people,  in  making  proof  of 
assault  with  intent  to  commit  rape,  to  prove  accused  had  been 
drinking  beer  on  the  day  of  alleged  assault  and  had  treated  a  boy, 
sixteen  years  old,  to  beer. 

Addison  vs.  People,  193  111.  405. 

—  Frequcniing  Houses  of  Ill-Fame:  Permitting  evidence  that 
accused  frequented  houses  of  ill-fame,  is  not  ground  for  reversal 
where  such  proof  came  from  accused  himself,  in  answer  to  ques- 
tions of  his  own  counsel. 

Johnson  vs.  People,  202  111.  53. 

—  Venue  hy  Other  Females:  Permitting  People  to  prove  venue 
by  girls  M'ho  testified  they  were  under  fourteen  years  of  age,  and 
had  often  been  to  defendant's  room,  and  that  it  was  in  certain 
county,  is  not  prejudicial  error,  as  tending  to  impress  the  jury 
that  the  defendant  had  been  guilty  of  improper  conduct  with  them, 
there  being  no  attempt  to  prove  that  fact. 

Wistrand  vs.  People,  218  111.  323. 

WEIGHT  AND  SUFFICIENCY. 
In  General: 

Evidence  should  be  sufficient  to  remove  all  reasonable  doubt. 
Austin  vs.  People,  51  HI.  236. 

To  establish  corpus  delicti,  in  rape  without  force,  it  is  necessary 
•that  proof  should  show,  first,  that  the  female  w^as  under  the  age, 
second,  that  the  male  was  over  the  age  as  in  statute,  third,  that 
sexual  intercourse  occurred  between  them. 

Wistrand  vs.  People,  213  111.  72;  Schramm  vs.  People,  220  111.  16. 
There  must  be  pentratio  or  res  in  re  in  order  to  constitute  carnal 
knowledge.     A  very  slight  penetration  is  sufficient.     Penetration 
may  be  shown  by  circumstantial  evidence. 
People  vs.   Schultz,  260   111.  35. 

Force  and  Intent: 

Intent  is  an  essential  element  and  must  be  proved. 
Barr  vs.  People,  113  111.  471. 

The  intent  with  which  the  act  is  done  is  a  question  of  fact,  either 
to  be  shown  by  the  declarations  of  the  party,  or  to  lie  inferred  from 
the  character,  manner  and  circumstances  of  the  assault. 
Lathrop  vs.  People,   197  111.  169. 

The  manner,  time,  place  and  circumstances  may  be  considered 
on  question  of  intent,  and  acts  and  circumstances  may  be  sufficient 
to  show  intent. 

FitzPatrick  vs.  People,  98  111.  269. 

Force  is  an  essential  element  where  female  is  above  age  of  con- 
sent. 

Eucker  vs.  People,  224  HI.  131. 

But  force  to  last  extremity  not  necessary.  Sufficient  that  act  is 
forcible  and  against  will,  where  accomplished  by  threats,  intimida- 
tion and  fear. 

Huston  vs.  People,  121  111.  497. 

Where  female  paralyzed  with  fear,  element  of  force  is  not  re- 
butted by  proof  of  failure  to  make  resistance  or  outcry. 
Austine  vs.  People,  110  111.  248. 

Force  is  not  an  essential  element  where  female  under  age  of 

consent. 

Addison  vs.  People,  193  111.  405. 


1062  RAPE 

Uncorroborated  Testimony  of  Prosecutrix: 

Testimony  of  prosecutrix,  iiucorrol)orat('d  by  other  witnesses, 
may  be  sufficient  to  justify  conviction,  but  testimony  must  be 
clear  and  convincing. 

People  vs.  Freeman,  244  111.  590. 

Testimony  of  Child: 

Conviction  for  rape  of  child  eight  years  old  will  be  sustained, 
even  though  it  rests  principally  upon  testimony  of  child,  when  such 
testimony  is  corroborated  by  many  circumstances  and  it  is  admitted 
accused  was  sleeping  with  the  child  at  the  time, 
Johnson  vs.  People,  202  111.  53. 

Of  Complaint: 

Unexplained  delay  on  part  of  prosecutrix  in  making  complaint 
weakens  value  of  such  complaint  as  evidence,  and  if  made  in  re- 
sponse to  questions,  and  not  spontaneously,  it  partakes  of  nature 
of  hearsay  and  is  entitled  to  little,  if  any,  weight. 
Cunningham  vs.  People,  210  111.  410. 

Fact  that  prosecutrix  is  of  good  fame,  or  presently  discovered  the 
offense,  and  showed  circumstances  and  signs  of  injury,  and  the  one 
accused  flees,  will  give  greater  probability  to  her  testimony  than 
it  otherwise  would  have;  but  to  say  "these  and  the  like  are  con- 
curring circumstances,  which  give  greater  iDrobability  to  her  evi-. 

dence"  is  stating  a  nile  of  law  too  strongly  in  an  instruction. 
Chambers  vs.  People,  105  111.  409. 

Absence  of  Consent: 

AVant  of  consent  is  of  the  essence  of  the  crime,  and  must  be 

proven  by  prosecution  beyond  reasonable  doubt,  before  there  can 

be  a  legal  conviction,  and  it  is  error  for  court  in  instructions,  to 

limit  such  doubt  simply  to  the  act  of  sexual  intercouse. 
Sutton  vs.  People,  145  111.  279. 

Age  of  Accused: 

Being  a  part  of  corpus  delicti,  in  rape  without  force,  can  not 
be  proved  by  statement  in  his  voluntary  written  confession,  there 

being  no  other  proof  on  such  point. 

Wistrand  vs.  People,  213  111.  72. 

Age  of  one  accused  of  crime  of  rape  in  having  sexual  inter- 
course, by  consent,  with  female  under  age  of  consent,  cannot  be 
fixed  by  inspection  of  person  by  jury,  but  may  be  proved  by  testi- 
mony as  to  his  apparent  age. 

Wistrand  vs.  People,  213  111.  72. 

Assault  having  been  committed  with  force  and  without  the  con- 
sent of  the  prosecuting  witness  the  burden  of  proof  as  to  the  age 
of  the  defendant,  if  he  is  under  sixteen  years  of  age  rests  upon 

him. 

People  vs.  Sehultz,  260  111.  35. 

If  defendant  be  under  age  of  fourteen  years,  and  wishes  to  avail 
himself  of  that  defense,  he  is  required  to  prove  it,  and  question 
will  then  arise  as  to  whether  he  knew  right  from  wrong,  and  per- 
haps as  to  his  physical  ability  to  commit  the  crime. 
Sutton  vs.  People,  145  111.  279. 


EAPE  10G3 


Defendant  under  sixteen   cannot   be   convicted,   in   absence   of 
force,  violence  or  want  of  consent. 
Schramm  vs.   People,  220  111.  16. 

Where  sexual  intercourse  is  had  with  a  female,  forcibly  and 
without  her  consent,  it  is  not  necessary  to  aver  in  the  indictment 
that  the  accused  was,  at  the  time,  of  the  age  of  fourteen  years 
and  upwards,  and  such  averment,  if  made,  may  be  treated  as  mere 

surplusage  and  need  not  be  proven. 

Sutton  vs.  People,  145  111.  279. 

ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 
Admissibility  of  Evidence: 

—  Fads  Proper:  The  manner,  time  and  place  of  an  assault 
by  a  man  upon  a  woman  are  all  elements  to  be  considered  by  the 
jury  in  arriving  at  the  conclusion  as  to  the  intent  with  which  the 
assault  was  made  as,  whether  to  commit  a  rape  or  a  simple  assault. 

It  is  not  necessary  to  a  conviction  for  an  assault  with  intent  to 

commit  rape,  that  the  defendant  should  have  expressed  by  words 

what  his  intention  in  assaulting  the  prosecutrix  was.     That  may 

be  made  to  appear  from  his  acts  and  the  circumstances  proven, 

as  well  as  by  his  words. 

FitzPatrick  vs.  People,  98  111.  269. 

—  Force:  AVhere  female  under  age,  immaterial  whether  of- 
fense was  forcible  and  against  her  will  or  not. 

Porter  vs.   People,   158  111.  370. 

Weight  and  Sufficiency: 

—  Assault   and  Persuasion:     Consent   to   familiarities   is   not 

consent  to  intercourse. 

Johnson  vs.  People,  197  lU.  48. 

Proof  of  assault  and  of  indecent  and  even  violent  familiarity 
in  attempt  of  accused  to  persuade  female  to  yield  to  his  desires, 
is  not  sufficient  to  sustain  conviction  for  assault  with  intent  to 
rape,  unless  it  appear  accused  intended  to  accomplish  his  object 
regardless  of  the  will  of  the  female. 

Proof  that  accused  attempted  to  persuade  prosecutrix  to  yield 
to  his  embraces,  and  after  her  statements  that  she  would  call  for 
help,  he  "made  the  utmost  use  of  his  hands  which  would  be 
called  force, ' '  is  not  sufficient  to  sustain  conviction  for  assault  with 
intent  to  commit  rape,  where  prosecutrix  further  testified  that 
accused,  upon  her  remonstrance,  stated  he  could  ''do  nothing 
against  her  will,"  and  where  his  subsequent  actions  were  consist- 
ent with  such  statement. 

Newman  vs.  People,  223  HI.  324, 

—  Intent:  In  assault  with  intent  to  commit  rape,  proof  must 
show  every  ingredient  of  crime  of  rape  except  its  accomplishment. 
The  proof  must  show  beyond  a  reasonable  doubt,  the  uidawful 
attempt  which  constitutes  an  assault  with  intent  to  have  carnal 
knowledge  of  a  female,  forcibly  and  against  her  will.  It  must 
show  an  intention  to  use  such  force  as  may  be  necessary  to  accom- 
plish the  object. 

Franey  vs.  People,  210  111.  206. 


1064  RATIFICATION 

RATIFICATION 

See  Infants,  Contracts,  Stipulation. 
Defined : 

Ratilicatioii  is  equivalent  to  previous  authority.  It  operates 
upon  the  fact  ratified  in  the  same  manner  as  though  authority 
had  been  originally  given.  Ratification  relates  back  to  the  be- 
ginning of  the  thing  ratified  and  renders  it  obligatory  from  the 

outset. 

Canning  Co.  vs.  Brokerage  Co.,  213  111.  561. 

Contracts : 

—  Vuid  and  Voidable  Contracts:  A  contract  which  is  voidable 
only  is  the  subject  of  ratification,  but  a  contract  which  is  abso- 
lutely void  cannot  be  rendered  valid  by  ratification. 

L.  N.  A.  &  C.  Ey.  Co.  vs.  Carson,  51  App.  552. 

—  Scaled   Instruments:      The    authority   to    execute   a   sealed 
instrument  must  be  of  equal  dignity  and  under  seal;  and  a  prin- 
cipal  cannot   ratify   a  sealed   instrument   executed  by   an   agent 
without  competent  authority,  except  by  a  writing  under  seal. 

Ingram  vs.   Edwards,   64  111.   526;    Sigmund  vs.    Newspaper   Co.,   82 

App.   178;   Gage  vs.   City  of  Chicago,   2   App.   332. 

And  an  undisclosed  principal  is  not  bound  though  the  contract 

would   have   been   valid   without   a   seal   and   that   therefore   the 

authority  to  execute  it  might  be  by  parol  is  innnaterial.     The 

method  "of  conferring  or  of  ratifying  the  contract  does  not  change 

the  rule. 

Walsh  vs.  Murphy,  167  111.  228. 

A  sealed  contract,  executed  by  one  of  several  partners  for 
the  firm,  without  authority  under  seal,  if  made  for  the  benefit 
of  the  firm,  and  relating  to  partnership  business,  is  binding  upon 
all  partners,  if  they  assent  thereto,  and  such  assent  may  be  given 
at  the  time,  or  subsequently;  and  may  be  proven  by  acts  or  cir- 
cumstances, or  by  their  verbal  declarations  and  admissions. 
Peine  vs.  Weber,  47  111.  41;   Edwards  vs.  Dillon,  147  111.  14. 

Contract   of  Infants:     In  order  to   constitute  a  ratification 

of  acts  done  in  infancy,  the  act  relied  upon  as  a  ratification  must 
be  proven  to  be  performed  with  a  full  knoAvledge  of  its  conse- 
quences, and  with  the  express  intent  to  ratify  what  is  known  to 

be  voidable. 

Sayles  vs.  Christie,  187  111.  420. 
Acts  and  declarations  made  to  strangers  in  absence  of  party 
are   not   conclusive   evidence   of   ratification,   but   are   admissible. 
Sayles  vs.  Christie,  187  111.  420. 
Silence  is  not  a  ratification. 

Davidson  vs.  Young,  38  111.  145. 
But  intention  mav  be  shown  by  acts. 

Curry  vs.  St.  John  Plow  Co.,  55  App.  82.     (See  Infants.) 
—  Contracts  of  Corporation:     A  corporation  may  be  bound  by 
a  ratification,  evidenced  by  its  acts,  and  such  acts  and  its  assent, 
like  that  of  an  individual,  may  be  shown  from  facts  and  circum- 


REASONABLE  DOUBT  1065 

stances,  and  need  not  be  in  writing  even  though  it  be  an  act  done 
without  authority. 

Lake  St.  El.  Co.  vs.  Carmichael,  184  111.  348;  L.  N.  A.  &  C.  Ry.  Co. 

vs.  Carson,   151  111.  444;   People  vs.  Penn.  Mutual  Co.,   126  App. 

279;   Kennedy  vs.  Supreme  Lodge,  124  App.  55;  Ashley  Wire  Co. 

vs.  111.  Steel  Co.,  164  111.  149;  Lake  St.  Ey.  Co.  vs.  Carmieliael,  82 

App.  344;  C.  G.  W.  Ey.  Co.  vs.  People,  79  App.  529;   Wheeler  vs. 

State  Bank,  85  App.  28;  XI  111.  Notes  1098,  §§  379  et  seq. 

Ratification  niav  be  proven  bv  admissions  of  principal. 

E.  &  P.  Co.  "vs.  Cecil,  112  111.  180. 

And  supplies  the  want  of  initial  authority. 
El.  Supply  Co.  vs.  Biddle,  156  App.  461. 

Where  the  ratification  is  estalilished  by  other  evidence,  what 
the  agent  says,  and  his  declarations  at  the  time  of  doing  the  act, 
are  competent  as  part,  of  the  res  gestae.  Where  such  ratification 
is  with  knowledge  of  the  facts,  the  principal  makes  the  acts  and 
declarations  of  the  agent  his  own. 
Paul  vs.  Berry,  78  111.  158. 


REAL  EVIDENCE 

See  Demonstrative  Evidence,  Exhibition  of  Injury. 


REASONABLE  DOUBT 

See  Bastardy,  Alibi,  Penalties,  AVeight  and  Suffviciency. 
Defined : 

A  doubt  which  will  justify  an  acquittal  must  not  be  merely  a 
chimerical  or  conjectural  doubt,  or  one  not  based  upon  the  evi- 
dence. It  must  be  a  doubt  arising  from  a  candid  and  impartial 
investigation  of  all  of  the  evidence  in  the  case,  and  such  as  in  the 
graver  transactions  of  life  would  cause  a  reasonable  and  prudent 
man  to  hesitate  and  pause.  If  the  jury,  after  considering  all  the 
evidence,  can  say  that  they  have  an  abiding  conviction  of  the 
truth  of  the  charge,  they  are  satisfied  beyond  a  reasonable  doubt. 
Miller  vs.  People,  39  111.  458;  People  vs.  Anderson,  239  111.  468; 
People  vs.  Tielke,  258  111.  88. 

Such  a  doubt  must  be  actual  and  substantial,  as  contra-dis- 
tinguished from  a  mere  vague  apprehension,  and  must  arise  out 
of  the  evidence.  The  jury  may  be  said  to  have  a  reasonable  doubt 
when,  after  the  entire  comparison  and  consideration  of  the  evi- 
dence, they  cannot  say  that  they  feel  an  abiding  conviction,  to 
a  moral  certainty,  of  the  truth  of  the  charge. 

Proof  "beyond  a  reasonable  doubt"  is  such  proof  as  precludes 
every  reasonable  hypothesis  except  that  which  it  tends  to  support. 
It  is  proof  "to  a  moral  certainty,"  as  distinguished  from  an  ab- 
solute certainty.  The  two  phrases,  "proof  beyond  a  reasonable 
doubt"  and  "proof  to  a  moral  certainty,"  are  synonymous  aiid 
equivalent.  Each  signifies  such  proof  as  satisfies  the  judgment 
and  conscience  of  the  jury,  as  reasonable  men.  and  applying  their 
reason  to  the  evidence  before  them,  that  the  crime  charged  has  been 


1066  REASONABLE  DOUBT 

conimittccl  by  the  defendant,  and  so  satisfy  them  as  to  leave  no 

other  reasonable  conclusion  possible, 
Carlton  vs.  People,  150  111.  181. 

On  a  murder  trial  the  court  instracted  the  jury  that  in  con- 
sid,ering  the  case  they  "are  not  to  go  beyond  the  evidence  to 
hunt  up  doubts,  nor  must  they  entertain  such  doubts  as  are 
merely  chimerical  or  conjectural.  A  doubt,  to  justify  an  acquit- 
tal, must  be  reasonable,  and  it  must  arise  from  a  candid  and 
impartial  investigation  of  all  the  evidence  in  the  case,  and  unless 
it  is  such  that,  were  the  same  kind  of  doubt  interposed  in  the 
graver  transactions  of  life,  it  would  cause  a  reasonable  and  pru- 
dent Hi  an  to  hesitate  and  pause,  it  is  not  sufficient  to  authorize 
a  verdict  of  not  guilty.  If,  after  considering  all  the  evidence, 
you  can  say  that  you  have  an  a])iding  conviction  of  the  truth  of 
the  charge,  you  are  satisfied  beyond  a  reasonable  doubt;"  Held, 
no  error  prejudicial  to  the  defendant. 
Painter  vs.  People,  147  111.  444. 

Each  Incriminating-  Fact : 

It  is  not  necessary  that  each  particular  incriminating  fact  relied 
upon  shall  be  proven  beyond  a  reasonable  dou])t.  It  is  sufficient 
if  upon  the  wdiole  evidence  the  jury  are  satisfied  beyond  a  rea- 
sonable doubt  that  defendant  is  guilty. 

Kossakowsld  vs.  People,  177  111.  563;  Mullins  vs.  People,  110  111.  42. 

Links  and  Particular  A  cts : 

It  is  sufficient  if  evidence,  as  a  whole,  satisfies  the  jury  beyond 
a  reasonable  doubt, — proof  of  each  link  in  the  chain  is  not  neces- 
sary. 

People  vs.  See,  258  111.  152;  Keating  vs.  People,  160  111.  480;  Siebcrt 
vs.  People,  143  111.  571;  Weaver  vs.  People,  132  111.  536;  People 
vs.  Searbach,  245  111.  435 ;  XI  111.  Notes  1247,  §  183. 

Whole  Evidence: 

The  reasonable  doubt  which  a  jury  may  entertain  must  be  in 

regard  to  the  guilt  of  the  accused  considering  the  whole  evidence, 

and  not  in  regard  to  the  sufficiency  of  the  proof  of  any  particular 

fact  in  the  case. 

Henry  vs.  People,  198  111.  162;  Williams  vs.  People,  166  111.  132, 

Circumstantial : 

In  order  to  w^arrant  a  conviction  for  crime  on  circumstantial 
evidence,  the  circumstances,  taken  together,  should  be  of  a  con- 
clusive nature  and  tendency,  leading,  on  the  whole,  to  a  satis- 
factory conclusion,  and  producing,  in  effect,  a  reasonable  and 
moral   certainty   that  the   accused,   and  no   one   else,   committed 

the  offense  charged. 

People  vs.  York,  262  111.  620;  People  vs.  Eischo,  262  111.  596;  Duun 
vs.  People,  158  111.  586;  Carlton  vs.  People,  150  111.  181. 

It  is  not  necessary  that  it  establish  to  "a  certainty  that  con- 
vinces and  directs  the  understanding  and  fully  satisfies  the  rea- 
son and  judgment,"  as  this  would  be  tantamount  to  the  re- 
quirement of  absolute  certainty. 

Little  vs.  People,   157  111.   153. 

Corpus  Delicti: 

Must  be  established  beyond  a  reasonable  doubt. 

Hoch  vs.  People,  219  111.  265;  Williams  vs.  People,  101  111.  382. 


REBUTTAL  1067 

Identity : 

Though  positively  proven  that  one  of  two  or  more  persons 
committed  crime,  yet  if  it  is  uncertain  which  is  the  guilty  party, 
all  must  be  acquitted. 

Campbell  vs.  People,  16  111.  16. 

Sanity : 

A  reasonable  doubt  as  to  the  sanity  of  the  accused  will  entitle 
him  to  acquittal. 

Hornich   vs.   People,    142   111.    620;    Crews  vs.   People,   120   111.   317; 
Mullens  vs.  People,  110  111.  42;  Davis  vs.  People,  114  111.  86. 

Reformation  of  Instruments: 

Relief  is  forbidden  whenever  the  evidence  is  loose,  equivocal, 
or  contradictory,  or  in  its  texture  open  to  doubt  or  opposing  pre- 
sumption. Parol  evidence  of  the  mistake  must  be  establislied  be- 
yond a  reasonable  doubt.  Courts  of  equity  do  not  grant  the 
high  remedy  of  reformation  upon  a  probability  .nor  upon  a  mere 
preponderance  of  the  evidence,  but  only  upon  a  certainty  of  the 
error. 

Lines  vs.  Willey,  253  111.  440. 

Notice  of  Unrecorded  Deed: 

The  title  of  a  subsequent  purchaser  whose  deed  is  first  recorded 
will  not  be  defeated  on  the  ground  of  notice  of  a  prior  unrecorded 
deed  unless  the  proof  of  such  notice  is  so  clear  and  positive  as 
to  leave  no  reasonable  doubt  that  the  taking  of  the  second  con- 
veyance was  an  act  of  bad  faith  towards  the  purchaser. 

The  fact  of  notice  must  be  proved  by  direct  evidence  or  by 
other  facts  from  which  it  may  be  clearly  inferred  and  the  infer- 
ence must  not  be  probable,  but  necessary  and  unquestionable. 

Lowdeu  vs.  Wilson,  233  111.  34U;  Kobert'son  vs.  Wheeler,  102  111.  566. 


REBUTTAL 

See  Order  of  Proof,  Offer  of  Evidence,  Impeachment. 
Defined : 

Rebuttal  evidence  is  that  wliicli  is  produced  by  plaintiff  to 
explain,  repel,  counteract  or  disprove  evidence  given  by  defend- 
ant. 

City  of  Sandwich  vs.  Dolan,  141  111.  430;  Chi.  City  Ey.  Co,  vs.  Mc- 
Meen,  70  App.  220. 

To  rebut  means  to  contradict  by  counterproof  or  repel  by  op- 
posing testimony. 

Kelly  vs.  People,  229  111.  81. 

Right  to  Introduce : 

After  defendant  has  closed  his  case,  plaintiff  is  entitled  as  of 

right  to  put  in  evidence  strictly  in  rebuttal. 
Johnson  vs.  Breaton,  1  App.  293. 

Court  may  admit  or  exclude  merely  cumulative  evidence  when 

offered  in  rebuttal. 

Chytraiis   vs.    City  of   Chicago,    160   111.    18;    Casey   vs.   Biscuit   Co., 
163  App.  145. 

Right  to  Rebut  Impeaching  Testimony : 

Where  plaintiff,  in  rebuttal  introduces  evidence  in  contradic- 


1068  REBUTTxVL 

tion  of  witnesses  of  defendant,  which  defendant  could  not  rea- 

sona])ly  have  anticipated,  and  which  evidence  is  offered  for  no  other 

purpose  than  to  impeach  their  credibility,  defendant  is  entitled, 

after  plaintiff  has  rested,  to  support  their  credibility  by  additional 

testimony. 

City  of  Sandwich  vs.  Dolai.,   Ul  111.  430. 

Right  to  Rebut  Incompetent  Testimony : 

The  proper  defense  against  incompetent  evidence  is  an  objec- 
tion, and  its  introduction  without  objection  does  not  make  evi- 
dence competent  to  contradict  it.  Parties  cannot  by  mere  silence 
or  consent  create  a  right  to  try  an  immaterial  issue  when  they 
might  have  had  the  adverse  evidence  kept  out  or  stricken  out. 
People  vs.  Newman,  261  111.  11;  Maxwell  vs.  Durkin,  185  111.  546. 

But  after  the  admission  of  the  objectionable  evidence,  party  may 
offer  proof  upon  the  matter  and  is  not  thereby  estopped  to  com- 
plain, where  he  -has  first  objected  to  the  incompetent  testimony. 
A  party  has  a  right  to  meet  his  adversary's  case  as  made  under 
the  rulings  of  the  trial  judge,  and,  after  making  an  objection  and 
reserving  proper  exceptions,  may  combat  the  testimony  of  adverse 
party  whether  correctly  admitted  or  not,  without  losing  his  rights 

on  appeal. 

Chi.  City  Ey.  Co.  vs.  Thter,  212  111.  174;  Winn  vs.  Christian  Coal  Co., 
156  App.  179.     (See  Objections.) 
Time  of  Introduction : 

—  In  General:  The  usual  rule  is  that  the  party  upon  whom 
the  burden  of  proof  rests  must  in  the  first  instance  produce  all 
proof  he  proposes  to  offer  in  support  of  his  allegation ;  and  after 
his  adversary  has  closed  his  proof,  he  may  be  heard  only  in  ad- 
ducing proof  directly  rebutting  the  proofs  given  by  his  adver- 
sary. 

In  some  courts  it  has  been  held  that  neither  party  is  called  upon 
to  produce  all  his  testimony  in  support  of  any  allegation  in  issue 
until  it  has  been  developed  on  tlie  trial  that  an  issue  in  the 
evidence  is  made  upon  that  question;  the  view  of  such  courts 
being  that  where  the  burden  of  proof  of  a  given  allegation  rests 
upon  a  party,  it  is  sufficient  for  that  party  to  produce  proof 
enough  to  make  a  prima  facie  case,  and  that  he  is  not  required 
to  accumulate  other  testimony  until  evidence  has  been  intro- 
duced to  contradict  his  prima  facie  case.  That  rule  has  not  pre- 
vailed in  the  courts  of  this  state. 
Mueller  vs.  Eebhan,  94  111.  142. 

The  rules  of  practice  require  each  party  to  introduce  all  his 
evidence  in  chief  when  proving  his  case,  but  they  have  a  right 
afterwards  to  introduce  rebutting  evidence  in  support  of  their 
evidence  in  chief,  but  a  court  may,  in  its  discretion,  at  any  time 
permit  either  party  to  introduce  evidence  in  chief  to  promote 
justice,  and  error  cannot  be  assigned  on  such  admission. 

Chill.  Ferry  Co.  vs.  Jamieson,  48  111.  281. 

After  a  party  has  closed  his  evidence,  it  is  altogether  a  mat- 
ter of  discretion  whether  court  will  permit  him  to  give  further 

evidence. 

City  of  Sandwich  vs.  Dolan,  141  111.  430. 


REBUTTAL  1069 

—  After  Argument  of  Counsel:  The  admission  of  testimony 
after  the  arguments  have  been  made  and  the  instructions  read,  rests 
in  the  discretion  of  the  court,  and  the  exercise  of  such  discretion 
is  not  ground  for  reversal  unless  some  injury  has  been  occasioned 
to  party  complaining. 

Schwitters  vs.  Springer,  236  111.  271;  I.  D.  &  W.  Ky.  Co.  vs.  Hen- 
driaii,  190  111.  301;  Garretson  vs.  Village  of  Fox  Lake,  154 
App.  58 ;  Stivers  vs.  Conklin,  103  App.  288 ;  Maxwell  vs.  Diirkin, 
185  111.  546;  Eobinson  vs.  Kirkwood,  91  App.  54;  Busse  vs. 
Kemp,    48   App.    195. 

Evidence  Properly  in  Chief : 

—  //(    Goieral:     Admission   of   evidence    in    rebuttal   which    is 

properly  admissible  in  chief,  is  within  sound  discretion  of  trial 

court. 

People  vs.  Lukoszus,  242  111.  101;  Hartricli  vs.  Hawes,  202  111.  334; 
Griffith  vs.  San.  Dist.,  174  App.  100;  Beyer  vs.  P.  B.  &  C.  Co., 
156  App.  47;  Cleveland  vs.  Moore,  142  App.  615;  City  of  ]\Iar- 
seilles  vs.  Heister,  142  App.  299;  Argo  vs.  People,  78  App.  246; 
Mauzy   vs.    Kinzel,    19   App.    571. 

The  permission  of  introducing  rebuttal  evidence  properly  a 
part  of  case  in  chief,  rests  largely  in  discretion  of  trial  court. 
The  discretion  should  be  exercised  so  tliat  neither  party  will  be 
taken  by  surprise  or  be  deprived  of  an  opportunity,  without  no- 
tice, to  introduce  evidence  in  contradiction. 

Floto  vs.  Floto,  233  111.  605;  Craig  vs.  Southard,  148  111.  37; 
Gray  vs.  Bonfield,  59  App.   381. 

Discretion  is  not  subject  to  review  except  in  case  of  gross  abuse. 
Washiugiou   Ice   Co.   vs.   Bradley,   171   111.   255;    Concordia   Ins.   Co. 
vs.  Bowen,  121  App.  35. 

—  C Oiliest  of  Will:  Opinions  of  witnesses,  called  by  propo- 
nent, as  to  testamentary  capacity  of  testator  should  be  given  in 
chief. 

Slingloff   vs.   Bruner,   174   111.    561. 

Proponents  of  will  cannot  know  what  will  be  testified  to  by 
contestants'  witnesses  until  their  evidence  has  been  given.  It  is 
proper  for  the  proponent  of  a  will  to  offer  all  his  evidence  of 
testamentary  capacity  in  the  first  instance,  and  if  he  desires  to 
present  to  the  jury  the  opinions  of  experts  based  on  hypotheses 
of  facts  testified  to  by  his  witnesses,  he  should  do. so  before  clos- 
ing his  case  in  chief,  but  after  the  contestant  has  offered  his 
evidence,  the  proponent  has  a  right  to  examine  expert  witnesses 
as  to  what  conclusions,  in  their  opinions,  should  be  drawn  from 
such  evidence. 

Albrecht  vs.   Hittle,   248   111.   72. 

Anticipating-  Defense: 

Party  anticipating  that  evidence  will  be  introduced  in  rebut- 
tal, may  properly  anticipate  same  in  chief  by  introducing  testi- 
mony to  counteract  the  same. 

Kenny  vs.  Marquette  Cement  Co.,  149  App.  173;  Wilkinson  vs. 
Aetna  Ins.  Co.,  144  App.  38;  Dimmick  vs.  Downs,  82  111.  570; 
Hintz  vs.  Graupner,  138  111.   158. 

The  practice  of  permitting  rebuttal  evidence  as  part  of  case 
in  chief  is  not  justified  by  the   fact  that  opposing  counsel  has 
stated  in  his  opening  statement  what  he  expects  to  prove. 
Barrett  vs.  People,  220  111.  304. 


1070  RECALLING  WITNESS 

Leading  Questions: 

On  rebuttal  there  is  no  more  right  to  ask  suggestive  questions 
of  one's  own  witness  than  on  examination  in  the  first  instance. 
Eobishaw  vs.   Schiller  Piano   Co.,   17y   App.   1(33. 

RECALLING  WITNESS 

Further  Cross  Examination: 

—  Discretion   of   Court:     Recalling  witnesses   rests   in    discre- 
tion of  court. 

Brown  vs.   Berry,   47   111.    175;    Springfield   vs.   Dalby,   139   111.   34; 

Bennett  vs.  Glattfelt,  120  111.  166. 

The  right  to  recall  a  witness  for  further  cross  examination  is 

largely  within  the  sound  discretion  of  the  trial   court,   and  can 

only  be  reviewed  when  it  is  apparent  that  the  refusal  was  an 

abuse  of  this  discretionary  power. 

Hirseh  &  Sons  Co.  vs.  Coleman,  227  111.  149;  Blanehard  vs.  Blaneh- 
ard,   191   111.   450;   Anderson   Trans.   Co.   vs.   Fuller,   174   111.   221; 
N.  W.  E.  Co.  vs.  Hack,  66  111.  238. 
Notice  of  intention  to  recall  witness  should  be  given  counsel, 
so  that  cross  examination  may  be  had. 
Hurd  vs.   Lill,  26  111.   497. 
Where  a  witness  has  already  answ^ered  substantially  the  same 
questions  on  his  first  cross-examination,   court  may  properly  re- 
fuse to  allow  him  to  be  recalled  for  further  cross  examination 

on  same  matter. 

C.  &  A.  R.  Co.  vs.  Eaton,  96  App.  570. 

RECEIVERS 

Private  Corporations: 

—  Compensation:  Court  may  take  into  consideration  its  per- 
sonal knowledge  of  the  general  nature  and  value  of  the  services 

alleged  to  have  been  rendered. 

Culver  vs.   Allen  Med.  Assn.,  206  111.   40. 
In  fixing  compensation,  including  his  solicitor's  fee,  which  is 
to  be  taxed  as  costs  upon  the  dismissal  of  the  bill  by  the  com- 
plainant, the  court  should  hear  evidence,  and  such  evidence  should 
be  preserved  in  some  way  if  it  is  desired  to  sustain  the  amount 

of  such  compensation  on  appeal. 

Borroughs  vs.   Merrifield,  243  111.  362. 

If  a  receiver  relies  upon  his  reports,  petitions  and  accounts  as 
furnishing  sufficient  infonnation  to  the  court,  he  is  not  entitled 
to  demand  that  the  court  hear  oral  evidence  or  refer  the  case  to  a 
master  in  chancery,  after  the  court  has  announced  the  amount  at 
which  the  compensation  will  be  fixed,  where  the  amount  is  sat- 
isfactory to  all  parties  but  the  receiver,  and  is  ample  compensa- 
tion for  the  services  performed,  as  fully  disclosed  by  the  re- 
ports and  accounts. 

Goodman   vs.   Wilder,   234   111.   362. 


RECEIPTS  1071 


RECEIPTS 


See  T.vxES,  Tax  Receipts,  Parol,  Release,  Waiver,  Payment, 
EXPLANATION  AND  ACCEPTANCE. 
Admissibility  of  Parol: 

—  In  General:  While  a  receipt  is  ordinarily  very  high  and 
satisfactory  evidence  of  the  truth  of  its  recitals,  still  it  is  always 

open  to  explanation  by  parol  testimony. 

Starkweather  vs.  Maginnis,  196  111.  274;  Paris  vs.  Lewis,  85  111.  597; 

Beading  vs.  Travers,  83  111.  372;  Eand  vs.  Scholickl,  43  111.  167; 

167;   FitzGerald  vs.   Coleman,   114  App.  25;   XII  111.  Notes  516, 

§331. 

And   this   though   plaintiff  is   suing   for  balance   after   giving 

receipt  in  full. 

MeKinnie  vs.  Lane,  230  111.  544;  Rose  vs.  Stoddard,  181  App.  405. 

And  defendant  may  show  why  the  receipts  ran  in  the  name 

of  another  person. 

Starkweather  vs.  Maginnis,  196  111.  274. 

Parol  evidence  is  competent  to  show  receipt  obtained  through 

fraud  or  violence. 

O'Brien  vs.  Palmer,  49  111.  72. 
In  an  action  by  the  payee  against  the  maker  of  promissory 
notes,  it  appeared  there  were  mutual  dealings  between  parties,  and 
the  defendant  presented  in  evidence  the  receipt  of  plaintiff,  sub- 
seciuent  to  the  date  of  the  notes,  in  full  of  all  demands:  Held, 
he  had  the  right  to  give  in  evidence  his  books  of  account,  for  the 
purpose  of  showing  by  the  entries  made  therein  how  he  had  paid 
the  notes,  and  so  account  for  the  giving  of  the  receipt  by  the 

plaintiff. 

Taliferro  vs.   Ives,  51  111.   247. 

Payment  may  be  proven  by  parol  though  a  receipt  was  given. 

Hinchman    vs.    Whetstone,    23    Hi.    185;    West   Chi.    St.   Ey.    Co.   vs. 
Piper,  165  111.  325;  Walker  vs.  Glos,  245  111.  253. 

—  Contracis  and  Receipts:  Wliere  an  instrument  is  partly  a 
receipt  and  partly  a  contract,  the  part  constituting  the  agreement 

or  contract  cannot  be  explained  by  parol. 

Zickert   vs.    Times     Square     Anto    Co.,    181    App.    676;    Andnis   vs. 

Mann,  92  111.  40;   O'Brien  vs.   Palmer,  49  111.   72;    MeClosky  vs. 

McCormick,  37  111.  66;   White  vs.  Merrill,  32  111.  511;   Loeb  vs. 

Flannery,  148  App.  471. 

A  letter  stating  that  the  writer  had  collected  a  certain  sum  of 

money  for  the  party  to  whom  it  was  addressed,  is  nothing  more 

than  a  receipt,  and  may  be  explained  or  contradicted  by  parol 

evidence,  by  showing  that  a  less  sum  was  in  fact  received. 

But  if  a  party  for  whom  the  money  was  said  to  have  been  col- 
lected, in  acting  upon  the  statement  in  the  letter  as  to  the  amount 
collected,  had  lost  the  security  he  held  against  his  debtor,  then  the 
one  making  the  statement  would  be  estopped-  from  showing  he 
had  received  a  less  sum. 

Carr  vs.  Miner,  42   111.   179. 

—  Deeds:     The  acknowledgment  in  a  deed  of  the  payment  of 

money  is  only  treated  as  a  receipt  and  is  governed  by  the  rules 

of  evidence  applicable  to  such  instruments. 

Elder  vs.  Hood,  38  111.  533;  Koch  vs.  Eoth,  150  111.  212. 


1072  RECEIVING  STOLEN  PROPERTY 

—  Burden  of  Proof:     The  burden  of  explaining  or  impeaching 

a  receipt  is  upon  the  party  who  gave  it. 

Lon^  vs.  LoiifT,   132  App.   409;    McElhaney  vs.  People,   1  App.  550. 

WEIGHT  AND  SUFFICIENCY. 

In  General : 

A  written  receipt  in  full  is  evidence  of  the  highest  and  most 

satisfactory  character,  and  to  do  away  with  its  force,  testimony 

should  be  convincing. 

RosenmuUer   vs.  Lampe,   89  111.   212;    Eeed  vs.   Phillips,   5   111.   42. 

A  receipt  in  full  of  all  demands  is  prima  facie  evidence  of  the 

payment  of  all  notes  and  claims  existing  at  the  time  receipt  is 

given. 

Marsten  vs.  Wilcox,  2  111.  269. 

Though  a  wa^tten  receipt  may  be  explained  by  parol,  yet  it 
is  prima  facie  evidence  of  the  most  satisfactory  chai'aeter  of  the 
facts  therein  recited,  and  to  impair  its  force  the  proof  must  be 
convincing.  The  proof  offered  to  explain  it  must  be  clear  and 
unmistakable.  It  must  be  overcome,  if  at  all,  by  a  clear  prepon- 
derance of  the  evidence. 

Ennis  vs.    Pullman   Palace   Car   Co.,   165   111.    161;    Neal   vs.   Hand- 
ley,   116   111.   418;   Vigns  vs.  O'Bannon,   118  111.   334;    Winchester 
vs.   Grosvenor,   44  .111.   425. 
Where  the  proof  offered  to  impair  the  force  of  an  unambiguous 
written  receipt  is  neutralized  by  the  proof  offered  in  its  support, 

the  receipt  must  be  given  its  prima  facie  effect. 

Ennis    vs.    Pullman    Car    Co.,    165    111.    161;    Stephens    vs.    Neilson, 
142  App.  263.     (See  Payment.) 

Third  Persons: 

In  adjusting  the  accounts  between  the  parties,  receipts  taken 
by  a  party,  from  various  persons  engaged  in  the  work,  for  money 
he  paid  them  for  their  work,  were  regarded  as  proving  nothing, 
in  themselves,  as  they  neither  constituted  evidence  of  the  value 
of  the  work  nor  for  whom  performed. 
Grove  vs.  Miles,  58  111.  338. 

In   an   action   by   a   co-debtor   against    another,    to   re-pay   his 
moiety  of  debt  paid,  the  receipt  of  the  person  so  paid  is  25rma 
facie  evidence  that  payment  has  been  made. 
Balance  vs.  Frisby,  2  Scam.  63. 

A  receipt  given  for  produce  is  no  evidence  of  any  indebtedness 

by  the  partv  signing  it. 

Abrains  vs.  Taylor,  21  111.  102. 


RECEIVINa  STOLEN  PROPERTY 

Proof  of  Theft: 

—  Confessions:     The  fact  that  a  larceny  has  been   committed 

is  known  as  the  corpus  delicti,  and  cannot  be  established  alone 

by  confessions  of  accused. 

Williams  vs.   People,   101   111.  382. 

—  Suhstantive  Crime:  The  offense  of  receiving  or  buying 
stolen  property  or  aiding  in  concealing  same,  for  gain,  or  to 
prevent  the  owner  from  repossessing  himself  thereof,  with  knowl- 


RECEIVING  STOLEN  PROPERTY  1073 

edge  that  it  has  been  stolen,  is  made  a  substantive  crime  subject 
to  punishment  without  reference  to  the  trial  or  conviction  of  the 
person  committing  the  larceny. 

Watts  vs.   People,  204   111.   233;   Huggins  vs.  People,   135   lU.   243. 

— •Nmrhe  of  Thief  Need  Not  Be  Proven:  The  name  of  the 
thief  or  of  the  person  from  whom  defendant  received  or  bought 
the  property,  not  being  a  matter  necessary  to  the  identification 
of  the  offense,  need  not  be  alleged  or  proven. 

But  where  the  pleader,  although  unnecessarily,  alleges  the  com- 
mission of  the  larceny,  burglary^  or  robbery  by  a  particular  per- 
son, or  that  the  property  was  bought  or  received  of  a  particular 
person,  the  allegation  becomes  a  matter  of  description,  and  must 

be  proved  as  laid. 

Huggins  vs.  People,  135  111.  243. 

—  What  Tends  to  Prove:  Testimony  by  boy  who  delivered 
the  goods  from  the  possession  of  the  true  owner,  that  he  was 
told  by  a  third  party  to  telephone  for  a  drayman  and  jend  the 
goods  to  the  accused,  and  that  after  they  were  delivered  such 
third  party  paid  him  a  certain  sum  as  his  share,  i.i  properly  ad- 
mitted, as  tending  to  characterize  the  transaction  and  as  tending 

to  establish  the  larceny  of  the  goods. 
Lipsey  vs.  People,  227  111.  364. 

—  Receiving   Stolen   Money:     It   is    absolutely    essential   to    a 

conviction  for  having  received  stolen  money  for  gain,   knowing 

it  to  have  been  stolen,  that  the  prosecution  should  prove  beyond 

a  reasonable  doubt  that  a  larency  of  the  money  had  been  com 

m  it  ted. 

Williams   vs.    People,    101   111.   382. 

Guilty  Knowledge: 

—  Former  Transaction:  Proof  that  accused  on  a  former  occa- 
sion received  some  of  the  same  goods  through  the  same  channel, 
is  competent  as  tending  to  show  guilty  knowledge. 

People  vs.  Baskin,  254  111.  509;   Lipsey  vs.  People,  227  111.   364. 

So  proof   of  a   series   of   connected   transactions   is   competent 
though  it  tends  to  show  defendant  guilty  of  other  offenses. 
People  vs.  Moeller,  260  111.  375. 

In  a  prosecution  for  receiving  stolen  property,  consisting  of 
pig  iron,  which  it  is  charged  was  bought  by  defendant  from 
teamsters  engaged  in  hauling  it  to  the  owner's  place  of  busi- 
ness, it  is  not  error  to  allow  a  witness  employed  by  a  foundry 
company  to  testify  that  the  defendant,  about  the  time  of  the  of- 
fense charged,  offered  to  Sell  the  foundry  company  some  pig 
iron  which  he  claimed  he  was  expecting,  but  that  he  did  not,  in 

fact,  sell  or  deliver  any. 

People   vs.   Feinberg,    237    111.    348. 
— -Distinct  Offense:     Evidence  tending  to  prove  a  similar  but 
distinct  offense  is  not  admissible  for  purpose  of  raising  an  infer- 
ence or  presumption  that  the  accused  committed  the  particular 

act  for  which  he  is  on  trial. 

Schiiltz  vs.   People,   210  111.   196;   Bishop   vs.   People,   -94   111.    365. 

—  Circumstantial  Evidence:  The  knowledge  of  the  theft  need 
not  be  the  actual  or  positive  knowledge  which  one  acquires  from 
personal  observation  of  the  fact.     It  is  sufficient  if  the  circum- 

Ev.— 68 


1074  RECEIVING  STOLEN  PROPERTY 

stances   acconij)anyiiig   the    transaction    l)e    such   as    to    make    the 
accused  hdicve  the  goods  had  been  stolen. 

Huggins  vs.  People,  135  111.  243;   Cohn  vs.  People,  197  111.  482. 
The  fact  that  the  accused  knew  the  goods  to  have  been  stolen 
may  be  shown  by  circumstances. 

Lipsey  vs.  People,  227  111.  364;  Delahoyde  vs.  People,  212  111.  554; 
Huggins  vs.  People,  135  111.  243;  People  vs.  Feinberg.  237  111. 
348;   Guntber  vs.  People,  139  111.  526;  XIV  111.  Notes  313,  §9. 

—  At  Time  of  Purchase:  To  convict  a  party  of  Ijuying  stolen 
property  for  his  own  gain,  knowing  the  same  to  have  been  stolen, 
there  being  no  count  for  concealing  or  aiding  in  concealing  the 
property,  it  is  necessary  for  the  People  to  prove  guilty  knowledge 
of  the  defendant,  at  the  time  of  his  purchase,  that  the  property 

was  stolen. 

Huggins  vs.  People,  135  111.  243. 

—  Degree  of  Proof:  Guilty  knowledge  on  the  part  of  the 
defendant  is  essential  to  the  constitution  of  the  offense.  In  or- 
der to  justify  a  conviction,  it  is  necessary  for  the  prosecution  to 
satisfy  the  jury  beyond  a  reasonable  doubt  that  the  accused  knew 

the  goods  had  been  stolen  at  the  time  he  received  them. 

CoLn  vs.  People,  197  111.  482;  Huggins  vs.  People,  135  111.  243; 
Aldrich  vs.  People,   101   111.   16;   May  vs.  People,  60  111.   19. 

—  Attending  Facts  and  Circumstances:  Knowledge  that 
property  has  been  stolen  may  be  shown  by  proof  of  attending 
facts  and  circumstances  from  which  that  inference  arises.  It 
may  be  shown  by  proof  that  the  purchase  was  for  much  less  than 
the  real  vallie  of  the  property,  that  the  party  denied  that  the 
property  was  in  his  possession,  or  that  he  concealed  it.  So  it 
may  be  shown  by  his  failure  to  make  reasonable  explanation,  the 
evil  reputation  of  the  person  from  whom  he  purchased  or  re- 
ceived, and  the  like. 

Huggins  vs.  People,  135  111.  243. 

—  What  Tends  to  Shoiv:     That  one  from  whom  the  accused  is 

charged'  with   receiving   stolen    property    had   large    amount    of 

jewelry,  which  he  offered  at  much  less  than  its  value,  and  that 

the  accused  did  not  list  the  articles  which  he  bought,  in  a  book 

kept  for  that  purpose,   but  at  first   denied  the  purchase  to  the 

police,  is  sufficient  to  go  to  the  jury  on  the  question  of  his  guilty 

knowledge. 

Weinberg  vs.  People,  208  III.  15. 

—  Testimony  of  Accomplice:  AVhile  a  conviction  may  be  had 
upon  the  uncorroborated  testimony  of  a  confessed  accomplice, 
yet  such  evidence  is  of  doubtful  integrity,  and  should  be  re- 
ceived with  great  caution. 

Colin  vs.  People,  197  111.  482;  People  vs.  Feinberg,  237  111.  348; 
People   vs.   Moeller,    260   111.   375. 

—  Possession  of  Stolen  Property:  The  possession  of  recently 
stolen  property,  not  satisfactorily  explained,  is  presumptive  evi- 
dence that  the  possessor  himself  stole  the  same ;  but  if  he  de- 
clares that  he  received  such  property  from  another  person  whose 
name  is  unknown,  this  may  be  taken  as  sufficient  evidence  that  he 

received  it  from  the  thief,  rather  than  that  he  stole  it  himself. 
Gunther  vs.  People,  139  111.  526. 


RECEIVING  STOLEN  PROPERTY  1075 

—  False  Statements  in  Explanation:  Where  a  party  makes 
false  statements  in  attempting  to  explain  his  possession  or  how 
he  got  the  property,  the  presumption  will  be  that  he  could  not 
truthfully   make   such   expfanation   without   inculpating   himself. 

Gunther  vs.  People,  139  111.  526. 

—  Value:  Expert  testimony  as  to  value  is  admissible  where 
it  is  shown  that  property  of  the  kind  in  question  could  not  be 
known  by  common  ol)servation  to  be  perfect  or  imperfect. 

Jupitz   vs.    People,   34   111.    516. 

So,  as  tending  to  rebut  presumption  of  guilty  knowledge  from 

inadequacy  of  price  paid,  custom  of  dealers  in  goods  of  class  in 

question  is  admissible. 

Andrews  vs.   People,  60  111.   354. 

Identity  of  Property: 

— ■Description:     Indictment    should    describe    the    goods    with 
accuracy,  and  a  variance  in  this  particular  will  be  fatal. 
Williams  vs.  People,  101  111.  328. 

—  Burden  of  Proof:     Burden  is  upon  the  prosecution  to  prove 

the  identity  of  the  property  received  or  concealed  by  the  accused 

as  being  the  same  property  alleged  in  the  indictment  to  have  been 

stolen. 

Sehultz  vs.  People,  210  111.   196. 

And  it  must  be  proven  beyond  a  reasonable  doubt. 
Bishop  vs.  People,   194  111.  365. 

—  Introduction  of  Property:  Where  a  charge  is  receiving  brass 
couplings  knowing  them  to  have  been  stolen,  it  is  proper  for  pur- 
pose of  identifying  and  proving  kind  of  property  stolen,  for  People 
to  bring  a  brass  coupling  into  court  and  show  by  the  testimony  of 
witnesses  that  the  couplings  stolen  were  similar  to  the  one  brought 
into  court  and  shown  to  the  witnesses.  But  this  kind  of  evidence 
is  unnecessary.  Proof  that  the  articles  that  had  been  stolen  were 
brass  couplings  and  that  the  prisoner  knew  it,  would  have  made  the 

case 

Jupitz  vs.  People,  34  111.  516, 

Other  property  claimed  to  have  been  stolen  at  the  same  time,  but 

which  it  is  not  claimed  was  ever  in  possession  of  accused,  is  not 

admissible  in  evidence. 

Scbiiltz  vs.  People,  210  111.  196. 

Ownership  of  Property: 

—  Essential  Averment:  The  ownership  of  the  property  is  an 
essential  averment  and  such  ownership  must  be  proven  as  laid. 

Aldrich  vs.  People,  225  111.  610. 

—  Individual  Does  Not  Sustain  Allegation  of  Corporate:    Where 

property  alleged  to  be  the  property  of  a  corporatioji,  conviction 

is  not  authorized  by  proof  of  the  ownership  of  the  property  in  an 

individual. 

Aldrich  vs.  People,  225  111.  610. 

Weight  and  Sufficiency : 

—  Elements  of  Offense:  In  order  to  sustain  a  conviction,  it  is 
essential,  first,  to  show  that  the  property  alleged  to  have  been  re- 
ceived or  concealed  was  in  fact  stolen;  secondly,  that  the  accused 
received  the  goods  knowing  them  to  have  been  stolen,  guilty  knowl- 
edge being  an  essential  ingi^edient  of  the  crime ;  and  lastly,  that  the 


1076  RESCISSION  OF  CONTRACTS 

accused,  for  his  own  gain,  or  to  prevent  the  owner  from  recovering 
the  same,  bought,  received  or  aided  in  concealing  the  stolen  goods. 
Lipsey    vs.    People,   227   111.    364;    Aldrieh    vs.    People,    101    111.    16; 
Fauuce  vs.  People,  51   111.   311;   XIV  111.  Notes   313,   §9. 

—  Receiver  Defined:     One  who  receives  into  his  possession  or 

under  his  control,  with  felonious  intent,  any  stolen  goods  or  chattels 

with  knowledge  that  they  have  1ieen  stolen. 
Watts  vs.  People,  204  111.  233. 

The  proof  must  not  only  show  the  requisite  knowledge  that  the 
property  was  stolen,  but  also  that  the  accused  received  or  accepted 
it  for  his  own  gain  or  to  prevent  the  owner  from  re-possessing  it. 
People  vs.  Israel,  240  111.  375. 

—  Value  of  Property:    Must  be  shown. 

Dalahoyde  vs.  People,  212  HI.  554;    Thompson  vs.  People,  125  111. 
256.' 

Accessory  Before  the  Fact: 

One  indicted  for  the  crime  of  receiving  stolen  property  may  be 
convicted  of  the  offense  charged  although  the  evidence  shows  he 
was  an  accessory  before  the  fact,  if  he  was  not  present  at  the  actual 
time  of  the  conversion  of  the  goods. 

People  vs.  Feiuberg,   237  111.   348. 

Defenses : 

—  Good  Character  of  Accused:  Proof  of  uniform  good  char- 
acter is  entitled  to  great  weight  and  should  raise  a  doubt  of  guilty 

knowledge. 

Jiipitz   vs.   People,    34   111.   516;    Addison   vs.    People,    193    111.   405. 

—  Intent  of  Defendant:  Where  defendant,  on  behalf  of  the 
owner,  receives  stolen  goods  from  the  thief,  for  the  honest  purposp 
of  restoring  them  to  the  owner  without  fee  or  reward,  or  the  expec- 
tation of  any  pecuniary  compensation,  and  in  fact  immediately 
after  obtaining  their  possession  restored  all  he  received  to  the 
owner,  and  is  not  acting  in  concert  or  connection  with  the  party 

stealing  to  make  a  profit  out  of  the  transaction,  he  will  not  be  guiltv. 
Aldrifli   vs.   Peoy.le,   101    111.    16. 

—  Explanation  of  Possession:     The  explanations  that  a  person 

makes  while  in  possession  of  stolen  property  at  the  time  of  finding 

it  in  his  possession,  are  admissible  in  evidence  for  such  party  as 

explanatory  of  the  character  of  his  possession  and  it  is  for  the  .jury 

to  wei^h  them  and  consider  whether  they  were  made  in  good  failh 

and  were  true,  or  only  for  purpose  of  self-exculpation. 

Bennett   vs.   People,   96  111.   602;   Comfort  vs.   People,   54   111.   404. 


RESCISSION  OF  CONTRACTS 

See  Cancellation  of  Instruments,  Release,  Waiver,  Seals, 
Admissions,  Parol,  Fraud  and  Deceit,  Abandonment. 
Fact  of  Rescission: 

—  Burden  of  Proof:     The  burden  of  proving  facts  justifying 

rescission  or  that  contract  has  been  rescinded  is  upon  party  seeking 

to  establish  these  facts. 

Schroeder  vs.  Walsh,   120  111.  403;   Hall  vs.  Jarvis,   65  111.   302. 

One  seeking  to  evade  the  enforcement  of  a  written  contract,  on 

the  ground  that  same  was  rescinded  and  an  oral  contract  substituted 


RECOGNIZANCE  1077 

therefor,  has  the  burden  of  proving  the  making  of  the  alleged  verbal 

contract. 

Croft  vs.  Perkins,   17-1  111.  627. 

—  Admissibility  of  Evidence:  Rescission  of  contract  may  be 
implied  from  circumstances  and  conduct  of  parties. 

Natl.  Ins.  Co.  vs.  Met.  Ins.  Co.,  226  111.  102. 
Evidence  of  a  subsequent  contract  raises  the  conclusive  presump- 
tion of  the  rescission  of  the  former  contract,  as  far  as  the  two  are 

inconsistent. 

Stowe    vs.    Eussell,    36    111.    18;    Farrar   vs.    Tolliver,    88    111.    408; 

Gray  vs.  B.  &  X.  Ey.  Co.,  120  App.  159. 

But  the  contract  must  appear  to  have  been  rescinded  in  toto.    The 

contract  must  stand  in  all  its  provisions  or  fall  together.     A  party 

to  a  contract  cannot  retain  the  consideration  or  a  part  of  it,  and 

refuse  to  be  bound  by  the  contract  or  a  part  of  it. 

Babeock   vs.    Farwell,    215    111.    14;    Bollnow   vs.    Novacek,    184   111. 
463;    Kellogg  vs.   Turpie,   93   111.   265. 
In  an  action  upon  a  joint  executory  contract,  evidence  of  repudi- 
ation of  the  contract  by  the  defendant  to  one  of  the  plaintiffs  is 
admissible  in  favor  of  the  other  if  there  is  evidence  tending  to  show 
that  the  one  to  whom  the  repudiation  was  made  was  acting  for  both. 
Osgood  vs.  Skinner,  211  111.  229. 

—  Weight  and  Sufficiency:  Where  an  abandonment  or  waiver 
is  relied  upon,  it  must  be  shown  to  have  been  the  clear  intention  of 
the  parties  to  abandon  the  contract  previously  entered  into.  Court 
will  indulge  no  presumption  in  favor  of  waiver,  nor  will  it  infer  a 
waiver  or  abandonment  upon  slight  proof.  A  parol  waiver  or  dis- 
charge of  a  written  contract  must  be  clear  and  explicit  and  proved 

beyond  a  doubt. 

Evans  vs.  Gerry,  174  111.  595 ;   Mix  vs.  White,  36  111.  484. 

Setting  Aside  in  Equity :  • 

—  AV eight  and  Sufficiency:  A  misrepresentation  which  will 
justify  the  setting  aside  of  a  contract  must  be  proven  to  contain  the 
following  elements :  First,  its  form  must  be  a  statement  of  fact ; 
second,  it  must  be  made  for  the  purpose  of  inducing  the  other 
party  to  act ;  third,  it  must  be  untrue ;  fourth,  the  party  making 
the  statement  must  know  or  believe  it  to  be  untrue ;  fifth,  the  person 
to  whom  it  is  made  must  believe  it  and  rely  upon  the  truth  of  the 
statement ;  sixth,  the  statements  must  be  material. 

Gillespie  vs.   Fulton   Oil  Co.,   236   111.   188;    Prentice  vs.   Crane,   234 
111.   302;    Raynor  vs.   Modern   Brotherhood,   157   App.   510. 
It  is  not  always  necessary  in  order  to  charge  a  vendor  with  fraud 
that  he  should  "know  his  statements  to  be  false,  if  he  has  no  good 
and  reasonalile  grounds  to  believe  them  to  be  true,  and  the  conse- 
quences are  the  same  to  the  vendee  as  if  he  had  had  such  knowledge. 
Coolidge  vs.  Ehodes,  199  111.  24. 


RECOGNIZANCE 

Writ  of  Scire  Facias : 

—  As  Declaration:     The  scire  facias  is  to  be  regarded  as  the 
declaration,  and  is  substantially  sufficient  if  it  shows  a  recognizance 


1078  EECOGNIZANCE 

properly  entered  into  by  the  principal  and  his  sureties,  a  default, 

judgment  of  forfeiture  and  issue  of  writ. 
McNemar   vs.   People,   183   111.   164. 

Writ  stands  in  place  of  both  the  summons  and  declaration,  and 
should  contain  every  averment  necessary  to  show  a  right  of  recov- 
ery ;  and  if  there  is  a  variance  between  the  recognizance  as  set  out 
in  the  writ  and  the  judgment  of  forfeiture,  advantage  of  such 
variance  may  be  taken  under  a  plea  of  mil  tiel  record. 
Fan-is  vs.   People,  58  111.   26. 

—  Requisites  Of:  A  WTit  should  clearly  show  before  what  court 
the  recognizance  was  entered  into,  and  for  what  olfense  the  prin- 
cipal in  the  recognizance  was  indicted;  also  that  a  judgment  had 

been  entered. 

Thomas  vs.  People,   13  111.  696. 

—  Amendment:  Scire  facias,  being  both  process  and  declar- 
ation, is  subject  to  the  same  rules  of  amendment  as  declarations 
in  other  cases.     The  proceeding  is  not  criminal  in  its  nature,  but 

to  enforce  the  payment  of  money  due  on  a  contract. 

Peacock  vs.  People,  83  111.  331;   People  vs.  Kubright,  241  111.  600. 

—  Indictment:  In  a  scire  facias  upon  a  recognizance,  given  in 
open  court  for  the  appearance  of  principal  to  answer  to  an  indict- 
ment, it  is  not  necessary  to  aver  and  prove  that  an  indictment  was 

ever  found,  to  render  the  recognizors  liable. 

Kepley  vs.   People,   123   111.  367;    O'Brien  vs.   People,   41   111.   456; 
Mooney  vs.  People,  81  111.   134;   Garrison  vs.   People,  21  111.  535. 

—  Variance:  Where  a  judgment  was  described  in  the  scire 
facias  as  being  against  principal  and  five  sureties,  but  from  record 
offered  in  evidence  it  appeared  that  the  judgment  of  forfeiture  was 
against  the  principal  and  three  sureties,  it  was  held  to  be  a  fatal 
variance,  and  that  execution  could  not  be  awarded  against  those 

'against  whom  there  w^as  no  judgment  of  forfeiture.  Before  a  final 
judgment  could  be  rendered,  there  should  be  a  judgment  of  forfeit- 
ure against  them. 

Farris  vs.  People,  58  Bl.  26. 

Wliere  the  recognizance  was  several  only,  and  the  scire  facias 
averred  that  the  recognizance  was  joint  and  several,  and  defend- 
ants agreed  that  they  would  take  no  advantage  of  a  variance  be- 
tween the  scire  facias  and  recognizance,  and  court  entered  a  joint 
judgment  against  them,  it  was  held  that  wdiile  they  could  not  take 
advantage  of  any  variance,  they  had  a  right  to  insist  that  the 
judgment  should  be  entered  in  accordance  with  the  recognizance 

and  not  according  to  the  averments  of  the  scire  facias. 
Briggs  vs.  People,  13  App.  172. 

Burden  of  Proof  and  Presumptions : 

On  a  plea  of  the  death  of  the  principal,  in  a  recognizance,  the 

burden  of  proof  rests  upon  the  defendant. 
People  vs.  Meacliam,  74  111.   292. 
Sickness  of  principal  is  inadmissible. 

Piercy  vs.  Peojile,   10   App.   219. 
A  recognizance  is,  of  itself,  evidence  that  it  was  taken  under  the 

direction  of  the  court. 

Chumasero  vs.  People,   18  111.  405;    Sliattuck  vs.  People,  5   111.  478. 


RECOGNIZANCE  1079 

Parol  Evidence : 

—  Identity  of  Principal:  It  is  competent  to  prove  by  parol  the 
identity  of  the  principal. 

O'Brien  vs.  People,  41  111.  456. 

Upon  writ  issued  upon  a  judgment  of  forfeiture  against  the 
principal  and  surety  named  in  a  recognizance,  fact  that  the  scire 
facias  referred  to  principal  by  his  full  name,  while  the  recognizance 
gave  his  surname  and  the  initial  of  his  given  name,  the  same  being 
so  signed  by  him,  does  not  constitute  a  fatal  variance ;  and  evidence 
is  properly  admitted  to  show  that  person  indicted  and  convicted 
was  the  person  named  in  the  recognizance. 
Allen  vs.  People,  29  App.  555. 

—  Approval  hy  Sheriff:  AMiere  the  record  shows  that  a  recog- 
nizance was  taken  and  approved  by  the  sheriff,  parol  evidence  is 
inadmissible  to  contradict  it,  or  to  show  that  when  same  was  filed 

there  was  no  approval  on  it. 

Welborn  vs.  People,  76  111.  516. 

—  Consent  to  Conditions:  Defendants  cannot  show  they  did 
not  stand  in  open  court  and  consent  to  the  conditions  of  the  recog- 
nizance, since  the  effect  of  such  plea  is  to  dispute  the  record. 

McNamara  vs.  People,  183  111.  164. 
After  a  recognizance,  which  was  entered  into  upon  the  examin- 
ation of  a  party  charged  with  crime  before  a  magistrate  who  had 
jurisdiction  of  the  offense,  has  properly  become  a  matter  of  record, 
the  action  of  the  magistrate  cannot  be  impeached  nor  the  proceed- 
ings assailed. 

Bulson  vs.   People,   31    Til.   409. 

—  Official  Character:  Plea  that  the  committing  magistrate  was 
not  a  legal  officer,  amounts  to  nothing.  By  entering  into  the  recog- 
nizance, the  cognizor  admits  the  official  character  of  person  making 
commitment,  which  cannot  be  inriuired  into  collaterally. 

People  vs.  Baughnian,  18  111.  152. 

Execution : 

The  certificate  of  a  justice  of  the  peace  to  a  recognizance  that 
it  was  taken,  entered  into  and  acknowledged  before  him  is  suffi- 
cient to  show  execution. 

People   vs.    Meacham,    74   111.   292. 

Weight  and  Sufficiency: 

Under  a  plea  of  nul  ticl  record  to  a  scire  facias  on  a  recognizance, 

if  the  recognizance  of  record  and  judgment  of  forfeiture  are  given 

in  evidence,  this  will  be  sufficient  to  authorize  a  judgment  for  the 

People, 

Peacock  vs.  People,  83  111.  331. 

The   recognizance   of   record    and   judgment   of   forfeiture   are 

sufficient  evidence  to  authorize  a  judgment  in  action  of  debt,  or, 

under  proper  averments,  upon  a  scire  facias. 
People  vs.  Witt,  19  111.  169. 
The  recognizance  of  record,  and  judgment  of  forfeiture,  are  com- 
petent and  sufficient  evidence,  under  appropriate  averments  in  the 
scire  facias,  to  authorize  judgment  of  execution  according  to  the 


1080  RECORDS 

form,  force  and  effect  of  the  recognizance,  and,  in  action  of  debt, 
to  authorize  a  judgment  for  the  amount  of  the  recognizance. 

Kepley  vs.   People,   123   111.   367;    Biirrell   vs.   People,   103   App.   81; 
People  vs.   Trout,  151  App.  312;   XI  111.  Notes  509,   §88. 

To  sustain  a  judgment  upon  a  scire  facias  on  a  recognizance 

there  must  be  a  judgment  of  forfeiture.     It  is  not  enough  that  a 

valid  judgment  is  set  out  in  a  scire  facias, — it  must  be  given  in 

evidence. 

Eubank  vs.   People,  50  111.  496. 


RECORDS 

See  Ag^,  Ancient  Documents,  Anti-Saloon  Territory,  Appeal 
Bonds,  Best  and  Secondary,  Bonds,  Certificates.  Contested 
Elections,  Copies,  Coroner's  Inque,st,  Depositions,  Foreign 
Law,  Former  Adjudication,  Former  Conviction,  Highways, 
Hospital  Records,  Identity,  Impeachment,  Judgments,  Judges 
Docket  and  Minutes,  Judicial  Notice,  Legislative  Acts  and 
Journals,  Maps,  Plats,  Diagrams,  IVIarriage  Objections, 
Ordinances,  Ownership,  Presumptions,  Patents,  Police  RECr 
ords,  Principal  and  Surety,  Production  op  Documents,  Regis- 
ters of  Births,  Deaths  and  Marriages,  Rules  of  Court,  Seals, 
Surveys  and  Field  Notes,  Service,  Taxes,  Tax  Receipts,  Title, 
Weather,  AVills, 
IN  GENERAL: 
Defined: 

Books  and  documents  of  a  public  nature  and  of  public  authority 
are  admissible  in  evidence,  in  a  proper  case,  where  there  is  an 
official  duty  to  make  the  record.  This  rule  includes  official  registers 
or  records  kept  in  a  public  office  in  which  the  officer  is  required, 
either  by  statute  or  by  the  nature  of  the  office,  to  write  down  par- 
ticular transactions  occurring  in  the  course  of  his  public  duties, 
and  under  his  personal  observation,  and  it  makes  no  ditference 
whether  the  entries  are  made  by  him  in  person  or  not,  for  it  is  suffi- 
cient if  they  are  made  under  his  direction  as  a  part  of  the  duties 
of  the  office.  Or  an  entry  in  any  record,  official  book  or  register 
kept  in  this  country,  or  at  sea  or  in  any  foreign  country,  stating 
a  fact  in  issue  or  relevant  thereto,  and  made  in  proper  time  by  any 
person  in  discharge  of  any  duty  imposed  upon  him  by  the  law  of 
the  place  where  such  record  book  or  register  is  kept,  is  admissibly 
in  evidence.  Their  admissibility  is  placed,  in  part,  upon  the 
ground  that  they  are  kept  for  public  reference  by  one  who  is  under 

some  duty  to  keep  them. 

People  vs.  Joyce,  154  App,  13;  XII  111.  Notes  504,  §  227. 

A  record  is  a  written  memorial  made  by  a  public  officer,  author- 
ized by  law  to  perform  that  function ;  the  memorial  being  intended 
to  serve  as  evidence  of  something  written,  said  or  done. 
K.  &  L.  of  A.  vs.  Weber,  101  App.  488. 

Where  the  books  upon  which  the  entries  of  a  public  officer  are 
made  are  such  as  the  law  requires  to  be  kept,  so  that  they  consti- 
tute the  official  record  of  the  acts  performed  by  him  in  the  dis- 


RECORDS  1081 

charg-e  of  his  official  duties,  such  entries  are,  on  general  principles, 
admissible  in  evidence  for  or  against  all  persons  having  any  inter- 
est in  them  or  in  the  facts  to  which  they  relate. 
Cassady  vs.   Trustees  of  Schools,   105  111.  560. 

Entries  in  a  public  record  must  have  been  made  by  a  person 

authorized  to  make  them. 

Gray  vs.  Waterman,  40  111.  522. 

Documents  are  not  to  be  regarded  as  public  records  unless  they 

are  made  under  the  sanction  of  law  and  official  duty. 

Griffiths  vs.  San.  Dist.,  174  App.  100. 

As  a  general  rule,  the  books  and  memorials  kept  by  public 
officers,  even  though  not  required  by  statute,  if  they  are  neces- 
sary and  appropriate  to  the  discharge  of  the  duties  of  the  office, 

are  considered  as  public  records. 

Watts  vs.  Vill.  of  Eiver  Forest,  227  111.  31. 

Records  made  by  public  officers  for  convenience  onl}^  are  not 

public  records  and  official  actions  of  which  no  record  need  be  made 

are  provable  by  parol. 

Wilson  vs.  MeClure,  50  111.  366;   Fowler  vs.  Donovan,  79  111.  310. 

A  book  kept  by  a  county  officer,  not  required  by  law  to  be 
kept,  is  not  strictly  admissible  as  a  public  record. 
Co.   of  LaSalle  vs.   Simmons,  10  111.   513. 

Where  the  record  is  not  required  by  law  to  be  kept,  and  the 

books  do  not  come  within  the  rule  relating  to  books  of  account, 

such  record  is  inadmissible  except  to  refresh  memory  of  witness, 

under  the  rules  relating  thereto. 

Dorraneo  vs.  Dearborn  Power  Co.,  233  111.  354. 

Existence  and  Identity  of  Record : 

The  existence  of  a  record  cannot  be  proven  by  merely  balanc- 
ing probabilities.  If  in  existence,  it  proves  itself;  and  if  not  in 
existence,  the  presumption  is  that  it  never  existed,  and  those  who 
affirm  its  prior  existence  must  show  clearly  and  satisfactorily  that 

fact, — not  merelv  its  probability. 

Worchester  Bank   vs.   Cheeuey,   87  111.   602. 

Whether  the  instrument  offered  in  evidence  in  a  case  is  a  record 
or  not,  is  always  open  to  inquiry.  Anything  produced  as  a  rec- 
ord may  be  shown  to  be  forged  or  altered.  A  record  is  said  to  be 
conclusive  evidence,  but  what  is  "and  what  is  not  a  record  is  a 

matter  of  evidence  and  mav  be  proved  like  other  facts. 
Schirmer  vs.  People,  33  111.  275. 

Where  the  existence  of  a  record  offered  in  evidence  is  not  in 
dispute,   all    questions   as   to   the   time   when    made   and    Vv^hether 
its  recitals  are  true  or  not.  must  be  settled  by  reference  to  it  alone. 
Herrington  vs.   McCullom,   73  111.  476. 

Character  of  Book: 

The  mere  fact  that  data  are  first  placed  upon  loose  sheets  of 
paper  or  blank  forms  does  not  necessarily  establish  that  it  con- 
stitutes a  record.     The  record  might  properly  be  the  letter  press 

book. 

C.  &  E.  I.  R.  R.  Co.  vs.  Zapp,  209  111.  339. 

In  the   absence   of  other  suspicious   circumstances,   it  is  not  a 

sufficient  ground  for  the  exclusion  of  a  public  record,  when  offered 

in  evidence,  that  some  of  its  leaves  are  missing,  where  the  book 


1082  RECORDS 

is  a  public  record  required  by  law  to  })e  kept  by  public  officers 
for  the  benefit  of  any  one  interested.  It  is  presumed,  until  eon- 
traiy  is  shown,  that  such  officers  have  done  their  duty,  and  the 
right  of  the  public  to  the  use  of  such  records  cannot  be  destroyed 
by  the  mere  fact  that  a  portion  of  the  original  leaves  of  the  book 
are  gone. 

People  vs.  Board  of  Supervisors,  21  App.  271. 
The  record  kept  by  the  authorized  clerk  is  competent  and  it  is 
not  material  as  to  how  well  bound  the  book  is  in  which  records 
are  kept. 

People  vs.   Ezell,   155  App,  298;   People  vs.  Doschio,  157  App.  51. 

Record  Required  by  Law: 

Where  the  law  requires  public  records  of  proceedings  to  be  kept, 
such  records  cannot  be  contradicted,  added  to  nor  supplemented 
by  parol  evidence. 

City  of  Belville  vs.  Miller,  257  111.  244;  Dunne  vs.  Youmans,  224 
111.  34;  People  vs.  Madison  Co.,  125  111,  334;  XII  111.  Notes  515, 
§324. 

Where  the  fact  or  transaction  is  not  required  by  law  or  rule 
to  be  reduced  to  writing  or  be  evidenced  by  a  writing,  parol  evi- 
dence to  establish  such  fact  or  transaction  is  not  to  be  rejected 
upon  the  ground  that  it  is  secondary,  merely  because  there  is  a 
writing  evidencing  such  fact  or  transaction,  providing  the  evi- 
dence offered  is  not  substitutionary. 

Board  of  Education  vs.  Taft,  7  App.  571, 

Unless  the  law  expressly  and  imperatively  requires  all  matters 
to  appear  of  record,  and  makes  the  record  the  only  evidence,  parol 
evidence  is  admissible  to  prove  things  omitted  to  be  stated  on  the 
record. 

School  Directors  vs.  Kimmell,  31  App.  537;  Bartlett  vs.  Board  of 
Education,  59   111.  364. 

Where  it  is  not  necessary  to  the  validity  of  proceedings  that 
record  should  be  kept,  parol  proof  is  admissible  to  show  what  was 
actually  done. 

Bartlett  vs.  Board  of  Education,  59  111.  364. 

Parol  proof  is  competent  to  show  payment  of  clerk's  fees, 
Oberreich   vs.    Foster,   152   App.   302. 

Lost  or  Destroyed  Records : 

Where  records  are  lost  or  destroyed,  their  contents  may  be 
proven  by  parol. 

People  vs.  Cotton,  250  111.  338;  Ashley  vs.  Johnson  Co.,  74  111. 
392;   Gage  vs.  Schroeder,  73  111.  44. 

Contents  of  lost  record  may  be  proven  l)y  parol,  although  un- 
certified copy  exists. 

People  vs.  Cotton,  250  111.  338. 

Contents  of  lost  record  of  mortgage  may  be  proved  by  parol. 
People  vs.   Cotton,   250   111.   338. 

The  rule  that  the  record  or  an  exemplified  copy  or  sworn  copy 
thereof  must  be  produced  is  limited  to  cases  in  which  it  is  within 
the  power  of  the  party  relying  on  the  record  to  produce  such 
evidence.  The  rule  in  respect  to  judicial  records  is  that  before 
informal  evidence  of  their  contents  may  be  received,  the  loss  of 
their  existence  must  be  clearly  accounted  for.  It  must  be  shown 
that  there  was  such  a  record,  that  it  has  been  lost  or  destroyed  or 


RECORDS  1083 

is  otherwise  incapable  of  being  produced,  or  that  its  mutilation 

from  time  or  accident  has  made  it  illegible, 
rorsythe  vs.  Vehnieyer,  176  111.  359. 

Restored  Records: 

Where  the  records  of  a  court  were  restored  after  their  destruc- 
tion, extrinsic  evidence  is  not  admissible  to  contradict  same. 
Diuet  vs.  Eigmann,  96  111.  39. 

Amendment  of  Record: 

Tlie  clerk  may  amend  the  record  of  a  municipal  corporation, 
so  long  as  he  has  the  custody  thereof,  according  to  his  knowledge 
of  the  truth.  And  this  he  may  do  while  in  office  or  after  re-elec- 
tion to  the  same  office.  Nor  is  it  necessary  that  he  should  have 
some  memorandum  to  amend  from  or  the  directions  of  the  officer 
whose  actions  were  recorded  in  such  record.  He  has  a  right, 
under  power  derived  from  his  official  character,  to  amend  the 
record  according  to  the  truth,  without  directions. 
Co.  of  Schuyler  vs.  M.  B.  &  I.  Co.,  173  App.  435. 

Alteration  of  Record : 

If  words  have  been  struck  out  of  a  record  so  as  to  render  it 
erroneous,  witness  may  be  examined  to  show  that  such  words  were 
improperly  struck  out ;  but  not  to  falsify  the  record  by  showing 
that  an  alteration  whereby  the  record  was  made  correct  was  im- 
properly made. 

Schiinier  vs.  People,  33  111.  275. 

Matter  Not  of  Record : 

Official  certificates  of  officers  are  inadmissible  to  create  proof 

of  the  non  existence  of  any  fact  or  record. 

Boyd  vs.  C.  B.  &  Q.  E.  R,  Co.,  103  App.  199. 

The  certificate  of  a  clerk  is  not  competent  to  prove  what  is  not  in 
the  record.  A  person  who  has  examined  offices  or  records  may 
swear  and  so  prove  the  matters  as  not  there  of  record. 

City   of   Beardstown   vs.   Virginia,   81    111.    547;    Cross   vs.   Pinckney 
Mill  Co.,  17  111.  54, 

Whether  or  not  the  records  or  writings  show  a  certain  fact 

cannot  generally  be  proved  by  parol  evidence  unless  the  documents 

themselves  are  in  court. 

Welsh  vs.  Shumway,  232  111.  54. 

In  absence  of  statutory  authority,  the  clerk  having  custody  of 
records  may  certify  that  his  copy  of  the  records  is  a  true  copy,  but 
he  cannot  properly  certify  to  his  conclusions  as  to  facts  shown  or 
not  shown  by  the  records. 

Glos  vs.  Dyehe,  214  111.  417;  Chicago  vs.  English,  80  App.  163. 

The  record  may  be  proved  by  a  copy  thereof,  certified  under  the 

hand  of  the  clerk  having  custody  thereof,  and  his  official  seal,  but 

he  cannot  properly  certify  to  his  conclusions  as  to  facts  shown  or 

not  shown  by  the  records.     A  clerk  cannot  certify  to  the  contents 

of  a  record  and  his  certificate  is  not  competent  evidence  of  such 

contents.     He  can  only  certify  that  a  paper  is  a  true  copy  of  the 

record. 

Glos  vs.  Dyehe,  214  111.  417. 

Where  a  clerk  certifies  to  a  paper  as  being  a  true  copy  of  a 

record  and   further  recites  that   it   contains   all   in   reference   to 

certain  premises,  the  conclusion  of  the  clerk  that  there  w^is  noth- 


1084  RECORDS 

ing  else  of  record  which  related  to  the  premises,  described  does 
not  add  to  or  detract  from  the  proof  of  the  material  fact,  if  the 
paper  certified  to  by  the  clerk  contains  matter  material   to  the 

ISSUG 

Glos  vs.  Dyche,  214  111.  417. 

Public    officers   having   legal   custody,    as   such,    of    the    books, 

records  and  journals,   may  authenticate   by  certificate  a  copy  of 

any  extract  from  any  such  journal  or  record,  and  by  the  rules  of 

the  common  law,  such  certificate  is  competent  evidence  that  the 

copy  is  correct,  and  such  a  copy  is  evidence  of  the  contents  of  the 

record ;  but  such  officer,  unless  authorized  by  statute  to  do  so, 

cannot  lawfully  certify,  generally,  to  any  fact  not  shown  by  his 

record,  or  to  any  conclusions  he  may  draw  from  an  inspection  of 

the  record. 

People  vs.  Lee,  112  111.  113;  Ewing  vs.  Cox,  158  App.  25. 

Voluminous  Records: 

Experts  are  allowed  to  examine  complicated  account  books  and 
records  and  give  their  conclusions  as  to  what  tliey  contain.  Fre- 
quently any  other  course  would  cause  a  great  loss  of  time  and  tend 
to  confuse  the  jury.  The  court  may  naturally  re(iuire  the  pro- 
duction of  the  originals. 

Keinke  vs.  Sanitary  District,  260  111.  380;  Boyle  vs.  I.  C.  E.  E.  Co., 
113  App.  532;  Guaranty  Co.  vs.  Miit.  B.  &  L.  Assn.,  57  App.  254, 

The  books,  papers  or  records  themselves  must  be  properly  in 

evidence.     The  jury  are  not  bound  by  the  result  thus  ascertained, 

but  may  make  their  own  calculations  from  the  books  and  papers 

in  evidence. 

Welsh  vs.   Sluimway,  232  111.  54. 

COUNTY  RECORDS: 

Presumption : 

In  passing  judicially  upon  the  records  of  county  boards,  where 
authority  appears  or  is  implied  by  law,  such  records  will  be  con- 
strued according  to  their  intent,  and  it  will  be  presumed  that 
the  proceedings  were  rightfully  had,  in  absence  of  all  suggestion 

to  contrary  in  the  record. 

People  vs.  Lyons,  168  App.  396. 

Parol: 

Where  a  county  board,  in  open  session,  agrees  to  have  a  parol 
contract,  made  by  it  with  another,  spread  upon  the  records  of  its 
proceedings,  which  it  fails  to  do,  and  the  other  party  performs 
his  part  of  the  agreement,  he  may,  in  action  against  the  county 
for  breach  of  the  contract,  prove  the  same  by  parol  as  the  best  evi- 
dence obtainable. 

Co.   of   Franklin  vs.   Layman,   145   111.   138;    Vermillion   vs.   Knight, 
2  111.  97. 

Except  in  cases  where  payment  of  money  out  of  a  county  treas- 
ury is  specifically  authorized  by  law  to  be  made,  no  money  or 
funds  can  be  properly  paid  out  unless  upon  an  order  of  the  county 
board,  and  in  such  case  the  order  of  the  county  board  can  only 
be  shown  by  the  record.     Parol  evidence   is  not  admissible   for 

such  purpose. 

Hall  vs.   Jackson  Co..  95  111.   352. 


RECORDS  1085 

Recitals : 

The  record  of  removal  of  a  coiuity  treasurer  from  office  by  the 
county  board  is  admissible  in  evidence  as  against  the  sureties  on 
his  bond,  that  being  the  best  evidence  of  the  fact  of  removal  and 
the  cause  thereof.  It  is  proper  the  ground  of  removal,  as  that  the 
officer  has  been  found  to  be  a  defaulter,  should  be  recited  in  the 
record,  and  that  part  of  the  record  containing  such  recital  is 
admissible  as  well  as  the  part  showing  the  fact  of  the  removal 
itself. 

Stern  vs.   People,   102   111.  540. 

Competency  of  Clerk  and  Certificate : 

While  the  offices  of  the  clerk  of  county  court  and  county  clerk 
are  distinct  offices,  yet  there  is  but  one  incumbent,  and  that  indi- 
vidual is  a  competent  Mdtness  to  identify  the  record  in  his  custody, 
either  as  clerk  of  the  county  court  or  as  county  clerk,  and  a  reso- 
lution of  the  county  board  levying  a  tax  is  properly  identified  by 
him,  although  he  testifies  as  clerk  of  the  county  court. 

People  vs.   C.   V.   &  C.   R.   Co.,   243   111.   217':    XII   111.    Notes   513, 
§309. 

If  the  office  of  the  county  clerk  and  that  of  clerk  of  the  county 
court  are  both  held  by  the  same  person,  a  certificate  to  records 
of  the  board  of  supervisors,  signed  by  such  person  is  not  vitiated 
by  the  fact  that  he  appends  to  his  signature  the  designation  of 
clerk  of  the  county  court. 

People  vs.  Lyons,  168  App.  396. 

The  county  clerk  may  establish  the  existence  of  a  record  in  his 

office  by  testifying  as  a  wdtness  that  the  copy  offered  in  evidence 

was  a  true  copy  of  the  instrument  filed  in  his  office. 
Lanysda'le  vs.   People,   100  111.   263. 

TOWN  RECORDS: 

Legal  Custodian: 

The  town  clerk  is  the  legal  custodian  of  the  records,  books  and 
papers  of  the  town. 

C.   C.  C.  &  St.  L.  By.   Co.  vs.  Randall,  183  111  364. 

"Where  the  town  clerk  testifies  that  he  was  then  acting  as  such 

and  stated  "this  is  the  town  record,"  and  the  record  was  then 

offered  in  evidence,  it  was  sufficiently  identified. 
Bullette  vs.  Goemble,  45  111.  218.  ' 

Character  of  Book: 

The  record  kept  by  the  clerk  is  competent,  and  it  is  not  material 

as  to  how  well  bound  the  book  is  in  which  such  records  are  kept. 

People  vs.   Ezell,   155   Apj).   298;    People  vs.   Doschio,   157  App.   51. 

Amendment : 

The  court  may  permit  the  record  of  an  annual  town  meeting 
to  be  amended  upon  proper  showing  of  the  facts. 
C.  &  N.  W.  Ry.  Co.  vs.  People,  174  111.  80. 

To  justify  amendment  it  is  necessary  that  the  action  should 
have  been  actually  taken.  It  is  not  permitted  to  show  that  done 
which  was  not  in  fact  done. 

People  vs.  C.  C.  C.  &  St.  L.  Ry.  Co.,  261  111.  70. 

If,  as  a  matter  of  fact,  the  levy  of  taxes  was  for  a  specific  pur- 
pose, and  the  officer  whose  duty  it  was  to  keep  the  records  of  the 
proceedings  of  the  town  meeting  failed  and  neglected  to  make 


1086  RECORDS 

the  proper  record  of  the  same,  the  record  may  be  amended  to 
correspond  with  the  facts,  upon  sufficient  parol  proof. 
C,  I.  &  W.  Ey.  Co.  vs.  People,  206  111.  565. 

Wliere  the  records  of  a  town  meeting  are  offered  in  evidence 
the  county  court  may  permit  the  town  clerk,  in  the  presence  of 
the  court,  to  amend  the  certificate  of  levy  so  that  it  would  cor- 
respond with  the  record  of  the  town  meeting,  in  pursuance  of 
which  it  was  made,  so  far  as  specifying  the  purpose  for  which 

the  tax  was  levied  is  concerned. 

C.  &  N.  W.  Ky.  Co.  vs.  Teople,  183  111.  247;  I.  D.  &  W.  Ky.  Co.  vs. 

People,   201   111.   351. 

It  is  error  to  permit  the  certificate  of  levy  of  a  town  tax  to  be 

amended  upon  application  for  sale,  to  correspond  with  the  record 

of   the  town   meeting,   where   such   record   is   not   introduced   in 

evidence. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  People,  205  111.  582. 

Upon  application  for  a  judgment  of  sale  for  road  and  bridge 
tax,  the  town  clerk  who  wrote  up  the  record  of  the  meeting  of 
the  highway  counnissioners  may  testify  that  the  date  of  the  meet- 
ing was  incorrectly  entered  by  him,  where  the  tax  levy  certificate, 
made  at  such  meeting,  is  correctly  dated. 

C.  I.  &  W.  Ey.  Co.  vs.  People,  207  111.  566. 

Town  Meetings  and  Official  Actions: 

The  town  record  is  the  only  competent  evidence  of  the  acts  of 
the  voters  at  the  town  meeting,  and  what  was  done  at  such  meet- 
ing can  only  be  proved  by  such  record. 

C.  I.  &  W.  Ey.  Co.  vs.  People,  205  111.  538;   XIV  111.  Notes  811, 
§24. 
A  town  clerk's  record  is  the  best  evidence  of  a  meeting  of  th^ 

official  board. 

St.  L.  Bridge  Co.  vs.  People,  128  111.  422. 

A  township  treasurer  cannot  be  permitted  to  vary  or  contradict 
by  parol  testimony  his  records  made  as  such  official. 
Trustees  of  Schools  vs.  Crawford,  155  App.  170. 
The  book  in  which  the  proceedings  of  the  board  of  town  audit- 
ors are  required  to  be  kept  is  the  best  evidence  of  claims  allowed, 
and,  as  to  such  claims,  is  evidence  of  an  account  stated. 
Kankakee  vs.  McGraw,  178  111.  74. 
The  record  of  a  town  meeting  is  competent  to  contradict  the  cer- 
tificate of  the  town  clerk  and  the  levy  of  a  tax,  where  the  first 
step  in  the  levy  can  be  taken  only  at  a  town  meeting,  and  a  record 
of  every  order  or  direction  made  at  such  meeting  must  be  kept. 
B.  &  O.  S.  W.  Ry.  Co.  vs.  People,   156  111.   189. 
The  record  of  the  board  of  town  auditors,  showing  the  claims 
audited  at  its  meeting,  is  inadmissible  to  sustain  a  town  tax  desig- 
nated in  the  record  of  the  town  meeting  and  in  the  town  clerk's 
certificate  as  a  tax  for  town  purposes,  where  there  is  no  certificate 
of  the  board  of  auditors  showing  the  claims  allowed. 
People  vs.   I.  &  I.   Ey.  Co.,  206   111.   612. 

HIGHWAY  COMMISSIONERS  RECORDS: 

All  corporat(;  acts  whether  of  townships  or  of  highway  commis- 
sioners are  provable  by  record  evidence  only. 
People  vs.   Finley,  97  App.  214. 


RECORDS  1087 

Signing: 

Records  of  highway  commissioners  must  be  signed  by  the  pres- 
ident of  the  board  to  make  the  records  admissible  in  evidence. 

Co.  of  Schuyler  vs.  M.  B.  &  I.  Co.,  173  App.  435  j  Gillett  vs.  Tay- 
lor,  48   App.   403. 

Varying  By  Parol : 

Highway  Commissioners'  record  cannot  be  varied  by  parol. 

Seass  vs.  Monroe,  146  App.  56;  Ey.  Co.  vs.  Leaf  River,  135  App. 
559;  People  vs.  Madison  Co.,  125  111.  334;  XII  111.  Notes  515, 
§  3-4. 

The  record  required  to  be  kept  by  the  town  clerk,  when  the 
commissioners  enter  upon  a  man's  land  to  dig  or  open  a  ditch, 
that  they  have  previously  determined,  as  an  official  body,  that 
such  entry  is  necessary  in  order  to  carry  oft'  the  water  from  the 
highway,  or  to  drain  the  slough  or  pond  thereon,  the  evidence 
that  the  ditch  is  necessary  for  the  purposes  specified  must  be  in 
the  record  of  the  official  proceedings  of  the  board. 

Parol  evidence,  upon  proceeding  to  condemn  land  before  a 
justice,  that  the  digging  of  the  ditch  was  necessary  in  order  to 
carry  off  the  water  from  the  highway,  is  incompetent  and  inad- 
missible. The  fact  can  only  be  proved  by  the  record  of  the  ofticial 
acts  and  proceedings  of  the  commissioners  of  highways. 
Chaplin   vs.   Comrs.   of   Highvrays,   129   111.   651, 

In  the  matter  of  laying  out,  opening,  altering,  widening  and 
vacating  roads,  the  presumptions  are  all  in  favor  of  the  regularity 
and  validity  of  the  various  steps  and  proceedings  that  are  antece- 
dent and  preliminary  to  the  entry  of  the  order  laying  out,  open- 
ing, altering,  widening  or  vacating  such  roads,  but  subject  to 
rebuttal  by  any  person  questioning  the  validity  of  such  proceed- 
ings. Ancl  these  prior  proceedings  may  be  either  attacked  or  sus- 
tained by  parol  evidence. 

Shields  vs.  Ross,  158  111.  214. 

Establishing  Road: 

AVhere  the  sole  reliance  to  establish  a  road  is  placed  on  the  final 
order,  the  sufficiency  of  such  order  necessarily  depends  on  the  re- 
citals and  orders  contained  in  the  same,  and  if  the  recitals  and 
orders  of  the  final  order  show  the  lack  of  any  essential  element, 
and  such  lack  is  not  supplied  by  the  papers  relative  to  the  ante- 
cedent proceedings,  such  order  will  be  ineffectual  to  establish  the 
road. 

Cox  vs.   Comrs.   of  Highways,   194  111.   355. 
Order  of  commissioners  laying  out  road  is  admissible  although - 
record  showed  no  assessment  and  payment  of  damages,  the  act 
of  1851  not  requiring  record  of  anything  but  the  order, 

Lowe  vs.   Town   of   Aroma,   21   App.   598. 

CITIES  AND  VILLAGES: 

Best  Evidence : 

The  record  of  a  municipal  body  is  the  best  evidence  of  its  acts. 
City  of  Paxton  vs.  Bogardus,  201  III.  628. 

Parol  Evidence : 

As  a  general  rule,  parol  evidence  cannot  be  received  either  to 
explain,  enlarge  or  contradict  the  record  of  proceedings  of  a  muni- 


1088  RECORDS 

cipal  body  where  the  entry  of  record  is  made  in  pursuance  of 

law. 

City   of   Paxton  vs.   Bogardus,   201   111.   C28. 

If  a  municipal  corjioration  act  illegally  and  makes  no  record 
of  the  transaction,  parol  evidence  is  competent  to  prove  actual 
transaction.     Persons  injured  are  not  remediless  merely  because 
officers,  acting  as  a  ])ody,  made  no  record  of  their  illegal  acts. 
People  vs.  Mayor  of  Alton,  179  111.  615. 

Amendment : 

Where  tlie  officers  of  a  municipal  corporation  having  charge  of 
the  records  produce  the  same  as  the  records,  same  can  only  be 
attacked  for  fraud ;  and  if  the  record  was  not  written  up  at  the 
time  it  was  examined  by  a  witness,  the  clerk  may  amend  the  same 
according  to  liis  knowledge  of  the  trutli,  so  long  as  he  has  custody 
thereof  as  clerk.  Nor  will  the  writing  up  of  the  record  according 
to  the  actual  facts  vitiate  the  acts  of  the  council  because  it  may 
not  have   been  written  up   at  the  time  when  a  certain  witness 

sought  to  examine  the  same. 

Kyder  Estate  vs.  Alton,  175  111.  94;  Town  of  St.  Charles  vs.  O'Mailey, 
'l8  III.  408. 
Municipal  records  may  be  amended  and  no  other  proof  besides 
the  record  is  required  to  show  amended  record  is  true.     It  stands 

as  an  original  record. 

Village  of  Gilberts  vs.  Eaebe,  49  App.  418. 

Copy  Original  Evidence: 

A  copy  of  the  record  required  by  law  to  be  kept  by  a  city,  duly 
certified  as  required  by  statute,  is  original  evidence  and  its  intro- 
duction in  evidence  does  not  depend  upon  the  fact  that  the  record 

itself  is  lost  or  destroyed. 

City  of  E.   St.  Lonis  vs.  Freels,   17  App.   339. 

Civil  Service  Record : 

The  record  of  proceedings  had  before  the  civil  service  com- 
mission, as  finally  returned,  imports  absolute  verity  and  is  taken 

as  conclusive. 

Joyce  vs.  City  of  Cliieago,   120  App.   398. 

Record  of  Electrical  Engineer: 

A  record  kept  by  an  electrical  engineer  in  the  employ  of  the 

Citv  of  Chicago  is  not  admissible  as  a  pul)lic  record. 
Sullivan   vs.    Chi.    City    Ey.    Co.,    167    App.    152. 

TAX  RECORDS: 

Competency: 

Tax  records  required  by  law  to  be  kept  are  competent  evidence 
to  prove  the  facts  which  they  show  relating  to  taxes.  The  certi- 
ficate of  redemption  of  land,  made  by  the  keeper,  or  a  certified 
copy  of  the  record  of  redemption  are  admissible   as  evidence  of 

redemption. 

Bush  vs.  Stanley,  122  111.  406. 

Parol : 

Payment  of  taxes  may  be  proved  by  parol.     The  receipt  need 

not  be  introduced. 

Ilinehman  vs.  Whetstone,  23  111.   108;   XIV   111.   Notes  739,   §335. 

Parol  is  incompetent  to  show  levy  of  taxes. 
Feagan  vs.   Rosier,   68   111.   84. 


RECORDS  1089 

Parol  evidence  cannot  be  introduced  to  supply  the  defects  or 
omissions  in  the  affidavit  filed  with  the  clerk  for  issuance  of  tax 
deed.  If  the  affidavit  does  not  contain  the  specific  facts,  the  deed 
is  therefore  nugatory,  regardless  of  what  the  real  facts  may  be  or 
what  may  be  proven. 

Esker  vs.  Hefferman,  159  111.  38. 

The  entries  required  to  be  made  by  the  county  clerk  in  the  sale 
and  redemption  record,  opposite  the  tract  of  land  sold  for  taxes 
that  such  sale  was  erroneously  made,  whenever  it  shall  be  made  to 
appear  to  his  satisfaction  that  one  of  the  conditions  specified  in 
the  statute  exists  which  rendered  the  tax  void,  is  not  the  only 
competent  evidence  of  the  fact. 

Joliet  Steel  Co.  vs.  Kiep,  230  111.  550. 

RECORDS    OF    BOARDS    OF    EDUCATION    AND    SCHOOL 

DIRECTORS: 
Parol : 

There  is  no  express  statutory  provision  requiring  the  board  of 
education  to  preserve  record  evidence  of  the  posting  of  notices  of 
an  election,  and  the  fact  that  the  notice,  and  certificate  that  it 
had  been  posted,  were  on  file  in  the  clerk's  office,  but  had  been 
removed,  may  be  shown  by  parol. 

People  vs.  Leaman,  256  111.  631;   People  vs.  Hinekle,  256  111.  585. 

Failure  of  the  clerk  of  a  school  board  to  keep  a  record  of  the 
taxes  levied  by  school  trustees  does  not  invalidate  the  tax,  and 
defects  in  certificate  may  be  amended  upon  proper  showing,  but 
court  is  powerless  to  permit  amendment  of  a  certificate  void  ab 
initio,  because  not  made  at  a  meeting  of  the  board. 
C.  &  N.  W.  Ey.  Co.  vs.  People,  184  111.  240. 

The  failure  of  a  clerk  of  a  board  of  school  directors  to  keep  a 
record  of  the  action  of  the  board  in  determining  the  amount  of 
school  lax  necessary  to  be  raised,  and  certifying  to  such  tax  levy, 
will  not  have  the  efi'ect  of  rendering  such  tax  levied  void,  as  the 
clerk,  in  extending  such  tax,  is  authorized  to  act  upon  the  certi- 
ficate of  the  directors  alone. 

Lawrence  vs.   Traner,   136   111.   474. 

BOARD  OF  LOCAL  IMPROVEMENTS: 

Record  of  board  of  local  improvements  is  admissible. 
City  of  Bellville  vs.   Miller,  257  111.  244. 

And  cannot  be  contradicted  by  parol. 

City  of  Bellville  vs.  Miller.  257  111.   244. 

RECORDS  OF  PARK  COMMISSIONERS: 

Records  of  park  board  are  admissible,  and  of  a  proceeding  at 
a  special  meeting  though  notice  of  call  thereof  was  not  signed  by 
at  least  two  trustees. 

Hay  vs.  P.  D.  &  P.  of  Springfield,  "181  App.  23. 
Printed  copies  of  certain  reports  of  park  commissioners  are  not 
admissible  over  an  objection  that  they  are  not  the  best  evidence 
and  that  proper  foundation  for  their  admission  has  not  been  laid, 
where  the  secretary  of  the  board  testifies  that  he  has  charge  of 
the  records  and  does  not  know  wdiere  the  original  reports  are  or 
whether  they  are  in  existence,  but  that  he  has  not  made  any  search 
for  them. 

City  of  Chicago  vs.  Mandel    239  111.  559. 
Ev.— 69 


1090  RECORDS 

DRAINAGE  RECORDS: 
Best  Evidence : 

The  record  which  the  statute  recjuires  to  be  kept  of  the  proceed- 
ings of  farm  drainage  commissioners  is  the  only  legal  evidence 

of  their  actions. 

People  vs.   Schenck,  252  111.  441. 

And  cannot  be  contradicted,  added  to  or  supplied  by  parol. 
People  vs.  Carr,  231  111,  502. 

Drainage    commissioners   exercise    special   authority    conferred 

upon  them  by  statute,   and  there  are  never  any  intendments  or 

presumptions  of  law  in  favor  of  their  acts.     AVhatever  they  do 

must  be  found  from  their  record,  and  unless  sufficient  is  found 

that  it  can  be  said  that  they  have  acted  upon  particular  matters 

requiring  action,  the  law  does  not  and  the  court  can.  not  presume 

that  they  have  done  so. 

People  vs.  Warren,  231  111.   519. 

Upon  application  for  judgment  and  order  of  sale  for  a  delin- 
quent drainage  assessment,  the  records  of  the  commissioners  are 
admissible  to  show  that  the  w^ork  for  which  the  assessment  was 
levied  was  the  same  work  intended  to  be  done  under  a  former  void 
assessment,  and  that  such  work  has  been  wholly  or  partly  com- 
pleted under  the  original  contract,  entered  into  under  such  former 

assessment. 

People  vs.  Kuns,   248   111.   42. 

An  agreement  between  a  land  owner  and  the  commissioners  act- 
ing as  individuals  and  as  agent  of  another  land  owner,  has  no  place 
in  the  record  of  the  drainage  commissioners,  and  parol  proof  of 

the  agi'eement  is  admissible. 

Dunn  vs.   Youmans,   224  111.   34. 

MINE  RECORDS  AND  REPORTS: 

The  report  and  record  required  by  law  to  be  kept  of  an  acci- 
dent to  a  miner  is  admissible  in  evidence  in  action  by  injured 

miner  for  damages. 

Aetitus  vs.  Spring  Valley  Coal  Co.,  246  111.  32, 
The  report  of  the  accident  in  question,  made  by  the  general 
superintendent  of  the  mine  owaier  to  the  state  mine  inspector,  pur- 
suant to  the  statute,  is  not  rendered  incompetent  by  virtue   of 
the  fact  that  it  contains  statements  not  required  by  law  to  be  made. 

Aetitus  vs.  Spring  Valley  Coal  Co.,  150  App.  497. 

CHURCH  RECORD: 
Preliminary  Proof : 

It  is  requisite  to  the  admission  of  church  records  that  it  shall 
appear  that  the  entries  were  made  by  persons  whose  duty  it  was 

to  make  them. 

Mnrpliy   vs.   People.   213   111.    154. 

Kept  in  Foreign  Language:    *!  >'i^ 

The  record  book  of  a  church  kept  in  a  foreign  language  is  im- 
proper as  evidence  w^hen  unaccompanied  by  translation. 
Stone   vs.    Evanffelieal    L-utheran    Church,    92    App.    77. 

NOTARIAL  RECORD: 

The  record,  or  a  certified  copy,  of  the  notary  is  prima  facie  evi- 


RECORDS  1091 

denee  of  the  facts  thefein  stated  as  to  matters  required  by  law  in 
the  protest  of  neo^otiable  instruments. 
Montelius  vs.  Charles,   76  111.  303. 

PRIVATE  CORPORATION: 

Parol : 

Where  the  I'ecords  are  destroyed,  parol  evidence  of  conients 
thereof  is  admissible. 

Eose  Hill  R.  E.   Co.   vs.  People,   115   111.    133. 
In  absence  of  written  record  of  a  corporation,  parol  evidence 
of  the  facts  required  to  be  kept  is  admissible. 
DuQiioiu  Coal  Co.  vs.  Thorwell,  3  App.   394. 

And  mistake  or  ambiouity  may  be  explained  by  parol. 
Forest  Glen  Brick  Co.  vs.  Glade,  55  App.   181. 

Proof  of  verbal  decision  made  by  directors  is  proper,  notwith- 
standing fact  that  a  document  exists  which  purports  to  contain 
the  minutes  of  the  meeting  at  which  such  decision  was  arrived  at 
which  contained  no  record  of  such  decision.  This  is  especially 
true  if  such  document  does  not,  on  its  face,  purport  to  contain  the 
complete  minutes  of  such  meeting. 

Housley   vs.   Feilehenfield,    152   App.    68. 

Where  there  is  an  omission  to  make  any  record  of  corporate 
proceedings,  parol  evidence  is  admissible  to  show  same. 

Mandel  vs.  Swan  Land  Co.,  154  111.  177;  XII  111.  Notes  491,  §  116. 

As  to  Strangers : 

Corporation  records  are  not  per  se  admissible  as  against  a 
stranger.  The  general  rule  is  that  corporate  books  are  evidence 
between  members  but  not  against  strangers,  and  this  on  the  prin- 
ciple that  a  party  cannot  make  evidence  for  himself  and  against 
a  third  party. 

Chase  vs.   S.   &   C.   E.   E.   Co.,   38   111.   215;    Prot.   Ins.   Co.   vs.   Dill, 
91   111.   174. 

As  Between  Stock-holders: 

The  books  of  a  corporation  are  admissible  between  corporation 
and  its  members  in  matters  pertaining  to  corporate  proceedings 
and  arts,  but  where  the  eoii:)oration  deals  with  its  members  as 
individuals, — in  which  case  thej'^  stand  in  relation  of  strangers 
to  it, — the  corporate  books  are  not  admissible  against  members, 
as  evidence  of  such  private  acts  and  dealings,  and  in  application 
of  this  principle,  directors  and  stock-holders  stand  on  same  foot- 
ing. 

Tl-ainor  vs.   G.   A.  Building  Assn.,   204   111.    616. 

]\Iinutes  written  upon  single  sheet  of  paper,  signed  by  secretary, 

and  bearing  initials  of  corporation  are  competent  where  it  does 

not  appear  they  were  ever  transcribed  in  a  book. 
Chott  vs.  Tivoli  Amuse.  Co.,  114  App.  178. 

The  records  of  a  private  corporation,  as  between  the  members 
of  the  corporation,  are  admissible  as  i^ublic  records,  as  evidence 
of  the  election  of  officers  of  the  corporation,  and  of  other  corporate 
acts  and  proceedings. 

Trainer    vs.    G.    A.    Building   Assn.,    204    111.    616;    XII    III.    Notes 
509,    §  268. 

The  record  or  .journal  of  the  acts  or  proceedings  of  a  corpora- 
tion are  admissible  in  evidence  against  a  stock-holder,  in  suit  to 


1092  RECORDS 

enforce  his  personal  liability  to  a  creditor  of  the  corporation.     It 

is  competent  evidence  to  show  and  explain  an  amendment  of  the 

charter  without  first  showing  that  the  persons  accepting  the  same 

were  directors,  when  they  are  named  as  such  in  the  jouriial. 

Dows  vs.  Naper,  91  111.  44;   Culver  Third  Natl.  Bank,  64  111.  528. 

The  records  of  a  corporation  are  competent  evidence  that  the 

full    capital    stock    has    been    subscribed,    and    together    with    the 

official   certificate   of   complete   organization,   issued   by   Secretary 

of  State,  are  prima  facie  evidence  of  such  facts. 
McCoy  vs.   Col.   Exposition,   186  111.   '65Q. 

Ownership  of  Stock: 

Record  evidence  is  not  required  to  prove  the  ownership  of  stock, 

such  fact  may  be  shown  by  the  admissions  or  the  testimony  of  the 

officers  of  the  corporation. 

Dows  vs.  Naper,  91  111.  44. 

Copies : 

l*apers,  records  and  entries  of  a  corporation  may  be  proved  by 

a  copy  thereof,  certified  under  the  hand  of  the  proper  keeper  of 

the  same,  and  such  evidence  is  original  evidence. 

Mandel  vs.  Swan  Land  Co.,  1.54  111.  177;   XII  111.  Notes  507,  §250. 

A  resolution  adopted  by  a  private  corporation  is  not  such  an 
instrument  as  is  entitled,  under  the  statute,  to  be  recorded  in  the 
office  of  the  recorder  of  deeds,  and  the  record  thereof,  or  a  certi- 
fied copy  thereof,  by  such  recorder,  is  inadmissible  to  establish 
same. 

Mullanphy  Sav.  Bank  vs.   Sehott,   135   111.  655, 

The  production  of  the  certificate  of  the  Secretary  of  State  of 

the  complete   organization  of  a  corporation,   with   a  copy  of  the 

papers  filed,  authenticated  under  his  hand  and  seal,  and  recorded 

in  the  office  of  the  recorder  of  deeds,  where  the  principal  office 

of  the  company  is  located,  is  prima  facie  evidence  of  the  existence 

of  the  corporation. 

Gnnderson  vs.   111.   T.  &  S.  Bank,   199   111.  422. 

•Certificate  of  Incorporation: 

While  a  certificate  of  incorporation  of  the  company,  as  recorded 
in  the  recorder's  office  of  the  county,  may  not  be  the  evidence  re- 
quired to  show  that  such  company  is  a  corporation  de  jure,  it 
tends  to  show  it  is  a  corporation  de  facto  and  is  admissible  for 

that  purpose. 

Smith  vs.  Mayfield,  60  App.  266. 

LODGES  AND  BENEFIT  ASSOCIATIONS: 

The  records  made  by  a  beneficiary  association  are  proper  evi- 
dence against  a  member  for  puri^ose  of  showing  a  forfeiture  of  his 
rights  of  insurance  for  the  non-payment  of  assessments  made  dur- 
ing his  life ;  and  when  such  member  has  the  right  to  change,  at  his 
option,  at  any  time,  the  beneficiary  in  his  certificate,  the  person 
named  in  such  certificate  having  no  vested  right  in  the  same,  he  or 
she  will  also  be  bound  by  the  entries  in  the  records  of  such  associ- 
ation, the  same  as  the  deceased  member  himself.  In  such  case,  if 
the  forfeiture  occurs  in  the  life  of  the  member,  no  right  will  ever 
become  vested  in  the  beneficiary  named  in  liis  certificate.     Such 


RECORDS  1093 

records  are  at  least  prima  facie  evidence  in  respect  to  the  rights  of 
members  of  the  association. 

Bagley   vs.    Grand   Lodge,    131    111.   498:    Anderson   vs.    R.    F.    Life 
Ins.   Co.,   171   111.   40. 

The  books  of  an  assessment  company  are  not  the  only  evidence 
of  the  good  standing  of  its  members. 

Belles  vs.  Mut.  Life  Assn.,  220  111.  400. 

The  loss  of  a  member's  good  standing  in  the  order  must  be  shown 
by  the  minntes  or  records  of  the  order  itself,  not  by  the  statements 
of  officers  or  members.  In  other  words,  it  nuist  be  shown  by  some 
official  action  on  the  part  of  the  organization.  The  order  being  a 
corporate  body,  its  attitude  towards  a  member  can  only  be  known 
through  its  actions  as  such  corporation. 

Ind.    Order    of    Foresters   vs.    Zak,    136    111.    185:    Royal    Circle   vs. 
Achterrath,  204  111.   549. 

Publications  of  a  mutual  insurance  company,  generally  cir- 
culated among  its  members  and  purporting  to  contain  its  rules  and 
by-laws,  are  admissible  as  prima  facie  evidence  of  such  rules  and 
by-laws.  The  by-laws  of  a  private  corporation,  as  well  as  entries 
in  its  books,  are  not,  strictly  speaking,  a  record.     Unless  required 

by  law,  it  is  not  necessary  that  the  by-laws  should  be  in  writing. 
K.  &  L.  of  A.  vs. 'Weber,  101  App,  488. 

Parol  evidence  is  inadmissible  to  show  proceedings  of  lodges, 
where  written  record  of  such  proceedings  exists. 

Swisher  vs.  Fidelity  &  Deposit  Co.,  164  App.  243. 

In  action  against  a  labor  union  for  so  contracting  with  railroad 
company  as  to  compel  discharge  of  plaintiff,  records  of  the  organ- 
ization are  admissible  to  establish  alleged  confederacy. 
Sutton  vs.  Workmeister,   164  App.    105. 

BUILDING  AND  LOAN  ASSOCIATION  RECORDS: 

Records  of  the  transactions  of  boards  of  directors  may  be  proven 
in  this  State,  tirst  by  a  duly  certified  copy  thereof;  second,  by  a  copy 
thereof,  proved  to  be  such  by  a  credible  witness,  and  third,  by  the 
production  of  the  original  records. 

Cantwell  vs.  Stockman's  B.  &  L.  Assn.,  88  App.  247;   Trainor  vs. 
G.  A.  Bldg.  Assoc,  204  111.  616. 

It  is  competent  to  supply  an  omission  in  the  minutes  by  parol 
testimony,  its  effect  being  merely  to  explain  or  aid,  and  not  to  con- 
tradict the  recorded  minutes. 

Lurton  vs.  J.  L.  &  B.  Assn.,  87  App.  395. 

Where  the  contract  is  one  which  the  corporation  has  power  to 
make,  and  is  within  scope  of  its  franchise,  neither  party  to  the 
contract  who  has  had  the  benefit  of  it  can  set  up  as  a  defense  that 
legal  formalities  were  not  complied  with  or  that  the  power  was 
improperly  exercised. 

Lurton  vs.  J.  L.  &  B.  Assoc,  187  111.  141. 

The  fact  that  the  minutes  of  the  meeting  made  by  the  secretary 

of  the  association  do  not  state  that  the  preference  was  offered  in 

open  competition  is  not  conclusive  that  such  preference  was  not 

procured  by  competitive  bidding,  and  the  omission  in  minutes  of 

this  character  may  be  supplied  by  oral  testimony,  where  the  oral 

testimony  does  not  contradict  the  minutes. 

Hotchkiss  vs.  Norwood  Park  Assn.,  229  111.  248. 


1094  RECORDS 

SALE  RECORDS: 

Mere  memoranda  for  the  convenience  of  a  real  estate  firm,  dis- 
closing no  purpose  to  bind  anyone  may  be  proper  to  refresh  the 
memory  of  a  witness,  but  not  as  proof  to  the  jury  of  a  disputed 
fact.  Admission  of  ' '  Records  of  Sales, ' '  containing  entry  of  brok- 
ers, not  parties  to  suit,  are  not  admissible  in  action  on  note,  as 
record  of  traiisaction. 

Cairnes   vs.   Hunt,   78  App.   420. 

Authority  from  owner  of  real  estate  to  sell  same  cannot  be  shown 

by  an  entry,  relating  thereto,  on  the  alleged  agent's  private  record 

book. 

Boyd  vs.  Jennings,  46  App.  290. 

RAILROAD  RECORDS: 

As  an  aid  in  determining  the  value  of  ears  at  the  time  of  their 
destruction,  ''historical  records,"  technically  known  as  Records  of 
car  equipment,"  which  purport  to  show  the  time  and  place  where 
the  cars  were  built,  the  character  of  their  construction  and  the 
extent  to  which  they  had  since  been  repaired  or  rebuilt,  are  admis- 
sible, in  connection  watli  the  testimony  of  competent  witnesses  as  to 
depreciation  in  value  of  cars  from  age  and  use,  but  they  are  not 

conclusive. 

P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Chicago,  242  111.  179;  XII  111.  Notes 
509,    §267. 

But  a  book  kept  by  an  agent  of  a  railroad  company,  in  which 

the  condition  of  property  upon  reaching  destination  is  recorded, 

even  though  provided  for  by  regulation  of  the  company,  is  not 

competent  in  itself  but  may  be  used  by  such  agent  for  the  purpose 

of  refreshing  his  recollection. 

Sincebaugh  vs.   C.   C.   C.   &   St.   L.   Ey.   Co.,   149  App,   642. 

Engine  inspection  book  is  not  a  book  of  account  or  public  record, 

and  not  admissible  in  action  for  damages  by  fire  by  locomotive. 

B.  &  O.  S.  W.  Ey.  Co.  vs.  Tripp,  175  111  251;  C  B.  &  Q.  Ey.  Co.  vs. 
Weber,   219   111.   372. 

RECORDS  OF  FEDERAL  GOVERNMENT: 

Statutes  of  the  United  States  provide  that  copies  of  any  books, 
records,  papers  or  documents  in  any  of  the  executive  departments, 
under  the  seals  of  such  departments,  respectively,  shall  be  admitted 
in  evidence  equally  with  the  originals  thereof.  So  where  an  agree- 
ment between  parties  was  endorsed  "A  true  copy,"  signed  by  the 
captain  of  Corps  of  Engineers,  with  the  seal  of  the  chief  engineer 

of  the  War  Department,  same  was  held  admissible  in  evidence. 
Amer.   Surety   Co.   vs.   United   States,   77   App.    106. 

An  examined  copy  of  an  internal  revenue  record  is  admissible  as 

a  public  record. 

People  vs.  Joyce,  154  App.  13 ;   People  vs.  Moore,  161  App.  56. 

Maps,  plats  and  guage  readings  from  the  records  of  the  war 

department  are  admissible. 

Harney   vs.    Sanitary   Dist.,   260   111.    54. 

Patents  of  land  from  the  United  States  do  not  come  within  the 

purview  of  the  recording  laws  of  the  different  states,  when  the 

terms  employed  do  not  specially  include  them.     The  original  record 


RECORDS  1095 

in  the  general  land  office  from  which  patents  are  issued  give  notice 
to  the  world  of  their  existence. 

Loniax  vs.  Pickejing,  165  111.  431;  Doppelt  vs.  Geliebter,  173  App. 
634. 

Nor  need  a  deed  requiring  President's  approval,  or  a  record  of 
such  approval  be  recorded  where  the  land  is  located. 
Lomax  vs.   Pickering,   165   111.   431. 

The  official  certificate  of  a  register  or  receiver  of  a  land  office  of 
the  United  States,  to  any  matter  on  record  in  his  office,  is  competent 
to  prove  the  fact  so  certified. 

The  exemplification  of  the  books  and  records  of  the  general  land 
office,  certified  by  the  recorder,  is  competent  evidence  of  the  truth 
of  its  recital. 

Wyman  vs.  City  of  Chicago,  254  111.  202;  Black  vs.  C.  B.  &  Q.  Ey. 
Co.,  237  111.  500;  Wilcox  vs.  Jackson.  109  111.  261;  Seeley  vs. 
Wells,  53  111.  120;   Gormley  vs.  Uthe,  116  111.  643. 

An  exemplified  copy  of  an  entry  of  the  land  office  of  the  United 
States  is  admissible  in  evidence  to  show  the  location  of  a  land  war- 
rant upon  a  tract  of  tlie  pulilic  land  by  the  holder  of  the  same. 
Gorniley  vs.  Uthe,   116  111.   643. 

An  exemplification  of  any  record  or  any  paper  of  record  in  the 
land  office  is  primary  proof  and  may  be  read  whenever  the  original 

could  be. 

Lee  vs.  Getty,  26  111.  77. 

.  A  copy  of  the  records  of  the  general  land  office  of  the  United 
States,  duly  certified  under  the  seal  of  the  office,  is  admissible  in 
evidence  under  the  common  law,  without  reference  to  the  statute, 
and  the  fact  that  the  copy  is  certified  by  the  recorder  of  the  general 
land  office  instead  of  by  "any  register  or  receiver  of  an}^  land 
office,"  as  is  provided  in  section  20  of  Evidence  act,  does  not  render 
it  inadmissible. 

Wyniau  vs.   City  of  Chicago,  254  111.  202. 

ATTORNEY'S  RECORD: 

Merc  entries  in  a  book  kept  by  an  attorney  in  the  case,  showing 
the  parties  and  containing  memoranda  of  the  nature  of  a  destroyed 
file  are  not  competent  as  a  record. 

Llewollin  vs.  Dingee,   165  111.  26 

PRIVATE  WRITINGS: 
Presumption : 

Since  the  presumption  always  is  that  public  authorities  do  their 
duty,  it  will  be  presumed,  until  contrary  is  shown,  that  a  recorded 
instrument  was  recorded  correctly. 

City  of  Peoria  vs.  Natl.  Bank,  224  111.   43. 

The  record  of  a  deed  is  not  made  evidence  by  the  statute,  without 
proof  that  it  is  a  true  copy. 

Stowe  vs.   People,  25  111.   81. 

It  will  be  presumed,  in  support  of  a  certificate  made  by  the  clerk 
of  the  circuit  court  of  another  state  attesting  that  a  deed  was  ex- 
ecuted in  conformity  with  the  laws  of  such  state,  that  the  circuit 
court  is  a  court  of  record,  and  such  deed  may  be  read  in  evidence 
under  the  second  subdivision  of  section  20  of  the  act  on  conveyances, 


1096  RECORDS 

providing  therefor,  when  a  certificate  in  conformity  made  by  any 
clerk  of  a  court  of  record  in  a  foreign  state  is  attached. 
G.  P.  bliooting  Club  vs.  Crosby,  181  111.  266. 

Parol : 

Parol  evidence  is  not  the  best  evidence  to  show  that  a  deed  was 
recorded,  and  should  not  be  allowed  unless  the  proper  foundation 

is  laid  for  secondary  evidence. 

Harpham  vs.  Little,  59  111.  509. 
Parol  evidence  of  the  contents  of  a  record  of  a  deed  from  a  differ- 
ent county  than  the  one  in  which  the  land  is  situated,  or  of  a  certi- 
fied copy  thereof,  is  not  admissible  in  evidence  in  any  event.  If  a 
certified  copy  of  such  deed  has  been  recorded  in  the  county  where 
the  land  lies,  a  certified  copy  from  that  record  will  be  competent 
evidence ;  and  so  of  the  original  deed. 

Hardin  vs.  Forsythe,  99  111.  S12. 

Index  Book: 

Where  the  record  of  a  deed  is  destroyed,  the  index  book  in  which 
the  deed  is  described,  its  record  into  the  proper  book  certified,  is 
good  evidence  of  the  fact  that  the  deed  is  recorded. 

Alvis  vs.  Morrison,  63  111.  181;  XII  111.  Notes  496,  §144. 

Entry  Book: 

Is  not  admissible  to  prove  an  entry  of  land  though  certified  by 

State  Auditor  to  county  clerk. 

Neidorci-  vs.  Bell,  174  111.  325;  Huls  vs.  Bantin,  47  111.  396. 

Unacknowledged  Instrument: 

The  object  of  the  recording  laws  in  permitting  unacknowledged 
instruments  to  be  recorded  is  not  to  preserve  evidence  of  title  but 
to  give  notice  of  claim,  which  person  dealing  with  the  land  must 
heed ;  but  the  record  proves  nothing  but  notice. 
Winter  vs.  Dibble,  251  111.  200. 

A  deed  which  has  been  of  record  more  than  thirty  years  is  an 
ancient  deed,  and  a  certified  copy  thereof  is  admissible  in  evidence 
although  the  deed  was  not  acknowledged  as  required  by  the  law 

in  force  when  it  was  executed. 

Bradley  vs.  Lightcap,  201  111.  511. 

A  contract  entitled  to  be  recorded  may  be  recorded  without  any 
acknowledgment  or  proof  of  execution  whatever,  but  a  certified 
copy  of  the  record  is  not  evidence  until  the  instrument  is  acknowl- 
edged or  proved  as  the  law  requires. 
McCormick   vs.   Evans,   33   111.   328. 

A  cei-tified  copy  of  the  record  of  an  unacknowledged  instrument 

does  not  prove  the  contents  of  the  instrument,  where  there  is  no 

proof  of  the  execution  of  such  an  instrument  and  connecting  the 

instrument  executed  with  the  one  recorded. 
Winter  vs.   Dibble,  251   111.   200. 

Certificate  of  Recorder : 

An  original  deed  bearing  a  certificate  of  having  been  duly  re- 
corded is  the  highest  class  of  evidence  and  may  be  read  whether  the 

official  record  book  be  in  evidence  or  not. 
Alvis  vs.   Morrison,   63   111.   181. 

Original  Record: 

Before  a  party  can  introduce  a  copy  of  a  deed,  he  must  lay  the 


RECORDS  1097 

IDroper  foundation,  and  then  he  must  introduce  a  certified  copy 

thereof  from  the  record  book,  not  the  book  itself. 
Hanson  vs.  Armstrong,  22  111.  442. 

Original  Will: 

The  record  of  a  duly  probated  will  is  not  the  only  evidence  of  the 

will,  and  copies  of  the  record  are  evidence  in  any  court  in  this 

state.     The  copy  of  the  record  is  receivable  in  evidence,  not  becau&e 

it  is  better  evidence  than  the  original,  but  because  it  is  provided 

that  the  original  shall  remain  in  the  office  of  the  clerk.    But  wlien 

the  original  can  be  procured,  and  has  been  duly  probated,  it  is 

admissible  in  evidence. 

Brack  vs.  Boyd,   202   111.   440. 

Original  will  mav  be  produced  to  verify  interlineations  in  record. 
Brack   vs.   Bovd,   1^02   111.   404. 

Certified  Copy  of  Will: 

A  copy  of  a  will  which  has  been  duly  probated  has  no  probative 
force  unless  attended  by  the  record  of  the  probate,  which  is  a  judi- 
cial act.  Therefore,  the  will  and  its  probate  become  judicial  rec- 
ords and  to  be  admissible  in  evidence  in  the  courts  of  states  other 
than  that  in  which  it  was  probated,  the  record  must  be  duly  ex- 
emplified and  certified  under  the  act  of  Congress.  This  rule  applies 
with  reference  to  foreign  wills  affecting  real  property  in  tliis  state. 
Bishop  vs.  Billiard,  227  111.  382;  Harrison  vs.  ^Weotberby,  180 
111.  418;   Amrine  vs.   Hamer,  240  111.   572. 

Where  a  will,  executed  in  another  state  and  probated  there,  and 
the  records  and  proceedings  in  respect  thereto  are  authenticated 
in  conformity  with  the  act  of  Congress  providing  for  the  authenti- 
cation of  public  acts,  records  and  judicial  proceedings  in  other 
states  as  to  take  effect  in  every  other  state,  such  will  is  admissible 
in  evidence  of  courts  of  this  state  without  having  been  probated 

here. 

Newman  vs.  Willetts,  52  111.  98 ;  StuU  vs.  Veatch,  236  111.  207.    See  also, 
Dibble  vs.  Winter,  247  111.  243. 
Such  certified  copy  of  the  will  may  be  coraj)etent  evidence  upon 

the  issue  as  to  paramount  title. 

Cath.  Univ.   vs.   Boyd,  227   111.   281. 

A  certified  copy  of  a  will  is  admissible  in  evidence  although 
objected  to  because  no  court  v>'as  shown  to  have  been  in  existence, 
where  the  order  shows  in  what  probate  court  it  was  rendered  and 
by  what  judge,  the  date  and  jurisdiction  of  the  parties. 
Turner  vs.  Hause,  199  111.  464. 

Not  Required  to  Be  Recorded: 

The  record  of  an  instrument  not  required  to  be  recorded  is  not 
admissible,   but   may   be   competent  as  secondary   evidence    after 

proper  foundation. 

Frazier  vs.   Laugblin,  6  111.   347;    Mullanphy  Sav.   Bank  vs.   Schott, 
135  111.  655. 

COPIES : 

Sworn  Copy : 

An  official  record  may  be  proven  by  an  examined  copy. 

People  vs.  Lyons,   168  App.   396;    Norton  vs.   City  of  E.  St.   Louis, 
36  App.  171;  Xn  111.,  Notes  506,  §  241. 
A  sworn  copy  of  an  official  record  is  competent. 

C.  &  E."  I.  E.  R.  Co.  vs.  Zapp,  110  App.  553, 


1098  RECORDS 

A  copy  made  by  a  witness,  testifying  he  examined  the  records 

and  the  copy  offered  in  evidence  and  had  compared  same  and  that 

such  copy  so  ottered  in  evidence  was  a  true  copy,  is  a  sworn  or 

examined  copy. 

Glos   vs.   Boetticher,    193    111.   534. 

An  ordinance  of  a  city  in  another  state  may  be  approved  by  pro- 
duction of  the  books  in  which  it  was  recorded,  but  a  sworn  copy  is 

competent  evidence. 

L.  N.  &  A.  Ey.  Co.  vs.  Shires,  108  111.  617. 

Sworn  copies  of  papers  and  records,  admitted  in  evidence,  can 

not  be  disputed  by  parol  evidence,  where  originals  are  not  in  court. 

The  best  evidence  to  impeach  in  such  a  case  is  the  original  record 

and  papers,  and  not  the  testimony  of  witnesses  who  claim  to  have 

examined  the  originals. 

Glos  vs.   Holmes,  228  111.   436. 

Certified  Copies : 

Public  records  are  provable  by  certified  copies. 
Katl.   Council  vs.   O'Brien,   112   App.   40. 

Certified  copies  admissible  with  same  eft'ect  as  originals. 
Diigger  vs.  Oglesby,  3  Ajip.  94. 

But  containing  matter  not  required  to  be  kept  as  official  record, 

incompetent. 

Globe  Ins.  Co.  vs.  Meyer,  118  App.   155. 

Must  not  state  conclusions  of  clerk,  but  should  certify  a  copy  of 

the  entry  of  record. 

Ewing  vs.  Cox,  158  App.  25. 

The  clerk's  certificate  is  competent  to  prove  what  it  attests  as 

appearing  of  record. 

Phillips  vs.  Webster,  85  111.   146. 

Informal  certificate  may  be  sufficient,  if  complete. 
Piatt   vs.   People,   29   111.    54. 

"A  true  copy,"  duly  signed,  held  sufficient. 

Amcr.    Surety   Co.   vs.   United   States,    77   App.    106. 

Erasures  and  Interlineations: 

Erasures  and  interlineations  appearing  in  a  certified  copy  of  the 

record  of  an  instrument  form  no  sufficient  reason  for  excluding 

the  copy  from  evidence,  since  they  may  have  been  made  by  the 

copyist  to  conform  to  the  record. 

Holbrook   vs.   Nichols,    36   HI.    161. 

Seals : 

Where  the  official  seal  on  the  original  is  indicated  in  the  certified 
copy  of  the  record  thereof  by  the  letters  L.  S.,  it  must  be  held  to 
answer  the  requirements  of  the  law,  and  such  certified  copy  cannot 
be  excluded  from  evidence  on  the  ground  that  no  official  seal  appears 
to  have  been  annexed  to  the  original. 
Holbrook   vs.    Nichols,    36   HI.    161. 
It  will  be  presumed,  until  contrary  is  shown,  tliat  a  public  official 
who  signs  a  certificate  attaches  the  proper  seal. 
People  vs.  Lyons,   168  App.   396. 

Copies  Differing: 

Where  two  papers  are  produced  in  evidence  by  parties,  and  pur- 
port to  be  copies  of  the  record  of  the  same  instrument,  made  and 
certified  by  same  officer,  and  verified  b,y  seal  of  same  court,  to  one 
of  which  was  affixed  the  letters  L.  S.,  and  on  the  other  nothing 


RECORDS  1099 

appears  to  indicate  that  there  was  affixed  to  the  certificate  of 
acknowledgment  in  the  original  the  notarial  seal,  except  the  state- 
ment of  the  officer  who  took  the  acknowledgment  that  it  was  given 
under  his  notarial  seal;  such  certificate  as  to  their  being  copies  of 
the  record  each  import  verity  and  it  is  proper  to  leave  the  question, 
to  the  jury  to  determine  from  all  the  evidence  as  to  which  was  the 
true  copy. 

Holbrook  vs.  Nichols,   36  111.   161. 

Aid  by  Parol: 

Where  a  party  offers  in  evidence  a  certified  copy  of  a  deed,  it  is 
competent  for  him  to  show  by  extrinsic  evidence  that  the  deed  was 
in  fact  executed  b^'  a  party  of  a  different  christian  name  than 
appeared  from  the  certified  copy  and  that  the  error  occurring  in 
the  christian  name  in  the  copy  was  a  mistake  of  the  recorder  in 
transcribing  the  original  upon  the  records.  The  right  of  a  party 
to  prove  the  contents  of  a  lost  deed  cannot  be  questioned,  and  had 
the  original  deed  been  produced,  signed  as  the  copy  purported  to 
have  been,  it  would  have  been  proj^er  to  show  by  parol  evidence  the 
same  fact  as  to  the  execution. 

Nixon  vs.  Cobleigh,  52  111.  387. 

Where  a  certified  copy  of  the  record  of  an  instrument  shows  no 
seal,  extrinsic  evidence  is  competent  to  show  that  the  original  in- 
strument contained  a  seal. 

Pease  vs.   Sanderson,    188   111.   597. 

Where  a  certified  copy  of  a  deed  is  introduced  in  evidence,  and  it 

was  proven  the  letters  L.  S.  were  placed  upon  the  copy  by  a  party 

to  the  suit  after  the  copy  was  made,  it  would  not  prove  the  copy 

incorrect  as  the  clerk  may  have  authorized  him  to  add  the  letters 

before  he  gave  the  certificate  that  it  was  a  correct  copy. 
Holbrook  vs.   Nichols,   36  111.    161. 

JUDICIAL  RECORDS: 
In  General: 

It  is  essential  to  the  validity  of  the  record  of  a  criminal  case 
that  it  show  the  proceedings  were  had  in  a  court  regularly  organ- 
ized, and  therefore  the  convening  order  for  the  terra  at  which 
the  conviction  was  had  should  appear.  The  record  must  show 
that  the  grand  jury  was  sworn ;  that  the  indictment  was  returned 
in  open  court ;  that  defendant  entered  a  plea  to  the  indictment ; 
that  the  trial  jury  was  empaneled  and  sworn  and  that  defendant 

was  present  at  the  trial. 

People  vs.  Gray,  261  111.  140;  Hubbard  vs.  People,  197  111.  15; 
Sullivan  vs.  People,  156  111.  94;  Parkinson  vs.  People,  135  111. 
401. 

The  mere  oral  announcement  of  the  chancellor  of  his  decision 
and  the  grounds  upon  which  it  is  based,  or  the  reducing  them 
to  writing,  is  no  more  than  the  minutes  taken.  The  whole  matter 
is  completely  under  the  control  of  the  chancellor  until  the  final 
decree  has  been  recorded.  Until  that  time,  he  may  alter,  amend, 
change  or  even  disregard  all  that  he  has  said  in  his  minutes. 
Hughes  vs.  Washington,  65  111.  245. 

The  draft  made  for  the  guidance  of  the  clerk  is  not  the  decree 

of  the  court. 

Horn  vs.  Horn,  234  111.  268. 


1100  RECORDS 

A  decree  is  to  he  considered  as  enrolled  when  it  is  signed  hy  the 
chancellor  and  filed  by  the  clerk,  and  the  term  has  elapsed  dur- 
ing which  it  was  made. 

Hiird  vs.  Gooilrich,  59  111.  450. 

The  party  in  whose  favor  a  decree  is  pronounced  should  write 

it  out  in  due  form  and  submit  it  to  the  chancellor  for  approval, 

which  is  the  authority  of  the  clerk  to  enroll  it  upon  the  record. 
Cameron  vs.  ainton,  259  111.  599;  Stevens  vs.  Coffeen,  39  111.  148. 

In  ordinary  judgments,  following  a  fixed  form,  the  clerk  writes 
the  record,  but  it  is  not  the  duty  of  the  clerk  to  draw  decrees, 
but  only  to  record  them  when  drawn  by  the  solicitor  and  approved 
by  the  chancellor,    ii  " 

Horn  vs.  Horn,  234  111.  268 ;  Schneider  vs.  Seibert,  50  111.  284. 

It  is  not  necessary  that  the   decree  should   be  signed  by  the 
chancellor,  but  its  entry  in  the  record  by  the  clerk  gives  it  validity. 
Horn  vs.  Horn,  234  111.  268;  Dunning  vs.  Dunning,  37  111.  306. 

The  best  evidence  to  establish  the  existence  and  terms  of  a  judg- 
ment is  the  record  itself,  or  a  properly  authenticated  copy  of  such 
record. 

Walter  vs.  Kirk,  14  111.  55;  Weis  vs.  Tiernan,  91  HI.  27;  Weiemers 
vs.  Cole,  157  App.  599;  XII  111.  Notes  490,  §112. 

The  draft  of  a  decree  ordered  to  be  entered  in  a  cause  is  not  the 

best  evidence  of  the  decree  that  has  been  entered. 
Huntington   vs.   Aurand,   70   App.   28. 

The  minutes  of  a  judge  on  his  docket,  or  memorandum  upon 
files  or  documents  cannot  be  sul)stituted  for  tiie  record  of  the 
court.  The  record  alone  is  competent  to  prove  that  which  is  re- 
quired to  be  proved  by  the  record. 

McGuire  vs.   Goodman,   31   App.   420;    Trogdou   vs.   Cleveland   Stone 
Co.,  53  App.  206 ;  Gurnea  vs.  Seeley,  66  111.  500. 

It  is  the  duty  of  the  clerk  of  the  court  to  attend  the  sessions 
thereof;  preserve  the  files  and  papers  thereof;  make  and  preserve 
complete  records  of  all  proceedings  and  determinations  thereof; 
and  to  enter  of  record  all  the  judgments,  decrees  and  orders  of 
the  court  before  the  final  adjournment  of  the  respective  terms 
thereof,  or  as  soon  thereafter  as  jiracticable,  and  thus  will  be  pre- 
sumed to  know  what  the  court  determined  and  from  that  knowl- 
edge and  the  minutes  made  by  the  presiding  judge  upon  the  an- 
nouncement of  his  decisions,  properly  enter  up  the  judgment 
so  rendered,  and  the  mere  fact  that  the  entry  was  made  partly 
on  one  day  and  partly  on  another,  raakes  no  difference  so  far 
as  the  validity  of  the  entry  as  evidence  of  the  judgment  is  con- 
cerned. 

Palmer  vs.  Emery,  91  App.  207. 

The  record  of  a  proceeding  in  a  court  of  record  is  admissible 

even  though  wa'itten  up  after  the  empanelling  of  the  jury  in  a 

later  case.     Such  record  made  up  from  the  minutes  of  the  judge 

imports  verity. 

Con.  Coal  Co.  vs.  Schaefer,  135  111.  210. 

The  existence  of  a  record  not  being  in  dispute,  all  questions 

relating  to  the  time  when  it  was,  in  fact,  made,  on  what  authority 

made,  and  whether  its  recitals  were  true  or  not,  should,  when  it 


RECORDS  1101 

is  offered  as  an  instrument  of  evidence,  be  settled  by  reference  to 

it  alone. 

Harrington  vs.   McCuUom,   73  111.  476. 

Order  of  court  must  be  a  matter  of  record  and  cannot  be  shown 
by  parol  when  no  record  thereof  has  been  made. 
Mclntyre  vs.   People,    103  111.   142. 
Variance  or  inconsistency  in  record  may  be  explained  by  evidence 

de  hors  the  record. 

People  vs.   Young,   72   111.   411, 

But  not  to  supply  a  defect  in  the  record  as  to  a  matter  which 

is  essential  to  its  validity  or  which  is  by  law  required  to  appear. 

Young   vs.    Thompson,    14    111.    380. 

Judgments  entered  in  abbreviated  form  are  not  proper  record. 

'  Eiehter   vs.    Burdock,   257   111.   410;    Stein   vs.    Myers,   253    111.    199. 

Matters  in  Pais : 

The  number  of  terms  of  court  in  a  certain  year,  the  names  of  the 
judges  presiding,  whether  there  were  juries  in  attendance,  though 
they  are  facts  which  might  appear  of  record,  are  in  the  nature  of 
matters  in  pais  and  susceptible  of  proof  by  parol  evidence  in  col- 
lateral proceedings. 

Massey  vs.  Wescott,  40   111.   160. 

Judicial  Notice: 

It  is  not  necessary  to  prove  that  the  record  book  of  a  court  is 
such  record  when  offered  in  evidence  in  such  court.  A  court  will 
take  judicial  notice  of  its  own  record  books,  and  they  are  proof 

themselves  when  offered  in  evidence. 

Bank  of  Eau  Claire  vs.  Eeed,  232  111.   238;   Waterbury  Natl.  Bank 

vs.  Eeed,  231   111.  246;  Robinson  vs.  Brown,  82  111.  279;   Ladd  vs. 

Ladd,  252  111.  43. 

The  court  will  take  judicial  notice  of  the  state  of  the  pleadings 

and  the  various  steps  which  have  been  taken  in  a  particular  cause, 

and  consequently  the  judge  must  take  notice  of  his  own  official 

acts  in  the  progress  of  such  cause,  and  he  therefore  needs  no  proof 

to  advise  him  of  what  he  had  done  in  such  case. 

Sechrist   vs.   Petty,    109   111.    188;    Taylor   vs.   Adams,   115   111.   570; 
Worlds  Col.  Exp.  vs.  Lehigh,  94  App.  433. 

Original  Record: 

The  original  record  of  a  court  may  properly  be  used  instead  of 

a  copy  where  the  case  in  which  it  is  offered  is  to  be  tried  in  the 

same  court  in  which  it  was  made,  though  one  was  in  law  and  the 

other  in  equity. 

Taylor  vs.   Adams,   115  111.   570;    Prescott  vs.   Fisher,  22  111.   390. 

"While  it  is  improper  in  the  clerk  of  a  court  to  allow  the  records 

or  files  in  a  cause  to  be  taken  from  his  custody  to  be  used  in  the 

courts  of  a  different  county,  yet  if  they  are  produced  in  another 

court  and  identified,  they  are  admissible. 
Stevison  vs.  Earnest,  80  111.  513. 

While  copies  of  proceedings  and  judgment  before  a  justice  of 
the  peace,  certified  by  him,  are  received  as  evidence  of  such  pro- 
ceedings and  judgment,  the  original  document,  duly  proved  to  be 

such,  is  also  competent  evidence. 

Willoughby  vs.  Dewey,  54  111.  266. 


1102  RECOKDS 

Papers  and  Files: 

The  papers  of  a  cause,  when  filed,  became  a  part  of  the  record 

as  fully  as  if  copied  iuto  the  record  book  of  the  court. 

,  Harding  vs.   Larkin,  41   111.  413;    Stevison  vs.  Earnest,   80   111.  513. 

And  prove  themselves  when  offered  in  evidence   in   the  same 

court. 

Prescott  vs.   Fisher,   22   111.   390. 

"Writs  issued  out  of  a  court  and  the  returns  thereon  form  a  part 
of  the  records  thereof  when  filed  and  are  competent  as  such. 
Dunlap   vs.   Berry,   5   111.   327. 

An  affidavit  of  a  party  is  competent  evidence  against  himself,, 
when  it  is  relevant  to  the  issue.     It  stands  on  the  same  footing  as 
any  other  declaration  made  by  him  under  oath. 
Farrell  vs.  People,  103  111.  17. 
The  recitals  of  service  upon  a  summons  are  not  substantive  evi- 
dence in  a  cause. 

Haywood  vs.   Dering  Coal  Co.,    145   App.   506. 

Part  of  Record: 

A  part  of  a  record  may  be  introduced  to  prove  collaterally  that 

a  judgment  or  decree  was  had. 

Mayer  vs.   Brensinger,   180   111.    110. 

No  placila  need  appear. 

Turner  vs.  Hause,  199  111.  464;  McMillan  vs.  Lovejoy,  115  111.  498. 

Where  a  copy  of  a  decree  shows  in  what  court  it  was  rendered, 

by  w^hat  judge,  jurisdiction  of  the  parties,  in  a  ease  where  the  court 

has  jurisdiction  of  the  subject  matter,  it  is  admissible  in  evidence 

for  collateral  purpose,  although  no  placita  appears.     A  complete 

transcript  of  the  record  is  not  necessary  in  such  case,  the  suit  not 

being  upon  the  decree. 

Phillips  vs.  Webster,  85  111.  146. 

It  is  not  necessary  to  prove  the  entire  record,  but  only  so  much 

as  affects  the  question  in  issue. 

Walker   vs.   Doane,    108   111.   236;    Vail   vs.    Iglehart,   69   111.    332. 

If  the  opposite  party  desires  more  of  the  record  he  must  himself 

offer  it. 

Walker  vs.  Doane,  108  111.  236. 

Lost  or  Destroyed  Records: 

Where  a  record  of  a  judgment  has  been  lost  or  destroyed,  it  may 

be  proven  by  parol. 

Forsythe  vs.  Vehmeyer,   176  111.   359. 

The  rule  that  the  record  of  a  judgment,  or  an  exemplified  or 

sworn  copy  thereof  must  be  produced  to  sustain  action  of  debt 

thereon,  is  limited  to  cases  in  which  it  is  within  the  power  of  the 

plaintiff  to  produce  such  evidence,  and  does  not  apply  where  the 

record  of  the  judgment  has  been  destroyed,  and  for  that  reason 

cannot  be  produced. 

Forsythe  vs.  Vehmeyer,  176  111.  359. 

WHiere  records  of  proceedings  by  an  administrator,  for  an  order 

to  sell  land,  have  been  destroyed,  and  there  is  no  written  evidence 

of  sale,  parol  evidence  is  admissible  to  show  same. 
Felix  vs.  Caldwell,  235  111.  159. 

The  loose  statements  of  a  party  that  he  had  heard  the  records  of 

a  court  were  destroyed,  or  had  read  it  in  the  newspaper,  is  not 

sufficient  to  admit  secondary  evidence  of  a  judgment.     If  the  rec- 


RECORDS  1103 

ords  have  been  destroyed  the  fact  may  be  proven  by  calling  the 
officer  who  has  custody  of  the  records,  or  any  person  who  knows  the 

facts. 

Weiss  vs.   Tierney,  91   111.   27, 

Restored  Record: 

A  record  restored  by  authority  of  law  is  admissible. 
Trans.  Co.  vs.  Gill,  111  111.   541. 

Amending  Record: 

Clerk  of  coui-t,  upon  record  being  introduced  in  evidence,  can- 
not testify  as  to  mistake  and  amend  record  by  parol. 
Godfrey  vs.  Phillips,  209   111.   584. 

Collateral  Attack: 

~Prcsi()iii>lion:  Under  collateral  attack  upon  a  decree  of  a 
court  exercising  common  law  and  chancery  powers,  while  exercising 
such  powers,  all  intendments  and  presumptions  will  be  indulged 
which  are  necessary  to  sustain  its  decree,  unless  want  of  jurisdiction 

is  made  to  appear. 

Harrell  vs.  Grogan,  219  111.  288;   XIII  111.  Notes  101,  §366. 

Where  a  court  has  jurisdiction  of  the  subject  matter  and  of  the 

parties  to  the  litigation,  its  judgments  or  decrees  must  be  held 

valid  when  questioned  collaterally. 

Spring  vs.  Kane,   86  111.   580. 
The  probate  courts  are  courts  of  limited  jurisdiction,  but  w^ien 
acting  within  the   scope   of  their  jurisdiction,   as   liberal   intend- 
ments will  be  indulged  in  favor  of  their  acts  as  courts  of  more  gen- 
eral jurisdiction. 

Chi.   T.  &  T.  Co.  vs.  Brown,   183  111.  42. 

A  judgment  of  the  county  court  allowing  a  claim  against  an 
estate  imports  verity,  and  it  cannot,  in  the  absence  of  fraud  or 
collusion,  be  impeached  by  the  administrator  or  heirs,  so  far  as  it 
affects  personal  property,  although  payment  or  part  payment  since 

its  rendition  may  be  shown. 

Sinnickson  vs.   Perkins,   231   111.   492. 
—  Must  be  by  Record:    A  presumption  cannot  be  permitted  to 
contradict  the  express  findings  of  a  record.     A  judgment  of  a 
court  of  general  jurisdiction  can  only  be  attacked  in  collateral 

proceedings  by  the  record  itself. 

Seilbeck  vs.  Grothman,  248  111.  435. 
The  record  of  a  court  imports  verity  and  cannot  be  contradicted 
or  amended  except  by  other  matter  of  record  made  by  or  under 

authority  of  the  court. 

Nicholson  vs.  Loell,  253  111.  526. 
The  record  of  a  court  can  never  be  contradicted,  varied  or  ex- 
plained by  evidence  de  hors  the  record  itself.     The  record  im- 
ports  absolute   verity,   and  it   must   be   tried   and   construed   by 

itself. 

W.  St.  L.  &  P.  Ey.  Co.  vs.  Peterson,  115  111.  597. 

Under  a  plea  of  md  tiel  record,  party  may  show  the  judgment 

to  be  void  for  want  of  jurisdiction,  if  that  fact  appear  from  an 

inspection  of  the  record,  but  he  cannot  attack  it  collaterally  by 

contradicting  the  record. 

Bank  of  Eau  Qaire  vs.  Reed,  232  111.  238. 

Where  the  record  of  a  cause  shows  that  a  defendant  appeared 


11U4  RECORDS 

and  answered  the  bill  filed  against  him,  his  testimony  cannot  be 

admitted  to  disprove  that  fact. 

Eobinson   vs.  Ferguson,   78   111.  538. 

The  record  of  a  judgment  in  action  on  the  judgment  may  be 
used  in  evidence  on  the  trial,  and  when  introduced  affords  con- 
clusive evidence  of  the  facts  stated  in  it.  If,  however,  a  record 
states  that  the  defendant  appeared  by  attorney,  it  is  conclusive 
proof  that  the  attorney  appeared  for  him,  but  only  prima  facie 
evidence  of  his  authority  to  appear. 
Welch  vs.   Sykes,   8   111.    197. 

—  Parol  Inadmissible:  Parol  evidence  will  not  be  received  for 
the  purpose  of  impeaching  or  contradicting  the  record. 

Eubel  vs.  Title  Guaranty  Co.,  199   111.   110. 
The  record  of  a  court  must  be  judged  by  itself  alone,  and  its 
invalidity  cannot  be  shown  by  evidence  aliunde. 
Sargeut  vs.  City  of  Evanston,  154  111.  268. 
Validity  of  execution  cannot  be  established  by  parol  contrary 

to  record. 

Dillman  vs.  Nadelhoflfer,  23  App.  168. 

—  Judgment  hy  Confession:  The  record  of  a  couri  showing 
judgment  by  confession  in  open  court  imports  verity  and  can- 
not be  contradicted  by  parol  evidence.  The  record  of  such  judg- 
ment is  the  only  proper  evidence  of  itself,  and  is  conclusive  evi- 
dence of  the  fact  of  the  rendition  of  the  judgment  and  of  all  the 
lawful  consequences  resulting  from  that  fact,  both  as  against  the 
parties  to  the  judgment  and  all  others  whose  interests  are  af- 
fected thereby. 

Weigley  vs.   Matson,  125  111.  64. 

When  the  record  is  once  made  up,  it  is  conclusive  upon  all 
parties  until  altered  or  set  aside  by  a  court  of  competent  juris- 
diction, and  all  questions  relative  to  the  time  when  it  was  in  fact 
made  or  in  relation  to  the  authority  on  which  it  w^as  made,  or 
in  respect  to  the  truthfulness  of  its  recitals,  must  be  settled  by 

reference  to  the  record  alone. 

W.  Chi.   St.   Ky.   Co.  vs.   Morrison,    160   111.   288. 

Recitals  can  only  be  corrected  by  application  to  court. 

Roche  vs.   Beldam,   119  111.   320. 
That  judgment  by  confession  was  rendered  in  chambers  prior 
to  opening  of  court  cannot  be  shown. 

Hauser  vs.  Schlesinger,  125  111.  230. 

—  Date  of  Entry:  Fact  that  a  judgment  was  ordered  by 
judge  at  a  previous  term  cannot  be  shown  by  parol. 

Tynan  vs.  Weinhard,  153  111.  598;   Wesley  Hospital  vs.  Strong,  233 
"ill.   153;    XIII   111.  Notes  102,   §373. 

Where  the  record  shows  it  was  written  up  on  the  day  of  the 

rendition  of  a  judgment,  this  will  import  verity  and   cannot  be 

contradicted  by  parol  evidence. 

Lawver  vs.  Langham,  85  111.  138. 

The  rule  that  the  date  of  a  judgment  cannot  be  contradicted 
by  parol  applies  to  judgments  of  a  justice  of  the  peace. 
Wiley  vs.  Southerland,  41  111.  25. 

Evidence  showing  that  the  execution  was  issued  and  in  the 
hands  of  the  sheriff  before  judgment  was  actually  written  up  is 
relevant  and  proper.     This  would  not  contradict  the  record,  but 


RECORDS  1105 

evidence  tending  to  show  the  judgment  was  written  up  on  a  day- 
different  from  its  date  is  improper. 

Knights  vs.  Martin,  155  111.  486. 
A  judicial  record,  if  deficient  or  imperfect,-  cannot  be  aided  by- 
evidence  de  Jiors  the  same. 

Young  vs.  Thompson,  14  111.  380. 

•  — Service  and  Return  of  Process:  Where  the  want  of  juris- 
diction does  not  appear  on  the  face  of  the  record,  it  may  be  shown 
by  evidence  outside  the  record,  provided  the  evidence  is  clear  and 
satisfactory  and  the  rights  of  third  parties  have  not  intervened. 

Every  presumption  in  favor  of  the  return  of  process  is  indulged 
and  will  not  be  set  aside  upon  the  uncorroborated  testimony  of 
the  party  upon  whom  service  purports  to  have  been  had. 
kochinan  vs.   O'Neill,   202   111.   110. 

Parol  evidence  is  inadmissible  to  contradict  the  return  of  serv- 
ice of  process  by  the  sheriff  as  against  persons  who  have  acquired 

rights  based  upon  such  summons. 

Rivard  vs.  Gardner,  39   111.   125. 
Where  decree  or  judgment  finds  that  certain  persons  have  been 
duly  notified  and  made  parties  to  the  proceedings  it  may  be  con- 
tradicted and  overcome  by  other  parts  of  record  proper  such  as 

the  summons  on  file. 

Glos  vs.   People,   259   111.   332, 
But   cannot   be   contradicted  by   parol   or  other  evidence   out- 
side of  the  record  itself. 

Drainage   District  vs.   Highway   Commr.,   238   111.   521. 

Where  court  recites  in  its  judgment  or  decree  that  there  was 
proper  service,  this  recital  is  not  disproved  by  the  mere  pres- 
ence in  the  record  of  a  defective  writ  or  return. 

Chi.   Dock  Co.  vs.   Kinzie,  93  111.  415;   Mulvey  vs.   Gibbons,   87   111. 
367;   Turner  vs.  Jenkins,  79  111.  228. 
Failure  of  a  judgment  to  recite   service   of   process   does   not 
render  it  inadmissible,  where  the  process  itself  is  in  evidence  and 

shows  service. 

Kinkade  vs.  Gibson,  209  111.  246. 

Where  personal  service  is  claimed,  it  can  only  be  shown  by  the 

officer's  return. 

Barnett  vs.  Wolfe,  70  111.  76.     (See  Service.) 

Where  service  is  by  summons,  parol  evidence  cannot  be  heard 

to  prove  or  aid  it. 

Barnett  vs.  Wolfe,  70  111.  76;  Dickinson  vs.  Dickinson,  124  111.  483; 

Bottsfield  vs.   O 'Conner,   57   111.   72. 

The  return  of  the  sheriff  on  the  execution  is  not  evidence  of 

anything  relating  to  title  of  property.     Its  only  office  is  to  show 

satisfaction  or  part  satisfaction  or  a  failure  to  make  satisfaction 

of  anv  part  of  the  judgment. 

Kimmell  vs.  Meier,  106  App.  251;   Holman  vs.  Gill,  107  111.  467. 

Dockets  and  Judgments  of  Justice  of  Peace : 

Where  a  record  of  a  justice  of  the  peace  shows  jurisdiction  and 
the  essential  proceedings  had,  such  record  cannot  be  impeached, 

contradicted  or  varied  by  parol  evidence. 

Gartield   vs.    Douglas,    22   111.    100;    Satterly   vs.    Hickman,    38    App. 
139. 
So  parol   testimony   is   incompetent   to   contradict   the  endorse- 
Ev.— 70 


1106  RECORDS 

ment  in  a  justice's  record,  thus  rendering  a  judgment  valid  which 

would  otherwise  be  void. 

Pfeiffer  vs.   MeCiillough,   115   App.   2.51. 

It  is  not  competent  to  show  by  parol   that  a  justice  intended 

to  enter  a  different  judgment  than  the  one  which  he  recorded  in 

his  docket.  „.  V  ^      . 

Birma  vs.  Muir,  152  App.  505;   Zimmerman  vs.  Zimmerman,   15  ill. 

85. 
Where  the  jurisdiction  of  an  inferior  court,  like  a  justice  of 
the  peace,  depends  upon  a  fact  which  the  court  is  required  to 
ascertain  and  settle,  if  the  court  has  jurisdiction  of  the  parties, 
the  decision  of  fact  is  conclusive  and  not  subject  to  collateral  at- 
tack. 

Eice  vs.  Travis,  216  111.  249;   XIJI  111.  Notes  100,   §364. 

To  entitle  transcript  of  a  judgment  of  a  justice  of  peace  of 
another  state  to  be  received   in   evidence,   jurisdiction  of  subject 

matter  must  be  shown. 

Cavanaugh  vs.  Morris,  160  App.  55;  Trader  vs.  McKee,  2  111.  5o7. 

The   disposition  of  a  suit  before  a  justice   cannot   be  proven 

except  by  the  record. 

Stillman  vs.  Palis,  2.3   App.   408. 
Parol    evidence   is   admissil)le   to   show   what   was   adjudicated 
upon,  but  not  what  the  adjudication  was. 

Zimmerman   vs.   Zimmerman,   15   111.   85;    Birma  vs.   Miur,   lo2   App. 
505. 
A  justice  of  the  peace  may  testify  that  at  the  time  a  certain 
proceeding  was  had,  he  was  acting  as  a  justice  of  the  peace,  and 
that  a  certain  docket  and  the  entries  therein  were  his. 
People  vs.  Ham,  73  App.  533. 
A  justice  of  the  peace  is  a  competent  witnesses  to  prove  his 
docke^t  and  to  explain  entries  upon  it,  and  also  to  identify  the 

cause  and  parties. 

Haven  vs.   Greene,   26   111.   252. 

In  an  action  where  it  is  sought  to  prove  the  recovery  of  a  judg- 
ment before  a  police  magistrate,  the  court  would  be  inclined  to 
hold  if  a  formal  entry  of  judgment  appears  on  a  magistrate's 
docket,  on  which  it  also  appears  he  has  issued  an  execution,  in  a 
case  over  which  the  law  gives  him  jurisdiction,  it  will  be  presumed, 
until  rebutted,  that  he  had  jurisdiction  of  the  persons,  the  docket 
reciting  that  a  summons  was  issued  and  returned  duly  served. 

Willoughby    vs.    Dewey,    54    111.    266;    Cf.    People   vs.    Koebler,    146 
App.  541. 

A  docket  of  a  justice  of  the  peace  or  a  police  magistrate,  duly 
proved  by  him,  and  showing  the  entry  of  a  judgment,  is  compe- 
tent evidence  even  though  it  would  not  thereby  appear  that  the 
magistrate  had  jurisdiction  either  of  the  subject  matter  or  the 
persons,  as  competency  of  evidence  does  not  depend  upon  the 
extent  to  which  facts  are  proven  thereby. 
Willougliby  vs.   Dewey,   54  111.   266. 

It  is  not  competent  to  prove  by  parol  that  a  judgment  was  ren- 
dered by  a  justice;  his  docket  or  a  transcript  thereof  is  the  best 

evidence. 

Walter  vs.  Kirk,  14  HI.  55. 
Unautheuticated  tiles  of  an  alleged  suit  before  a  justice  in  a 


HECOKDS  1107 

foreign  state  are  not  admissible  to  prove  the  facts  that  they  pur- 
port to  show. 

Michaels  vs.  People,  208  111.  603. 

A  justice's  docket  cannot  be  impeached  by  extrinsic  evidence. 
Reddish    vs.    Shaw,    111    App.    337;    Downey    vs.    People,    117    App. 
591;    Garfield  vs.  Douglas,   22   111.   100. 

Authentication : 

—  hh  General:  A  judgment,  when  it  is  either  the  foundation 
of  an  action  or  material  to  any  issue  therein,  must  be  proved 
according  to  the  rules  applicable  to  the  proof  of  other  like  facts, 
and  hence  the  best  evidence  of  which  the  nature  of  the  case  ad- 
mits must  be  produced.  It  would  therefore  consist,  primarily 
of  the  record  itself,  which  is  usually  produced  when  the  proof  is 
made  in  the  court  where  the  record  remains ;  but  when  in  another, 
from  necessity  resort  must  be  had  to  secondary  evidence  of  its 
contents,  which  is  ordinarily  a  copy.  But  whether  the  record 
itself,  or  a  copy,  it  must  be  verified  as  such  under  the  sanction 
of  an  oath,  or  of  some  other  high  authority  such  as  the  law  re- 
spects no  less,  by  which  is  meant  a  sufficient  seal.  In  the  case 
of  a  copy,  an  oath  in  direct  verification  of  it,  or  of  the  signature 
and  authority  of  the  person  certifying  to  it,  is  dispensed  with 
only  when  the  attestation  is  under  such  a  seal  as  proves  itself, 
that  is,   which   the   court   of   its   own   knowledge,   without   other 

proof,  recognizes  as  genuine. 

Thompson   vs.   Mason,   4  App.   452. 

— -Not  Controlled  hy  Common  Law:  The  question  of  the  proper 
and  sufficient  certification  of  a  judicial  record  is  not  a  question 
controlled  by  the  common  law,  so  that  authority  thereon  can  be 
found  and  cited  from  any  state,  but  the  question  is  controlled  by 
the  law  of  the  state  from  whence  the  record  comes.  That  is,  the 
evidence  must  be  such  as  is  used  in  the  state  whence  the  record 
comes,  for  the  certification  of  its  own  records,  not  such  as  in  that 
state  ^he  courts  may  have  held  to  be  sufficient  when  the  record 
has  come  from  another  state  there. 
Gundry  vs.  Hancock,  147  App.  49. 

The  usual  and  proper,  if  not  the  only,  modes  of  authenticating 
foreign  judgments  are  either  by  an  exemplification  under  the 
great  seal,  or  by  a  copy  proved  to  be  true  by  a  witness  who  has 
personally  compared  it  with  the  original  record  in  the  proper 
custody,  or  by  the  certificate  of  an  officer  authorized  by  law, 
which  certificate  must  be  properly  authenticated,  by  proving  the 
signature  of  the  certifying  officer  and  the  genuineness  of  the  seal 
affixed;  or  if  the  court  has  no  seal,  by  proof  of  that  fact  and  of 
the  signature  and  authority  of  the  certifying  officer  who  certi- 
fied he  is  the  keeper  of  the  records  of  the  court. 
Thompson  vs.  Mason,  4  App.  452. 

Certificate  must  show  that  officer  is  keeper  of  the  records. 
Campbell  vs.  Miller,  84  App.  208. 

—  Act  of  Co7igress  Not  Exclusive:  The  act  of  congi'ess  pro- 
vides a  method  of  authenticating  the  judgments  of  a  sister  state, 
but  it  is  not  exclusive.  Our  statute  provides  that  the  records  of 
courts  may  be  proved  by  a  copy  thereof,  certified  under  the  hand 
of  the  clerk  having  custody  thereof,  and  the  seal  of  the  court. 


1108  RECORDS 

This  statute  is  not  inconsistent  with  the  act  of  congress,  and  ap- 
plies to  foreign  jndgnients  as  well  as  domestic.     It  is  a  proper 
method  of  authenticating  records. 
People  vs.  Miller,  195  111.  621. 

—  Where  Sufficient  in  Foreign  State:  When  the  transcript 
of  the  proceedings  and  judgment  in  a  suit  before  a  justice  of  the 
peace  in  another  state  is  authenticated  in  such  a  manner  as  to 
be  admissible  in  evidence  under  the  laws  of  such  state,  in  other 
counties  than  that  in  which  the  judgment  was  rendered,  then 
the  authentication  is  sufficient  in  this  state. 

Belton  vs.  Fisher,  44  111.   32;   XIII.   111.   Notes  145,   §671, 
Where   the  transcript   of   a  judgment   in   a   court   of   another 
state  is  certified  by  the  clerk  of  the  court,  and  the  presiding  judge 
certifies  that  the  attestation  is  in  true  form,  it  is  a  substantial  com- 
pliance with  the  act  of  congress. 

Horner  vs.  ypelman,  78  111.  206. 
Under  the  act  of  Congress  the  records  and  judicial  proceed- 
ings of  the  courts  of  any  state  are  entitled  to  the  same  faith  and 
credit  in  every  other  state  which  they  have  in  their  own,  pro- 
vided they  be  attested  by  the  clerk,  under  the  seal  of  the  court, 
and  the  judge  or  presiding  officer  certify  that  the  attestation  of 
the  elerk  is  in  accordance  with  the  law  or  usage  of  the  state  where 
the  proceedings  were  had. 

It  is  not  necessary  that  the  judge  should  certify  that  the  per- 
son who  attests  the  record  is  the  clerk,  or  that  the  seal  is  the  seal 
of  the  court.  The  seal  speaks  for  itself,  and  is  presumed  to  have 
been  affixed  by  the  person  having  custody  thereof,  and  that  he 

had  authority  to  do  the  act. 

Ducoiiimnn  vs.  Hysiiiger,  14  111.  249;  Hull  vs.  Webb,  78  App.  617. 

—  Judge  and  Clerk  One  and  Same  Person:  Where  the  offices  of 
judge  and  clerk  are  filled  by  one  person,  a  certificate  should  be 
made  by  such  judge  as  clerk,  and  then  as  such  judge.  He  should 
certify  that  his  attestation  as  such  clerk  is  in  due  form,  and  when 
so  authenticated  records  are  admissible  in  evidence. 

Speueer  vs.  Laiigdon,  21  111.  192. 

—  Part  of  Record:  A  certificate  of  the  clerk  certifying  that 
the  record  is  complete  must  be  presumed  to  be  correct  and  can- 
not be  impeached  by  a  mere  inference  that  some  portion  of  the 
transcript,  not  shown  to  be  a  necessary  part  of  the  record,  is  ab- 

SGllt 

Light  vs.  Eeed,  234  111.  626. 

If  a  decree  is  certified  by  the  clerk  of  the  court,  as  the  decree 
of  the  court,  in  a  particular  case,  as  appears  by  the  record,  the 
same  is  admissible  in  evidence  and  his  certificate  is  made  by  the 
statute  sufficient  evidence  of  what  it  attests. 
Phillips  vs.  Webster,  85  111.   146. 

The  fact  that  a  judgment  was  entered  and  that  there  is  a  record 
thereof,  if  shown  by  the  authentication,  is  a  compliance  with  the 
federal  statute. 

Joslin  vs.   Fuller,   166  App.  43. 
The  fact  that  transcript  does  not  show  organization  of  court, 
the  term  of  such  court,  or  the  judge  who  presided  at  the  trial, 
or  that  the  judge  who  heard  and  entered  the  judgment  was  the 


RECORDS  1109 

same  judge  who  certified  to  the  transcript,  or  that  the  transcript 
only  tended  to  show  a  portion  of  the  records  of  the  court  and  does 
not  show  the  name  of  the  defendant  in  the  title  of  the  said  cause, 
does  not  render  such  judgment  inadmissible. 
Joslin  vs.  Fuller,  166  App.  4S. 

The  absence  of  a  placita  is  not  a  valid  objection  to  the  intro- 
duction  of   a   transcript   purporting   to   show   a   judgment   of   a 

sister  state. 

Joslin    vs.    Fuller,    166    App.    43;    McMillan    vs.    Lovejoy,    115    111. 
498. 

—  By  Deputy:  The  general  rule  is  that  the  certificate  of  an 
officer,  when  made  by  a  deputy,  must  be  in  the  name  of. the  offi- 
cer, but  under  statute  providing,  in  case  of  vacancy,  absence  of 
officer  or  inability  to  act,  the  deputy  may  act.  A  certificate  made 
by  a  deputy  and  signed  by  him  as  such  will  be  presumed  to  have 
been  made  by  reason  of  such  vacancy,  absence  or  inability  of  the 

officer  to  act. 

Hull  vs.  Webb,   78  App.   617. 

The  deputy,  though  a  deputy  merely,  is  made  the  officer  and  a 
certificate  made  by  such  deputy  and  signed  as  deputy  will  be  pre- 
sumed to  have  been  made  by  reason  of  a  vacancy  or  because  of 

absence  or  inability  of  the  officer. 

,  Garden   City  Sand  Co.   vs.   Miller,   157   111.   225. 

It  will  be  assumed  in  the  absence  of  some  evidence  to  the  con- 
trary   that    the    deputy    signing   his    chief's    name    did   bo   with 

authority. 

Sullivan  vs.  Algren,  157  App.  12.^. 

A   transcript   of   the    circuit   court   record,    in    due    form,    and 
under  seal  of  the  court,  is  admissible  in  evidence  although  it  is 
attested  in  the  name  of  the  clerk  by  one  acting  as  his  deputy. 
Schott  vs.  Youree,  142  111.  233. 

—  Sworn  Copies:  Section  18  of  the  act  relating  to  evidence 
provides  that  any  such  papers,  entries  and  records  and  ordinances 
may  be  proved  by  copies  examined  and  sworn  to  by  credible  wit- 
nesses. The  certificate  of  the  clerk  is  not  necessary  and  witness 
producing  document  may  testify  that  he  examined  the  records 
and  the  copy  offered  in  evidence  and  compared  the  same  and 
that  the  copy  so  offered  in  evidence  was  a  true  copy. 

Glos  vs.  Boettieher,  193  111.  534;  C.  C.  &  St.  L.  Ey.  Co.  vs.  Bender, 
69  App.  262;  People  vs.  Miller,  195  111.  621. 

—  Where  Court  Abolished:  Where  the  court  has  been  abol- 
ished, the  records  thereof,  when  offered  in  evidence  in  the  county 
where  they  are  kept,  require  no  further  authentication  than  the 
testimony  of  the  clerk  of  the  court  in  whose  custody  they  are, 
that  they  were  found  among  the  books  and  papers  of  the  county, 
in  his  office,  and  on  further  proof  of  the  handwriting  of  the  clerk, 
by  whom  the  entries  appear  to  have  been  made. 

Williams  vs.  Jarrott,  6  111.   120. 

—  Abbreviations:  The  fact  that  a  clerk  of  the  court  in  certi- 
fying to  a  decree  identified  the  cause  by  using  abbreviations  to  in- 
dicate the  name  of  one  of  the  parties  is  no  valid  objection  to  its 
admission  as  evidence  where  proof  is  made  of  the  meaning  of  such 
abbreviations,  or  where,  from  other  words  in  the  certificate,  refer- 


1110  REFORMATION  OF  INSTRUMENTS 

enee  is  made  to  the  cause  mentioned  in  the  decree  in  the  caption, 
whereby  the  name  of  tlie  party  is  apparent. 
'  Phillips  vs.   Webster,  85   J 11.  146. 

—  Contradiction  of  Transcript:     Parol  is  incompetent  to  con. 
tradict  certified  transcript  of  record  in  probate  court. 

Wilkinson   vs.    Service,   249   ill.    146;    Xll   111.    Notes   515,    §323. 
If  the  transcript  shows  that  it  is  the  adjudication  of  a  court 
wdiicb  has  jurisdiction  of  the  parties  and  of  the  subject  matter, 

it  will  be  held  conclusive. 

McMillan  vs.   Lovejoy,   115   111.  498. 
Under  the  act  of  congress,  where  a  transcript  of  a  judgment 
of  a  sister  state,  duly  certified,  is  offered  in  evidence,  no  questions 
are  open  to  inquiry  except  those  of  jurisdiction. 
McMillan  vs."  Lovejoy,   115   111.  498. 

—  Canadian  Judgment:  In  an  action  upon  a  Canadian  judg- 
ment, where  the  certificate  was  under  the  official  seal  of  the  local 
registrar  of  the  high  court,  also  a  certificate  apparently  under  the 
same  seal,  by  the  inspector  of  the  public  offices,  that  the  signature  to 
the  first  certificate  is  the  signature  of  the  local  registrar ;  also,  un- 
der the  same  seal,  a  certificate  of  the  President  of  that  court, 
that  the  person  certifying  as  local  registrar  is  such,  and  the  sig- 
nature genuine,  and  last,  a  sweeping  certificate  by  the  Lieuten- 
ant Governor  of  the  Province,  under  the  seal  of  the  Province, 
to  the  existence  of  the  Court,  the  official  positions  of  the  per- 
sons certifying  as  President  and  local  registrar,  the  genuineness 
of  their  signatures,  and  that  the  local  registrar  has  legal  custody 
of  the  records  of  the  court,  and  the  last  certificate  signed  by  the 
Command  Secretary  of  the  Province,  such  exemplification  is  suf- 
ficient. 

Calhoun  vs.  Eoss,  60  App.  309;   Thompson  vs.  Mason,  4  App.  452. 


REFOEMATION  OF  INSTRUMENTS 

Mistake : 

—  In  General:  Mistake  must  be  that  of  both,  and  must  be 
proven  by  clear  and  satisfactory  evidence,  and  until  the  mistake 
is  satisfactorily  proven,  instrument  will  be  presumed  to  cor- 
rectly state  intentions  of  parties. 

Eexroat  vs.  Vaughn,  181  111.  167;  Cleary  vs.  Babcock,  41  111.  271; 
Sutherland  vs.  Sutherland,  69  IlL  481;  McDonald  vs.  Starkey, 
42  111.  442. 

—  Mistake  of  Fact:  To  justify  reformation  of  written  instru- 
ment upon  ground  of  mere  mistake,  alleged  mistake  must  be  one 
of  fact  and  not  of  law,  must  be  mutual  and  common  to  both  parties 

to  the  instrument. 

Oswald  vs.  Sproehnle,  16  App.  368;  Gray  vs.  Mer.  Ins.  Co.,  113 
App.   537.  •'•    ■-' 

And  party  complaining  must  be  free  from  negligence. 

Nati.  Fire  Ins.  Co.  vs.  Lumber  Co.,  235  111.  98;  Eoberts  vs.  Hughes, 
81  111.  130. 

—  Mistake  of  Law:  Where  the  terms  of  a  written  instrument 
"re   used    by   parties    deliberately    and    knowingly,    there    can    be 


REFORMATION  OF  INSTRUMENTS  1111 

no  relief  in  equity  by  way  of  reforming  the  contract,  even  though 
the  legal  effect  of  terms  used  is  to  produce  an  instrument  differ- 
ent in  its  legal  meaning  from  one  intended. 
Tilton  vs.   Fairmout  Lodge,  244  111.   617. 

—  Consideration:  Equity  will  not  reform  a  deed  which  is  made 
without  consideration  and  is  imperfectly  drawn. 

Legate  vs.  Legate,  249  111.  359;  Finch  vs.  Greene,  225  111.  304; 
Waite  vs.  Smith,  92  111.  385. 

—  Statute  of  Limitations:  Neither  the  Statute  of  Limitations 
nor  laches  is  applicable  to  a  suit  to  reform  a  deed  where  the  com- 
plainant has  been  all  the  time  in  undisturbed  possession. 

Wyhle  vs.  Bartholomew,  258  111,  358;  Schroeder  vs.  Smith,  249  III. 
574. 

—  Statute  of  Frauds:  Nor  has  the  Statute  of  Frauds  any  ap- 
plication to  a  suit  to  correct  a  deed  on  the  ground  of  mistake. 

Wyhle  vs.  Bartholomevv',  258  111.  358;  Correll  vs.  Greider,  258  111. 
479;  Hunter  vs.  Bilyeu,  30  111.  228. 

—  Voluntary  Conveyances:     Court  of  equity  has  no  power  to 

reform. 

Finch  vs.  Greene,  225  111.  304;  Strayer  vs.  Dickerson,  205  111.  257; 
Henry  vs.  Henry,  215  111.  206;  McCartney  vs.  Kidgway,  160 
111.  129. 

Parol  Evidence: 

—  Admissible:     Parol  proof  may  be  received  to  show  mistake 

in  a  written  instrument. 

Purviues  vs.  Harrison,  151  111.  219;  Schwass  vs.  Hershey,  125  111. 
653;  Hunter  vs.  Bilyeu,  30  111.  228;  Gray  vs.  Merchants  Ins. 
Co.,  113  App.  537;  Froyd  vs.  Schultz,  260  Hi.  268;  XII  111.  Notes 
518,  §343. 

—  Statute  of  Frauds:    Whether  contract  required  by  Statute 

of  Frauds  to  be  in  writing  or  not. 

McLennan  vs.   Johnson,   60   111.   306. 

—  Aelmissions:  And  the  mistake  may  be  shown  by  the  ad- 
missions of  the  party  in  whose  favor  it  was  made. 

Purvines  vs.  Harrison,   151  111.   219. 

—  Bes  Gestae:  In  suit  to  reform  a  deed,  testimony  as  to  what 
was  said  as  to  the  necessity  of  a  new  deed  when  that  executed  and 
recorded  was  brought  back  to  the  scrivener  who  drew  it,  is  admis- 
sible, as  part  of  the  res  gestae,  on  the  question  as  to  the  reason 

and  purpose  of  the  second  deed. 
Kyner  vs.   Boll,   182   111.    171. 

Weight  and  Sufficiency: 

—  Beyond  ReasonaUe  Douht:  Relief  is  forbidden  _  whenever 
the  evidence  is  loose,  equivocal  or  contradictory,  or  is  in  its  tex- 
ture open  to  doul)t  or  opposing  presumptions.  Parol  evidence 
of  the  mistake  must  be  established  beyond  a  reasonable  doubt. 
Courts  of  equity  do  not  grant  the  high  remedy  of  reformation 
upon  a  probability  nor  upon  a  mere  preponderance  of  evidence, 
but  only  upon  a  certainty  of  the  error. 

"Lines  vs.  Willey,  253  111.  440. 
The  evidence  to  justify  a  reformation  in  equity  of  a  written 
contract  between   parties,  on  the  ground   of  3   mistake,  must  be 


1112  REFRESHING  MEiMORY 

clear,   convincing  and   satisfactory.     It   may   not   be   done   upon 
uncertain,  doubtful  and  unsatisfactory  evidence. 

Stanley   vs.    Marshall,   206    111.   20;    Schwass   vs.    Herschey,    125   111. 

653;    Ewing    vs.    Sandoval    Coal    Co.,    110    111.    290;     Foster    vs. 

Miller,    132    App.    464;    Gray   vs.    Merchants    Ins.    Co.,    113    App. 

537. 

—  To  Show  Consideration:  The  recitals  in  the  instrument  are 
not  sufficient  to  prove  the  consideration;  the  proof  must  show 
actual  payment  of  consideration  and  this  must  be  done  by  extrinsic 

evidence. 

Waite  vs.  Smith,  92  111.  385. 

—  When  Grantor  Scrivener:  The  fact  that  the  grantor  wrote 
the  deed  and  deliberately  employed  the  words  afterwards  alleged 
by  the  grantee  to  have  been  used  by  mistake,  is  strong  evidence 
that  he  intended  to  grant  the  character  of  estate  conveyed  by  the 

deed. 

Seeley  vs.  Baldwin,  185  111.  211. 

—  Fraud:     Proof  that  parties  to  a  deed,  by  deception,  induced 

the  grantors  to  sign  it,  is  a  fatal  variance  from  a  bill  alleging  a 

mistake  of  the  scrivener,  by  which  a  fee  was  conveyed  instead  of 

intended  life  estate. 

Adams  vs.  Gill,  158  111.   190. 

Presumptions : 

Where  a  party  conveys  land  which  he  does  not  own,  but  does 

own  other  land  in  the  same  section,  the  presumption  is  that  he 

intends  to  convey  the  land  he  did  own. 

Caldwell  vs.  McGee,  162  App.  171;  Dougherty  vs.  Purdy,  18  111.  206. 


REFRESHING  MEMORY 

See  Books  of  Account,  Memorandum. 


REFUSAL  OR  FAILURE  TO  PRODUCE 

EVIDENCE 

See  Absent  Witness,  Destruction,  Suppression  and  Fabri- 
cation OF  Evidence,  Best  and  Secondary,  Production  of  Docu- 
ments. 
Presumptions  in  Civil  Actions : 

The  mere  withholding  or  failing  to  produce  evidence  which, 
under  the  circumstances,  would  be  expected  to  be  produced,  and 
which  is  available,  gives  rise  to  a  presumption  against  a  party. 

Warth  vs.  Lowenstein,.  219  111.  222;  Mantonya  vs.  Eeilly,  184  111. 
183;  Hauser  vs.  Com.  Elec.  Co.,  144  App.  643;  Hope  vs.  West 
Chi.  St.  Ey.  Co.,  82  App.  311;  XII  111.  Notes  478,  §  40.    _ 

When  a  party  fails  to  produce  proof  apparently  within  his 
power,  such  failure  to  produce  is  liable  to  raise  an  inference  in  the 
minds'  of  the  jury  that  the  proof  is  not  offered  because  it  would 
be  unfavorable  to  him,  and  sometimes  raises  a  strong  presumption 
of  law  against  him;  but  this  presumption  or  inference  does  not 


REFUSAL  OR  FAILURE  TO  PRODUCE  EVIDENCE      1113 

arise  unless  the  party  wilfully  withholds  such  evidence.  The  rule 
does  not  apply  where  the  omission  is  to  call  a  witness  who  might 
as  well  have  been  called  by  the  other  party. 
Princeville  vs.  Hitchcock,  101  App.  588. 
Whatever  inferences  may  be  drawn  against  a  party  by  rea- 
son of  his  failure  to  produce  evidence  in  his  possession  or  con- 
trol, is  attributed  to  his  supposed  knowledge  that  the  truth  would 
have  operated  against  him.     He  is  treated  in  law  as  a  spoliator 

of  evidence. 

Cartier  vs.   Troy  Lumber  Co.,   138   111.   533. 

Wilful  withholding  of  evidence  raises  presumption  that  such 

evidence  would  be  against  interest  if  produced. 

L.  F.   Water  Co.  vs.  Lake  Forest,  154  App.   184. 
Wliere  a  party  refuses  to  produce  evidence  within  his  power, 
presumption  is  that,  if  given,  it  would  be  unfavorable  to  him. 
Century  Furnace  "Co.  vs.  Harty  Bros.,  141  App.  21. 
But  this  rule  does  not  apply  to  such  proof  as  a  party  has  no 
right  to  give  in  evidence  without  the  consent  of  his  adversary 
or  because  some  fact  might  be  developed  on  the  trial  which  would 

render  such  evidence  competent. 

Cartier  vs.   Troy   Lumber   Co.,   138   111.   533;    Stitzel  vs.   Miller,   157 
App.  390. 
Failure   to   produce   testimony  within   power  of  party   to   pro- 
duce, may  raise  presumption  that  the  proof  is  not  offered  because 

it  is  unfavorable. 

Hartford   Ins.    Co.   vs.   Sherman,    123   App.    202. 

One  who  takes  a  paper  from  the  tiles  without  leaving  a  copy, 
and  who  fails  to  produce  same  in  evidence,  thereby  furnishes  a 
strong  presumption  that  such  paper,  if  produced,  would  be  pre- 
judicial to  his  cause. 

Hennessy  vs.   Walsh,   142   App.   237. 

When  one  party  has  evidence  upon  a  point  as  to  which  the 
other  party  has  made  out  a  prima  facie  case,  and  who  fails  to 
present  it,  such  failure  may  be  taken  as  an  admission  that  such 

evidence,  if  produced,  would  not  aid  the  party  who  has  it. 

C.  &  W.  I.  Ey.  Co.  vs.  Newell,  113  App.  263;   E.  St.  L.  C.  Ey.  Co. 
vs.  Altgen,  112  App.  471. 
The  law  imputes  to  the  possessor  of  a  document  knowledge  of 

its  contents. 

Eogan  vs.  Arnold,  135  App.  281. 

Upon  a  failure  of  a  party  to  produce  books  as  ordered  by  the 

court,  it  is  not  the  right  of  the  court  to  create  a  presumption  of 

fact  that  the  books,  if  produced,  would  present  evidence  against 

him. 

Walter  Cab.  Co.  vs.  Bussell,  250  111.  416. 

It  will  not  be  presumed  that  books  and  papers,  if  produced, 
would  establish  fact  that  adversary  alleges  they  will  prove. 
Cartier  vs.   Troy  Lumber  Co.,   138   111.   533. 

No  unfavorable  inference  will  arise  from  mere  non-production 

of   ex-employe. 

Tuthill  vs.  Belt  Ey.  Co.,  145  App.  50. 

No   presumption    can   arise   where   the   evidence   not  produced 
is  the  self-serving  declaration  and  writings  of  adverse  party. 
Law   vs.   Woodruff,   48   111.   399. 


1114     REFUSAL  OR  FAILURE  TO  PRODUCE  EVIDENCE 

Where  a  party  refuses  to  produce  books  or  papers,  his  oppo- 
nent iiiay  give  secondary  evidence  or  have  parol  proof  of  their 
contents,  if  they  are  shown  to  be  in  possession  of  opposite  party; 
and  if  such  evidence  is  imperfect,  vague  or  uncertain  as  to  dates, 
sums,  boundaries,  etc.,  every  intendment  and  presumption  shall 
be  aganist  the  party  who  might  remove  all  doubt  by  producing 

the  higher  evidence. 

Eector   vs.    Rector,    8    111.    105. 
Counsel  may  comment    on    fact    that    evidence    was    not    pro- 
duced. 

Con.  Coal  Co.  vs.  Schrieber,  167  IlL  539. 

When  neither  party  to  a  civil  suit  calls  an  available  witness, 
whatever  presumption  will  be  indulged  from  failufe  to  call  such 
witness  will  be  against  the  party  to  whose  interest  such  wit- 
ness would  most  likely  incline. 

Ziimiierinan  vs.  Zimmerman,   149  App.  231. 

The  presumption  of  law  arising  from  the  non-production  or 
destruction  of  evidence  by  one  party  cannot  relieve  the  other 
party  from  burden  of  proving  his  ease.  It  will  justify  the  ad- 
mission of  secondary  evidence,  and  when  the  evidence  is  conflict- 
ing, the  presumption  will  have  its  full  force  and  operation. 
Gage  vs.  Parmelee,  87  111.  329;   Clough  vs.  Kyne,  40  App.  234. 

Refusal  of  Witness  to  Answer : 

Persistent  and  unreasonable  refusal  of  wdtness  to  answer  ques- 
tions propounded  to  him,  based  upon  objection  that  same  are 
immaterial,  may  be  considered  as  showing  existence  of  facts  un- 
favorable to  objecting  party. 

Harding  vs.   Amer.   Glucose   Co.,   182   111.   551. 

In  civil  action,  if  party,  upon  ground  of  privilege,  refuses  to 
answer  relevant  questions,  presumption  is  that  testimony,  if  given, 
or  the  evidence,  if  produced,  would  be  unfavorable  to  him. 
Stock  Exchange  vs.  Board  of  Trade,  196  111.  396. 
If  witness  refuses  to  answer,  on  cross  examination,  competent 
questions  relating  to  important  or  vital  matters,  in  respect  to  wdiich 
he  testified  in  chief,  his  direct  testimony  should  be  excluded. 
Dowie  vs.  Black,  90  App.  167. 

Failure  of  Party  to  Testify : 

In  civil  case,  no  intendment  should  be  made  against  a  party 

because  he  does  not  testify  for  himself. 

Moore  vs.   Wright,   90  111.   470;   Lowe   vs.   Massey,   62   111.   47;    Vil- 
lage of   Princcville  vs.   Hitchcock,   101   App.   588;   XII   111.   Notes 
478,   §40. 
But  where,  being  a  witness,  party  fails  to  testify  to  material  fact 
within  his  knowledge,  inference  may  be  created  against  him. 
111.   Mutual   Fire   Ins.   Co.   vs.    M'alloy,   50   111.   419. 

Any  allusion  to  or  comments  by  prosecution  in  criminal  case 
on  fact  that  defendant  has  not  testified  as  witness  in  own  behalf, 
especially  where  allowed  by  court,  over  defendant's  objection,  is 
such  a  violation  of  the  letter  and  spirit  of  the  statute,  and  such 
an  error  as  to  require  a  reversal  of  judgment  of  conviction,  when 
proof  of  guilt  is  not  so  clear  and  conclusive  that  court  can  affirm- 
atively sav  accused  could  not  liave  been  harmed  from  that  cause. 
Austine  vs.   People,   102   111.   261;    Farrell  vs.  People,   133  111.   244. 


REFUSAL  OR  FAILURE  TO  PRODUCE  EVIDENCE     1115 

It  is  the  duty  of  court  in  all  criminal  cases,  when  defendant 
does  not  testify  in  own  behalf,  to  see  that  no  allusion  is  made 
to  that  fact  by  prosecution.  Indirect  and  covert  reference  to 
the  neglect  of  defendant  to  testify  may  be  as  prejudicial  to  his 
rights  as  a  direct  comment  upon  such  neglect. 

But  it  does  not  necessarily  follow  that  every  reference  to  the 
law  on  that  subject  is  prohibited.     The  true  test  is,  was  the  ref- 
erence calculated  or  intended  to  direct  the  attention  of  the  jury 
to  defendant's  neglect  to  avail  himself  of  his  legal  right  to  testify. 
Watt  vs.  People,  126  111.  9. 

So  a  remark  made  by  prosecutor  to  jury  that  the  "enticing  and 
taking  away  of  prosecuting  witness  is  not  denied  by  defendant," 
is  not  such  a  reference  to  failure  of  defendant  to  testify  as  vio- 
lates the  statute. 

Bradshaw  vs.  People,  153  111.  156. 

The  remark  b}^  assistant  State's  Attorney  to  jury,  after  sum- 
ming up  the  fact  in  evidence  in  prosecution  for  receiving  stolen 
property,  "What  does  he  say?  What  explanation  does  he  make?" 
does  not  call  the  attention  of  jury  to  fact  that  accused  did  not 
testify  in  his  own  behalf  where  it  is  apparent  from  remainder 
of  his  statement  that  he  referred  to  the  statement  of  accused  in 

presence  of  the  officers,  when  charged  with  the  offense. 
Lipsey  vs.   People,   227   111.   364. 

The  neglect  of  defendant  to  testify  in  his  own  behalf  in  a  crim- 
inal prosecution  creates  no  presumption  against  him,  and  any 
reference  or  comment  upon  such  neglect  to  testify,  made  by  the 
prosecuting  attorney  is  error. 

Gilmore  vs.  People,  87  App.  128. 

It  is  highly  improper  and  unprofessional  in  counsel  for  prose- 
cution in  his  argument  to  jury  to  refer  to  the  fact  that  accused 
was  not  placed  on  the  stand  as  a  witness,  as  one  of  the  reasons 
why  he  should  be  convicted,  and  the  fact  that  such  counsel  was 
stopped  by  the  court  and  the  jury  directed  to  disregard  that  por- 
tion of  the  argument  may  not  cure  the  wrong  done,  in  the  minds 

of  the  jury. 

Angelo  vs.  People,  96  111.  209 ;  People  vs.  Anuis,  261  111.  157. 

Reference  by  counsel  for  state  to  the  statute  thus:  "Gentle- 
men, the  law  prohibits  us  from  commenting  upon  the  fact  that 
the  defendant  did  not  take  the  stand  in  this  case,"  is  ground  for 

reversal. 

Jackson  vs.  People,  18  App.  508. 

Right  to  Explain: 

Evidence  may  be  given  in  behalf  of  the  party  who  fails  to  pro- 
duce  evidence,   to   explain  such   failure   and   thereby   rebut   any 
inference  or  presumption  that   might  otherwise  arise  therefrom. 
Worth   vs.    Lowenstein,   219   111.    222;    Hope   vs.   West   Clii.    St.    Ey. 
Co.,  82  App.  311. 

Secondary  Evidence: 

No  advantage  can  be  taken  of  failure   to  produce  documents 

called  for,  except  to  give  secondary  evidence. 
Hoagland  vs.  G.  W.  Tel.  Co.,  30  App.  304. 


1116  REGISTERS  OF  BIRTHS,  DEATHS,  ETC. 

REGISTERS  OF  BIRTHS,  DEATHS  AND 

MARRIAGES 

Admissibility: 

Registers  of  births,  deaths  and  marriages,  made  pursuant  to 
the  statute  and  within  its  refjuirements,  arc  admissible  in  evi- 
dence to  prove  the  facts  recorded.  On  account  of  credit  due  to 
the  officials  empowered  to  record  the  facts  in  tiie  public  interest, 
such  registers  are  evidence  of  the  facts  without  the  usual  test  oi 

truth. 

Howard  vs.  111.  T  &  S.  Bank,  189  111.  568. 

Certified  copies  of  original  death  certificate  of  physician  re- 
corded in  office  of  county  clerk  are  admissible  to  show  cause  of 

death. 

Nat'l  Council  vs.  O'Brien,  112  App.  40;  XII  111.  Notes  505,  §238. 

But  if  accompanied  by  undertaker's  certificate  and  offered  as 

a  whole,  is  inadmissible. 

Globe  Mut.  Life  Ins.  Co.  vs.  Meyer,  118  App.  155. 
Certificate  must  not  state  conclusions  of  clerk,  but  should  cer- 
tify a  copy  of  the  entry  in  the  registry, 
Ewing  vs.   Cox,   158   App.   25. 
And  if  of  sister  state,  there  must  be  proof  of  law  of  such  state 

requiring  such  register  to  be  kept. 

Sokel  vs.  People,  212  111.  238;  Tucker  vs.  People,  117  111.  88;  Mur- 
phy vs.  People,  213  111.  154. 


REGISTRATION  OF  TITLES 

See  Abstracts  of  Title,  Title,  Tax  Deeds,  Color  of  Title, 
Good  Faith. 
Weight  and  Sufficiency: 

—  Title :    Prima  facie  title  is  not  sufficient. 

Glos  vs.  Wheeler,  229  111.  272 ;   XIV  111.  Notes  800,   §  5. 
Nor  is  it  sufficient  for  applicant  to  prove  only  such  a  title  as 
would  enable  him  to  maintain  a  bill  to  remove  a  cloud. 
Waugh  vs.  Glos,   246  111.   604. 
Applicant  must  show  title  in  himself  good  as  against  the  world. 
Tower  vs.   Glos,  256   111.   121;   Glos  vs.   Holberg,   220   111.   107;    Glos 
vs.  Cessna,  207  111.  69. 
But  defendant  who  claims  only  part  of  the  premises  included 
in  application,   cannot   complain  as  to   failure  to  prove   title  as 
against  the  world  as  to  lots  to  which  he  sets  up  no  claim, 
Mundt  vs.  Glos,  231  111.   158. 
Life  estate  cannot  be  registered  unless  the  fee  simple  title  to 

the  land  has  first  been  registered. 
Cowman  vs.  Glos,  255  111.  377. 
Conveyances  under  which  applicant  claims  must  identify  prem- 
ises so  that  thev  may  be  ascertained  by  the  description. 

Glos  vs.  Bragdon,  229  111.  223 ;  Glos  vs.  Ehrhardt,  224  111.  532. 
It  is  not  enough  that  there  is  an  abstract  of  title  in  the  exam- 
iner's report,  showing  plat  of  such  addition  had  been  filed  for 


REGISTRATION  OF  TITLES  1117 

record,  but  which  neither  copies  the  plat  nor  gives  any  descrip- 
tion by  which  any  lot  or  block  of  the  addition  can  be  located. 
Glos  vs.  Bragdon,  229  111.  223. 
If  pieces  of  property  are  separated,  then  all  should  have  an 
identical  chain  of  title  in  order  to  include  the  property  in  one 

application. 

Culver  vs.  Waters,  2-lS  111.  163. 

Proof  of  a  deed  to  applicant,  coupled  with  possession  by  him 
for  a  period  of  sixteen  years,  but  without  proof  of  payment  of 
taxes  for  at  least  seven  successive  years  during  that  period,  does 
not  show  title  as  against  the  world,  and  the  applicant  must,  iu 
such  case,  show  title  from  the  government. 
Glos  vs.  Holberg,  229  111.  167. 

Title  in  fee  in  application  for  initial  registration  is  not  shown 
by  proof  of  deeds  and  tax  receipts  unconnected  wdth  any  chain 
of  title  from  the  government,  and  which  fall  short  of  establish- 
ing a  title  under  the  Statute  of  Limitations. 
Glos  vs.  Kingman  &  Co.,  207  111.  26. 

Proof  of  possession  of  land  under  claim  and  color  of  title  made 
in  good  faith,  coupled  with  payment  of  taxes  upon  the  property 
for  a  period  of  seven  successive  years,  is  sufficient,  in  absence  of 
other  evidence,  to  authorize  registration  of  the  title. 
Glos  vs.  MUiow,  211  111.   117. 

Proof  by  applicant  that  he  had  been  in  possession  of  the  lots 
since  he  acquired  title  at  a  foreclosure  sale,  coupled  with  proof  of 
master's  deeds  to  the  lots,  and  certified  copies  of  the  decree  upon 
whicli  they  were  based,  is  not  sufficient,  where  there  is  no  proof  of 
payment  of  taxes  nor  any  evidence  of  any  plat  or  sub-division 
showing  that  the  lots  had  any  legal  existence. 
Glos  vs.  G.  B.  L.  &  H.  Assn.,  229  111.  387. 

Proof  of  title  to  a  tract  of  land,  followed  by  proof  of  a  deed 
to  a  certain  block  of  a  subdivision  of  such  tract,  is  not  sufficient 
to  show  title  to  such  lot,  where  no  plat  of  the  subdivision  is  of- 
fered in  evidence,  and  it  is  not  shov^'n  that  there  was  any  such 
sub-division,  or  that  there  was  any  part  of  tract  known  by  the 
lot  number  mentioned  in  tbe  deed. 
Glos  vs.  Ehrhardt,  224  111.  532. 

—  Invalidity  of  Tax  Deeds:  It  is  not  incumbent  upon  appli- 
cant to  show  the  invalidity  of  a  tax  deed  held  by  a  defendant. 
The  burden  of  establishing  its  validity  rests  upon  the  holder. 

Wangh  vs.   Glos,   246   111.    604;    Meilahon   vs.   Eowley,   238   111.    31; 
Glos  vs.   Taleott,   213   111.    81;    Glos   vs.   Kingman   &  Co.,   207   111. 
26. 
Failure  to  prove  the  invalidity  of  a  tax  deed  is  not  fatal  to  a 
decree  ordering  the  same  set  aside  upon  re-payment  of  the  hold- 
er's  expenditures,    where   the  proof   shows    that   latter 's   rights 

under  the  tax  deed  are  barred. 
Glos  vs.  Mikow,  211  111.  117. 

—  Pai/ment  of  Taxes:  Payment  of  taxes  under  color  of  title 
may  be  shown  by  any  competent  evidence,  including  the  testimony 
of  a  person  having  knowledge  of  their  payment;  and  such  pay- 
ment is  established  by  tax  receipts  and  the  testimony  of  the  holder 
of  color  of  title  that  he  paid  the  taxes  each  year,  even  though  the 


1118  RELATIONSHIP 

initials  of  payor  do  not  correspond  with  those  given  in  several 
of  the  tax  receipts  introduced  in  evidence. 

Tobias  vs.  Kaspzyk,  247  111.  80, 
Proof  of  the  payment  of  all  state,  county,  town,  school,  road, 
park,  drainage  and  coi-poration  taxes  assessed  against  the  prop- 
erty raises  the  presumption,  in  absence  of  evidence  to  contrary, 
that  all  taxes  assessed  against  the  property,  during  the  period 
covered  by  the  proof,  were  paid. 

Glos  vs.  Mikow,  211   111.  117. 

—  Occupancy:  Allegation  that  premises  were  occupied  by 
applicant  must  be  proven,  and  proof  must  identify  the  premises 
occupied  bv  the  applicant  as  the  premises  described  in  application. 

Miiialik  vs.  Glos,  247  111.  597. 
And  applicant  must  prove  allegation  that  land  is  unoccupied. 
Allegation  is  not  a  negative  one  which  requires  no  proof,  nor  is 
the  aoplication  itself  evidence  of  the  fact. 

'      Jaeksou  vs.   Glos,  243  111.  280;   Brooke  vs.  Glos,  243  III.   392. 

—  Adverse  Title:  If  an  applicant  establishes  title  in  himself, 
he  is  not  required  to  affirmatively  show  the  invalidity  of  defend- 
ant's claim  of  title. 

Glos  vs.  Hoban,  212  111.  223. 
If  he  establish  his  right  to  have  his  title  registered,  the  estab- 
lishment of  an  adverse  title  rests  upon  party  relying  thereon,  and 
the  applicant  is  not  required,  in  the  first  instance,  to  show  its 

invalidity. 

Glos  vs.  Holberg,  220  111.  167. 

—  Corporate  Existence  of  Applicant:  Absence  of  a  formal 
denial  of  corporate  existence  of  applicant  is  an  admission  thereof. 

Gage  vs.  Cons.  Elec.  Co.,  194  111.  30. 


RELATIONSHIP 

See   Descent  and  Distribution,  Legitimacy,   Pedigree,   Hus- 
band AND  Wife,  Parent  and  Child. 


RELEASE 

See  Waiver,  Parol,  Abandonment. 
RELEASE  OF  CONTRACT: 

Parol  Evidence: 

Parol  evidence  is  admissible  to  show  contracts  under  seal  have 
been  released,  abrogated,  cancelled  and  surrendered  by  an  exe- 
cuted parol  agreement,  and  the  question  whether  a  sealed  con- 
tract is  so  abrogated  is  a  question  for  the  jury. 

Alsehuler  vs.   SchifP,   164  111.   298;   Goldsborough  vs.   Gable,   140   111. 

269;   Eobinson  vs.   Hardy,  22  App.   .512;   Bloomquist  vs.   Johnson, 

107   App.    154;    Milligen   vs.   Hinbaiigh,    70   App.    537;    Danforth 

vs.   Mclntyre,   11   App.   417. 

And   such   release  may  be   deduced   from   circumstances   or   a 

course  of  conduct  in  evidence  clearly  evincing  an  abandonment. 
Lai-cher   vs.   Ijoeffler,    190   111.    150;    Harrison  vs.   Polar   Star  Lodge^ 
116  111.  279;   Holbrook  vs.  Elec  App.  Co.,  90  App.  86. 


RELEASE  1119 

A  contract  under  seal  may  be  released,  abrogated,  cancelled  and 
surrendered  by  an  executed  parol  agreement. 

Alseluiler  vs.   Schiff,    lti4  111.   298;    Goldsborough  vs.   Gable,   140   111. 
269;    Pelouze   vs.    Gibbous,    157    App.    186. 
An  executory  sealed   contract   cannot   be   altered,   modified   or 
changed  by  a  parol  agreement,  but  it  may  be  surrendered  and  can- 
celled by  an  executed  parol  agreement. 

Breitman  vs.  Fischer,  216   111.   142;   Starin  vs.  Kraft,   174  111.   120; 
White  vs.  Walker,  31  111.  422;   Worrell  vs.  Forsythe,  141  111.  22; 
Baker  vs.  Pratt,  15  111.  568;  XII  111.  Notes  518,  §348. 
Thus  where  a  lease  has  been  fully  executed  as  modified  by  a 
parol  agreement,  evidence  of  the  parol  agreement  is  admissible. 

Snow    vs.    Griesheimer,    220    111.    106;    Harmes    vs.    McCormick,    30 
App.  125. 
Parol  evidence  showing  a  waiver  of  some  provision  of  an  execu- 
tory contract  under  seal  is  admissible  and  such  waiver  is  not  a 
modification  or  change  in  the  terms  of  the  original  contract. 

Becker  vs.  Becker,  250  111.  117;  Zemple  vs.  Hughes,  235  111.  424. 
The  terms  of  a  contract  under  seal  cannot  be  varied  except 
by  an  instrument  of  the  same  dignity,  and  this  notwithstanding 
such  contract  would  have  been  valid  without  seal,  but  the  mere 
waiver  of  one  of  the  terms  of  a  condition  of  such  contract,  which 
waiver  operates  merely  by  way  of  release  or  discharge,  but  leaves 
the  contract  otherwise  unchanged,  may  be  shown  by  parol 
Morehouse  vs.  Terrell,  111  App.  460. 

SEAL: 

Not  necessary  to  release. 

I.  C.  E.  E.  Co.  vs.  Eeed,  37  111.  4S5;  Bailey  vs.  Cowles,  86  111.  333; 
Eyan  vs.  Duulap,   17  111.  40;   Benjamin  vs.  MeConuell,  9  111.  536. 

BURDEN  OF  PROOF  GENERALLY: 

The  burden  of  proving  an  accord  and  satisfaction  or  a  release 

is  upon  the  party  alleging  it. 

Wallner  vs.  Chi.  Trac.  Co.,  150  App.  242. 

ADMISSIBILITY  OF  RELEASE: 

May  be  given  in  evidence  under  general  issue  in  action  of  case. 

Balswicz  vs.  C.  B.  &  Q.  E.  E.  Co.,  240  111.  238 ;  Hartley  vs.  C.  &  A. 

R.  E.  Co.,  214  111.  78;  Hartley  vs.  C.  &  A.  E.  E.  Co.,  197  111.  440; 

Papke  vs.  Hammond,  192  111.  631 ;  Kapschki  vs.  Koch,  180  111.  44 ; 

City  of  Chicago  vs.  Babcock,  143  111.  358. 

And  upon  its  offer  the  court  may  direct  a  verdict. 

Hartley  vs.   C.   &   A.   E.   E.   Co.,   214  111.   78;    O'Donnell  vs.   Brinks 
Express  Co.,  95  App.  411. 
If  plaintiff  denies  the  execution  of  the  release  which  defend- 
ant offers,  it  is  proper  for  court  to  refuse  to  direct. 
Sargent  Co.  vs.  Baublis,  215  111.  428. 
(In  the  latter  case  the  court  on  its  own  motion  submitted  spe- 
cial interrogatories  concerning  the  release.) 

Must  be  specially  pleaded  in  action  of  trespass. 

Kenyon  vs.  Sutherland,  8  111.  99. 
In  action  against  a  railroad  company  for  damages  to  land 
caused  by  overflow  alleged  to  be  due  to  defendant's  wrongful  act 
in  obstructing  a  stream  and  changing  its  course,  a  release  exe- 
cuted by  plaintiff  to  another  railroad  whose  tracks  parallels  defend- 
ant 's,  for  all  damages  sustained  by  plaintiff  on  account  of  his  land 


1120  RELEASE 

being  overflowed  up  to  a  date  previously  to  the  time  the  dam- 
ages sued  for  began  to  occur,  is  not  admissible. 
Ramev  vs.  B.  &  O.  S.  W.  R.  E.  Co.,  235  ill.  502, 

EFFECT  AS  EVIDENCE: 
In  General: 

A  release  of  all  damages,  signed  by  plaintiff  and  under  his 
seal,  is  a  bar  to  the  action  unless  it  can  be  impeached  for  fraud  in 

the  execution. 

Hartley  vs.  C.  &  A.  R.  R.  Co.,  214  111.  78;  C.  R.  I.  &  P.  R.  R.  Co.  vs. 

Lewis,  109  111.  120;  Henimick  vs.  B.  and  O.  S.  W.  E.  E.  Co.,  263 

111.  241. 

If  a  party  is  mentally  incompetent  to  know  what  he  is  doing, 

or  is  deceived  or  tricked  into  signing  a  release,  when  he  thought 

he  was  signing  something  else,   such  fact  may   be  shown  in   his 

action  at  law  for  damages  and  release  is  not  a  bar  to  the  action, 

but  if  lie  is  mentally  capable  of  knowing  and  understanding  what 

he  is  doing,  and  does  know  and  understand  that  he  is  making  a 

settlement  of  his  claim,   the  release  must  be  set  aside  in  equity 

before  an  action  at  law  for  damages  can  be  maintined. 

Turner  vs.  Consumers  Coal  Co.,  254  111.  187;  Clark  vs.  Amer.  Bridge 
Co.,  180  App.  134. 

Joint  Liability: 

—  Contract:  If  instrument  in  terms  provides  that  the  obligor 
seeking  to  obtain  a  release  shall  remain  subject  to  the  right  of 
contribution  in  favor  of  his  co-o])ligors  in  case  they  are  compelled 
to  pay  more  than  their  share  of  the  claim,  then  the  provisions  in 
the  release  that  it  shall  not  operate  to  discharge  such  co-obligors 

may  be  given  effect  according  to  its  terms. 

Parmelee  vs.  Lawrence,  41  111.  405;  Mooie  vs.  Stanwood,  9S  111.  605; 

Thomason  vs.  Clark,  31  App.  -104;   Mueller  vs.  Uobscluietz,  89  111. 

176;  Dupee  vs.  Blake,  148  111.  453. 

A  plain,   unconditional  and  unambiguous  release  of  one  joint 

debtor  operates  in  law  to  discharge  the  co-obligor,  and  extrinsic 

evidence  is  not   admissible  to  establish   a   contrary  intention  not 

appearing  on  the  face  of  the  instrument  or  from  the  circumstances 

connected  with  its  execution. 

The  intention  of  the  parties  to  a  written  agreement  is  to  be 
determined  from  the  contract  itself,  and  not  from  their  previous 

understandings  or  agreements. 

Clark  vs.  Mallory,  185  111.  227. 

—  In  Tort:  A  release  of  one  of  several  joint  tort  feasors  is  a 
release  as  to  all,  and  an  accord  and  satisfaction  with  one  of  them 

is  a  bar  to  an  action  against  the  others. 

Walhier  vs.  Chi.  Trae.  Co.,  245  111.  148;  City  of  Chicago  vs.  Babcock, 

143  111.  358;  W.  Chi.  St.  Ry.  Co.  vs.  Piper,  165  111.  325;  XIV  111. 

Notes  333,  §  21. 

"Where  a  suit  is  begun  against  several  tort  feasors,  a  dismissal 

of  the  suit  as  against  one  will  not   bar  the  action   against   the 

others,  in  absence  of  proof  of  a  release  or  accord  and  satisfaetio7i. 

W.  Chi.  St.  Ry.  Co.  vs.  Piper,  165  111.  325;  City  of  Chicago  vs.  Smith, 

95  App.  335. 

There   is  no   such  privity  between   joint   tort   feasors   because 

both  are  sued  in  the  same  suit,  or  both  liable  for  the  same  injury, 

as  to  conclude  the  defendant,  wiio  is  not  a  party  to  the  contract, 

release  or  establishment,  or  the  plaintiff,  by  the  express  terms  of  the 


RELEASE  1121 

written  contract,  and  plaintiff  or  defendant  may  contradict  it  by 
parol  evidence. 

Gore  vs.  Henrotin,  165  App.  222. 

A  covenant  not  to  sue  a  sole  tort  feasor  is  considered  in  law 
a  release  and  a  bar  to  an  action  against  him.  But  the  rule  is 
otherwise  where  there  are  two  or  more  tort  feasors,  and  the  cove- 
nant is  with  one  of  them  not  to  sue  him.  In  such  case,  the  cove- 
nant does  not  operate  as  a  release  of  either  the  covenantee  or  the 
other  tort  feasors,  and  the  latter  cannot  give  in  evidence  a  covenant 
as  bar  to  an  action  against  him. 

C.  &  A.  E.  E.  Co.  vs.  Averill,  224  111.  516;  Yeates  vs.  I.  C.  E.  E.  Co., 
145  App.  11. 

IMPEACHMENT  FOR  FRAUD: 
Right  to  Impeach: 

Fraud  in  the  execution  of  an  instrument  is  practiced  when  the 

instrument  is  misread  to  the  party  signing  it,  or  where  there  is 

a  surreptious  substitution  of  one  paper  for  another,  or  where,  by 

some  other  trick  or  device  a  party  is  made  to  sign  an  instrument 

which  he  did  not  intend  to  execute. 

Jackson  vs.  Security  lus.  Co.,  233  111.  161 ;  Papke  vs.  Hammond,  192 
111.  631. 

In  an  action  at  law,  a  written  release  of  damages  under  a  seal 

cannot   be   impeached    for    fraud   not    inhering   in    the    execution 

thereof,  but  which  only  goes  to  the  extent  of  the  consideration. 
Papke  vs.  Hammond,  192  111.  631. 

But  this  rule  does  not  include  a  release  not  under  seal. 

F.  &  M.  L.  Ins.  Co.  vs.  Caine,  224  111.  599;  Titsworth  vs.  Hyde,  54 
111.  386;  Jackson  vs.  Security  Ins.  Co.,  233  111.  161. 

Question  for  Jury: 

Fraud  is  a  question  of  fact  for  the  jury. 

Turner  vs.  Consumers  Coal  Co.,  254  111.  187;  Chi.  St.  Ey.  Co.  vs. 
Uhter,  212  111.  174;  I.  D.  &  N.  W.  Ey.  Co.  vs.  Fowler,  201  111.  152; 
Pioneer  vs.  Eomanowicz,  186  111.  9;  Chi.  City  Ey.  Co.  vs.  MeClain, 
211  111.  589;  Pawnee  Coal  Co.  vs.  Eoyce,  184  111.  402. 

Admissibility  of  Evidence  to  Show  Fraud: 

That  the  signature  w^as  obtained  by  the   false  representations 
that  it  merely  covered  a  claim  for  a  month's  wages  may  be  shown. 
I.  C.  E.  E.  Co.  vs.  Welch,  52  111.  183. 

Or  that  the  party  signing  it  was  led  to  believe  that  it  was  a 
paper  to  enable  the  paymaster  to  tell  where  the  money  went.    And 
being  lold  he  should  sign  his  name  for  the  money,  did  so. 
Nat'l  Syrup  Co.  vs.  Carleson,  47  App.  178;  Affd.,  155  111.  210. 

Or  that  an  illiterate  woman,  unable  to  read  or  write,  was  in- 
duced by  her  physician,  during  her  illness,  in  absence  of  any 
one  to  whom  she  could  look  for  advice,  to  sign  a  release  on  the 
representation  that  it  was  a  receipt  to  show  what  money  expended 

for  her  benefit  had  been  expended  for. 

Eagle  Packet  Co.  vs.  Defries,  94  111.  598. 
Or  that  one  suffering  a  great  physical  pain  and  laboring  under 
the  effect  of  opiates,  was  induced  by  fraudulent  practices  to  sign 
a  release  under  the  belief  that  he  was  only  signing  a  receipt  for 

money. 

C.  E.  I.  &  P.  Ey.  Co.  vs.  Lewis,  109  111.  120. 

Thai  the  execution  of  a  paper  was  fraudulently  obtained  from 
Ev.— 71 


1122  RELEVANCY 

one  suiifering  severe  pain,  in  ignorance  of  its  contents  and  under 

the  representations  that  it  was  necessary  to  have  her  name. 
Chi.  City  By.  Co.  vs.  McClain,  211  111.  589. 

Or  that  a  release  was  signed  without  any  intention  to  execute 

a  release,  but  on  account  of  the  fraudulent  representations  that 

it  was  merely  a  receipt  for  money  paid  to  a  physician. 
Chi.  City  Ey.  Co.  vs.  Uhter,  212  111.  174. 

Evidence  that  after  the  collision  in  which  plaintiff  was  hurt, 
defendant's  claim  agent  circulated  papers  containing  formal  re- 
lease of  damages  for  the  signatures  and  addresses  of  injured  pas- 
sengers, upon  the  representation  that  he  would  then  answer  tele- 
grams from  their  friend,  and  that  he  afterwards  distributed  sums 
of  one  and  two  dollars  among  the  parties  so  signing,  including 
plaintiff,  for  the  alleged  purpose  of  defraying  their  expenses  caused 
by  the  delay,  nothing  being  said  about  releasing  damages,  tends 
to  show  that  plaintiff's  signature  was  obtained  to  the  release  by 

fraud. 

C.  &  A.  E.  E.  Co.  vs.  Jennings,  217  111.  494. 

Plaintiff  in  action  for  personal  injuries  claiming  that  he  was 
induced  to  sign  a  release  by  misrepresentations,  and  had  no  knowl- 
edge of  its  contents,  may  be  asked  whether,  at  the  time  he  signed 
his  name,  he  knew  in  any  way  that  he  was  settling  with  the  com- 
pany for  damages  on  account  of  his  injury,  but  cannot  state  his 

understanding  as  to  the  purpose  or  purport  of  the  paper. 

Nat'l  Syi-up  Co.  vs.  Carleson,  155  111.  210. 

A  release  of  damages  may  be  regarded  as  not  fairly  obtained, 

and  hence  as  inoperative,  where  the  party  executing  the  release 

is  unable  to  read  it,  and  it  is  not  read  to  him,  but  is  represented 

to  him,  by  party  claiming  the  benefit,  as  being  for  another  purpose. 

Pioneer  Cooperage  Co.  vs.  Eomanowicz,  18(5  111.  9. 

Burden  of  Proof: 

The  burden  of  proving  fraud  is  upon  party  alleging  it. 

Miller  vs.  St.  L.  &  P.  Co.,  176  App.  439;  St.  L.  &  B.  Ey.  Co.  vs. 
Erlinger,  112  App.  506;  C.  &  A.  E.  E.  Co.  vs.  Jennings,  114  App. 
622;  Affd.,  217  111.  494;  XIV  111.  Notes  334,  §  24. 


RELEVANCY 

See  Offer  of  Evidence,  Order  op  Proof,  Cross  Examination, 
Rebuttal,  Objections,  Positive  and  Negative. 
Defined: 

Relevant  evidence  is  evidence  w'hich,  if  admitted,  has  a  natural 

tendency  to  prove  the  fact  in  controversy. 

People  vs.  Gray,  251  111.  431;  XII  111. 'Notes  481,  §52. 

Tendency  to  Prove : 

Evidence  tending  to  prove  the  material  facts  or  either  of  them, 
is  admissible  although  it  may  not  establish  the  whole  case  or  be 

conclusive. 

B.  &  O.  S.  W.  E.  E.  Co.  vs.  People,  156  111.  189;  Cent.  Ey.  Co.  vs.  All- 
inon,  147  111.  471;  Avery  vs.  Moore,  133  111.  74;  Miller  vs.  Chrisnian, 
25  111.  269. 
To  determine   the   relevancy  of  evidence,   the   question   is  not 


RELEVANCY  1123 

whether  it  is  sufficient  of  itself  to  make  out  the  case  or  defense, 

but  whether  it  tends  to  prove  it. 

Comstock  vs.  Gage,  91  111.  328;  Hough  vs.  Cook,  69  111.  581;  Hunter 
vs.  Harris,  29  App.  200. 

But  it  is  not  error  for  the  court  to  reject  evidence  which  is  not 
pertinent  to  the  issue,  considered  by  itself,  and  which  is  not  fol- 
lowed by  any  evidence  which  would  make  it  j)ertinent. 
Doran  vs.  Mullen,  78  111.  342. 

Remoteness : 

How  long  before  or  after  a  transaction  in  issue  evidence  of  col- 
lateral matters  shall  extend,  must  be  determined  by  the  trial  court 
in  the  exercise  of  its  sound  legal  discretion,  in  view  of  the  cir- 
cumstances of  each  particular  case. 

Gardiner  vs.  Meeker,  169  111.  40 ;  Larmine  vs.  Carley,  114  111.  196 ; 
Tnule  vs.  Meyer,  82  111.  535;  Eureka  Coal  Co.  vs.  Brandwood,  72 
111.  625. 

And  must  not  be  conjectural. 

Pioneer  Con.  Co.  vs.  Sanberg,  98  App.  36. 

One   accused   of  crime   may   prove   any   fact   or   circumstances 

tending  to  show  that  the  crime  was  committed  by  another  than 

himself.     It  is  difficult  to  define  the  precise  limits  which  must 

control  its  admission.     It  may  be  so  remote  in  point  of  time  as  to 

be  immaterial.     To  a  great  extent  it  must  be  left  to  the  trial  judge 

to  determine  upon  the  facts  before  him  how  far  evidence  of  this 

description  may  have  any  tendency  to  throw  light  on  the  fact  to 

be  found. 

People  vs.  Pezutte,  255  111.  583. 

Explanatory  Testimony: 

Where   certain   evidence   is  sought   to   be  introduced   which   is 

material  to  the  issue,  other  evidence,  incidental  thereto,  and  which 

is  necessary  in  order  to  properly  explain  such  material  evidence, 

is  likewise  competent. 

Hajward  vs.  Scott,  114  App.  531. 

As  to  Competency: 

Competency  is  one  thing  and  what  evidence  may  prove  is  an 

entirely  different  thing. 

Willoughby  vs.  Dewey,  54  111.  266. 

The  evidence  must  relate  to  some  issue  presented  by  the  plead- 
ings and  tend  to  establish  some  fact  or  facts  legally  competent 
for  the  consideration  of  the  jury. 

City  of  Joliet  vs.  Conway,  119  111.  489;  Eobinson  vs.  Craft,  154  App. 
213. 

Limiting  Effect:  ,, 

If  evidence  is  properly  admissible  under  any  issue  of  the  case 
or  for  any  purpose,  it  should  not  be  excluded.  The  effect,  how- 
ever, should  be  limited  to  its  proper  office  in  the  case,  by  instruc- 
tion offered  by  party  desiring  to  limit  the  purpose  for  which  it 

is  admitted. 

Harmon  vs.  Peoria  Ey.  Co.,  160  App.  458;  People  vs.  Hagenow,  236 
111.   514;    Euggles  vs.  Gatton,  50  111.  412. 

Connection  with  Other  Testimony: 

—  In  General:  Facts  and  circumstances  which,  when  stand- 
ing alone,  might  have  little  probative  force,  are  admissible  if,  when 
taken  together  with  all  the  other  facts  and  circumstances  appear- 


1124  KELEVANCY 

ing  in  evidence,  they  tend  to  fairly  prove  the  averments  of  the 

declaration. 

Heffernan  vs.  Bail,  109  111.  231. 

—  Proof  Aliunde:     Testimony  not   manifestly   relevant  should 

not  be  excluded  when  its  relevancy  may  be  made  to  appear  by 

proof  aliunde. 

Cent.  Ry.  Co.  vs.  Allmon,  147  111.  471. 

—  Promise  to  Connect:  Court  may  admit  apparently  irrele- 
vant evidence  upon  assurance  that  it  ^11  be  followed  by  other 
testimony  in  connection  with  which  its  relevancy  will  be  appar- 
ent. 

City  of  Alton  vs.  Hartford  Ins.  Co.,  72  111.  328 ;  Dunning  vs.  Mathews, 
16  111.  308. 
When   the   materiality   and   relevancy   of   a   question   asked   is 
apparent,  it  is  not  necessary,  upon  objection  to  it,  to  state  what 

is  expected  to  prove  by  it. 

Hair  Co.  vs.  Manley,  102  App.  570. 

Order  of  Proof: 

It  is  the  right  of  a  party,  when  he  offers  evidence,  in  the  proper 
order,  which  proves  or  tends  to  prove  any  necessary  fact  in  the 
case,  to  have  it  go  to  the  jury,  for  the  reasonable  presumption  is 
that  it  will  be  followed  by  such  other  proof  as  is  necessary  for 
its  proper  connection ;  and  if  it  is  not,  it  then  becomes  irrele- 
vant, and  if  desired,  may  be  withdrawn  from  the  jury. 

Rogers  vs  Brent,  10  111.  573. 

When  Relevancy  Determinable: 

When  evidence  is  offered  which,  at  the  time,  does  not  appear 
to  have  any  relation  to  the  case,  and  the  offer  to  introduce  is  unac- 
companied by  a  statement  that  its  relevancy  will  appear  in  the 
progress  of  the  trial,  it  may  properly  be  rejected,  and  its  exclu- 
sion under  such  circumstances  will  not  become  erroneous  because 
it  may  afterwards  become  relevant  in  the  further  development  of 
the  case;  in  such  event,  the  rejected  evidence  should  be  offered 

again,  when,  if  excluded,  an  exception  would  lie. 
Lonergan  vs.  Stewart,  55  111.  44. 

Motion  to  Strike  Out : 

When  evidence  has  been  received  under  a  promise  that  a  link 

necessary  to  its  competency  Avill  be  established  by  other  evidence 

and  a  motion  to  strike  out  such  evidence  is  made  and  overruled 

because  of  such  promise,  such  a  motion  must  be  renewed  if  such 

pronuse  is  not  kept,  in  order  to  urge  on  appeal  the  incompetency 

of  the  evidence  so  received. 

Chi.  City  Ry.  Co.  vs.  Hyndshaw,  116  App.  367;  XIV  111.  Notes  853, 
§109. 

Admission  of  Irrelevant  Testimony: 

—  Right  of  Adverse  Party:  Where  the  objecting  party  has  in- 
troduced like  irrelevant  testimony,  he  cannot  complain  if  the  court 
permits  the  adverse  party  to  produce  evidence  of  a  like  irrele- 
vant nature  to  rebut  the  evidence  he  has  himself  offered. 

111.  Steel  Co.  vs.  Wiersbicky,  206  111.  201 ;  C.  C.  C.  &  St.  L.  Ry.  Co.  vs. 
Highsmith,  59  App.  651. 
But  the  right  to  object  is  not  necessarily  waived  by  reason  of 


REPAIRS  AFTER  ACCIDENT  1125 

failure  of  adverse  party  to  object,  when  objecting  party  himsell; 
offered  the  irrelevant  testimony. 

Fitzsinimons  vs.  Biaun,  199  111.  390. 

—  Bight  to  Rehut  Incompetent  Testimony :  The  proper  de- 
fense against  incompetent  evidence  is  an  objection,  and  its  in- 
troduction without  objection  does  not  make  evidence  competent 
to  contradict  it.  Parties  cannot  by  mere  silence  or  consent  cre- 
ate a  right  to  try  an  immaterial  issue  when  they  might  have  had 
the  adverse  evidence  kept  out  or  stricken  out. 

People  vs.  Newman,  261  111.  11;  Maxwell  vs.  Durkin,  185  111.  546. 
But  after  the  admission  of  the  objectionable  evidence,  party 
may  offer  proof  upon  the  matter  and  is  not  thereby  estopped  to 
complain,  where  he  has  first  objected  to  the  incompetent  testi- 
mony. A  party  has  a  right  to  meet  his  adversary's  case  as  made 
under  the  rulings  of  the  trial  judge,  and  after  making  objection 
and  reserving  proper  exceptions,  may  combat  the  testimony  of 
adverse  party,  whether  correctly  admitted  or  not,  without  losing 
his  rights  on  appeal. 

Chi.  City  Ey.  Co.  vs.  Uhter,  212  111.  174;  Winn  vs.  Cliristian  Coal  Co., 
156  App.  179.     (See  Objections.) 

—  Cross  Examination  as  to  Irrelevant  Matters:  If  counsel 
chooses  to  cross  examine  a  witness  as  to  facts  which  were  not  ad- 
missible in  evidence,  the  other  party  has  a  right  to  examine  him 
as  to  the  evidence  thus  given. 

Doggett  vs.  Green,  163  App.  369. 

—  Hearsay:  Hearsay  evidence  which  has  been  received  with- 
out objection,  will  be  treated  as  competent. 

Mason  vs.  Truitt,  257  111.  18;  Hoover  vs.  Empire  Coal  Co.,  149  App. 
258;  Pitman  vs.  Gatey,  10  111.  186. 


REPAIRS  AFTER  ACCIDENT 

Admissibility:  I 

The  question  of  negligence  must  be  determined  from  what  oc^ 

curred  before  or  at  the  time  of  the  injury,  and  evidence  of  repairs 

made  after  the  injury  is  not  admissible  as  an  implied  admission 

of  negligence  on  the  part  of  defendant. 

Kath  vs.  E.  St.  L.  Sub.  Ey.  Co.,  232  111.  126;  Howe  vs.  Medaris,  183 
111.  288;  City  of  Bloomington  vs.  Legg,  151  111.  9;  Weber  Wagon 
Co.  vs.  Kehl,  139  111.  644;  Marder  vs.  Leary,  137  111.  319;  Hodges 
vs.  Pereivil,  132  111.  53;  Village  of  Warren  vs.  Wright,  103  111.  298; 
Village  of  Mt.  Morris  vs.  Kanode,  98  App.  373 ;  XII  111.  Notes  484, 
§70. 

But  is  competent  for  the  purpose  of  disproving  correctness  of 
alleged   representations,   photographs,   measurements,   location. 

Sample  vs.  C.  B.  &  Q.  E.  Co.,  233  111.  564;  Kath  vs.  E.  St.  Louis  Kv. 
Co.,  232  111.  126;  City  of  Taylorville  vs.  StafCord,  196  111.  288. 

Where  injury  is  alleged  to  have  been  caused  by  defective  con- 
dition of  defendant's  tracks,  and  on  direct  examination  witness 
testifies  ties  were  not  bad  enough  to  take  out  at  time  of  accident, 
it  is  proper  to  permit  plaintiff,  on  cross  examination,  to  show  that 
tbey  were  rotten  a  week  afterwards  and  that  witness  did  then  take 

them  out. 

Hayes  vs.  Wabash  E.  E.  Co.,  180  App.  511. 


1126  REPLEVIN 

REPLEVIN 

PLEADING: 

A  0)1  Cepit: 

Plea  of  non  cepit  only  puts  in  issue  the  taking  of  the  prop- 
erty. This  plea  admits  the  right  of  property  to  be  in  plaintiff, 
and  if  defendant  succeed  on  the  plea,  he  is  not  therefore  entitled 
to  a  return  of  the  property.  If  he  insists  on  a  return,  he  must 
contest  plaintitf's  right  to  the  property.  This  he  may  do  by 
formally  traversing  plaintiff's  allegation  of  right,  or  by  pleading 
specially  that  the  right  of  property  is  in  some  one  other  than 
plaintiif.  Defendant  is  bound  to  take  this  course  before  he  can 
contest  plaintiff's  right  to  the  property.  The  object  of  these  alle- 
gations by  defendant  is  to  procure  a  return  of  the  property  and 
to  impose  on  plaintiff  the  necessity  of  proving  title  to  sustain  his 

action. 

Natl.  Cash  Eegister  Co.  vs.  Wait,  158  App.  168. 

Property  in  Defendant: 

On  an  issue  upon  a  general  plea  of  property  in  defendant,  he 

may  show  any  legal  title  to  the  property,  no  matter  how  derived. 
O  'Conner  vs.  Union  Transfer  Co.,  31  111.  230. 

An  averment  in  plea  of  property  in  defendant,  being  but  in- 
ducement to  a  traverse  of  the  averment  in  the  declaration  of 
property  in  plaintiff,  and  such  a  plea  having  put  plaintiff  to 
proof  of  property  in  himself,  any  evidence  which  tends  to  show 
plaintiff  is  not  the  owner,  is  legitimate,  and  it  is  error  to  reject 

it  on  the  trial  of  the  issue. 

Constantine  vs.  Foster,  57  111.  36;  Baldwin  vs.  Smith,  143  App.  56. 

Burden  of  Proof: 

Under  such  pleas,  is  upon  defendant. 

Amos  vs.  Sinnot,  5  111.  440;  Contra,  Jones  vs.  Glathart,  100  App.  630; 
Second  Natl.  Bank  vs.  Timet,  124  App.  501. 

Where  defendant  pleads  property  in  himself  or  in  a  third 
person,  and  traverses  plaintiff's  right,  averment  of  property  in 
defendant  or  third  person  is  only  an  inducement  to  the  traverse, 
and  plaintiff  must  take  issue  on  the  traverse  and  not  the  induce- 
ment. 

Chandler  vs.  Lincoln,  52  111.  74. 

A  plea  setting  up  property  in  third  person,  and  avowing  for 
rent  from  him,  admits  the  taking  of  the  goods,  and  the  only  bur- 
den resting  upon  plaintiff  is  to  prove  the  goods  are  his  and  not 

the  property  of  such  third  person. 
Kraiise  vs.  Curtis,  73  111.  450. 

WEIGHT  AND  SUFFICIENCY: 

Plaintiff's  Title: 

Plaintiff  must  recover  upon  the  strength  of  his  own  title,  and 

if  such  title  is  denied,  he  has  the  burden  of  showing  a  general  or 

special  property  in  the  goods. 

Perkins  Vs.  Knisely,  204  111.  275;  Pease  vs.  Ditto,  189  111.  456;  Eeyn- 
olds  vs.  McCormaek,  62  111.  412;  Jackson  vs.  Craw,  149  App.  559; 
Weiner  vs.  Temple,  145  App.  498. 

Demand: 

Where  a  party  obtains  possession  of  property  lawfully,  an  ac- 


REPLEVIN  1127 

tion  of  replevin  cannot  be  maintained  to  recover  it  until  a  de- 
mand has  been  made  and  possession  refused. 

O.  &  M.  Ey.  Co.  vs.  Is'oe,  77  111.  513;  Rosenbaum  vs.  King,  114  App. 

648;  Wabash  Ey.  Co.  vs.  House,  101  App.  397;  Ehle  vs.  Dietz,  3.2 

App.  547 ;  XIV  111.  Notes  355,  §  40. 

No  demand  is  necessary  to  be  shown  where  the  possession  is 

wrongfully  acquired,  or  an  actual  conversion  is  shown. 

Burdick  vs.  Peer,  170  App.  604;  Hayes  vs.  Mass.  Life  Ins.  Co.,  125 
111.  61^6;  Sanitary  Can  Co.  vs.  Hines,  149  App.  244;  MeConnell  vs. 
Hanipe,  147  App.  50;  Sehnert  vs.  Keonig,  99  App.  513;  Howards 
Com.  Co.  vs.  Natl.  Live  Stock  Bank,  93  App.  473;  Eichey  vs.  Ford, 
84  App.  121. 

Proof  of  circumstances  which  show  that  a  demand  would  have 

been  unavailing-  (as  a  refusal  by  defendant  to  listen  to  one,  or  a 

statement  that  he  will  not  deliver),  is  stifficient  to  excuse  a  demand. 
Sinamaker  vs.  Eose,  62  App.  118;  Keller  vs.  Eobinson,  153  111.  458. 

When  defendant  pleads  general  issue,  property  in  himself  and 

in  third  persons  whose  bailiff  he  is,  avows  the  taking  and  demands 

a  return,  it  is  not  necessary  for  plaintiff  to  prove  a  demand  for 

the  goods  previous  to  the  issuing  of  the  writ  of  replevin. 
Kingman  &  Co.  vs.  Ecineimer,  58  App.  173. 

After  the  commencement  of  suit,  a  controversy  arose  as  to  a 

demand,  and  defendant  said,  ' '  I  waive  all  demand ;  you  can  go 

ahead  with  your  replevin."     Held,   that  defendant  had  waived 

the  necessity  of  a  demand  and  was  estopped  from  claiming  that 

no  demand  was  made. 

Hamilton  vs.  Seeger,  75  App.  599. 

Demand  and  refusal  after  writ  issued  are  not  admissible  as 
tending  to  prove  demand  unavailing. 
Keller  vs.  Eobinson,  153  111.  458. 

Insolence  in  making  demand  inadmissible. 
Alexander  vs.  Boyle,  GS  App.  139. 

Possession: 

It  is  essential  to  the  right  of  recovery  that  plaintiff  prove  his 
general  or  special  ownership  of  the  property  or  his  right  to  its 
possession. 

Pease  vs.  Ditto,  185  111.  317;  Amick  vs.  Young,  69  111,  542. 

Where  an  action  is  brought  for  the  recovery  of  property  wrong- 
fully taken  from  party  entitled  to  possession,  it  is  only  necessary 
for  him  to  prove  his  right  of  possession  of  the  property  to  entitle 

him  to  a  recovery. 

Blakely  Co.  vs.  Pease,  95  App.  341. 

Person  entitled  to  possession,  means  one  having  qualified  or 
special  interest,  legal  or  equitable. 

Pease  vs.  Ditto,  189  111.  456 ;  Fullerton  vs.  Morse,  162  111.  43. 

Where  chattels  are  taken  from  one  without  any  legal  authority, 

his  prior  possession  is  sufficient  to  warrant  recovery  against  the 

tort  feasor. 

Cummins  vs.  Holmes,  109  111.  15;  Blakely  Co.  vs.  Pease,  95  App.  341. 

Mortgaged  Property: 

—  Insecurity:     In   replevin   to   recover   jDroperty   taken   under 
insecurity  clause  in  mortgage,  mortgagee  may  show  that  probable 
cause  existed  for  believing  his  debt  was  unsafe  and  insecure. 
Hogan  vs.  Aiken,  18l"lll.  448. 


1128  REPLEVIN 

—  Verbal  Consent  to  Sale:  The  purchaser  of  mortgaged  chat- 
tels, on  bringing  replevin  against  assignee  of  the  mortgage,  who 
took  possession  of  the  property,  claiming  a  breach  by  reason  of 
the  sale,  may  show  that  the  original  mortgagee,  before  he  as- 
signed the  mortgage,  gave  his  verbal  consent  to  the  sale. 

Anderson  vs.  Brewing  Co.,  173  111.  213. 

—  Admissions   of  Assignor:     The    admissions   of   the   assignor 

of  a  chattel  mortgage,  against  his  own  interest,  made  before  he 

assigned  the  instrument,  are  admissible  against  his  assignee, 
Anderson  vs.  Brewing  Co.,  173  111.  213. 

—  Burden  of  Proof:  If  the  replication  to  a  plea  charging  that 
the  plaintiff  sold  the  property  without  defendant's  consent,  in 
violation  of  the  mortgage,  consists  merely  in  a  denial  of  all  the 
allegations  of  the  plea,  the  burden  of  proof  is  upon  defendant. 

Mathews  vs.  Granger,  196  111.  164. 

—  Admissibility  of  Mortgage:  Under  plea  of  property  in  de- 
fendant, a  chattel  mortgage,  the  conditions  of  which  have  been 
broken,  is  admissible  in  evidence.  Such  mortgage  is  sufficient  to 
enable  mortgagee  to  recover  the  property  in  action  of  replevin. 

Cleaves  vs.  Herbert,  61  111.  126;  Knitting  Mills  vs.  Obstfeld,  154  App. 
637. 

Burden  is  on  plaintiff  to  show  that  property  is  covered  by  the 

mortgage. 

Myers  vs.  Van  Norman,  87  App.  500. 

DEFENSES: 
Admissibility  of  Evidence: 

—  Bill  of  Sale :  Where  plaintiff  introduces  in  evidence  a  bill 
of  sale  purporting  to  be  made  to  him  by  defendant,  an  affidavit 
denying  its  execution  is  not  required  before  defendant  may  in- 
troduce evidence  that  he  did  not  execute  same.  Plea  of  non  est 
factum  is  unknown  in  replevin. 

Cronk  vs.  People,  131  111.  56. 

—  Admissions:  Statements  of  vendee  as  against  attaching  cred- 
itors of  vendor  competent. 

Lewis  vs.  Swift,  54  111.  436. 

Acts  and  declarations  of  third  person  in  possession  of  property 
are  competent. 

Amick  vs.  Young,  69  111.  542;  XIV  111.  Notes,  361,  §  113. 
The  statements  and  declarations  of  a  vendor  of  chattels,  made 
in  absence  of  vendee,  before  the  sale,  are  admissible  in  evidence 
in  suit  by  a  person  claiming  the  chattels,  to  prove  title  in  plaintiff 
before  sale.  Such  statements  and  declarations  are  binding  upon 
the  vendee  as  a  privy  by  purchase  from  vendor. 

Gill  vs.  Crosby,  63  111.  190. 

—  Fraud  of  Vendor:  In  replevin  to  recover  a  stock  of  goods 
claimed  by  plaintiff  to  have  been  acquired  from  defendant  by 
him  under  a  contract  to  trade  it  for  plaintiff's  farm,  defendant 
may  show  that  plaintiff  misrepresented  to  him  material  matters. 

Eobinson  vs.  Yetter,  238  111.  320. 

—  Official  Character:  Where  defendant  sets  up  defense  that 
he  was  a  constable,  and  took  the  property  under  an  execution  in 
his  hands  against  the  owTier  of  the  property,  and  the  direct  ques- 
tion is  raised  as  to  whether  he  was  a  constable  or  not,  he  must 


REPLEVIN  1129 

show  that  he  was  a  constable  de  jure;  evidence  that  he  was  an 
acting  constable  is  not  sufficient. 
Outhouse  vs.  Allen,  72  III.  5i:9. 
And   oral    testimony    is    incompetent    for   purpose    of   showing 

defendant  de  jure  officer. 

Larsen  vs.  Ditto,  90  App.  384;  Vaughn  vs.  Owens,  21  App.  249. 

Defendant  justifying  as  constable  must  prove  that  he  was  con- 
stable. 

Bryan  vs.  Eeeves,  20  App.  673. 

—  Validity  of  Process:  The  general  rule  is  that  an  officer  may 
justify  his  seizure  of  property  under  an  execution  if  it  is  regu- 
lar on  its  face,  and  appears  to  have  been  issued  by  a  court  of 
competent   jurisdiction,   without   making  proof  of  the   judgment 

on  which  it  was  issued. 

Outhouse  vs.  Allen,  72  111.  529;  Bunn  vs.  Gardner,  18  App.  94. 

The  burden  of  proof  is  upon   defendant,  who  pleads  that  he 

took  the  property  as  an  officer  under  an  execution,  to  support  the 

execution  by  proof  of  a  valid  judgment  existing  at  the  time  the 

execution  was  issued. 

Shue  vs.  Ingle,  87  App.  522. 

—  Claimed  hy  Third  Person:  As  a  general  rule,  a  sheriff  or 
constable  has  only  to  produce  a  fi,  fa.,  regular  on  its  face,  to 
justify  his  levy  upon  and  seizure  of  property ;  but  Avhen  he  levies 
upon  property  claimed  by  some  one  else  than  the  defendant  in 
execution,  and  he  denies  the  ownership,  and  the  officer  claims  the 
sale  by  the  debtor  was  fraudulent  as  to  creditors,  he  must  go 
further  and  show  the  execution  was  issued  on  a  judgment. 

Johnson  vs.  Hollaway,  82  111.  334. 

ACTIONS  ON  BONDS: 

In  General: 

Where  affidavit  and  writ  in  replevin  action,  the  appearance  of 

defendant,  writ  of  retorno  hahenelo  with  its  endorsements,  and  a 

docket  record  of  replevin  judgment  are  introduced,  it  is  sufficient 

prima  facie  evidence  of  breach  of  condition  to  prosecute  suit  with 

effect. 

Hunter  vs.  Comm.  Sec.  Co.,  181  App.  260. 

The  material  facts  to  be  proved  are  the  termination  of  the  re- 
plevin suit,  judgment  in  defendant's  favor,  and  the  order  for  the 
writ  retorno  hahendo.  It  is  wholly  unimportant  what  led  to  that 
result  or  in  what  phraseology  it  was  declared.  Where  suit  is  dis- 
missed, plaintiff  can  only  ^liow  "title  in  mitigation  of  damages.  He 
is  estopped  from  setting  up  want  of  jurisdiction  of  court  in  re- 
plevin suit. 

Bierman  vs.  Columbia  Mfg.  Co.,  179  App.  69. 

Conclusiveness  of  Adjudication: 

The  surety  contracts  with  reference  to  the  action  of  his  prin- 
cipal in  prosecuting  the  replevin  suit,  and  he  is  therefore  con- 
cluded by  the  judgment  orders  made  in  that  suit ;  and  the  record 
showing  a  change  of  venue  and  judgment  of  dismissal,  with  order 
for  the  return  of  the  property,  is  conclusive  evidence  against  him, 
of  the  breach  of  the  conditions  of  his  bond. 
Schott  vs.  Youree,  142  111.  233. 

In  action  on  bond,  defendant,  who  was  plaintiff  in  replevin  suit, 


1130  REPLEVIN 

cannot  urge  title  in  himself  if  such  replevin  suit  has  been  deter- 
mined against  him  on  the  merits. 
Birma  vs.  ^^hiir,  152  App.  505. 

Measure  of  Damages : 

—  3Ierits  Not  Determined:     Title   to  property   and   mitigation 
of  damages  may  be  pleaded  on  a  replevin  bond  where  there  is  a 

non-suit  in  replevin. 

Gilbert  vs.  Sprague,  196  111.  444;  Hanelictt  vs.  Gardner,  138  111.  571; 
Kalprath  vs.  Greeiibiirg,  147  App.  380;  Palmer  vs.  Emery,  91  App. 
207;  Washburn  vs.  Birke,  84  App.  587;  XIV  111.  Notes  366,  §  170. 
Or  where  same  is  dismissed  for  want  of  jurisdiction. 

O  'Donnell  vs.  Colby.  153  111.  324. 
It  is  proper,  in  assessing  damages,  to  allow  defendant  to  prove, 
in  mitigation  of  damages,  that  the  interest  of  plaintiff  in  the  chat- 
tels was  that  of  a  lien  holder,  merely;  but  it  is  not  proper,  in 
absence  of  a  ph-a,  to  permit  defendant  to  show  such  a  lien  was 
subordinate  to  the  lien  of  his  principal,  the  plaintiff  in  the  replevin 

suit. 

Magerstadt  vs.  Harder,  199  111.  271. 

When  suit  is  dismissed  or  plaintiff  takes  or  suffers  a  non-suit 
he  may  show  such  facts  as  would  establish  his  right  to  maintain 
his  suit  in  replevin.  But  if  it  appear  in  a  suit  on  such  bond  that 
the  replevin  suit  could  not  have  been  successfully  prosecuted,  then 
the  prima  facie  right  to  recover  upon  bond  is  established. 
Weber  vs.  Hertz,  87  App.  601. 

Plaintiff  can  only  plead  property  in  himself.    He  may  plead  and 

prove  any  qualified  title,  but  it  must  be  in  himself. 
Holler  vs.  Coleson,  23  App.  324. 

—  Burden  of  Proof:  Burden  to  shov/  title  to  goods  is  on  plain- 
tiff. 

Fabian  vs.  Traeger,  117  App.  176;  Affd.,  215  111.- 220. 

Where  defense  is  that  merits  were  not  tried  burden  is  on  de- 
fendant to  prove  ownership. 

Stevison  vs.  Earnest,  80  111.  513;  Gullett  vs.  Otey,  19  App.  182. 

Where  failure  of  defendant  to  return  goods  is  traversed  burden 
is  on  plaintiff  to  prove  return  of  goods. 
Eichardson  vs.  Gilbert,  135  App.  363. 

Where  the  plea  traverses  the  allegation  that  a  return  of  the 
goods  was  awarded,  the  burden  is  upon  plaintiff,  if  he  seeks  to  re- 
cover the  value  of  the  goods,  to  show  a  judgment  awarding  it,  and 
failing  to  do  so,  he  will  be  entitled  to  no  more  than  nominal 

damages. 

Fellheimer  vs.  Hainline,  65  App.  384. 

—  Files  Former  Suit:  The  affidavit,  declaration,  writ  and  en- 
dorsements thereon,  and  other  papers  and  files  in  the  replevin  suit, 
when  identified,  and  the  judgment,  are  admissible  in  evidence  on 

behalf  of  plaintiff. 

Stevison  vs.  Earnest,  SOi  111.  513. 

—  Alternative  Judgment:  AA^here  plaintiff  has  not  returned 
the  goods  or  paid  the  alternative  judgment,  the  amount  of  such 
alternative  judgment  is  the  measure  of  damages. 

Martin  vs.  Hertz,  224  111.  84. 

—  Return  of  Part  of  Goods:  When  a  return  of  the  property 
is  awarded,  plaintiff  may  return  part  of  the  goods,  provided  they 


REPORTS  1131 

are  separable  from  and  in  no  way  dependent  upon  the  others  for 
use  or  value,  and  if  they  are  in  the  same  coudition  as  when  taken, 
the  defendant  will  be  bound  to  receive  them.  Such  a  return  will 
be  a  defense  pro  tanfo  to  a  suit  on  the  bond. 

Edwin  vs.  Cox,  61  App.  5G7. 
If  plaintiff  after  judgment  of  return,  fails  to  return  all  the 
property,  and  that  which  is  returned  is  injured,  the  measure  of 
the  damages  in  suit  on  bond  is  the  value  of  the  goods  not  returned, 
with  legal  interest  from  the  time  of  the  replevin,  and  deterio- 
ration in  value  of  those  returned,  resulting  from  the  injury,  with 

legal  interest  from  tlie  date  of  their  return. 
Franks  vs.  Matson,  211  111.  338. 

Where  the  merits  of  the  case  have  not  been  tried,  and  the  action 
is  brought  to  recover  for  failure  to  return  a  number  of  reapers 
and  mowers,  the  measure  of  damages  is  the  fair  cash  market  value 
of  the  machines  at  the  time  and  place  of  the  replevy,  and  in  the 
condition  they  then  and  there  were,  and  this  value  is  to  be  ascer- 
tained without  regard  to  the  guaranties  of  any  manufacturing 
company,  or  agreements  of  other  persons  to  set  up  such  machines 
in  working  order,  to  supply  broken  parts  or  other  qualifications 

whatever. 

Piano  Mfg.  Co.  vs.  Downey,  100  App.  36. 

—  Nominal  Damages:  "Where  plaintiff  dismisses  his  suit  or 
suffers  non-suit  without  a  trial  on  the  merits,  he  may  show,  in 
action  on  the  bond,  in  mitigation  of  damages,  that  the  property 
involved  was  in  fact  his  property,  and  upon  such  showing  being 
made,  there  can  be  recovery  only  for  nominal  damages. 

Lyon  &  Healy  vs.  Pease,  86  App.  251. 

—  I"fl7(?f;  .  Testimony    compounded    of    fact    and    opinion,    in 

valuing  the  use  of  property  by  those  acquainted  with  the  kind 

and  its  uses,  is  proper  for  consideration  in  estimating  damages  in 

replevin. 

Butler  vs.  Mehrling,  15  111.  488 ;  Keith  vs.  Edwards,  42  App.  250. 

—  Affidavit  Competent:  An  affidavit  made  by  a  plaintiff  is 
competent  evidence  against  him  in  a  suit  on  the  bond,  and  he  is 
estopped  to  deny  that  the  property  replevied  was  of  less  value 

than  stated  in  his  affidavit. 

Love  vs.  People,  94  App.  237. 
The  value  stated  in  a  replevin  affidavit,  writ  and  bond,  is  prima, 
facie  evidence  of  value  as  against  the  sureties  in  action  on  bond, 
and  is  conclusive  evidence  of  value  if  there  is  no  evidence  in  the 

record  to  contradict  it. 

Martin  vs.  Hertz,  224  111.  84;  Eicbardson  vs.  Gilbert,  135  App.  363. 


REPLICATION 

See  Chancery,  Answers. 

REPORTS 

See  Books,  Foreign  LzVw%  Best  and  Secondary. 


1132  REPRESENTATIVE  CAPACITY 

REPRESENTATIVE  CAPACITY 

Action  by  Administrator: 

—  General  Issue:     The  question  of  the  appointment  of  plaintiff 

as  administrator  is  not  put  in  issue  by  plea  of  general  issue,  so  as 

to  require  proof  of  such  appointment. 

C.  &  A.  E.  E.  Co.  vs.  Smith,  180  111.  453;  Fischer  vs.  Stiefel,  179  111. 
59;  Hughes  vs.  Eector,  161  111.  409;  Tate  vs.  C.  C.  C.  &  St.  L.  E.  E. 
Co.,  147  App.  155;  McKinley  vs.  Braden,  2  111.  64;  XII  111.  Notes 
633,  §494. 

—  Collateral    Attack:     Grant    of    administration    is    conclusive 

and  not  subject  to  attack  in  a  collateral  proceeding. 

Balsewicz  vs.  C.  B.  &  Q.  E.  E.  Co.,  240  111.  238. 

—  Parol:    Parol  evidence  is  not  admissible  to  prove  who  was 

the  administrator  of  an  estate ;  such  fact  being  a  matter  of  record, 

the  best  evidence  thereof  is  the  record  and  it  should  be  produced 

or  accounted  for  according  to  the  rules  of  evidence. 
Williams  vs.  Jar  rot,  6  111.  120, 


REPUTATION 

See    Character,    Libel    and    Slander.    Homicide,    Malicious 
Prosecution,  Impeachment,  Pecuniary  Circumstances. 


RES  ADJUDICATA 

See  Former  Adjudication,  Identity,  Judgments. 

RES  GESTAE 

In  General: 

An  act  or  declaration  can  only  be  considered  as  part  of  the 

res  gestae  when  it  illustrates,  explains  or  interprets  other  parts  of 

the  transaction  of  which  it  is  itself  a  part. 

Chi.  City  Ey.  Co.  vs.  Uhter,  212  111.  174;  Mathes  vs.  Chi.  City  Ey.  Co., 
178  App.  34. 

Declarations,  to  become  part  of  the  res  gestae,  must  have  been 
made  at  the  time  of  the  act  done  which  they  are  supposed  to  char- 
acterize, and  have  been  well  calculated  to  unfold  the  nature  and 
quality  of  the  facts  which  they  were  intended  to  explain  and  so 

harmonize  with  them  as  obviously  to  constitute  one  transaction. 
C.  &  E.  I.  E.  E.  Co.  vs.  Chancellor,  165  111.  438. 

Time  of  Act  or  Declaration: 

—  //(.   General:     That   which  occurs  before  or  after  the  act  is 

done,  may  not  be  part  of  the  res  gestae,  although  the  interval  of 

separation  is  verv  brief. 

Chi.  City  Ey.  Co.  vs.  Uhter,  212  111.  174;  Penn.  Co.  vs.  MeCafFery,  173 
111.  169;  Montague  vs.  People,  141  111.  75;  Leeklider  vs.  Chi.  City 
Ey.  Co.,  142  App.  139;   XII  111.  Notes  485,   §75. 


RES  GESTAE  1133 

And  a  declaration  made  a  minute  or  more  after  the  transaction 

may  be  inadmissible. 

Boyd  vs.  West  Chi.  St.  Ey.  Co.,  112  App.  50. 
There  is  no  inflexible  rule  fixing  the  time  within  which  a  state- 
ment must  be  made  to  make  it  part  of  the  res  gestae.     If  the  state- 
ments are  substantially  concurrent  with  the  act,  and  there  is  no 
time  for  deliberate  fabrication,  they  are  part  of  the  res  gestae. 

E.  St.  L.  Ey.  Co.  vs.  Allen,  54  App.  27;  Muren  C.  &  I.  Co.  vs.  Howell, 
217  111.  190;  C.  &  E.  I.  E.  E.  Co.  vs.  Chancellor,  165  111.  438. 
The  transactions  in  which  the  parties  are  absorbed  may  last 
for  weeks  so  as  to  make  what  is  said  and  done  in  connection  with 

them,  part  of  the  res  gestae. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334. 
The  true  inquiry  is  whether  the  declarations  are  a  verbal  act, 
illustrating,   explaining  or  interpreting  other  parts  of  the  trans- 
action of  which  they  are  themselves  a  part,  or  merely  a  history  of 
a  completed  past  affair.     In  the  one  case,  they  are  competent,  in 

the  other,  thev  are  not. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334;  C.  W.  &  D.  Ey.  Co.  vs. 
Becker,  128  111.  545;  C.  &  E.  I.  E.  E.  Co.  vs.  Chancellor,  165  111. 
438;  Boyd  vs.  Chi.  St.  Ey.  Co.,  112  App.  50;  Svvanson  vs.  Chi.  St. 
Ey.  Co.,  148  App.  135 ;  XII  111.  Notes  485 ;  §  79.  _ 

—  Abortion:  In  prosecution  for  abortion,  declarations  by  de- 
ceased, made  over  a  year  prior  to  her  death,  relative  to  act  of  self- 
abortion,  are  not  admissible  as  part  of  res  gestae. 

Clark  vs.  People,  224  111.  554. 

—  Personal  Injuries  Generally:  Statements  of  injured  person, 
to  be  competent  as  part  of  res  gestae,  must  be  made  at  time  of 

accident. 

C.  VV.  &  D.  Ey.  Co.  vs.  Becker,  128  111.  545 ;  West  Chi.  St.  Ey.  Co.  vs. 
Carr,  170  111.  478;  City  of  Salem  vs.  Webster,  192  111.  369;  Greinke 
vs.  Chi.  City  Ey.  Co.,  234  111.  564 ;  C.  B.  &  Q.  Ey.  Co.  vs.  Johnson, 
36  App.  564. 
Statement  of  pain  and  suffering,  two  or  three  days  after  sup- 
posed accident,  forms  no  part  of  the  res  gestae. 
Globe  Ace.  Ins.  Co.  vs.  Gerish,  163  111.  625. 
Request  by  conductor  of  train  to  boy  standing  near,  to  assist 
him  in  pushing  a  grip  car,  is  admissible  as  part  of  res  gestae,  in 
action  for  injuries  resulting  from  starting  of  car  a  few  minutes 

thereafter. 

Swanson  vs.  Chi.  City  Ey.  Co.,  242  111.  388. 

Testimony  that  bystander  ran  to  plaintiff  and  said  "you  are 
badly  hurt"  is  inadmissible  not  being  part  of  the  res  gestae. 
Mathes  vs.  Chi.  City  Ey.  Co.,  178  App.  34. 
Declarations  of  conductor  in  charge  of  train,  as  to  precautions 
he  had  taken  to  guard  against  danger  of  collision,  and  made  on  eve 
thereof,  are  admissible  as  part  of  the  res  gestae. 
C,  &  E.  E.  E.  Co.  vs.  Holland,  122  111.  461. 
Admitting  statements  of  the  driver  of  a  street  car,  just  after 
the  car  was  stopped,  and  while  plaintiff  was  under  it,  is  support- 
able under  the  doctrine  of  res  gestae. 

Quincy  Ey.  Co.  vs.  Gnuse,  137  111.  264. 
Exclamations  and  complaint  of  pain,  made  morning  after  injury 
are  admissible,  but  not  statements  and  declarations  of  injured. 
W.  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508. 


1134  RES  GESTAE 

The  declarations  of  an  injured  man,  made  hours  after  his  injury, 
as  to  its  cause,  are  not  so  connected  with  tlie  circumstances  and 
the  time  of  the  accident  to  be  part  of  the  res  gestae,  and  are  in- 
competent. 

Globe  Ace.  Ins.  Co.  vs.  Gerish,  163  111.  625. 

A  statement  made  by  injured  person  as  to  manner  in  which  in- 
jury occurred,  made  to  a  man  about  twelve  feet  away  when  the 
injury  occurred,   and  who  ran  to   the   injured   man  immediately 
and  heard  the  statement,  is  admissi))le  as  part  of  res  gestae. 
Muren  C.  &  I.  Co.  vs.  Howell,  217  111.  190. 

Testimony  that  plaintiff  answered  "Yes"  to  a  question  as  to 
whether  she  was  hurt,  asked  by  a  witness  upon  reaching  her,  im- 
mediately after  she  fell,  is  competent  as  part  of  the  res  gestae. 
Springfield  Ey.  Co.  vs.  Hoeffner,  175  111.  634. 

Statements  by  deceased,  made  in  hospital  after  injury  occurred, 

are  not  part  of  res  gestae. 

Sullivan  vs.  Guth  &  Co.,  14S  App.  538. 

A  remark  made  by  a  motorman  to  a  person  who  was  attempting 
to  flag  the  car  in  time  to  prevent  collision  with  a  fire  engine,  which 
collision  occurred  almost  immediately  after  tlie  remark,  is  so  closely 
connected  as  to  be  competent  when  the  person  to  whom  the  remark 
was  made  is  testifying  as  to  his  attempt  to  prevent  the  collision. 
Chi.  City  Ey.'Co.  vs.  McDonnough,  221  111.  69. 

Entry  in  police  record,  of  accident  at  point  near  station,  made 
sometime  after  accident  occurred,  is  not  admissible. 
Penn.  Co.  vs.  McCaffery,  173  111.  169. 

A  declaration  by  a  motorman  running  an  electric  car,  made  while 
the  car  was  still  on  the  body  of  one  it  had  run  down,  that  the 
reason  he  did  not  stop  the  car  was  that  he  could  not  reverse  same, 

is  admissible  as  part  of  res  gestae. 

Springfield  Ry.  Co.  vs.  Welsch,  155  111.  511;  Quincy  By.  Co.  vs.  Gmise, 
137  111.  264. 
Evidence  of  what  a  flagman  did  and  said  at  time  of  accident  is 

competent. 

Penn.  Co.  vs.  Eudel,  100  111.  603. 

A  statement  by  deceased  as  to  manner  in  which  injury  was 

sustained,  made  minute  or  more  after  accident,  is  not  competent 

as  part  of  res  gestae. 

Boyd  vs.  Chi.  St.  Ey.  Co.,  112  App.  50, 

Statements  of  engine  crew,  shortly  after  accident,  part  of  res 

gestae. 

St.  L.  Con.  Ey.  Co.  vs.  Allen,  54  App.  27. 

Statement  by  conductor,  at  moment  of  accident,  admissible  as 

res  Gestae . 

Eeiten  vs.  L.  S.  Elev.  Co.,  85  App.  657, 

—  Mine  Injuries:  The  conversation  between  state  inspector 
and  mine  examiner,  two  hours  after  accident,  as  to  whether  ex- 
aminer had  marked  place  where  accident  occurred,  is  incompetent. 

Belskis  vs.  Bering  Coal  Co.,  246  111.  63. 

Exclamations  and  declarations  of  pain,  made  while  under  debris, 

are  competent. 

Haywood  vs.  Bering  Coal  Co.,  145  App.  506. 

Statements   of   person   injured   in   mine,    to   brother   to   whose 


RES  GESTAE  1135 

house  he  had  been  removed,  after  accident,  do  not  constitute  part 

of  res  gestae. 

Hoover  vs.  Empire  Coal  Co.,  149  App.  258. 

—  Passenger  and  Carrier:  A  statement  made  by  a  companion 
of  one  claiming  to  be  a  passenger,  after  car  had  gone  a  block,  is 
not  part  of  res  gestae,  but  is  competent  only  to  discredit  such  com- 
panion. 

Chi.  U.  Trac.  Co.  vs.  Lowenrosen,  125  App.  197. 

In  action  for  wrongful  ejection  from  a  street  car  for  refusal 

of  plaiutilf  to  pay  cash  fare  upon  rejection  of  transfer  tendered 

by  him,  a  conversation  between  plaintiff  and  conductor  issuing 

transfer,  is  admissible  as  part  of  res  gestae. 

Chi.  U.  Trac.  Co.  vs.  Brethaiier,  125  App.  204.  . 

Conductor's  declarations  as  to  position  of  train  just  before  col- 
lision, admissible  to  show  precautions  used. 

C.  &  E.  I.  Ey.  Co.  vs.  Holland,  122  111.  461. 
Statements  of  motorman,  made  after  accident,  and  at  different 

place,  incompetent. 

Chi.  U.  Trac.  Co.  vs.  Daly,  129  App.  519. 

The  declaration  of  a  person  injured  by  a  railway  train,  as  to 
cause  of  the  injury,  made  after  declarant  was  removed  from  place 
of  injury,  is  not  admissiWe  as  part  of  res  gestae. 

Penn.  Co.  vs.  McCaffery,  173  111.  169 ;  XII  111.  Notes  486,  §  82. 

Statements  by  an  injured  boy,  after  he  had  walked  to  the  side- 
walk and  sat  down,  in  answer  to  a  question  as  to  what  was  the 
matter,  that  the  conductor  threw  him  off  the  car,  are  not  a  part 
of  the  res  ejestae  and  are  incompetent. 
Chi'.  W.  D.  Co.  vs.  Becker,  128  111.  545. 

In  action  against  street  car  company  for  injuries  received  from 
being  struck  by  elbow  of  conductor  while  he  was  scuffling  with 
husband  of  plaintiff  after  dispute  over  transfer,  the  conversation 
and  dispute  between  conductor  and  plainlift"s  husband,  concern- 
ing transfer  are  admissible  as  part  of  res  gestae. 
McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334. 

In  action  against  street  railway  company  for  injuries  due  to 
alleged  negligent  stopping  of  ear,  evidence  that  plaintiff  notified 
conductor  of  her  desire  to  alight  at  a  particular  place,  made  any 
time  after  becoming  a  passenger,  is  admissible. 
Chi.  City  Ey.  Co.  vs.  Bundy,  210  111.  39. 
Statements  made  to  and  by  a  conductor  after  the  accident  are 
not  part  of  the  res  gestae  and  should  not  be  admitted. 
Cowen  vs.  St.  L.  &  S.  Ey.  Co.,  169  App.  236. 

To  be  admissible  in  evidence  as  part  of  the  res  gestae  declarations 
of  a  person  about  to  start  on  a  journey  must  be  contemporaneous 
with  and  explanatory  of  the  act  of  departure.  For  such  declar- 
ations to  be  admissible  in  evidence  they  must  be  made  in  connection 
with  an  act  proven.  The  rule  is  that  the  res  gestae  generally 
remains  with  the  loeus  in  cjuo  and  it  does  not  follow  the  parties 

after  the  principal  act  is  completed. 

C.  &  E.  I.  E.  Co.  vs.  Chancellor,  165  111.  438 ;  Neice  vs.  C.  &  A.  E.  R. 
Co.,  165  App.  627. 
—  Eohhery:     Exclamations    of    prosecuting   witness,    made    at 
time  defendants  were  running  away,  that  he  was  robbed,  in  con- 


1136  RES  GESTAE 

nection  wiih  question  as  to  which  way  they  went,  are  admissible 

as  part  of  the  res  gestae. 

Bow  vs.  People,  160  111.  438. 

—  Forgery:  Evidence  of  different  forgery  by  defendant,  at 
time  of  commission  of  the  one  charged,  is  competent  as  part  of  the 

TBS  QCStdS 

Cross  vs.  People,  47  111.  152 ;  Steele  vs.  People,  45  111.  152, 

—  Domieile:     Declarations  of  a  person,  while  going  to  a  place, 

are  admissible  on  issue  of  domicile. 

Matzenbaugh  vs.  People,  194  111.  108. 

—  At  Delivery  of  Deed:     Declarations  of  grantor,  at  time  of 

making  deed,  admissible. 

Lamb  vs.  Manning,  171  111.  612. 

—  Payment:     Statements  accompanying  payment  are  admissible. 

Eiggs  vs.  Cook,  9  111.  336. 

When  payment  of  note  is  alleged  to  have  been  made  at  particular 

time,  and  in  a  particular  office,  all  that  was  said  and  done  at  the 

time  and  place  is  admissible  as  part  of  the  res  gestae. 

Thorp  vs.  Goeway,  85  111.  611;  McFarland  vs.  Lewis,  3  111.  344. 

—  Suretyship:  If  a  father,  executing  a  note,  signs  his  son's 
name,  and  procures  others  to  become  sureties,  what  he  says  to  the 
sureties  at  the  time  of  their  signing,  as  to  the  son  being  principal 
with  him  is  competent  as  part  of  the  res  gestae,  where  the  son  after- 
wards ratifies  the  execution  of  the  note.  By  such  ratification,  with 
the  knowledge  of  the  facts,  the  son  makes  the  acts  and  declarations 

of  the  father  his  own. 

Paul  vs.  Berry,  78  111.  158. 

—  Sales:     Conversation  during  negotiations  for  a  sale,  relative 

to  what  was  done  during  the  sale,  is  admissible. 
Benedict  vs.  Dakin,  148  App.  301. 
Statements  made  long  after  transaction  incompetent  as  part  of 

res  gestae. 

Frike  vs.  Orr,  109  App.  200. 

—  Book  Entries:  Book  entries  constituting  parts  of  chain  or 
combination  of  transactions  between   the  parties,   are  admissible 

as  part  of  res  gestae. 

C.  &  N.  W.  Ey.  Co.  vs.  Ingersoll,  65  111.  399;   Eeynolds  vs.  Sumner, 
126  111.  58;  Monroe  vs.  Snow,  131  111.  126. 
Book  entries  made  at  time  of  transaction  and  recorded  in  the 
presence  of  the  adverse  party,  are  competent  as  part  of  the  res 

gestae. 

Wiggins  vs.  Wilson,  123  App.  663.  . 

—  Stul)s  of  Check  Book:  Entries  contained  upon  stub  of  check 
book  are  not  part  of  the  7'cs  gestae  in  action  against  estate  to  re- 
cover alleged  indebtedness  claimed  to  have  been  shown  by  such 

entries. 

McKenzie  vs.  Barrett,  148  App.  414. 

—  Execution  of  Instruments:  Declarations  accompanying  ex- 
ecution of  note,  admissible. 

Latham  vs.  Smith,  45  111.  25 ;  Butz  vs.  Schwartz,  32  App.  156. 

Declarations  accompanying  making  of  grant,  admissible. 
Brauer  vs.  Callender,  105  111.  88. 

Declarations  of  mortgagor  competent. 
Bushnell  vs.  Wood,  85  111.  88. 


RES  GESTAE  1137 

Declarations  showing  reason  for  attaching  separate  paper  to 
deed  admissible. 

Lamb  vs.  Manning,  171  111.  612. 

—  Facts  Impressing  on  Witness'  Mind  Facts  Testified  To:  Evi- 
dence of  witness,  of  certain  transactions  which  he  claimed  im- 
pressed certain  alleged  facts  upon  his  mind,  is  not  part  of  the  res 

gestae  and  is  not  competent. 

Beyer  vs.  P.  B.  k  C.  T.  Co.,  156  App.  47. 

—  Malicious    Prosecution:     Defendant    should    be    allowed    to 

prove  all  circumstances  out  of  which  the  prosecution  arose,  and 

the  various  steps,  as  part  of  the  res  gestae. 
Banker  vs.  Ford,  152  App.  12. 

—  Marriage:  Where  a  party  writes  a  letter  referring  to  a  pro- 
posal of  marriage  by  party  addressed,  offering  to  convey  to  him 
certain  property,  acts  and  declarations  of  writer,  prior  to  date  of 
letter,  are  competent  as  part  of  res  gestae,  to  show  writer  con- 
templated marriage. 

Kennedy  vs.  Borah,  157  App.  90. 

Letters  addressed  to  woman,  written  by  husband  after  alleged 

marriage,  found  in  his  possession  and  bearing  his  signature,  are 

competent  as  part  of  the  res  gestae. 
Laurence  vs.  Laurence,  164  111.  367. 

—  Mnrder:  Statements  made  by  either  defendant  or  those 
standing  by,  referring  to  commission  of  the  crime,  made  contemp- 
oraneously with  or  immediately  after  the  same,  in  any  way  con- 
nected with  or  explanatory  of  such  crime,  are  admissible  as  part 

of  the  res  gestae. 

Haines  vs.  People,  138  App.  49. 
What  the  brother  of  deceased  said  when  he  was  disarmed  by 
the  witness,  cannot  be  proven  as  part  of  res  gestae,  where  witness 
has  not  testified  that  deceased  and  brother  were  acting  in  concert, 
and  it  appears  the  brother  was,  at  the  time,  directing  his  efforts 
against  another  man  than  accused. 
Morello  vs.  People,  226  111.  388. 
Declarations  of  deceased,  in  absence  of  defendant,  made  fifteen 
minutes  prior  to  killing,  embodying  threats  by  defendant,  are  in- 
admissible as  part  of  the  res  gestae, 
Montag  vs.  People,  141  111.  75. 
Evidence  of  intoxication  of  accused  at  time  of  commission  of 

crime  is  admissible  as  part  of  res  gestae. 
Eaflferty  vs.  People,  66  111.  118. 
Where  line  of  defense  .justified  the  shooting  of  person  killed  in 
self  defense  of  accused,  in  rebuttal  of  that  theory  it  is  competent 
to  show  the  person  killed  was  not  aggressive,  but,  on  the  contrary, 
acted  on  the  defense,  and  to  that  end,  any  of  the  declarations, 
explanatory  of  accompanying  acts,  w^ould  be  admissible  as  part 

of  res  gestae. 

Wilson  vs.  People,  94  111.  299.     (See  HoMiciDE-i?e5  Gestae.) 

—  Assault  mth  Intent  to  Kill:  The  acts  and  declarations  of 
the  people  surrounding  accused  at  time   of  alleged  assault,   are 

part  of  res  gestae. 

Davids  vs.  People,  192  HI.  176. 

Acts  of  third  person  in  attempting  to  prevent  assault,  and  fact 
Ev.— 72 


1138  RES  GESTAE 

that  defendant  theatened  to  shoot  the  person  interfering,  are  ad- 
missible as  part  of  the  res  gestae. 
Powers  vs.  People,  42  App.  427. 

—  Intoxicating  Liquors:  In  action  by  parent  for  loss  of  sup- 
port by  son,  resulting  from  alleged  improper  sale  of  liquor  to  him 
by  defendant,  evidence  that  defendant  permitted  prostitutes  to 
visit  his  saloon;  and  that  plaintiff's  son  associated  with  them  is 

admissible  as  part  of  the  res  gestae. 

Malioney  vs.  Goldblatt,  16S  App.  563. 

—  Rape:  In  prosecution  for  rape  or  assault  with  intent  to  com- 
mit rape,  it  may  be  proven  by  testimony  of  third  persons  that 
prosecutrix  made  complaint  to  them,  provided  such  complaint 
was  made  as  soon  as  practicable,  and  without  unreasonable  delay. 

Stevens  vs.  People,  158  111.  Ill;  People  vs.  Weston,  23G  ill.  104. 

But  not  where  prosecutrix  does  not  tc3tify. 
People  vs.  Lewis,  252  111.  281. 

Memorandum : 

A  memorandum  and  entries  made  at  or  about  the  time  of  trans- 
action to  which  they  relate,  in  the  regvdar  and  usual  course  of 
business,  and  of  the  employment  and  duties  of  the  person  who 
made  them,  are  admissilile  as  part  of  the  res  gestae. 

Fitzgerald  vs.  Benner,  219  111.  485;  Dreiske  vs.  Jones  &  Adams  Co.,  133 
App.  572;  Lawrence  vs.  Stiles,  16  App.  489;  XII  111.  Notes  485, 
§77. 

Narration: 

To  be  part  of  res  gestae,  declaration,  whether  verbal  or  written, 
must  accompany  the  act  which  is  subject  of  inquiry,  and  explain, 
illustrate,  qualify,  limit  or  characterize  it,  and  must  not  be  nar- 
rative of  past  events,  for  if  it  be  wholly  so,  it  will  be  entirely 
excluded,  and  if  part  of  the  declaration  be  so,  that  part  will  be 
excluded. 

McMahon  vs.  Clii.  City  Cy.  Co.,  239  111.  334;  Belskis  vs.  Dering 
Coal  Co.,  246  111.  63 ;  Qty  of  Chicago  vs.  McKecliney,  205  111.  372. 

A  statement  or  declaration  must  be  so  connected  with  the  trans- 
action they  explain,  as  to  form  one  of  the  characteristics  of  the 
transaction,  or  form  with  it  one  continuous  transaction. 
Lamb  vs.  Coal  Co.,  140  App.  195. 
Recital  of  manner  of  accident,  some  time  after  occurrence  there- 
of, is  not  part  of  the  res  gestae. 

Winn  vs.  Christian  County  Coal  Co.,  156  App.  179. 

In  action  against  street  car  company  and  transfer  company 
for  injury,  a  conversation  between  witness  for  street  car  company 
and  driver  of  cab  collided  with,  after  event  had  fully  transpired, 
in  which  it  is  claimed  the  driver  stated  it  was  all  his  fault,  is  not 
part  of  the  res  gestae,  being  narrative  of  past  transaction, 
Springfield  Con.  Ky.  Co.  vs.  Puntenny,  200  111.  9. 

Statements,  recitals  of  past  events  and  mere  hearsay,  which  do 
not  accompany  the  performing  of  any  act  material  to  the  case, 
are  not  part  of  the  res  gestae. 

Legris  vs.  Marcotte,  129  App.  67. 

Facts  Accompanying  Act: 

Whenever  it  becomes  important  to  show  occurrence  of  any  fact 
or  event,  it  is  competent  and  proper  also  to  show  any  accompany- 


RES  GESTAE  1139 

ing  act,  declaration  or  exclamation  which  relates  to  or  is  explan- 
atory of  such  fact  or  event.  Such  acts,  declarations  or  exclam- 
ations are  known  to  the  law  as  res  gestae. 

Fit^Geraia   vs.   Benner,   219   111.  485;    Kyner  vs.  Boll,   182   111.   171; 
Lauder  vs.  People,   104  111.   248. 
What  a  party  says  in  doing  an  act  or  directing  it  to  be  done 
is  to  be  taken  in  connection  with  the  act  done,  to  explain  it. 
Hurd  vs.  Haggerty,  24  111.   172. 
Declarations  of  one  partner,  in  reference  to  an  entry  upon  the 
books,  open  to  all  partners,  as  to  why  it  was  made,  is  proper  as 

part  of  the  res  gestae. 

Plurd  vs.  Haggerty,  24  111.  172. 

Declarations    accompanying    an    act,    which    show    the    purpose 

thereof,  are  part  of  the  res  gestae. 

Souleyret  vs.  O'Gara  Coal  Co.,  161  App.  60. 
Tn  action  for  forcible  ejection  from  street  car,  testimony  that 
complainant  dropped  her  transfer  on  rear  platform,  and  called  con- 
ductor's attention  to  it  is  competent. 

Chi.   Union   Trac.   Co.   vs.   Mahoney,   230  111.   562. 

Conduct  and  exclamations  of  passengers  at  time  of  accident  are 
competent  as  showing  rashness  and  undue  alarm. 
G.  &  C.  U.  Ey.  Co.  vs.  Fay,  16  111.  558. 

In  action  for  injuries  from  alleged  negligence  in  too  suddenly 

stopping  street  car,  testimony  of  another  passenger  that  the  car 

was  suddenly  stopped,  knocking  everybody  in  the  car  down,  is 

admissible. 

W.  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508. 

In  personal  injury  case,  speed  of  train  and  ringing  of  bell  are 

admissible  as  part  of  the  res  gestae. 

Chi.  G.  T.  Co.  vs.  Kinnare,  76  App.  394. 
Entries  made  by  bank  officers  on  discounting  and  renewing  a 
note  are  admissible  as  part  of  the  res  gestae. 
Eeynolds  vs.  Sumner,  126  111.  58. 
In   action   for   injury   resulting   from   an   explosion,    the   conse- 
quences of  such .  explosion  to  others  is  competent  as  part  of  res 

gestae. 

Hertz  vs.  C.  I.  &  S.  Ey.  Co.,  154  App.  80. 

In  action  for  unlawful  ejection  from  street  car,  all  that  was  said 

and  done  by  conductor  in  making  such  ejection  is  competent  as 

part  of  res  gestae. 

Chi."Un.  Trac.  Co.  vs.  Brethauer,  223  111.  521;  Chi.  Un.  Trac.  Co.  vs. 

McClevey,  126  App.  21. 
And  generally  whatever  took  place  at  the  car  where  the  acci- 
dent occurred,  is  part  of  the  res  gestae  and  properly  admitted  in 

evidence. 

E.  St.  L.  Ey.  Co.  vs.  Burns,  77  App.  529. 

General  conduct  with  the  exclamations  voluntarily  thrown  out 
by  appearances  of  imminent  peril  may  be  regarded  as  part  of  the 

res  gestae. 

G.  &  C.  V.  Ey.  Co.  vs.  Fay,  16  111.  558. 

And  that  of  bystanders  as  to  cause  of  accident. 
Golden  vs.  South  Chi.  St.  Ey.  Co.,  180  App.  244. 
Although  it  may  appear  that  other  persons  than  plaintiff  were 

^^^^  ^    'west  Chi.  St.  Ey.  Co.  vs.  Kennelly,  170  111.  508. 


1140  RES  GESTAE 

Verbal  statements  accompanying  evidential  fact  are  competent 
evidence.  ' 

Benedict  vs.  Dakin,  148  App.  301. 

A  declaration  explanatory  of  an  act,  and  in  connection  with 
such  act,  is  admissible  as  part  of  the  res  gestae. 
Neice  vs.  C.  &  A.  Ey.  Co.,  165  App.  627. 

Statements  of  conductor  and  his  actions  relating  to  transfers 

may  be  admissible  as  part  of  the  res  gestae. 
Chi.  Trac.  Co.  vs.  Mahoney,  230  111.  562. 

On  bill  by  corporation  to  restrain  disclosure  of  formula,  state- 
ments of  discoverer  of  formula,  concerning  his  work  and  investi- 
gations then  in  progress,  or  cases  under  treatment,  are  competent. 
Keeley  Co.  vs.  Hargreaves,  236  111.  316. 

Spontaneous  Expressions : 

Declarations,  to  be  part  of  res  gestae,  must  be  spontaneous  and 

not  statements  Avhich  are  deliberate  and  prepared  for  a  purpose. 
P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Chicago,  144  App.  293. 

In  action  to  recover  for  damages  by  mob  violence,  dispatch  from 

mayor  to  governor,  describing  conditions  and  asking  for  troops, 

prepared  by  legal  department  of  city,  is  incompetent. 
P.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Chicago,  144  App.  293. 

Self  Serving  Statements: 

Self  serving  statements  are  admissible  when  part  of  the  res 
gestae. 

Bindley  Co.  vs.  Watson,  151  App.  123. 
Statements  merely  self-serving  and  hearsay  are  not  part  of  the 
res  gestae. 

Mahon  vs.  Schroeder,  142  App.  538. 
Letters  written  by  insured,  to  agent  of  company,  when  self-serv- 
ing, are  incompetent. 

Helbig  vs.  Citizens  Ins.  Co.,  234  111.  256. 

Declarations  of  Agent: 

Where  a  person,  with  authority,  acts  for  another  in  the  trans- 
action of  certain  business,  what  he  may  have  said  respecting  the 
subject  matter  of  such  business,  is  admissible  against  such  prin- 
cipal, as  a  verbal  act,  and  as  part  of  the  res  gestae. 

Prussian  Ins.  Co.  vs.  Empire  Co.,  113  App.  67;  Summers  vs.  H.  S.  B. 
Co.,  50  App.  381;  Prickett  vs.  Madison  Co.,  14  App.  454;  XII  111. 
Notes  486,  §  80. 

To  make  declarations  of  an  agent  admissible  so  as  to  bind  a  prin- 
cipal, it  is  essential  that,  at  the  very  time  of  making  such  decla- 
rations, such  agent  be  transacting  business  of  the  principal,  so  that 

the  statements  of  the  agent  become  part  of  the  res  gestae. 

Lowden  vs.  Wilson,  233  111.  340;  Matyenbaugh  vs.  People,  194  111. 
108;  Summers  vs.  Hibbard  &  Co.,  153  111.  102;  Prussian  Ins.  Co. 
vs.  Empire  Co.,  113  App.  67 ;  Young  vs.  Grand  Lodge,  149  App.  603. 

Statements  made  by  agent,  while  conducting  the  affairs  of  his 
principal  and  relating  to  transaction  then  depending,  are  admiss- 
ible as  part  of  the  res  gestae. 

Hoffman  vs.  Chi.  T.  &  T.  Co..  198  111.  452;   Maher  vs.  Chicago,  38 
111.  266;  D.  &  H.  Canal  Co.  vs.  Mitchell,  92  App.  577. 
But  admissions  of  agent,  made  long  after  transaction  in  question, 


RESIDENCE  1141 

in  answer  to  question  not  in  usual  course  of  business,  are  not  com- 
petent against  his  principal. 

Andolman  vs.  C.  &  N.  W.  Ry.  Co.,  153  App.  169;   M.  C.  Ey.  Co.  vs. 
Cougar,  55  111.  503. 

By-standers : 

Declarations  of  by-standers  may,  where  spontaneous  expressions, 

regard  being  had  to  circumstances,  be  admissible  as  part  of  the  res 

gestae. 

Davids  vs.   People,   192   111.   176;    Haines  vs.   People,   138   App.   49; 
Golden  vs.  S.  Chi.  St.  Ey.  Co.,  180  App.  244. 

Statements  of  Employees : 

Statements  of  conductor  who  issued  transfer,  in  reference  to 

transfer  privileges,  are  admissible. 

Chi.  U.  Trac.  Co.  vs.  Brethauer,  223  111.  521. 

In  action  against  carrier  for  injury  to  horses  in  shipment,  con- 
versation between  engineer  and  conductor  of  train,  out  of  presence 

of  plaintiff,  does  not  constitute  part  of  res  gestae. 
Stewart  vs.  Vandalia  E.  E.  Co.,  103  App.  652. 

Admissions  by  conductor  of  train,  made  after  accident  occurred, 

are  inadmissible. 

Gould  vs.  A.  E.  &  C.  Ey.  Co.,  141  App.  344;   C.  &  A.  E.  R  Co.  vs. 
Fietsain,  19  App.  55;  H,  &  St.  L.  Ey.  Co.  vs.  Martin,  11  App.  386. 

Declarations  made  at  time  of  accident  are  admissible. 

Muren  Coal  Co.  vs.  Howell,  217  111.  190;  Springfield  Con.  Ey.  Co.  vs. 
Hoeflfner,  175  111.  634;  E.  St,  L.  Ey.  Co.  vs.  Allen,  54  App.  27, 
In  action  for  negligence  of  servant  in  placing  order  of  com, 
delivered  to  plaintiff,  in  such  a  position  as  to  allow  a  horse  of 
plaintiff  to  eat  same,  causing  death,  a  conversation  between  plain- 
tiff and  servant,  relating  to  negligence  of  servant  in  placing  corn 
contrary  to  plaintiff's  direction,  does  not  constitute  part  of  res 

gestae. 

Davis  vs.  Gwinn,  162  App.  72. 


RESIDENCE 

See  Citizenship,  Domicile,  Contested  Elections. 
Inhabitant  Defined: 

An  inhabitant  is  one  who  lives  in  a  place,  and  has  there  a  fixed 

bona  fide  residence;  the  term  is  to  be  distinguished  from  the  term 

"citizen";  one  may  be  at  the  same  time  a  citizen  of  one  country 

and  an  inhabitant  of  another. 

Spragins  vs.  Houghton,  3  111.  377. 

Corporations : 

The  residence  of  a  corporation  must  be  considered  to  be  in  the 
state  by  whose  laws  it  was  created  and  where  it  has  its  principal 

office  or  place  of  business. 

S.  &  M.  Ey.  Co.  vs.  Morgan  Co.,  14  111.  162;  Hubbard  vs.  U.  S.  Mort- 
gage Co.,  14  App.  40 ;  XI  111.  Notes  1056,  §  67. 
Whether  a  corporation  is  a  foreign  corporation  depends  upon  the 

place  of  its  organization. 

Iroquois  Furnace  Co.  vs.  Wilkins  Co.,  77  App.  59. 

The  mere  fact  that  a  foreign  corporation  is  licensed  to  do  busi- 


1142  RESIDENCE 

ness  in  this  slate  does  not  make  it  a  eitizen  of  this  state  or  a  corpo- 
ration of  this  state. 

Sprague  vs.  Voting  Maeh.  Co.,  134  App.  379. 

The  introduction  of  evidence  in  assumpsit  of  a  written  contract 
between  plaintiff  and  defendant,  reciting  that  defendant  was  a 
"company  registered  in  England  under  the  Companies'  act,"  tends 
to  show  defendant's  non-residence. 

A.-W.  Oil  Fields  vs.  Miller,  21G  111.  272. 

The  residence  of  a  corporation  for  purpose  of  suit  against  it  is 
where,  by  authority,  it  exercises  its  coi'ijorate  functions. 

(J.  &  D.  W.  By.  Co.  vs.  Bank  of  N.  A.,  82  ill.  493;  Bristol  vs.  C.  & 
A.  Ey.  Co.,  15  ill.  436;  Penn.  Co.  vs.  Sloan,  1  App.  3G4;  Eoche  vs. 
E.  I.  Ins.  Co.,  2  App.  3GU;  Lancashire  ins.  Co.  vs.  Corbett,  62 
App.  236. 

A  foreign  corporation  is  not  a  person  within  the  jurisdiction  of 

the  state  until  it  has  complied  with  the  laws  of  such  state. 
Estate  of  Speed,  216  111.  23. 

A  corporation  doing  business  in  this  state  is  a  resident  of  this 

state  for  purpose  of  remedy  for  debt  wherever  the  contract  was 

made. 

;,,  .  Wabash  E.  E.  Co.  vs.  Duggan,  142  111.  248. 

Proof  of  a  foreign  statute  under  which  plaintiff  corporation  was 
organized,  together  with  proof  of  certiticate  of  incorporation  issued 
in  pursuance  thereof,  is  sufficient  to  establish  plaintiff's  existence 
as  a  corporation  de  facto. 

Coziens  vs.  Chi.  Brick  Co.,  166  111.  213;  Dean  &  Son  vs.  W.  B.  Conkey, 
180  App.  162. 

A  certificate  of  Secretary  of  the  state  in  which  a  corporation  is 
organized,  and  a  copy  of  the  original  record  in  his  office,  properly 
certified,  with  evidence  showing  that  it  assumed  to  act  as  a  corpo- 
ration and  do  business  in  its  corporate  capacity,  make  a  prima  facie 
case  of  the  existence  of  a  de  facto  corporation. 

Concord  Apart.  House  Co.  vs.  Alaska  l^ef.  Co.,  78  App.  682. 

Under  plea  of  nul  tiel  corporation,  the  burden  of  proving  corpo- 
rate existence  is  upon  plaintiff,  and  proof  of  its  existence  as  a  cor- 
poration de  facto  is  sufficient. 

Coizens  vs.  Chi.  Brick  Co.,  166  111.  213;  Concord  Apart.  House  Co.  vs. 
Alaska  Eef.  Co.,  78  App.  682. 

Attachment : 

Teinporary  journey  to  another  state  with  no  intention  of  avoid- 
ing process  or  changing  residence,  no  ground  for. 
Boggs  vs.  Bindskoff,  23  111.  65. 

Residence  consists  of  action  and  intention,  and  latter  may  be 

proved  by  party's  own  statement. 

Wells  vs.  Parrott,  43  App.  656;  XII  111.  Notes  181,  §  1. 

Declarations  by  defendant's  wife,  in  his  absence,  held  insufficient 

to  show  intent  to  leave  state. 

Jaycox  vs.  Wing,  GO  111.   182. 

"Whether  a  person  who  moves  from  another  state  to  this  gains  a 
residence  in  this  state,  within  the  meaning  of  our  attachment  law, 
is  a  question  of  intention  dedueible  from  facts  and  circumstances. 
Wells  vs.  People,  44  111.  40. 

The  non-residence  of  a  defendant  in  attachment  proceeding  is 
sufficiently  shown  where  it  is  proven  that  he  left  the  state  to  avoid 


RESIDENCE  1143 

the  service  of  process  in  a  divorce  proceeding,  and  took  up  his 
residence  in  another  state,  "intending  to  remain  there  indefinitely. 
Witbeck  vs.  Marshall  Co.,  1S8  111.  154. 

Absence  from  the  state,  with  a  fixed  abode  in  another  place,  with 
the  intention  of  remaining  permanently  away,  at  least  for  a  time, 
for  business  or  other  purposes,  will  constitute  a  non-residence  with, 
in  the  meaning  of  the  attachment  act,  even  if  there  is  an  inten- 
tion to  return  at  the  expiration  of  the  sojourn  in  the  foreign  state; 
but  a  casual  or  transitory  absence  from  the  state  will  not  con- 
stitute such  a  non-residence. 

The  absence  must  be  so  protracted  as  to  amount  to  the  preven- 
tion of  legal  remedies  by  ordinary  process;  and  in  determining 
whether  one  has  ceased  to  be  a  resident,  it  is  important  to  know 
whether  the  purpose  of  his  absence  is  such  as  to  admit  the  acqui- 
sition of  residence  elsewhere. 

Something  more  than  the  transient  visit  of  a  person  for  a  time 
at  a  place  is  necessary  to  make  him  a  resident ;  there  must  be  a  set- 
tled fixed  abode ;  and  intention  to  remain  permanently,  at  least 
for  a  time,  for  business  or  other  purposes,  is  required  to  constitute 
a  residence  within  the  legal  meaning  of  the  term. 

A  domicile  of  a  citizen  may  be  in  one  state  or  territory  and  his 

actual  residence  in  another. 

Jenks  vs.  Rounds,  87  App.  284, 

Must  be  proved  as  of  date  of  issue  of  writ. 
Wittbeek  vs.  Marshall  Co.,  188  111.  154. 

■   Is  question  of  fact  to  be  determined  by  jury. 
•■^^  Wittbeek  vs.  Marshall  Co.,  188  111.  154. 

In  Divorce  Proceedings: 

Although  the  word  residence  is  not  the  same  in  meaning  ^^ith 
the  word  "domicile,"  a  residence  being  more  transient  in  its  nature, 
yet,  ivithin  the  meaning  of  the  divorce  act,  there  must  be  some  in- 
tent of  permanent  business  or  stay.  It  cannot  be  acquired  by  going 
to  a  place  with  the  purpose  of  returning  immediately,  or  by  a  visit 
to  this  state  to  bring  suit  while  the  party's  domicile  and  business 

is  in  another  state. 

Way  vs.  Way,  64  111.  406. 

A  husband  came  to  this  state  a  little  more- than  two  years  before 

the  filing  of  his  bill  against  his  wife  for  divorce,  as  he  testified, 

with  the  intention  of  becoming  a  resident,  and  that  such  had  been 

his  intentions  ever  since.     During  a  part  of  that  time,  he  was 

absent  on  visits  to  his  former  home,  and  he  testified,  and  was  not 

contradicted,  that  such  visits  were  for  temporary  purposes,  and  his 

residence  during  the  whole  time  was  in  this  state :     Held,  tliat  his 

testimony  was  sufficient  to  make  out  a  prima  facie  case  of  residence 

in  this  state. 

Albee  vs.  Albee,  141  HI.  550. 

The  residence  of  one's  origin  is  not  lost  by  reason  of  special  duties 
out  of  the  state  in  the  naval  service,  during  a  portion  of  the  neces- 
sary time,  even  though  during  part  of  that  time  the  petitioner  kept 

house  with  his  wife  in  another  state. 

Knowleton  vs.  Knowleton,  155  111.  158. 

"Where  complainant  has  resided  in  the  state  the  required  time, 


1144  RESIDENCE 

but  moves  to  another  county  just  prior  to  bringing  the  suit,  legal 
residence  there  for  jurisdictional  purposes  depends  upon  good 
faith  m  going  and  intention  to  reside  there  permanently,  and  not 
upon  the  length  of  residence  at  new  home,  and  complainant  may 
testify  directly. 

Hill   vs.    Hill,    166   HI.    54;    Way   vs.   "Way,   64   HI.   406;    Derby   vs. 

Derby,  14  App.  645. 

Where  offense  was  committed  in  this  state,  and  bill  is  filed  in 

county  in  which  complainant  lives,  jurisdiction  to  grant  divorce 

exists  though  complainant  may  not  liave  resided  iu  state  for  one 

whole  year  next  preceding  filing  of  bill. 

Dings  vs.  Dings,  123  App.  318. 
But  the  proceeding  must  be  had  in  county  in  which  complainant 
resides;  the  statute  expressly  so  provides,  and  its  language  is  im- 
perative and  cannot  be  evaded. 

Spangler  vs.  Spangler,  19  App.  28 ;  Davis  vs.  Davis,  30  111.  180. 

The  residence  of  the  wife,  for  purpose  of  maintaining  suit  for 
divorce,  is  not  necessarily  that  of  her  husband. 
Hill  vs.  Hill,  166  111.  54. 

"Where  there  is  a  permanent  separation  between  husband  and 

wife,  residence  of  wife  does  not  follow  the  husband,  and  she  may 

acquire  a  residence  in  a  state  other  than  that  of  her  husband,  if 

the  change  is  made  in  good  faith,  and  not  for  purpose  of  procuring 

a  divorce. 

Chapman  vs.  Chapman,  129  111.  386. 

"Whenever  facts  occur  entitling  a  wife  to  a  divorce,  she  has  a  right 
to  acquire  a  new  domicile,  separate  from  her  husband.  Acquisi- 
tion is  determined  by  permanency  as  in  other  cases. 

Derby  vs.  Derby,  14  App.  645 ;  Lazovert  vs.  Lazovert,  14  App.  653. 

A  married  woman  may  be  a  resident  of  this  state  though  she  has 
no  domicile  here,  and  if  while  she  is  such  resident,  the  offense  which 
supplies  the  ground  of  divorce  is  committed,  thereafter  her  resi- 
dence becomes  her  separate  and  legal  domicile. 
Bowman  vs.  Bowman,  24  App.  165. 

Residence  by  complainant  for  less  than  one  year  will  not  author- 
ize proof  of  cruelty  or  desertion  in  another  state,  in  order  to  obtain 

a  divorce. 

People  vs.  Beattie,  137  HI.  553. 

Averment  in  answer  that  "it  is  true  complainant  and  defend- 
ant are  and  have  been  actual  residents  of  the  state  of  Illinois  for 
more  than  one  year  last  past,"  not  an  admission  of  one  year's 

residence,  where  answer  not  filed  same  date  as  bill. 
Bechlenburg  vs.  Bechlenburg,  232  111.  120. 

Where  complainant  having  sufficient  residence  files  bill  against 

defendant,  who  has  not  such,  defendant  may  file  cross  bill  praying 

divorce. 

Sterl  vs.   Sterl,   2  App.  223. 

In  suit  for  separate  maintenance,  sheriff's  return  of  summons 

sufficiently  establishes  residence  of  defendant. 
Raab  vs.  Raab,  150  App.  554. 

For  Purpose  of  Taxation: 

A  ''residence"  in  Illinois,  contemplated  by  Inheritance  Tax  act 
is  synonymous  with  "domicile"  or  "abode. 


5  J 


RESIDENCE  1145 

A  residence,  once  established,  is  presumed  to  continue,  and  one 
alleging  that  a  change  has  taken  place,  has  burden  of  proof. 

Declarations,  while  admissible  on  question  of  change  of  residence, 
are  entitled  to  but  little  weight  when  inconsistent  with  acts  of 
party  making  them. 

To  bring  about  a  change  of  residence,  there  must  not  only  be 
an  intent  to  make  the  change,  but  same  must  actually  be  effected 
by  abandoning  the  old  residence  and  permanently  locating  in  a  new 
one. 

One  who  has  decided  to  move  from  Illinois  to  the  home  of  his 
daughter  in  another  state,  as  soon  as  his  business  is  settled,  but  in 
the  meantime,  is  taken  ill,  and  is  taken  by  his  daughter  to  her 
home  for  medical  treatment  and  care,  where  he  dies  within  a  short 
time,  will  be  deemed  a  resident  of  Illinois  at  time  of  his  death, 
within  meaning  of  Inheritance  Tax  act,  where  it  appears  such 
change  was  not  expected  to  be  permanent,  everything  being  left 

undisturbed  in  the  old  home. 

People  vs.  Estate  ol  Moir,  207  111.  180;  Holt  vs.  Hendee,  248  111. 
288;  XIV  111.  Notes  778,  §681. 
That  the  owner  of  credits,  who  resides  in  another  state,  has  an 
agent  in  Illinois  who  receives  applications  for  loans,  and  to  trans- 
act other  business,  and  the  owner  comes  to  Illinois  once  a  month, 
but  only  temporarily  to  transact  business  with  reference  to  such 
credits,  does  not  constitute  him  a  resident  of  Illinois,  and  in  absence 
of  proof  tliat  the  documents  evidencing  such  credits  were  actually 
in  Illinois,  there  is  no  ground  for  separating  the  taxable  situs  from 

the  domicile  of  the  creditor. 

Heyward  vs.  Board  of  Review,  189  111.  234. 

Whether  going  from  one  state  to  another  effects  a  change  of 

domicile,  is  largely  a  matter  of  intent,  and  any  declarations  of  the 

party,  so  connected  with  the  act  of  going  that  they  characterize  the 

act,  are  admissible  as  evidence  tending  to  establish  the  intent  of 

the  party. 

Matzenbaugh  vs.  People,  194  111.  108. 

That  a  person  voluntarily  submits  to  be  taxed  in  another  district 

is  competent  on  question  of  residence. 

Ilelle  vs.  Deerfield  Township,  96  App.  642. 

For  Purpose  of  Administration: 

One  having  a  permanent  abode  in  a  foreign  state  who  comes  to 
Illinois  for  temporary  purposes,  intending  to  return  to  his  fixed 

abode,  is  not  a  resident  of  Illinois. 

Petition  of  Mulford,  217  111.  242. 
In  strict  legal  sense,  the  domicile  of  a  person  is  where  he  has 
his  true,  fixed,  permanent  home,  and  principal  establishment,  and 
to  which,  whenever  he  is  absent,  he  has  the  intention  of  returning. 
Actual  residence  is  not  indispensable  to  retain  a  domicile  after  it 
has  once  been  acquired,  but  is  retained  by  mere  intention  not  to 

change  it  and  adopt  another. 

Hays  vs.  Hays,  74  111.  312;  Holt  vs.  Hendee,  248  HI.  288. 

As  to  Statute  of  Limitations: 

It  is  not  necessary  that  there  should  be  the  actual  change  of  a 
party's  domicile  in  the  strict  legal  sense  of  the  word, — that  is,  an 


1146  RESISTANCE  TO  OFFICERS 

abandonment  of  his  domicile  in  this  state  and  the  acquiring  of  a 

domicile  elsewhere, — to  bring  him  within  the  meaning  of  our  Statute 

of  Limitations,  but  he  must  have  acquired  a  fixed  and  permanent 

abode  at  a  different  place  out  of  this  state,  at  least,  for  the  time 

being. 

relz  vs.  Schuell,  130  111.  379;  McClure  vs.  Putnam,  142  App.  497. 

As  Affecting  Descent : 

Where  an  ante-nuptial  contract  was  made  between  parties  in  a 

foreign  country,  in  regard  to  the  property  to  be  acquired  during 

marriage,  and  it  appears  the  contract  contemplated  no  change  of 

domicile,  but  was  to  be  performed  in  the  place  where  made,  it  does 

not  affect  the  real  estate  acquired  in  this  country  by  the  husband, 

after  their  emigration. 

Besse  vs.  Pelloc-houx,  73  111.  285;  Long  vs.  Hess,  154  111.  482. 

The  fact  that  adopted  children  were  infants  at  time  of  emigra- 
tion of  parents,  incapable  of  assenting  to  a  change  of  domicile,  or 
of  waiving  rights,  does  not  att'ect  their  status  as  to  the  real  prop- 
erty acquired  in  the  new  domicile  by  the  parents  adopting  them, 
the  law  of  the  new  domicile  being  effective  to  control  the  dis- 
tribution. 

Long  vs.  Hess,  154  111.  482 ;  Besse  vs.  Pellochonx,  73  111.  285. 

The  statute  relating  to  descent,  so  far  as  it  attempts  to  change 
the  common  law  rule  whereby  personal  property  follows  the  per- 
son of  its  owner,  and  its  distrilmtion  pursuant  to  the  law  of  his 
domicile,  applies  only  to  property  "in  this  state."  Debts  have  no 
fixed  situs,  and  hence  are  governed  by  the  common  law.  They 
must  still  accompany  and  remain  with  the  owner.  The  possession 
of  evidence  of  indebtedness  of  a  non-resident  for  the  purpose  of 
safe-keeping,  at  the  time  of  his  death,  does  not  pass  the  title,  and 
they  are  governed  by  law  of  owner's  domicile  on  his  death. 

Cooper  vs.  Beers,  143  111.  25;  Carpenter  vs.  Conim.  Trust  Co.,  161  App. 
398. 

The  domicile  of  the  wife  is  that  of  the  husband,  and  will  remain, 
not  only  until  it  has  been  abandoned,  but  also  until  a  new  domicile 
is  acquired  by  actual  residence  within  another  jurisdiction,  coupled 
v.dth  the  intention  of  making  the  last  acquired  residence  a  per- 
manent home,  and  personal  estate  will  be  distributed  according 

to  the  law  of  the  domicile  of  the  decedent. 
Cooper  vs.  Beers,  143  111.  25. 

Parties  to  Suit: 

In  absence  of  any  showing  to  the  contrary,  it  will  be  presumed 
that  the  plaintiff'  resided  in  the  county  where  suit  was  brought. 
Traders  Ins.  Co.  vs.  Humphrey,  1U9  App.  24G. 

RESISTANCE  TO  OFFICERS 

In  Executing  Process : 

To  constitute  the  offense,  the  officer  or  person  must  be  authorized 
to  execute  process  and  the  process  legal  which  must  be  alleged  in 
the  indictment  and  proved  on  the  trial.  Jurisdiction  and  author- 
ity to  issue  must  be  shown  and  officer,  at  the  time  and  place,  be 
authorized  in  law  to  serve  or  execute  same. 


RESTRAINT  OF  TRADE  1147 

To  prove  accused  guilty,  the  process  must  appear  on  its  face 
to  be  a  lawful  process,  which  niiyht  be  lawfully  executed  at  such 
time  and  place;  that  officer  resisted  was  authorized  to  execute  it 
and  that  accused  obstructed,  resisted  or  opposed  the  officer  in 
executing  or  attempting  to  execute  same. 

Bowers  vs.  People,  17  111.  372;  XIII  111.  Notes  1012,  §  1, 

Mode   of  obstruction  need  not  be  averred ;   it  is  a  matter  of 

evidence. 

McQuaid  vs.  People,  S  111.  7n. 

Defendant  may  show  ownership  of  property. 
Smith  vs.  People,  99  111.  445. 


RESISTING  ARREST 

Circumstance  Tending  to  Prove  Guilt : 

That  the  accused  resisted  arrest  may  be  shown  in  the  first  in- 
stance, the  burden  being  upon  the  accused  to  show  that  such  re- 
sistance was  not  for  the  purpose  of  avoiding  arrest  and  prosecution 

for  the  charge  on  which  he  was  being  tried. 

McKeavitt  vs.  People,  208  111.  4(30. 


RESTRAINT  OF  TRADE 

Contracts — Validity : 

—  Applying  to  Whole  State:  A  contract  in  restraint  of  trade 
may  be  good  which  embraces  within  reasonable  limits,  parts  of 
different  states,  but  a  contract  which  applies  to  the  whole  state  is 

void  and  cannot  be  enforced.  v 

Union   Strawboard  Co.  vs.  Bonfield,   193  111.  420;   Lanzit  vs.   Sefton 
Mfg.   Co.,   184  111.   326;    Hursen  vs.   Gavin,   162   111.   377;   XI   111. 
Notes  982,  §  149. 
A  contract  not  to  manufacture  a  product  within  a  certain  spec- 
ified territory,  within  which,  only,  it  can  be  manufactured  success- 
fully, is  an  agreement  in  total  or  general  restraint  of  trade  and 

void. 

Harding  vs.  Anier.  Glucose  Co.,  182  111.  .5.51. 

—  Partial  Restraint:  Contracts  in  total  restraint  are  void  for 
the  reason  that  they  are  injurious  to  the  public,  depriving  it  of  the 
industry  of  the  party  restrained,  and  also  because  of  the  injury 
to  the  party  himself  by  being  deprived  of  the  opportunity  to  pur- 
sue his  avocation  for  the  support  of  himself  and  family ;  but  a 
contract  which  is  only  in  partial  restraint  of  trade  and  is  reason- 
able in  its  provisions  as  to  time  and  place,  and  supported  by  a 
sufficient  consideration,  is  valid,  and  the  restraint  is  held  to  be 
reasonable  whenever  it  is  such,  only,  as  affords  a  fair  protection 

to  the  interests  of  the  one  in  whose  favor  it  is  made. 

Andrews  vs.  Kingsbury,  212  111.  97;   Linn  vs.  Sigsbee,  67  111.   75. 

Damag'es : 

Opinions  of  experts  incompetent  as  to  amount  of  damages  suf- 
fered by  plaintiff  by  breach  of  contract. 
Linn  vs.  Sigsbee,  67  111.  75. 


1148  RESULTING  TRUST 

So,  in  an  action  to  enjoin  breach  of  contract  not  to  engage  in 
the  newspaper  business  in  a  certain  city  in  any  capacity  for  a 
certain  period,  proof  that  the  newspaper  defendant  proposed  to 
manage  occupied  a  different  field  from  complainant's  paper  is  not 
material  and  is  properly  excluded. 

Andrews  vs.  Kingsbury,  212  111.  97. 


RESULTING  TRUST 

See  Trusts. 

REVENUE  STAMPS 

See  Stamp  Act. 

REWARDS 

Burden  of  Proof: 

To  entitle  a  person  to  reward,  he  must  show  a  rendition  of  the 

services  required  after  knowledge  of  and  with  a  view  to  obtaining 

the  reward. 

C.  &  A.  Ry.  Co.  vs.  Sebring,  16  App.  181 ;  XIV  111.  Notes  375,  §  2. 

A  person  claiming  a  reward  for  obtaining  information  concern- 
ing the  identity  of  a  thief  must  show  that  he  was  the  first  to  give 
the  desired  information,  for  if  he  w^ere  not  the  first  to  gain  and 
impart  the  information,  he  cannot  recover. 
Higgins  vs.  Lessig,  49  App.  459. 

Knowledge  of  Reward: 

A  reward  cannot  be  recovered  unless  the  claimant  knew  at  the 
time  of  the  performance  of  his  services  that  the  reward  had  been 
offered  and  in  consideration  thereof  and  with  a  view  to  earning 

the  same,  rendered  the  services  specified  in  the  offer.    

Williams  vs.  W.  Chi.  St.  Ey.  Co.,  191  111.  610;   Ensminger  vs. 'Horn, 
70  App.  605. 

The  Promise: 

Where  a  circular  is  issued  with  the  knowledge  and  approval  of 

a  bank,  for  the  arrest  of  a  thief,  evidence  of  such  facts  is  sufficient 

to  show  a  promise  by  the  bank. 

Bank  of  Minneapolis  vs.  Griffin,  66  App.  577;  First  National  Bank 
vs.  Hart,  55  111.  62. 

Notice  of  Acceptance: 

The  rule  as  to  the  payment  of  an  offered  reward  is  based  on 
the  principles  applicable  to  contracts;  it  being  universally  held 
that  if  one  having  knowledge  of  an  offered  reward  does  that  for 
which  the  offer  is  made,  by  such  performance  there  is  a  meeting  of 
minds  and  a  contract  made. 

In  the  case  of  an  offered  reward  for  the  doing  of  a  certain  thing, 
the  act  of  one  who,  knowing  of  this,   performs  the   conditions, 


REWARDS  1149 

creates  a  contract ;  the  performance  constitutes  both  acceptance 

and  fulfillment. 

Van  Vlissingen  vs.  Manning,  105  App.  255. 

Where  a  person,  on  the  faith  of  a  promise  of  reward  made  at  a 
public  meeting,  expends  money  in  the  accomplishment  of  the 
object  sought  to  be  attained,  it  is  not  necessary  that  he  should  give 
promissor  notice  that  he  has  done  so  to  entitle  him  to  maintain  an 
action  upon  the  promise. 

Wilson  vs.  McClure,  50  111.  366. 

Performance  by  Plaintiff: 

Where  one  employs  another  to  pursue  and  capture  a  horse-thief 
and  pays  the  expenses,  he  will  be  entitled  to  the  reward  offered 
for  the  apprehension  and  conviction  of  such  thief. 
County  of  Montgomery  vs.  Eobinson,  85  111.  174. 

Claimant  who  procures  the  arrest  of  a  party  for  whom  a  reward 
is  offered  is  entitled  to  the  reward,  notwithstanding  formal  arrest 
is  made  by  another. 

Swanton  vs.  Ost,  74  App.  281;  First  Katl.  Bank  vs.  Hart,  55  111.  62. 

Defenses : 

Defendant  may  show  that  the  information  given  him  and  for 
which  the  recovery  was  claimed  was  in  his  possession  and  was  not 
new  to  him. 

Higgins  vs.  Lessig,  49  App.  459;  Williams  vs.  W.  Chi.  St.  Ey.  Co., 
191  111.  610. 

If  reward  is  for  apprehension,  arrest  and  conviction  of  a  crim- 
inal, each  must  be  shown.  The  oft'er  is  an  entirety  and  cannot  be 
apportioned.    Plaintiff  must  recover  for  all  or  none. 

Williams  vs.  W.  Chi.  St.  Ey.  Co.,  191  111.  610;   Ilogan  vs.  Stophlet, 
179  111.  150. 

Where  a  sum  of  money  is  claimed  by  different  persons,  the  fact 
that  one  of  them  sues  for  and  recovers  the  amount  does  not  consti- 
tute a  bar  to  the  action  of  the  others  for  the  same. 

Swanton  vs.  Ost,  74  App.  281. 

Where  several  persons  associate  for  the  purpose  of  tracing  a  crim- 
inal and  finally  find  him,  after  an  expenditure  of  some  time  and 
money,  and  then  employ  a  local  officer  to  make  the  arrest,  the  officer 
is  not  entitled  to  the  whole  reward  merely  because  he  has  made  the 
actual  seizure. 

It  will  make  no  difference  that  such  persons  do  not  disclose  to 
the  officer  the  real  name  of  the  criminal,  nor  that  they  mistake  the 
offense  for  which  he  is  charged,  and  this  with  the  purpose  of  keep- 
ing the  whole  of  the  reward  to  themselves;  they  are  under  no 
obligations  to  disclose  to  the  officer. 
INIahoney  vs.  Whyte,  49  App.  97. 

Who  May  Receive: 

If  railroad  company  makes  no  restrictions  in  offer,  an  employe 

is  not  excluded. 

C.  &  A.  Ey.  Co.  vs.  Sebring,  16  App.  181;  S.  C,  19  App.  222. 

There  is  nothing  in  the  position  that  a  person  holds  with  a  rail- 
road company  to  look  after  crimes  and  matters  connected  civilly 
and  criminally  with  the  company,  which  makes  it  against  public 

policy  for  him  to  recover  a  rew^ard  for  the  arrest  of  a  criminal. 
Bank  of  Minneapolis  vs.  Griffln,  66  App.  577. 


1150  EIPARIAN  RIGHTS 

Sheriff  cannot  recover  reward  for  appehension  of  criminal  in 

his  own  county. 

Hogan  vs.  Stoplilet,  179  111.  150. 
Where  the  consideration  for  a  reward  for  the  recovery  of  money 
is  that  a  person  shall  testify  in  behalf  of  the  person  offering  it, 
the  contract  is  illegal  and  void  as  against  public  policy. 
Boehmer  vs.  Foval,  55  App.  71. 
A  bank  director  cannot  take  a  reward  offered  for  the  detection 
of  a  robber  of  the  bank  and  the  recovery  of  the  money  stolen; 
his  position  is  that  of  a  trustee,  and  he  is  bound  to  act  in  that  be- 
half, so  far  as  he  acts  at  all,  without  reward;  and  it  makes  no 
difference  that  his  services  as  director  were  not  compensated. 
Stacy  vs.  State  Bank,  5  111.  91. 


RIPARIAN  RIGHTS 

See  Waters  and  Watercourses. 

ROBBERY 

See    Possession,    Receiving    Stolen    Property,    Confessions, 
Accomplices,  Corpus  Delicti,  Separate  and  Similar  Offenses, 
Character,  Intent. 
DISTINGUISHED  FROM  PRIVATE  STEALING: 

As  distinguished  from  larceny  from  the  person,  the  gist  of  the 

offense  is  the  force  or  intimidation  and  the  taking  from  the  person, 

against  his  will,  a  thing  of  value  belonging  to  the  person  assaulted. 

The  only  difference  between  private  stealing  from  the  person  of 

another,  and  robbery,  lies  in  the  force  or  intimidation  used. 

Hall  vs.  People,  171  111.  540;  Burke  vs.  People,  148  111.  70;  XIV  111. 
Notes  435,   §3. 

CORPUS  DELICTI: 

It  it  appear  that  one  makes  an  assault  on  another  and  against 
the  will  of  the  one  assaulted  takes  from  his  person  his  money,  goods 
or  other  valuable  thing,  by  force  or  intimidation,  the  offense  is 
shown. 

In  regard  to  the  force  or  violence  with  which  the  goods  are  taken, 
the  principle  is  this:  that  the  power  of  the  owner  to  retain  the 
possession  of  his  goods  was  overcome  by  the  robber,  either  by  actual 
violence  physically  applied,  or  by  putting  him  in  such  fear  as  to 
overpower  his  will,  as  if  a  thing  be  feloniously  taken  from  the  per- 
son of  another,  with  such  violence  as  to  occasion  a  substantial  cor- 
poral injury,  or  if  it  be  obtained  by  a  violent  struggle  with  the  pos- 
sessor, but  where  it  appears  that  the  article  is  taken  without  any 
sensible  or  material  violence  to  the  person,  as  snatching  a  hat  from 
the  head,  or  cane  or  umbrella  from  the  hand  of  the  wearer, — rather 
by  sleight  of  hand  and  adroitness  than  by  open  violence  and 
without  any  struggle  on  his  part, — it  is  merely  larceny  from  the 
person.  It  may  be  different  if  the  article  is  so  attached  to  the 
person  or  clothing  as  to  create  resistance  and  violence  is  used  to 


ROBBERY  1151 


p.,.. 


overcome  it.  AMien  force  is  nsed  to  prevent  the  resistance  of  or 
to  overpower  the  person  robbed,  tlien  such  force  makes  the  offense 
robbery. 

Hall  vs.  People,   171  111.  540. 

FROM  THE  PERSON: 

The  taking  from  the  person  is  not  understood  to  mean  that  the 
goods  are  actually  on  the  person  in  a  strict  sense.  Robbery  ma}^  be 
conmiitted  by  violence  or  putting  in  fear,  and  feloniously  taking 
money  or  other  thing  of  value  from  the  person,  or  in  his  presence, 
and  under  the  immediate  control  of  the  person  assaulted. 

O'Dounell  vs.  People,  224  III.  218;  Burke  vs.  People,  148  111.  70. 
It  must  appear  that  the  property  was  taken  against  will  of 
owner. 

Hall  vs.  People,  171  111.  540. 

WEIGHT  AND  SUFFICIENCY: 
Manner  of  Taking- : 

The  evidence  must  show  that  the  taking  of  the  property  was 
accomplished  either  by  physical  force  or  by  putting  the  owner  in 
fear.  There  must  be  violence  or  intimidation  of  such  character 
as  that  the  injured  party  is  put  in  fear.  The  fear  must  be  of  such 
a  nature  as  in  reason  and  common  experience  is  likely  to  induce  a 
person  to  part  wdth  his  property  against  his  will  and  to  put  him, 
as  it  Avere,  under  the  temporary  suspension  of  the  power  of  exer- 
cising his  will  through  the  influence  of  the  terror  impressed. 

Steward  vs.  People,  224  111.  434;  O'Doimell  vs.  People,  224  111.  218; 
Hall  vs.  People,  171  111.  540. 

Prosecuting  witness  testified  to  the  taking  from  her  of  a  hand- 
bag containing  money,  and  that  the  hand  bag  was  taken  with  such 
force  as  to  bruise  her  arm,  and  it  was  lame  for  several  days.    Such 

taking  was  by  force,  and  the  act  w^as  robbery. 
Klein  vs.  People,  113  111.  596. 

If  it  appear  that  the  defendant  made  an  assault  on  the  person 
alleged  to  have  been  robbed,  and  against  his  will  took  from  his 
person  his  money,  goods  or  other  valuable  thing  by  force  or  in- 
timidation, the  offense  of  robbery  will  be  shown. 
Burke  vs.  People,  148  111.   70. 

Proof  that  defendant,  a  physician,  induced  a  person  who  had 
been  brought  to  his  office  by  a  confederate,  to  undergo  an  exami- 
nation, and  to  pay  an  exorbitant  amount  for  treatment  does  not 
justify  a  conviction  for  robbery,  where  methods  used  to  obtain 
the  money,  though  disreputa])le,  do  not  amount  to  violence  or  in- 
timidation, even  though  the  victim  testifies  he  paid  the  money  be- 
cause defendant's  manner  frightened  him. 
Stewart  vs.  People,  224  111.  434. 

The  fact  that  complaining  witness  was  assaulted  by  a  husband 
upon  Ijeing  discovered  in  a  compromising  situation  with  latter 's 
wife,  and  afterwards,  and  unconnected  with  the  assault,  the  com- 
plaining witness  gave  his  notes  for  a  considerable  sum  to  settle  the 
matter,  is  not  sufficient  to  convict  the  husband  and  wife  of  assault 
with  intent  to  commit  robbeiy,  even  though  they  might  have  con- 
spired together  to  extort  money  from  him. 
Rippetoe  vs.  People,  172  111.  173. 

Evidence  that  accused  unbuttoned  the  vest  of  prosecuting  wit- 


1152  ROBBERY 

ness,  and  took  his  pocketbook  from  the  inside  pocket,  and  that 
prosecuting  witness  was  drunk  and  did  not  realize  what  accused 
was  doing,  and  that  he  made  no  resistance,  is  not  sufficient  to 
sustain  a  conviction  for  robbery. 

Hall  vs.  People,  171  111.  540. 
Mere  proof  that  one  of  two  defendants  charged  with  robbing 
prosecuting  witness  of  his  purse  in  a  crowded  street  car  was  one  of 
the  men  who  "backed"  prosecuting  wdtness  from  the  car  door  to 
the  platform,  is  not  sufficient  to  justify  his  conviction,  in  absence 
of  any  proof  that  he  acted  with  the  intent  to  aid  the  other  defend- 
ant in  securing  the  purse,  or  that  there  was  any  conspiracy  or  con- 
certed action  between  them,  or  even  any  acquaintance  with  each 
other  prior  to  the  robbery. 

People  vs.  Williams,  242  111.  197. 

The  Property  Taken: 

^  Value  and  Idcntitij:  It  is  not  necessary  to  accurately  de- 
scribe or  prove  the  particular  identity  or  value  of  the  property 
taken  from  the  person,  further  than  to  show  it  was  the  property 
of  the  person  assaulted  or  in  his  care,  and  had  a  value.     No  spe^ 

cific  value  need  be  proven. 

Burke  vs.  People,  148  PJ.  70;  Sheehan  vs.  People,  131  111.  22;  XIV 
111.  Notes  436,  §  8. 

The  gist  of  the  crime  of  robbery  is  the  force  or  intimidation  used 
and  the  felonious  taking  from  the  person  of  another,  money  or 
other  thing  of  value  against  his  will,  and  hence  a  conviction  wall 
not  be  reversed  although  the  proof  of  the  character  and  denomin- 
ations of  the  money  taken  might  not  be  sufficient  to  sustain  a  con- 
viction for  larceny. 

Schroeder  vs.  People,  196  111.  211. 

Where  a  foreign  coin  was  one  of  the  articles  taken,  it  is  not 
error  to  allow  witness  to  testify  that  they  saw  the  accused,  after 
the  rol>bery,  with  foreign  coin  in  his  possession,  without  identify- 
ing the  coin  as  to  the  amount  or  other  particulars,  where  accused 
admits  he  had  a  similar  coin  and  explains  his  possession  of  it  but 
does  not  attempt  to  show  that  it  was  different  in  amount  from  one 

stolen. 

People  vs.  Deluce,  237  111.  541. 

^Ownership:     Proof  of  robbery  from  the  person  is  sufficient 
prima  facie  evidence  of  the  ownership  of  the  money  taken. 
Bow  vs.  People,  160  111.  438. 
Evidence  that  the  prosecuting  witness  was  carrying  a  pair  of 
shoes  under  his  arm  when  assaulted  by  accused,  and  that  he  stated 
to  the  police  officer,  after  the  assault,  that  he  had  lost  his  shoes,  is 
sufficient  evidence  of  the  ownership  of  the  property,  where  the 
indictment  alleges  that  it  w^as  the  property  of  prosecuting  witness. 
Howard  vs.  People,  193  111.  615. 

—  Intent:    Where  the  fact  of  violence  and  the  taking  of  the 
property  has  been  proven,  the  felonious  intent  may  be  inferred. 

Howard  vs.  People,  193  111.  615. 

—  Bes  Gestae:     Exclamations  of  prosecuting  witness,  made  at 
time  defendants  were  running  away,  that  he  was  robbed,  in  con- 


RULES  OF  COURT  1153 

nectioii  with  question  as  to  which  way  they  went,  are  admissible 
as  part  of  res  gestae. 

Bow  vs.  People,  160  111.  438. 

Identity  of  Defendant: 

Testimony  by  prosecuting  witness  that  he  had  a  good  look  at  the 
man,  and  that  defendant  was  that  man,  coupled  with  the  fact  that 
such  defendant  was  picked  out  by  the  prosecuting  witness,  three 
weeks  after  the  crime,  from  among  a  crowd  of  twenty-five  hundred 
men,  and  pointed  out  to  the  police,  is  sufficient  to  justify  a  verdict 
of  conviction  as  against  the  testimony  of  two  witnesses  who  saw 
the  robber  some  distance  from  them,  running  from  the  scene  of  the 
crime,  who  testified  that  defendant  was  not  the  man. 

People  vs.  Williams,  242  111.  197. 
Recognition  of  voice  is  competent. 

Ogden  vs.  People,  134  111.  599. 

One  charged  with  crime  may  directly  or  indirectly  make  admis- 
sions of  material  facts  tending  to  establish  his  guilt  or  disprove  his 
defense,  but  not  amounting  to  a  confession,  and  these  are  admis- 
sible against  him. 

Bow  vs.  People,  160  111.  488. 

On  trial  of  two  persons,  prosecutor  was  asked  if  he  had  not  been 
approached  by  somebody  in  interest  of  defendants,  and  if  he  had 
taken  any  money  to  settle  the  case,  to  which  he  replied,  "Yes  sir, 
I  took  twenty-five  dollars  from  the  uncle  of  one  of  defendants  in 

payment  of  my  watch,  as  I  supposed,"  etc.     Held,  incompetent. 

Graham  vs.  People,  115  111.  566. 

Character  of  Defendant : 

Where  husband  and  wife  are  charged  with  assault  with  intent 
to  commit  robbery,  evidence  which  tends  merely  to  show  that  the 
wife  was  not  a  virtuous  woman  is  irrelevant  and  incompetent. 

Rippetoe  vs.  People,  172  111.  173. 


RULES  OF  COURT 

Judicial  Notice: 

Trial  court  will  take  judicial  notice  of  its  own  rules.  Unless 
entered  of  record  rules  are  of  no  validity. 

Cramer  vs.   Comm.  Men 's  Assoc,  260"^  111.  516. 

Appellate  Court  will  not  take  judicial  notice  of  the  rules  of  the 
trial  court. 

Anderson  vs.  McCormick,  129  111.  308;  Bonuey  vs.  McClelland,  138 
App.  449;  XII  111.  Notes  473,  §  4;  Cf.  Northern  Coal  Co.  vs.  Mueller 
Bros.,  171  App.  342. 

Appellate  Court  will  take  judicial  notice  of  rules  of  municipal 
court  of  Chicago. 

Sixby  vs.  Chi.  City  Ey.  Co.,  178  App.  218. 

Admissibility  of  Evidence  to  Establish : 

—  Record:  The  record  in  which  the  rules  of  court  are  entered 
is  the  only  competent  evidence  to  prove  their  existence.  Printed 
rules  and  testimony  that  they  were  adopted  by  the  judges,  is  in- 
competent. 

Roby  vs.  Title  Guaranty  Co.,  166  111.  336;  XIV  111.  Notes  438,  §  8. 

—  Affidavits:     As  to  existence  of  rules  are  not  competent. 

Davis  vs.   N.   W.   Elee.   Co.,   170   III.   595;    Chicago  City  Ey.   Co.  vs. 
Gregory,   123  App.   259. 
Ev.— 73 


1154  RULES  IN  ACTIONS  FOR  NEGLIGENCE 

Their  non-existence  must  be  proven  by  the  testimony  of  the  clerk 
of  the  court.  Affidavits  to  the  effect  that  there  was  no  general  rule 
or  order  of  court  does  not  establish  the  non-existence  of  such  rule 
or  order. 

Hughes  vs.  Humphrey,  102  App.  194. 

—  Certified  Copy:     Filing  a  certified  copy  of  a  general  order  for 
the  opening  of  depositions  does  not  bring  such  order  before  Appel- 
late Court;  that  can  only  be  done  by  a  l)ill  of  exceptions. 
Sturtevant  vs.  Sullivan,  69  App.  47. 

Nor  does  the  statement  of  the  judge  that  he  is  familiar  with  the 
rules  make  them  a  part  of  the  record. 

Thompson  vs.  Amer.  Breed.  Assn.,  114  App.  131. 


RULES  IN  ACTIONS  FOR  NEGLIGENCE 

ADMISSIBILITY: 
Injuries  to  Third  Persons : 

—  By  PlaintijJ :  Rule  of  defendant  is  admissible  as  tending, 
with  other  evidence  to  show  negligence.  Not  competent  for  pur- 
pose of  founding  a  cause  of  action  upon  breach. 

Chi.  City  Ey.  Co.  vs.  Lowitz,  218  111.  24;  L.  S.  &  M.  S.  Ky.  Co.  vs. 

Ward,  135  111.  511;  C.  &  E.  I.  E.  E.  Co.  vs.  Jennings,  89  App.  335; 

C.  &  A.  E.  E.  Co.  vs.  Logue,  58  App.  142;  XII  111.  Notes  482,  §  59; 

Contra,  C.  E.  I.  &  P.  Ey.  Co.  vs.  Downey,  96  App.  398. 

Not  that  plaintiff  knew  of  the  existence  of  such  rule,  but  that  it 

is  merely  a  statement  of  what  is  a  fair  regard  for  the  rights  of  the 

public. 

C.  C.  S.  &  St.  L.  Ey.  Co.  vs.  Eyan,  165  111.  88;  Devine  vs.  Chi.  Junc- 
tion Ey.  Co.,  167  App.  195. 
Evidence  showed  deceased  and  servant  had  knowledge  of  rule. 
Chi.  City  Ey.  Co.  vs.  Mc-Donough,  221  111.  69. 

—  As  a  Defense:  The  private  rules  and  regulations  of  a  com- 
pany, prescribing  the  duty  and  powers  of  its  servants  and  em- 
ployees, cannot  affect  persons  having  no  notice  of  them.  As  the 
company  is  liable  for  the  acts  of  its  servants  in  the  course  of  their 
employment,  both  in  the  rightful  use  and  in  the  abuse  of  the  powers 
conferred  upon  them  or  even  in  their  willfull  acts,  evidence  that  its 
servants  exceeded  their  authority  is  not  admissible  to  defeat  a  recov- 
ery against  the  company  by  one  injured  by  their  acts,  unless  he  had 

notice  of  the  extent  of  the  servant's  powers. 

L.  S.  &  M.  S.  Ey.  Co.  vs.  Brown,   123  111.  162;   I.  C.  E.  E.  Co.  vs. 
Downs,  122  App.  545;  Fitzpatriek  vs.  Bloom.  City  Ey.,  73  App.  516. 

Nor  may  a  witness  give  his  opinion  as  to  construction  of  rule. 
Penn.  Co.  vs.  Stoelke,  104  111.  201. 

Evidence  that  a  rule  of  the  post-office  department  requires  a 

transfer   mail   clerk   to   use   extraordinary   vigilance   in   guarding 

mails  and  not  to  leave  them   exposed  is  competent  in   action   to 

recover  for  the  death  of  a  clerk  killed  by  a  freight  train  while 

attempting  to  cross  the  tracks  to  receive  mail  from  an  incoming 

passenger  train. 

C.  &  A.  E.  E.  Co.  vs.  Kelly,  182  111.  267. 

So  rules  of  other  companies  using  same  tracks  as   defendant 

railroad   company   are   admissible   as   bearing  upon    question    of 


RULES  IN  ACTIONS  FOR  NEGLIGENCE  1155 

ordinary  care,  regardless  of  whether  defendant  company  or  any 
of  its  employees  had  any  knowledge  of  same. 

C.  M.  &  S.  p.  Ry.  Co.  vs.  O 'Sullivan,  143  111.  48. 

Injury  to  Employe : 

—  Violation  by  Employe:  Rules  adopted  by  company  are 
proper  evidence  bearing  on  question  of  ordinary  care  on  part  of 
person  injured,  and  also  upon  question  of  negligence  on  part  of 
defendant ;  the  adoption  of  a  rule  is  impliedly  a  statement  that  the 
rule  is  reasonable  and  that  it  is  necessary  for  the  protection  of 
employees. 

Devine  vs.  Chi.  Jimct.  Ry.  Co.,  167  App.   195. 
It  is  competent  for  servant  to  prove  extent  and  character  of 
plant  in  showing  necessity  for  rules,  but  where  plant  is  made  up 
of  several  distinct  mills,  evidence  should  be  confined  to  particular 
mill  where  injury  occurred. 

Tijans  vs.  111.  Steel  Co.,  250  111.  554. 

Evidence  of  rules  is  admissilile  for  purpose  of  defeating  action 
by  servant  to  recover  for  injuries  by  reason  of  violation  of  known 
rules  by  such  servant. 

C.  &  W.  I.  R.  R.  Co.  vs.  Flynn,  154  111.  448;  Abend  vs.  T.  H.  &  I. 
Ry.  Co.,  Ill  III.  202;  I.  C.  R.  R.  Co.  vs.  Patterson,  03  111  290; 
Zoilesney  vs.  Univ.  Club,  155  App.  633. 

The  violation  of  a  rule  of  a  stock  yards  company  requiring  a 
certain  track  to  be  used  by  out-going  trains  exclusively  is  not 
negligence  per  se  on  part  of  engineer  using  such  track  to  enter  the 
yards,  where  he  never  had  notice  of  the  rule,  and  there  is  evidence 
tending  to  show  the  rule  was  not  enforced  but  was  disregarded 
habitually  with  the  knowledge  and  acquiescence  of  the  company. 
St.  Louis  Nat'l     S.  Y.  Co.  vs.  Godfrey,  198  111.  288. 

—  Customary  Obedience:  Evidence  is  inadmissible  to  show  cus- 
tomary obedience  where  there  is  no  contention  of  habitual  violation. 

Bennett  vs.  Chi.  City  Ry.  Co.,  243  111.  420. 

—  Uabitual  Disobedience:  Abrogation  of  a  rule  may  be  shown 
by  proof  of  its  habitual  violation  with  knowledge  of  the  employer. 

Kenny  vs.  Marquette  Mfg.  Co.,  243  111.  396;  C.  &  W.  I.  Ry.  Co.  vs. 
Flynn,  154  111.  448;  Campbell  vs.  C.  R.  I.  &  P.  Ry.  Co.,  149  App. 
120;  Preble  vs.  Wabash  Ry.  Co.,  149  App.  584;  Penu.  Co.  vs. 
Stoelke,   104  111.   201. 

Knowledge  of  the  emploj^er  of  the  violation  may  be  actual  or 
constructive.  If  it  is  continued  for  such  a  length  of  time  that  the 
employer  might  reasonably  have  known  it,  knowledge  will  be  pre- 
sumed. 

Hampton  vs.  C.  &  A.  R.  R.  Co.,  236  111.  249;  Coburn  vs.  M.  E.  M. 
Ry.  Co.,  149.  App.  132. 

Parol  E\'id.eiice  of  Rules : 

If  rule  is  in  writing,  it  is  best  evidence. 

Bennett  vs.  Chi.  Citv  Ry.  Co.,  243  111.  420;  St.  L.  A.  &  T.  H.  R  R. 
Co.  vs.  Bauer,  156  111.  106. 

Permitting  counsel  to  read  a  rule,  which  in  itself  is  competent,  to 
a  witness,  instead  of  offering  the  printed  rule,  is  not  error  unless 
specifically  objected  to. 

C.  &  A.  R.  R.  Co.  vs.  Logue,  158  111.  621 ;  St.  L.  &  A.  T.  H.  R.  R.  Co. 
vs.  Bauer,  156  111.  106. 


1156  SAFER  METHOD 

SAFER  METHOD 

Injury  to  Servant: 

If  a  servant,  knowing  the  hazards  of  his  employment  as  the 
business  is  conducted,  is  injured  while  engaged  therein,  he  cannot 
maintain  an  action  against  the  master  for  the  injury  merely  on  the 
ground  that  there  was  a  safer  mode  in  which  the  business  might 
have  been  conducted,  the  adoption  of  which  would  have  prevented 
the  injury. 

C.  &  E.  I.  E,  E.  Co.  vs.  Heerey,  203  111.  492;   Simmons  vs.  C.  &  T. 

E.  E.  Co.,  110  111.  340;  Penn.  Co.  vs.  Lynch,  90  111.  334;  E.  J.  & 

E.  Ey.  Co.  vs.  Myers,  226  111.  358. 

The  question  is  not  as  to  whether  other  modes  were  safe  or  safer, 
but  was  the  mode  adopted  reasonably  safe,  and  the  admission  of 
evidence  as  to  a  safer  mode  is  error. 

Brossman  vs.  Drake  Standard  Co.,  232  111.  412;  Shook  vs.  Majestic 
Coal  Co.,  165  App.  586;  Bohn  vs.  Standard  Laundry  Co.,  148  App. 
494;  Kennedy  vs.  C.  &  C.  Coal  Co.,  180  App.  42;  William  Grace 
Co.  vs.  Kane,  129  App.  247;  XIII  111.  Notes  479,  §  620. 

SALES 

See  Parol,  Warranty,  Specific  Performance,  Description, 
Identity,  Possession,  Infants,  Brokers,  Confusion  of  Goods, 
Customs  and  Usage,  Pecuniary  Circumstances,  Fraudulent 
Conveyances,  Market  Price,  Set  Off  and  Counter  Claim. 


SANITY  AND  INSANITY 

See  Wills,  Legal  Conclusions,  Mental  and  Physical  States, 
Witnesses,  Former  Testimony. 
Presumptions : 

—  In  General:  The  presumption  of  law,  before  inquest  found, 
is  in  favor  of  sanity. 

Norton  vs.  Clark,  253  111.  557;  Kelly  vs.  Nusbaura,  244  111.  158;  Isle 
vs.  Cranby,  199  111.  39 ;  XII  111.  Notes  476,  §  26. 

— •  Contimmnce:  Settled  insanity  proven  once  to  have  existed,  is 
presumed  to  continue,  until  rebutted  by  proof. 

In  re  estate  of  Weedman,  254  111.  504;  Trish  vs.  Newell,  62  111.  196; 
Titcomb  vs.  Van  Tyle,  84  111.  371;  Stitzel  vs.  Farley,  148  App. 
635. 

If  of  a  character  likely  to  be  merely  temporary,  as  if  it  is  the 
result  of  a  sudden  or  violent  disease,  there  is  no  presumption  of 
its  continuance. 

Taylor  vs.  Pegram,  151  111.  106;  Trish  vs.  Newell,  62  111.  196. 

There  is  a  distinction  in  the  inferences  to  be  drawn  from  proof 
of  an  habitual  or  apparently  confirmed  insanity,  and  that  which 
may  be  only  temporary.  In  the  first  case,  proof  is  required  to 
show  a  restoration ;  while  in  the  other,  the  party  alleging  insanity 
must  bring  his  proof  of  a  continued  derangement  to  that  point  of 
tipie  which  bears  directly  upon  the  suliject  in  controversy. 
Trish  vs.  Newell,  62  111.   196. 


SANITY  AND  INSANITY  1157 

—  Paralysis:     There  is  no  presumption  of  law  that  a  person 

rendered  unconscious  and  incapable  of  mental  action  by  stroke  of 

paralysis  will  continue  so  for  four  months. 
Trish  vs.  Newell,  62  111.  196. 

—  Absurd  Belief:  General  insanity  is  not  a  necessary  infer- 
ence from  mere  belief  in  matters  of  opinion,  however  absurd,  as 

for  example,  a  belief  in  Spiritualism. 

Orchardson  vs.  Cofield,  171  111.  14;  Owen  vs.  Crumbaugh,  228  III.  380; 
Tiubey  vs.  Eichardsou,  224  111.  136. 

Nor  a  belief  in  Swedenborgian  theory. 

tieott  vs.  Scott,  212  111.  597. 

—  Suicide:     The  act  of  self-destruction  raises  no  presumption 

of  insanity,  the  law  presumes  a  normal  condition, — hence,  that  all 

men  are  sane. 

Grand  Lodge  vs.  Wieting,  168  111.  408 ;  Crum  vs.  Tliornley,  47  111.  192. 

Yet  such  act,  and  the  mode  and  manner  of  its  accomplishment 
may  be  considered,  together  with  all  facts  and  circumstances  in 
determining  question  of  sanity  of  deceased. 

Grand  Lodge  vs.  Wieting,  168  111.  408 ;  Crum  vs.  Thornley,  47  111.  192. 

—  Heredity:     It  cannot  be  presumed  that  a  person  was  insane 

merely  because  his  mother  had  been  so. 
Snow  vs.  Benton,  28  111.  306. 

Burden  of  Proof: 

—  In  Civil  Action:  In  civil  action,  one  alleging  insanity  has 
burden  of  proof. 

Austin  vs.  Austin,  260  111.  299;  Kelly  vs.  Nusbaum,  244  111.  158;  Isle 
vs.  Cranby,  199  111.  39;  Blanchard  vs.  Blanchard,  191  111.  450; 
Egbers  vs.  Egbers,  177  111.  82;  Argo  vs.  Cofiiin,  142  111.  368;  XII 
111.  Notes  1059,  §  4. 

Insanity  being  an  abnormal  condition  must  be  proven  as  a  ques- 
tion of  fact. 

Grand  Lodge  vs.  Wieting,  168  111.  408. 

If  a  party  not  insane  seeks  to  avoid  an  instrument  given  while 
mental  faculties  were  temporarily  impaired,  the  burden  of  proof 
is  upon  such  party  to  show  the  mental  incapacity  and  not  upon  the 

other  to  show  mind  was  not  impaired. 

C.  W.  D.  Ey.  Co.  vs.  Mills,  91  111.  39 ;  Beaty  vs.  Hood,  229  lU.  562. 

So  when  it  is  sought  to  set  aside  a  judgment  and  sale  of  land 

under  it,  on  ground  of  insanity  of  defendant  at  time  judgment 

^vas  rendered,  it  devolves  upon  party  averring  such  insanity  to 

prove  it  by  a  clear  preponderance  of  the  evidence. 
Titcomb  vs.  Van  Tyle,  84  111.  371. 

—  In  Criminal  Action:  In  criminal  action  the- legal  presump- 
tion that  all  men  are  sane  makes  it  unnecessary  for  prosecution 
to  prove,  in  first  instance,  the  sanity  of  accused,  but  if  he  prove  facts 
or  circumstances  tending  to  prove  his  insanity,  the  burden  of  proof 
thereupon  devolves  upon  prosecution  to  show  the  sanity  of  accused 

beyond  a  reasonable  doubt. 

People  vs.  Casey,  231  111,  261;  Jamison  vs.  People,  145  111.  357; 
Montag  vs.  People,  141  111.  75;  Dacey  vs.  People,  116  111.  555; 
Chase  vs.  People,  40  111.  352;  XI  111.  Notes  1240,  §  110. 

—  Restoration:  Burden  of  proof  is  upon  party  alleging  restora- 
tion. 

Menkins  vs.  Lightner,  18  111.  282;  Severns  vs.  Broffey,  155  App.  10; 
Stitzel  vs.  Farley,  148  App.  635. 


1158  SANITY  AND  INSANITY 

—  After  Inqutst  Found:  The  legal  presumption  is  that  all  per- 
sons of  mature  age  are  of  sane  memory,  and  this  presumption  con- 
tinues until  inquest  found,  when,  perhaps,  the  presumption  is  re- 
versed, until  rebutted  by  evidence  that  sanity  has  returned. 

Titcomb  vs.  A'an  Tyle,  84  111.  371;  C.  W.  D.  Ry.  Co.  vs.  Mills,  91  111. 
39;  Severns  vs.  Broifey,  155  App.  10. 

Admissibility  of  Evidence: 

—  Acts  and  Declarations:  Declarations  of  a  testator  are  com- 
petent to  show  the  state  of  his  mind  and  mental  capacity. 

Norton  vs.  Clark,  253  111.  557;   Wilkinson  vs.  Service,  249  111.  146; 
Hurley  vs.  Caldwell,  244  111.  448. 
Acts  and  declarations  of  a  person  alleged  to  be  insane,  or  pre- 
disposed to  suicide,  are  competent  to  prove  contrary  state  of  mind. 
Jvimpertz  vs.  People,  21  111.  374. 

In  prosecution  for  murder,  where  insanity  is  pleaded  in  defense 
and  self-possession  and  coolness  of  accused,  at  and  immediately 
after  the  act,  is  urged  as  showing  insanity,  evidence  that  thirty 
years  before,  accused  was  engaged  in  smuggling  is  admissible  to 
account  for  such  coolness,  on  the  theory  that  such  experience  edu- 
cated nerves  of  accused  to  withstand  shocks. 
Hopps  vs.  People,  31  111.  385. 

—  Good  Character:  Where  defense  is  insanity,  evidence  of 
uniform  good  character  as  a  man  and  a  citizen  is  proper  for  jury 
to  consider  in  determining  whether  a  person  whose  character  has 
been  uniformly  good,  has,  in  an  insane  moment,  committed  the  crime 
charged.  Under  plea  of  insanity,  he  is  entitled  to  all  benefit  which 
may  be  derived  from  fact  of  good  character,  as  tending,  slightly  it 
may  be,  to  the  conclusion  that  he  could  not  have  been  sane  at  time 
the  deed  was  done.  If  a  man,  of  a  sudden,  fall  from  a  high  position 
to  the  commission  of  outrageous  crimes,  it  would  not  be  an  unnat- 
ural or  forced  inference  that  he  may  have  been  affected  by  insanity 

at  the  time. 

Hopps  vs.  People,  31  111.  385. 

—  Insanity  of  Collateral  Kin:  If  there  is  evidence  tending  to 
show  jnental  unsoundness,  it  is  competent  to  show  the  insanity  of 
testator's  collateral  blood  relation,  no  further  removed  than 
uncles  and  aunts,  without  making  proof  that  it  was  hereditary  in 

*-*  |t   O  -M  Q  /"*  ^-  p  T» 

Martin  vs.  Beatty,  254  111.  615;  Dillman  vs.  McDanel,  222  111.  276. 

—  Record  of  Inquest:     Admissible. 

Jefferson   vs.   Supreme  Tent,   132   App.   242;   Donnelly  vs.   Chi.   City 
Ey.  Co:,  163  App.  7;  Scliniidt  vs.  K.  &  L.  of  S.,  176  App.  213. 
Insanity,  and  insanity  of  a  continuing  character,  may  be  shown 
by  proper  finding,  upon  inquest  regularly  held. 
Laugdon  vs.  People,  133  111.  382. 
— •  Record  of  Former  Suit:    The  record  of  a  former  suit  in  which 
there  was  a  verdict  of  a  jury  finding  complainant  mentally  incom- 
petent to  make  a  deed  sought  to  be  set  aside,  is  not  admissible  in 
subsequent  proceedings  by  defendant  to  former  suit  against  stran- 
gers to  that  proceeding,  to  set  aside  a  deed  to  them  from  same 

grantor  upon  same  ground. 

Bollnow  vs.  Roach,  210  111.  364. 

—  Appointment  of  Conservator:  (See  Wills, — Testamentary 
Capacity.) 


SANITY  AND  INSANITY  1159 

Expert  and  Opinion  Evidence : 

—  Admissihility  of  Expert  Testimony:  A  medical  witness  who 
has  heard  all  the  evidence  bearing  on  question  of  sanity  of  a  per- 
son may  be  asked  whether  or  not,  upon  that  evidence,  he  is  of  the 
opinion  such  person  was  of  sound  or  unsound  mind. 

Schneider  vs.  Manning,  121  111.  376. 

A  medical  expert  may  give  his  opinion,  in  answer  to  hypothetical 
questions,  that  the  person  described  is  sane  or  insane. 

Garrus  vs.  Davis,  234  111.  326. 
Depositions  of  experts  may  be  admitted. 

Jefferson  vs.  Sui:)reme  Tent,  152  App.  242. 

—  Aelmissihility  of  Non-Expert  Evidenee:  Non  expert  witnesses 
who  have  had  opportunity  to  observe  a  person  may  give  opinion  as 
to  mental  condition  or  capacity. 

Austin  vs.  Austin,  260  111.  299;  Mayfield  vs.  French,  246  111.  435; 
Ring  vs.  Lawless,  190  111.  520;  Craig  vs.  Southard,  148  111.  37; 
Amer.  Bible  Society  vs.  Price,  115  111.  623:  XII  111.  Notes  522, 
§  367. 

Rule  is  same  in  criminal  cases. 

Jamison  vs.  People,   145  111.  357. 

Non  expert  cannot  give  opinion  of  sanity  based  on  hypothetical 
case. 

Pittard  vs.  Foster,  12  App.  132. 

Testimony  of  doctors  upon  subject  of  mental  capacity  is  not 
entitled  to  any  greater  weight  than  that  of  laymen  who  are  men 
of  good  common  sense  and  judgment. 

Austin  vs.  Austin,  260  111.  299 ;  Carpenter  vs.  Calvert,  83  111.  62. 

Non  exi^erts  who  have  had  opportunities  to  observe  a  person 
may  give  their  opinions  of  his  mental  condition  or  capacity,  at  the 
same  time  stating  their  reasons,  and  the  facts  observed  upon  which 
they  base  their  opinions,  including  conversations  as  a  part  of  the 
observed  facts,  but  to  render  such  testimony  admissible,  they  must 
be  limited  to  conclusions  drawn  from  the  specific  facts  thus  dis- 
closed. 

Jamison  vs.  People,  145  111.   357. 

It  is  competent  to  admit  the  opinions  of  witnesses' who  are  not 
experts,  touching  the  testator's  sanity,  first  stating  the  observa- 
tious  on  which  opinions  are  based.  After  detailing  facts  upon  which 
an  opinion  is  based,  they  may  give  to  the  jury  that  opinion,  to  be 
received  by  them  and  to  be  valued  according  to  the  intelligence 
of  the  witness  and  his  capacity  to  form  an  opinion. 
U.  Trac.  Co.  vs.  Lawrence,  211  111.  373. 

A  non  professional  witness  may  give  his  opinion  as  to  whether 
another  acts  in  a  childish  manner  or  has  failed  mentally. 
C.  P.  &  St.  L.  R.  R.  Co.  vs.  Richter,  85  App.  591. 
A  witness  who  is  not  an  expert  may  detail  facts  and  circum- 
stances from  which  the  jury  might  form  an  opinion,  and  may  then 
give  his  ow^n  conclusions  from  such  facts  in  the  form  of  an  opinion. 
Graham  vs.  Deuterman,  244  111.  124 ;  Snell  vs.  Weldon,  239  111.  279. 
Witness  must  first  detail  facts  and  circumstances.    Without  such 
detail  opinion  is  worthless. 

Brainard  vs.  Brainard,  259  111.  613. 
And  such  witness  may  make  comparison  of  the  mental  condi-^ 
tion  before  and  after  an  alleged  impairment.  :- 

N.  Y.  C.  St.  L.  Ry.  Co.  vs.  Luebeck,  157  111.  595. 


1160  SANITY  AND  INSANITY 

It  is  not  necessary,  to  allow  a  non-expert  witness  to  speak  of  men- 
tal impairment,  that  the  impression  testilied  to  must  have  been- 
formed  at  the  time  of  a  particular  act  or  fact,  it  may  be  the  re- 
sult of  observation  of  a  continued  condition,  or  a  series  of  facts. 
N.  Y.  C.  &  St.  L.  Ey.  Co.  vs.  Luebeek,  157  ill.  595. 

—  Competency  of  Witnesses:  The  fact  that  a  person  did  not 
discuss  with  witnesses  business  affairs  or  relatives,  does  not  dis- 
qualify such  witnesses  to  give  opinions. 

Wetzel  vs.  Firebaugli,  251  111.  190. 

Witness  who  was  acquainted  with  testator  and  had  seen  him  fre- 
quently, is  competent  to  express  opinion  as  to  his  mental  capacity, 
though  he  has  never  seen  him  transact  business. 

King  vs.  Lawless,  190  111.  520 ;  Keithley  vs.  Stafford,  126  111.  507. 
But  a  non-expert  witness  is  not  competent  to  give  opinion  as  to 
insanity  at  the  time  of  death  of  a  person  when  he  had  but  a  pass- 
ing acquaintance  with  him,  and  to  whom  he  had  not  spoken  for 
eight  months  or  a  year  before  his  death  occurred. 
Grand  Lodge  vs.  Wieting,  168  111.  408. 

—  Province  of  Court:  Whether  a  non-expert  witness  has  suffi- 
cient knowledge  of  another  to  express  an  opinion  on  subject  of  his 

mental  condition  is  to  be  determined  by  the  court. 

Martin  vs.  Beatty,  254  111.  615;  Graham  vs.  Deuterman,  244  111.  124; 
Grand  Lodge  vs.  Wieting,  168  111.  408;  People  vs.  Payne,  161  App. 
640. 

—  In  Actions  for  Wrongful  Death:  In  action  by  personal  rep- 
resentative of  a  person  wrongfully  killed,  against  estate  of  party 
killing,  to  recover  compensation  for  the  death,  evidence  of  insanity 
of  latter  party  at  time  of  his  wrongful  act  causing  the  death,  is 

inadmissible  when  offered  in  defense  of  the  action. 

Mclntyre  vs.  Sholty,  121  111.  660;  A.  O.  V.  W.  vs.  Holdon,  51  App. 
200.     (See  Intoxication.) 

Weight  and  SuflEiciency: 

—  In  General:  Though  the  mind  of  a  person  may  be,  to  some 
extent,  impaired  by  age  or  disease,  still  if  he  has  capacity  to  com- 
prehend and -act  rationally  in  the  transaction  in  which  he  is  en- 
gaged, if  he  can  understand  the  nature  of  his  business  and  the 
effect  of  what  he  is  doing,  and  can  exercise  his  will  with  reference 

thereto,  his  acts  will  be  valid. 

Martin  vs.  Harsh,  231  111.  384;  XII  111.  Notes  1059,  §  5. 

No  rule  can  be  laid  down  as  to  the  quantum  of  evidence  neces- 
sary to  establish  insanity,  except  that  it  must  be  sufficient  to  over- 
come the  legal  presumption  of  sanity,  and  to  overbalance  the  testi- 
mony  tending   to   sustain   such   presumption. 

Green  vs.  Phoenix  M.  L.  Ins.  Co.,  134  111.  310. 

Evidence  to  overcome  presumption  of  sanity  must  be  clear  and 

satisfactory. 

McCarty  vs.  Kearnan,  86  111.  291. 

Defense  of  insanity  may  be  established  by  preponderance  of  evi- 
dence. 

Hopps  vs.  People,  31  111.  385. 

—  Intoxication:  Mere  drunkenness  is  not  sufficient  to  release  a 
party  from  his  contracts.  To  render  a  transaction  voidable  on 
account  of  the  drunkenness  of   a  party  to  it,  the  drunkenness  must 


SANITY  AND  INSANITY  1161 

have  been  such  as  to  have  drowned  reason,  memory  and  judgment, 
and  to  have  impaired  the  mental  faculties  to  such  an  extent  as  to 
render  the  party  non  compos  mentis  for  the  time  being. 
Martin  vs.  Harsh,  231  111.  384. 

—  Confincme7it  in  and  Discharge  from  Asylums:  Proof  that  one 
accused  of  assault  was  confined  in  an  insane  asylum  some  years 
previously,  with  the  opinions  of  witnesses  that  his  insanity  con- 
tinued at  time  of  assault,  is  insufficient  to  relieve  him  of  criminal 
liability,  where  he  is  shown  to  have  transacted  business  in  the  ordi- 
nary manner  for  several  years. 

Meyer  vs.  People,  156  111.  126, 
Discharge  from  asylum  may  be  regarded  as  evidence  of  restora- 
tion to  sanity. 

Clay  vs.  Hammond,  199  111.  370;  Langdon  vs.  People,  133  111.  382. 

Insanity  of  a  continuing  character,  such  as  to  raise  a  presump- 
tion of  continuance,  is  not  proven  by  confinement  in  an  aslyum, 
there  having  been  no  finding  of  such  character. 
Langdon  vs.  People,  133  111.  382. 
Nor  is  it  proven  by  removal  of  a  person  from  the  penitentiary 
in  which  he  is  confined,  to  an  asylum  for  the  insane;  there  is  no 
inquest  or  legal  adjudication  in  such  case,  the  removal  being  made 
upon  the  advice  of  the  attending  physician  or  the  warden. 
Langdon  vs.  People,  133  111.  382. 

—  Record  of  Inquisition:  Record  of  insanity  inquisition  is  ad- 
missible.     The   judicial   determination   is  not   conclusive,    but   is 

competent  to  be  considered. 

Donnelly  vs.  Chi.  City  Ey.  Co.,  163  App.  7. 
But  a  finding  of  a  jury  that  a  person  was  then  insane  and  that 
"disease  with  her  is  hereditary"  rendered  on  an  ex  parte  hearing, 
the  purpose  being  to  give  authority  for  confinement  in  asylum 
is  not  admissible  as  against  beneficiary  on  insurance  certificate, 
where  breach  of  warranty  is  claimed  to  establish  fact  of  insanity  in 

blood  relatives. 

Schmidt  vs.  K.  &  L.  of  S.,  176  App.  213. 

—  As  to  Overcoming  Presumption  of  Sanity:  The  evidence  to 
prove  insanity  must  be  sufficient  to  overcome  the  presumption  of 
sanity,  and  any  evidence  that  may  be  produced  in  support  of  the 
presumption. 

Green  vs.  Phoenix  Ins.  Co.,  134  111.  310. 

—  Appointment  of  Next  Fnend:  The  presumption  that  all 
adult  persons  are  of  sound  mind  and  capable  of  managing  their 
own  affairs  is  not  rebutted  by  an  order  of  the  court,  based  on  an 
ex  parte  affidavit,  appointing  affiant  to  act  as  next  friend  of  the 
party  alleged  in  the  affidavit  to  be  of  unsound  mind. 

Isle  vs.  Cranby,  199  111.  39. 

—  Change  from  Temperance  to  Intemperance:    "Where  evidence 

shows  that  a  man,  once  temperate  and  reserved,  became  addicted 

to  the  use  of  intoxicating  liquors,  and  talkative,  yet  transacted  his 

business  in  a  shrewd  manner,  such  evidence  is  insufficient  to  show 

insanity  such  as  will  vitiate  a  mortgage,  where  attending  physician 

testifies  that  no  evidences  of  insanity  appeared. 
Thulin  vs.  Anderson,  154  App.  41. 


1162  SEALS 

SCHOOL  TEACHER 

See  Work  and  Services,  Burden  of  Proof. 

SEALS 

See  Consideration,  Eelease,  Parol,   Corporations,  RxVtifica- 

TION. 

JUDICIAL  NOTICE: 

Seals  of  Notaries  Public  of  Sister  State: 

—  Acknowledgments:  Courts  will  take  judicial  notice  of  no- 
tary's seal. 

Kanisay   vs.   People,   197   111.   594;    Hardin  vs.   Curtiss,   45   111.   252; 
XII  111.  Notes  473,  §  8. 

The  letters  "L.S."  following  the  name  of  the  notary  in  a  cer- 
tificate of  acknowledgment,  as  indicated  in  an  abstract  of  title, 
sutBciontly  indicate  that  an  official  seal  was  attached  to  such  cer- 
tificate. 

Bucklen  vs.  Hasterlik,  155  111.  423, 

—  Affidavits:  The  official  seal  and  jurat  of  a  foreign  notary 
public  are  not  prima  facie  evidence  of  his  authority  to  adminis- 
ter oaths,  if  the  jurat  contains  no  recital  of   the   fact  of  such 

authority. 

Trevor    vs.    Colgate,    181    111.    129;    Desnoyers    Shoe    Co.    vs.    First 
Natl.  Bauk,  188  111.  312;  Ferris  vs.  Com.  Bank,  158  111.  238. 

An  affidavit  as  to  execution  of  a  warrant  of  attorney  to  con- 
fess judgment  is  void  where  the  foreign  notary  public  before 
whom  the  affidavit  was  made  does  not  certify,  under  his  official 
seal,  that  he  has  authority  to  administer  oaths,  and  no  other  evi- 
dence of  such  fact  was  filed  therewith. 

Desnoyers  Shoe  Co.  vs.  First  Natl.  Bank,  188  111.  312. 

Of  Notaries  of  the  County: 

Courts  will  talie  judicial  notice   of  the  notaries  public   of  the 

county  in  which  they  sit,  hence  jurat  need  not  be  authenticated 

by  notarial  seal. 

Schaeffer  vs.  Kin^el,   123  111.  430;   Hertig  vs.  People,   159  111.   237; 
Thielman  vs.  Burg,  73  111.  293. 

Seal  of  State : 

The  great  seal  of  its  own  or  a  foreign  government  is  judicially 

noticed,  without  jDroof,  by  every  court. 

C.  &  A.  E.  E.  Co.  vs.  Keegan,  152  111.  413. 

Even  though  the  state  or  province  be  only  a  portion  of  a  larger 
federation. 

Calhoun  vs.  Eoss,  60  App.  309. 

Clerk  of  Court  of  Record: 

Seal  of  clerk  of  court  of  record  of  sister  state  will  be  judicially 

noticed. 

Williams  vs.  Williams,  221   111.  541. 

It  is  not  necessary,  under  act  of  Congress,  for  it  to  appear, 
either  by  attestation  of  the  clerk  or  of  the  certificate  of  the  judge, 
that  the  seal  annexed  is  the  seal  of  the  court. 

Where  the  clerk  of  a  court  of  record  certifies  to  a  transcript  of 
proceedings  under  the  seal  of  the  court,  and  the  presiding  judge 


SEALS  1163 

of  the  court  certifies  tliat  tlie  attestation  is  in  due  form,  it  is  all 
the  act  of  Congress  requires. 

Hull  vs.  Webb,  78  App.  G17. 

PRIVATE  SEALS : 
Word  "Seal": 

An  inslrument  in  which  the  M'ord  "seal"  appears  following 
the  signature  of  the  maker  is  a  sealed  instrument  whether  a  scrawl 
is  made  around  the  word  seal  or  not. 

Nor  is  it  essential  that  there  be  a  recital  of  the  seal  in  the 
body  of  the  instrument. 

Jackson  vs.   Security  Ins.  Co.,  233  111.   161. 
But  a  statement  in  a  note  that  it  is  sealed,  if  no  seal  is  affixed, 
does  not  make  note  sealed  instrument. 
Vauce   vs.   Fuuk,   3   111.    263. 

"L.  S.": 

Document  which  contains  in  body  statement  that  it  is  sealed  by 
parties,  and  which  has  letters  "L.  S."  in  print  opposite  signa- 
tures is  sealed  instrument. 

Ankeuy  vs.  McMahon,  4  111.  12. 

Printed : 

Person  who  places  his  signature  opposite  scrawl  already  made, 
whether  printed  or  written,  thereby  makes  it  his  own. 

Ankeny  vs.   McMahon,  4  111.   12;   Jackson  vs.  Security  Ins.  Co.,  233 
111.  161. 

Question  for  Court: 

As  to  Avhether  instrument  is  under  seal. 

Schwartz  vs.   Herrenkiml,   2G   111.   208. 

Record  Copy: 

Where  a  certified  copy  of  a  deed  is  produced  as  evidence,  and 
the  word  "seal,"  surrounded  by  a  scroll,  is  found  where  a  seal 
is  usually  placed,  as  the  recorder  in  making  the  copy  never  at- 
taches a  seal  or  wafer  or  wax,  the  presumption  will  be  indulged 
that  the  original  was  properly  sealed. 
Deiniiiger  vs.  McConnell,  41   111.  227. 

Partnership : 

Scrawl  affixed  to  partnership  signature  of  firm  name,  by  mem- 
ber with  authority,  has  effect  as  seal  of  all  members. 
Eames  vs.  Preston,  20  111.  389'. 

Adoption  of  Seal:  rj   , - 

AVhen  a  sealed  instrument  purports  on  its  face  to  be  sealed  by 
all  its  signers,  and  there  are  several  seals  to  it,  but  not  so  many 
as  there  were  names,  the  court  will  presume  that  each  person 
signing  it  adopted  some  one  of  the  seals. 

Eyau  vs.  Cook,  172  111.  302;   McLean  vs.  Wilson,  4  111.  50;   Trodgen 
vs.  Cleveland  Stone  Co.,  53  App.  206;  XIV  111.  Notes  538,  §  3. 

But  the  obligors  will  be  permitted  to  rebut  such  presumption 
by  plea  and  proof, 

Davis  vs.   Burton,  4  111.   41. 

If  one  executes  an  instrument  wdth  a  seal,  and  others  sign 
after  him  without  a  seal,  they  are  presumed  to  adopt  the  seal 
already  affixed;  it  is  otherwise  if  a  party  signs  an  instrument, 
not  affixing  a  seal,  and  others  sign  and  seal  after  him,  without 
his  consent, — that  is,  as  to  the  first  signer,  a  simple  instrument. 
Eames  vs.  Preston,  20  111.  389. 


1164  SEALS 

PRIVATE  CORPORATION: 

Presumption : 

—  Fruper  Seal:  Where  the  signature  of  one  having  authority 
executing  the  instrument  is  proven,  and  seal  is  affixed,  the  seal 
affords  prima  facie  evidence  that  it  is  the  seal  of  the  corporation. 

Phillips  vs.  Cotfee,   17  111.  154;   Wagg- Anderson  Co.  vs.   Lesher  Co., 
78  App.  678;   XI  111.  Notes  1100,  391. 
This  rule  does  not  dispense  with  evidence  that  the  seal  is  the 
seal  of  the  corporation,  but  adopts  as  a  rule  of  prima  facie  evi- 
dence that  when  an  instalment  is  duly  executed  by  one  having 
authority,  the  seal  he  attaches  is  the  seal  of  the  corporation  until 

it  is  impeached  and  shown  otherwise. 

Eeed  vs.  Fleming,  209  111.  390;  Phillips  vs.  Coffee,  17  111.  154. 

—  Scrawl:     AA^iere  the  execution  of  an  instrument  is  in   the 

name  of  a  company  by  its  agents,  with  a  scrawl  for  a  seal,  it 

will  be  presumed,  in  absence  of  proof,  that  the  seal  used  was  the 

proper  and  only  seal  of  the  company. 

Miller  vs.  Superior  Mach.  Co.,  79  111.  450;  I.  C.  E.  R.  Co.  vs.  John- 
son, 40  111.  36;  Conkey  vs.  Goldman,  125  App.  161. 

—  Authority  to  Use:    When  the  seal  is  proven  to  be  the  seal  of 

the  corporation,  and  to  have  been  set  to  the  deed  by  the  agent, 

it  is  prima  facie  evidence  of  his  authority  to  do  the  act. 

Springer  vs.  Bigford,   160   111.   495;    Ashley   Wire  Co.   vs.   111.   Steel 
Co.,  164  111.  149;   Phillips  vs.  Coffee,  17 'ill.  154. 

—  Act  of  Corporation:  Instrument  bearing  seal  of  corporation, 
and  purporting  to  be  its  act,  is  presumed  to  be  the  act  of  the  cor- 
poration,  though  signature  is  that  of  corporate  officer,  and  not 

name  of  corporation. 

Con.  Coal  Co.  vs.  Peers,  150  111.  344;   Sawyer  vs.  Cox,  63  111.   130; 

Phillips  vs.  Coffee,  17  111.  154;  Conkey  vs.  Goldman,  125  App.  161. 

The  seal  of  a   corporation   appearing  upon   an   instrument   is 

prima  facie   evidence   of  the  assent  of  the  corporation  and   the 

authority  to  execute  the  instrument. 
Eeed  vs.  Fleming,   209   111.   390. 

—  Bill  of  Sale:     By  vice-president. 

Springer  vs.  Bigford,  160  111.  495. 

—  Lease:     By  president.     Private  seal. 

Con.  Coal  Co.  vs.  Peers,  150  111.  344. 

—  Appeal  Bond:     By  attorney. 

I.  St.  L.  Ey.  Co.  vs.  Morganstern,  103  111.  149. 

By  agent,  with  scroll  for  seal. 

Miller  vs.  Superior  Mach.  Co.,  79  111.  450. 

—  Deed:  Purporting  to  bind  corporation,  signed  by  president 
and  vice-president  and  not  in  name  of  corporation. 

Sawyer  vs.  Cox,  63  111.  130. 

Vice  president.     Not  signed  by  secretary. 
Smith  vs.   Smith,  62  111.  493. 

—  Lease:     President  of  company  for   corporation.     President 

of  company  described  as  party  of  second  part  and  covenant  "by 

party  of  second  part." 

N.  W.  Distillery  Co.  vs.  Brant,  69  111.  658. 

—  Promissory  Notes:  Warrant  of  attorney  to  confess  judg- 
ment. 

McDonald  vs.  Chisholm,  131  111.  273;  Anderson  Trans.  Co.  vs.  Fuller, 
73  App.  48. 


SEDUCTION  1165 

—  Mortgage:     By  president. 

Uniou  Life  Ins.  Co.  vs.  White,  106  111.  67. 

—  Voluntary  Assignment:    Vice-president. 

Wagg-Anderson  Co.  vs.  Leslier  &  Co.,  78  App.  678. 

What  Sufficient  Proof  of  Authority : 

Where   execution   by   corporation   of   an   instrument   in   suit   is 

denied  by  verified  plea,  all  other  proof  having  been  made,  it  is 

not  essential  that  proof  of  authority  of  executing  officer  be  shown, 

if  corporation,  being  a  party  denying  such  execution,  has  acted 

under  the  instrument   in   question   and   has   thus   recognized   its 

existence. 

Conkey  Co.  vs.  Goldman,  125  App.  161. 

Certified  Copy  of  Instrument: 

Where  a  certified  copy  of  an  instrument  executed  in  behalf  of 

a  corporation  and  as  its  act,  shows,  after  name  of  president,  the 

word,   (seal),  this  affords  prima  facie  evidence  that  it  is  the  seal 

of  the  corporation.     It  is  not  necessary  to  make  a  fac  simile  of  the 

corporate  seal  in  the  copy. 

Anthony  vs.  International  Bank,  93  111.  225. 

Admissibility  of  Instrument : 

Contract  is  admissible  in  evidence  if  subject  is  within  powers  of 
corporation,  though  writing  is  not  under  seal. 

SiberUug  vs.  Miller,  207  111.  413;  Green  vs.  Blodgett,  159  111.   169. 


SECONDARY  EVIDENCE 

See  Best  and  Secondary. 


SEDUCTION 

See   Alienating   Affections,    Criminal    Conversation,    Bast- 
ardy. 
Loss  of  Service: 

—  Presumplions  and  Burden  of  Proof:     A  minor  has  no  right 

of  action.    Kight  of  action  for  seduction  of  female  in  her  minority 

is  in  parent. 

Heaps  vs.  Dunham,  95  111.  583;  XIV  111.  Notes  540,  §  2. 

Action  may  be  sustained,  not  only  by  the  parent,  but  by  a 
guardian,  master  or  other  person,  (brother-in-law),  standing  in 
loco  parentis  to  person  seduced. 

If  person  seduced  is  a  minor,  the  action  will  be  sustained  whether 
she  resided  with  plaintiff  or  elsewhere,  at  time  of  seduction,  if 
she  was  legally  under  the  control  of,  or  might  be  required  to  per- 
form service  for  plaintiff. 

Ball  vs.  Bruce,  21  111.  161. 

The  father  must  prove  that  the  relation  of  master  and  servant 
existed,  but  it  is  little  more  than  legal  fiction,  and  proof  of  the 
nominal  relation  of  master  and  servant  is  sufficient  to  give  the 
father  a  standing  in  court.  Proof  of  the  slightest  service  is  suffi- 
cient, and  when  proven,  and  the  cause  otherwise  established,  the 


11G6  SEDUCTION 

extent  of  the  recovery  is  not  limited  to  the  value  of  the  services 
lost  to  the  parent  as  a  master,  but  the  shame  and  mortification  of 
the  father,  the  injury  to  the  good  name  and  character  of  the 
family  of  which  he  is  the  head,  and  the  mental  suffering  of  the 
father  because  of  the  dishonor  to  his  family,  are  proper  elements 

of  damages. 

(Jarretson  vs.  Becker,  52  App.  255, 

The  right  of  the  mother  to  the  custody  of  a  minor  child  does  not 

arise  in  the  lifetime  of  the  father,  unless  so  ordered  by  the  court 

in  a  proper  case,  and  in  the  absence  of  proof  to  the  contrary,  it 

will  be  presumed  that  the  father  is  still  alive  and  the  right  of 

action  remains  in  him. 

Hobson   vs.   Fullerton,   4  App.   282. 

AVhere  there  is  no  proof  of  the  relation  of  master  and  servant 

actually  existing  between  the  mother  and   daughter,   there   must 

be  some  proof  that  the  mother  was  entitled  to  the  wages  of  her 

daughter  at  the  time  of  the  alleged  seduction,  in  order  to  sustain 

the  right  of  action  by  the  mother. 

Hobson  vs.  Fullerton,  4  App.  282;  Heap  vs.  Dunham,  95  HI.  583. 

Where  it  appeared  that  a  daughter,  though  an  adult,  had,  since 
arriving  at  her  majority,  resided  with  her  father  as  one  of  the 
famih%  the  same  as  when  in  minority,  and  had  since  her  mother's 
death,  a  period  of  seven  years,  been  his  housekeeper,  and  cared 
for  his  minor  children,  occasionally,  with  her  father's  consent, 
doing  washing  and  other  housework  away  from  their  home,  it  was 
held  that  the  relation  of  master  and  servant  was  sufficiently  shown. 
Bayles  vs.  Burgard,  48  App.  371. 

The  age  of  the  daughter  is  immaterial.  If  a  minor  and  un- 
married, the  father  is  entitled  to  her  services.  The  relation  of 
master  and  servant  need  not  be  otherwise  proven.  If  an  adult,  it 
must  appear  that  she  resided  in  the  family,  and  there  must  be  some 
proof  of  slight  acts  of  service,  and  if  such  be  proven,  the  age  of 

the  daughter  is  immaterial. 

Garretson.  vs.  Becker,  52  App.  255. 

A  father  may  recover  for  loss  of  service  of  an  adult  daughter 

w^ho,   though  married,   was  separated  from   her  husband,   and   a 

member  of  such  father's  family,  where  loss  of  service  was  the 

result  of  an  illegal  carnal  assault. 

Palmer  vs.  Baiim,  123  App.  584, 

—  Weight  and  Sufficiency:  Slight  acts  of  service  will  be  suffi- 
cient to  support  the  action. 

Ball  vs.  Bruce,  21   HI.   161;   White  vs.  Murtland,   71   111.   250;   Gar- 
retson vs.  Becker,  52  App.  255. 
Actual  service  or  actual  residence  with  parent  at  the  time,  is 
not  required.     It  is  only  necessary  to  show  that  the  parent  has  the 
legal  right,  at  the  time,  to  command  the  services  of  the  child. 

White   vs.    Murtland,    71    111.    250;    Anderson   vs.    Ryan,    8    111.    583; 
Bayles  vs.  Burgard,  48  App.  371. 

Defenses : 

—  Chastity  of  Daughter:  General  reputation  of  the  daughter 
for  chastity  is  involved  in  the  issue,  and  the  testimony  of  others 
than  herself  may  be  introduced  to  show  their  own  criminal  inti- 
macy with  her,  and  the  time  and  place. 

White  vs.  Murtland,  71  HI.  250. 


SEDUCTION  1167 

Particular  acts  of  immorality  as  well  as  general  bad  character 
of  party  seduced,  must  be  confined  to  what  occurred  previous  to 

defendant's  misconduct. 

White  vs.  Murtlaiul,  71  111.  250. 
If  the  seduced  is  examined  as  a  witness,  it  is  not  proper  to  ask 
her  whether,  about  time  the  child  was  begotten,  she  had  not  had 

intercourse  with  other  men. 

Doyle  vs.  Jessup,  29  111.  460. 
Witness  was  asked  if  he  had  "observed  and  was  acquainted 
with  the  disposition"  of  the  woman,  and  to  state  whether  or  not 
she  was  a  pert,  forward  girl.  Court  said  question  ' '  called  for  no 
acts,  but  the  mere  opinion  of  witness  as  to  her  disposition.  She 
might  have  been  both  pert  and  forward  without  being  lewd." 

White  vs.  Murtland,   71   111.   250. 

—  Consent  of  Daughter:  Evidence  that  the  daughter  yielded 
willingly  to  the  intercourse  is  not  admissible  for  the  defendant. 

White  vs.  Murtland,   71  111.   250. 

—  lielease  hy  Daughter:     Not  admissible. 

Heaps  vs.  Dunham,  95  111.  583. 

—  Force:     Proof  that  force  was  used  will  not  defeat  parent's 

case,  but  will  aggravate  the  injury. 

White  vs.  Murtland,   71  111.   250. 
That  the  act  was  yielded  to  without  force  or  seduction,  makes 
no  diiference  in  right  of  action ;  it  is  enough  that  the  act  was  done. 

Leucher  vs.  Steileu,  89  111.  545;   Palmer  vs.  Baum,  123  App.  584. 

—  Opposition  of  Parents:  Defendant  offered  to  prove  that  his 
parents  were  opposed  to  his  keeping  company  with  the  plaintiff's 
daughter,  on  account  of  his  youth  and  indiscretion,  and  that  plain- 
tiff had  been  notified  of  such  fact,  not  directly  from  defendant's 
parents,  which  the  court  refused  to  admit.  Such  evidence  was  in- 
admissike.  If  the  offer  had  been  to  prove  that  plaintiff'  had  been 
warned  against  defendant  on  account  of  his  bad  habits,  or  profli- 
gate character,  the  evidence  would  have  been  admissible.  But 
knowledge  of  plaintiff  that  defendant's  parents  were  opposed  to 
his  keeping  company  with  the  daughter  on  the  mere  ground  of 
youth  and  indiscretion,  would  not  indicate  that  a  seduction  was 

apprehended. 

Mains  vs.  Cosner,  62  111.  465. 

—  Identity:  The  legal  name  of  a  person  need  not  be  alleged  in 
a  declaration;  it  is  sufficient  if  that  name  by  which  the  person  is 
known,  and  which  has  been  adopted  by  such  person  is  employed. 

Palmer  vs.  Baum,  123  App.  584. 

Damages : 

—  Pecuniary  Circumstances:  In  action  by  father  for  debauch- 
ing his  infant  daughter  and  getting  her  with  child,  it  is  competent 
to  show  the  pecuniary  circumstances  and  position  in  society  of 
both  plaintiff  and  defendant. 

But  this  is  not  for  purpose  of  ascertaining  what  amount  of 
damages  defendant  is  able  to  pay,  but  with  a  view  to  ascertaining 
the  extent  of  plaintiff's  injury,  perhaps  fixing  a  standard  of  ex- 
emplary damages. 

White  vs.  Murtland,  71  111.  250;  Grable  vs.  Margrave,  4  111.  372. 

—  Exemplary:     Exemplary  damages  may  be  recovered. 

Ball  vs.  Bruce,  21  111.  161;  XIV  111.  Notes  541,  §  10. 


1168  SEPARATE  AND  SIMILAR  OFFENSES 

But  in  action  by  the  father,  for  seduction  of  adult  married 
daughter,  punitive  damages  should  not  be  allowed,  when  it  appears 
that  there  was  no  excessive  viciousness,  deliberate  malice,  brutal- 
ity or  other  special  elements  tending  to  aggravate  the  otfense 
committed,  and  that  offense  Mas  almost  a  matter  of  invitation. 
Palmer  vs.  Baum,  123  App.   584. 

—  Loss  of  Service:     Necessary  expenses  of  attendance,  society 

and  comfort,  are  elements  of  damages. 

Grable  vs.  Margrave,  4  111.  372;  Bayles  vs.  Burgard,  48  App.  371; 
Leucher  vs.  Steileu,  89  111.  545. 

But  not  expense  of  rearing  child. 
Palmer  vs.  Baum,  123  App.  584. 

—  Disgrace :    The  disgrace  cast  upon  the  family  is  a  material 

element. 

Mighell  vs.  Stone,  175  111.  261;  Grable  vs.  Margrave,  4  111.  372; 
Bayles  vs.  Burgard,  48  App.  371. 

—  Abortion:     Medical  attendance  and  expenses  caused  thereby, 

are  admissible.     It  is  an  essential  element  of  the  wrong  leading 

to  the  loss  of  service  which  is  ground  of  action.     It  is  immaterial 

under  what  circumstances  injury  was  wrought.     It  is  no  defense 

that  crime  was  rape  and  not  seduction. 
White  vs.   Murtland,   71   111.   250. 

—  Means  Used:  Proof  of  sexual  intercourse  between  defendant 
and  plaintiff's  minor  daughter  while  living  with  her  father,  fol- 
lowed  by   pregnancy,    confinement   and    birth   of   child,    is   proof 

enough  of  seduction  to  sustain  suit  by  father. 
Leucher  vs.  Stileu,  89  111.  545. 

—  Promise  of  Marriage:  Is  admissible  because  tending  to  show 
that  defendant  sought  the  society  of  plaintiff's  daughter  under  the 
pretense  of  honorable  motives,  and  that  the  illicit  intercourse  was, 
therefore,  a  result  of  seduction  on  his  part  in  the  strict  sense  of 

the  word. 

Mighell  vs.  Stone,  175  111.  261;   Mains  vs.  Cosner,  62  111.  465. 

But  .iury  should  be  instructed  not  to  consider  such  promise  of 
marriage  in  aggravation  of  damages. 
Mains  vs.   Cosner,  62   111.  465. 

—  Offer  of  Marriage:  After  suit  brought,  inadmissible  to  mit- 
igate damages. 

White  vs.  Murtland,  71  111.  250. 

—  Breach  of  Promise :  Seduction,  if  in  consequence  of  the 
promise,  mav  be  given  in  evidence  in  aggravation  of  damages. 

Tubbs  vs.  Van  Kleek,  12  111.  446. 

SELF  DEFENSE 

See  Homicide. 

SEPARATE  AND  SIMILAR  OFFENSES 

See  Confessions,  Bastardy,  Gaming, 
Admissibility  of  Evidence: 

—  In  General:  The  general  rule  is  that  proof  of  a  distinct, 
substantive  offense  cannot  be  admitted  in  support  of  a  prosecu- 
tion for  another  offense. 

People  vs.  Jennings,  252  111.  534;  People  vs.  Cleminson,  250  111.  135; 
Bromm  vs.  People,  216  111.  148:  Bishop  vs.  People,  194  111.  365; 
Janzen  vs.  People,  159  111.  440';  Lyons  vs.  People,  137  111.  602; 
Hickman  vs.  People,  137  111.  75;  XI  111.  Notes  1241,  §  118. 


SEPARATE  AND  SIMILAR  OFFENSES  1169 

Proof  of  misconduct  not  connected  with  the  charge  upon  which 
accused  is  being  tried  should  not  be  admitted,  as  such  evidence  is 
likely  to  prejudice  the  jury  against  the  defendant  and  cause  them 
to  lose  sight  of  the  issues  which  they  have  sworn  to  try. 

Addison  vs.  People,  193  111.  405;  Farris  vs.  People,  129  111.  521; 
Baker  vs.  People,  105  111.  452;  Hayward  vs.  People,  96  111.  492; 
Giflford  vs.  People,  87  111.  210. 

In  a  criminal  case  evidence  tending  to  prove  a  similar  but  dis- 
tinct offense  from  that  for  which  the  accused  is  being  tried,  is 
not  admissible  for  the  purpose  of  raising  an  inference   that  he 

committed  the  crime  of  which  he  is  accused. 

Bishop  vs.  People,  194  111.  365;  Parkinson  vs.  People,  135  111.  401. 

As  a  general  rule,  proof  of  other  acts  is  inadmissible  unless  they 

are  part  of  the  res  gestae. 

People  vs.  Gibson,  255  111.  302;  People  vs.  Gray,  251  111.  431. 

The  mere  proximity  of  time  within  which  two  offenses  may  be 

committed  does  not  necessarily  make  one  a  part  of  the  other.    Im- 

mediateness  is  not  the  tru"e  test.     There  must  be  a  casual  relation 

or  logical  and  natural  connection  between  the  two  acts  or  they 

must  form  parts  of  but  one  transaction. 
People  vs.  Gibson,  255  111.  302. 

"Where  a  person  is  on  trial  for  a  particular  offense,  and  a  com- 
plete detached  narrative  of  that  offense  by  a  witness  involves 
the  recital  of  another  offense,  it  is  not  error  to  permit  him  to 
complete  the  detailed  narrative  of  the  offense  for  which  the  party 
is   indicted,   notwithstanding   the   recital   of   another   offense   for 

which  he  is  not  indicted. 

Parkinson  vs.  People,  135  111.  401. 

The  test  of  admissibility  of  evidence  is  the  connection  of  the 

facts  proved  with  the  crime  charged,  and  whatever  testimony  tends 

directly   to   show   the   defendant   guilty   of   the   crime   charged   is 

competent,  although  it  tends  to  show  him  guilty  of  another  offense. 
People  vs.  Moeller,  260  111.  375;   People  vs.  Jennings,  252  111.  534; 
Andrews  vs.  People,  117  111.  195. 

Where  evidence  offered  tends  to  prove  the  offense  alleged,  it 

is  not  inadmissible  because  it  tends  to  prove  another  offense. 

People   vs.   Eardin,   255   111.   9;    People   vs.   Jennings,    252    111.    534; 

People  vs.  White,  251   111.  67;   Williams  vs.  People,   166   111.   132; 

Farris   vs.    People,    129    111.    521;    Orr   vs.   People,    63   App.    305; 

McDonald  vs.  People,  25  App.  350. 

When  facts  and  circumstances  amount  to  proof  of  another  crime 

than  that  charged,  and  there  is  ground  to  believe  that  the  crime 

charged  grew  out  of  it  or  was  in  any  way  caused  by  it,  such  facts 

and  circumstances  may  be  proved,  to  show  the  quo  animo  of  the 

accused. 

Henry  vs.  People,  198  111.  162. 

—  To  Show  Guilty  Knowledge:     The  rule  precluding  evidence 

of  distinct  crimes  other  than  the  one  charged  in  the  indictment  is 

subject  to  the  exception  that  where  it  M^as  necessary  to  show  guilty 

knowledge  or  a  particular  intent  to  establish  the  offense  charged, 

proof  of  other  offenses  by  the  defendant,  of  the  same  character, 

may  be  introduced. 

People  vs.  Hagenow,  236  111.  514. 

Where  defendant  is  accused  of  renting  rooms  for  purpose  of 
Ev. — ^74 


1170  SEPARATE  AND  SIMILAR  OFFENSES 

keeping  therein  a  common  gaming  house,  guilty  knowledge  may 

be  shown  by  proof  that  on  former  occasion  premises  had  been 

rented  to  same  party  for  gaming  purposes. 
People  vs.   Viskniskki,  255  111.  384. 

—  Embezzlement:  Where  defendant  is  charged  with  embez- 
zlement, by  the  fraudulent  conversion  to  his  own  use,  of  money 
placed  in  his  hands  to  be  loaned  for  the  owner,  it  is  not  competent 
for  the  prosecution  to  prove  that  defendant  had  collected  or 
secured  money  belonging  to  other  parties,  and  on  several  occasions, 
which  he  had  fraudulently  converted  to  his  own  use.    The  evidence 

should  be  confined  to  charge  set  forth  in  the  indictment. 
Kribs  vs.  People,  82  111.  425. 

—  Extortion:  On  a  charge  of  extorting  money  by  threats,  evi- 
dence that  accused,  on  former  occasion,  threatened  to  kill  the  same 
party  unless  he  paid  him  money  is  competent  to  characterize  the 
conduct   and   language   of   accused   at   the   time   the   money   was 

extorted. 

Glover  vs.  People,  204  111.  170. 

—  Sexual  Crimes:     On  principle  there  can  be  no  distinction  as 

to  the  admission  of  this  class  of  evidence  between  a  prosecution 

where  the  charge  is  incest  or  adultery,  and  a  prosecution  where 

the  charge  is  rape  upon  a  female  child  under  the  age  of  consent, 

if  such  testimony  is  admissible  in  the  first  two  classes  of  cases, 

logically  it  must  be  admissible  in  the  last  named  class. 
People  vs.  Gray,  251  111.  431. 

In  prosecution  for  rape  without  force,  other  offenses  with  pros- 
ecuting witness  are  admissible. 

People  vs.  Grav,  251  111.  431;  Ambach  vs.  People,  247  111.  451;  People 
vs.  Duncan,  261  111.  339;  XIV  111.  Notes  295,  §  14. 

But  acts  of  intercourse  between  accused  and  other  parties  than 
the  prosecuting  witness  are  not  admissible. 

People  vs.   Gibson,   255    111.   302;    Dalton   vs.   People,   224   111.   333; 
Janzen  vs.  People,  159  111.  440. 

Confessions  by  accused  of  crime  other  than  that  charged  in  the 
indictment,  while  not  admissible  as  a  substantive  fact,  may,  when 
not  separable  from  a  competent  confession,  go  to  the  jury  under 
cautionary  direction  from  the  court. 

Wistrand  vs.  People,  218  111.  323;  Gore  vs.  People,  162  111.  259. 

Proof  of  previous  acts  of  incest  with  prosecuting  witness  are 

admissible. 

People   vs.    Turner,    260    111.    84;    David   vs.    People,    204    111.   469; 
Bolen  vs.  People,  184  111.  338. 

Where  defendants  charged  with  living  together  in  open  adultery, 
prior  and  subsequent  acts  of  improper  familiarity  or  of  adultery, 
between  the  parties,  whether  occurring  in  the  same  or  other  juris- 
dictions, may  be  proved  in  explanation  of,  or  to  characterize,  the 
acts  of  the  parties  complained  of  as  constituting  the  offense  charged. 
Crane  vs.  People,  168  111.  395. 

—  Forgery:  Evidence  of  another  forgery,  committed  by 
accused  at  the  time  of  commission  of  offense  for  which  he  is  on 
trial,  is  competent  in  identifying  the  party  and  transactions,  and 
as  res  gestae. 

Cross  vs.  People,  47  111.  152;  Steele  vs.  People,  45  111.  152. 


SEPARATE  AND  SIMILAR  OFFENSES  1171 

Evidence  of  statements  or  admissions  in  reference  to  the  note 

for  the  forgery  of  wliich  accused  is  being  tried,  are  admissible,  but 

what  he  has  said  of  another  note  said  to  have  been  forged  is  not 

admissible  to  prove  the  charge  upon  which  he  is  being  tried. 
Fox  vs.  People,  95  111.  71. 

Evidence  is  admissible  to  show  that  defendant  had,  about  the 
same  time,  in  his  possession,  or  uttered  or  attempted  to  utter,  other 
forged  instruments  of  same  description. 

Anson  vs.   People,   148  111.  494;   Fox  vs.  People,  95  111.   71;    Cross 
vs.  People,  47  111.  152 ;  Steele  vs.  People,  45  111.  152. 

—  Illegal  Sale  of  Drugs:  The  fact  that  a  bill  of  particulars 
alleged  that  a  sale  of  cocaine  was  made  by  defendants  on  a  certain 
date,  without  stating  to  whom  the  sale  was  made  or  that  it  was 
made  by  a  clerk,  does  not  preclude  proof  "that  the  defendants  kept 
for  sale  a  certain  catarrh  powder,  which  was  a  compound  of 
cocaine,  and  that  their  clerk  made  a  sale  of  the  same  in  absence  of 
defendants,  where  it  is  not  denied  that  the  clerk  w^as  authorized  to 
sell  and  was  expected  to  sell  what  was  called  for. 

And  where  defendants  contested  authority  of  clerk  to  make  the 
sale  counted  on,  proof  of  other  sales  before  and  after  the  one  on 
which  the  prosecution  is  based,  is  competent  for  purpose  of  show- 
ing the  manner  of  conducting  the  business  and  the  authority  of 
the  clerk,  as  w^ell  as  upon  the  question  of  intent. 
People  vs.  Zito,  237  111.  434. 

-. —  Receiving  Stolen  Goods:  Proof  that  accused  on  former 
occasion  received  some  of  the  same  goods  through  the  same  chan- 
nel is  competent  as  tending  to  show  guilty  knowledge. 

People  vs.  Baskin,  254  111.  509;  Lipsey  vs.  People,  227  111.  364. 

— ■  Lottery:  Proper,  in  such  case,  to  admit  in  evidence,  on  be- 
half of  prosecution,  not  only  the  ticket  sold,  but  the  bill  and 
advertisement  delivered  to  the  purchaser,  which  explained  the 
purpose  and  character  of  the  scheme,  and  also  other  tickets  and 
bills  or  advertisements  of  similar  kind,  sold  and  delivered  by 
accused  to  other  parties,  as  tending  to  prove  the  intent  with  which 
the  ticket  was  sold. 

Thomas  vs.  People,  59  111.  160;  Dunn  vs.  People,  40  111.  465. 

—  Larceny:  "Where  larceny  is  of  jcAvels,  and  effected  by  sub- 
stitution of  imitations,  other  imitations  substituted  by  accused  in 
other  instances  are  admissil)le  to  show  ability. 

Gindrat  vs.  People,  138  111.  103. 

Inadmissible  to  prove  independent  crimes,  even  though  of  same 

general  character,  nor  his  willingness  to  commit  a  similar  offense 

at  the  time. 

Bishop  vs.  People,  194  111.  365. 

—  Homicide:  Admitting  proof  of  the  killing  of  a  person  other 
than  one  named  in  indictment,  and  an  assault  upon  another,  by 
defendant,  in  same  difficulty,  is  proper  where  the  evidence  is  in- 
separable from  that  of  the  killing  of  the  person  named  in  the  in- 
dictment, and  relates  to  one  and  the  same  transaction. 

Hiekam  vs.  People,  137  111.  75;  XII  111.  Notes  920,  §43. 

— -False  Pretenses:  Where  defendant  is  accused  of  obtaining 
money  by  means  of  worthless  draft,  other  drafts  similar  to  that 


1172  SEPARATE  AND  SIMILAR  OFFENSES 

mentioned  in  indictment,  found  in  his  possession,  are  competent 
as  tending  to  show  guilty  knowledge  and  intention. 

Wbiteniau  vs.  People,  S3  App.  3(59. 

But  evidence  tending  to  show  that  defendant  was  in  the  habit 
of  making  false  pretenses  or  resorting  to  fraudulent  practices  in 
making  of  sales  of  horses  is  inadmissible. 
Jacksou  vs.  People,  126  111.  139. 

—  Burglary:  Where  accused  charged  with  burglary  in  enter- 
ing a  hotel,  proof  that  the  keys  of  other  hotels  were  found  on  his 
person,  one  of  which  unlocked  the  door  of  the  room  where  he  was 
discovered,  is  admissible  as  tending  to  disprove  his  statement  that 
he  was  intoxicated  and  did  not  know  how  he  came  to  be  in  the 

hotel. 

Brueu  vs.  People,  206  111.  417. 

Where  burglary  is  of  a  series  of  connected  transactions  proof  of 

the  entire  series  is  admissible. 

People  vs.  Moeller,  260  111.  375. 

—  Conspiracy:  Whenever  in  a  conspiracy  or  other  similar  case 
it  is  necessary  to  prove  a  particular  intent,  and  the  evidence  in 
regard  to  the  crime  charged  tends  to  show  two  intents  as  to  one 
or  more  of  the  defendants,  one  intent  being  an  innocent  or  other 
intent  than  the  one  charged,  and  the  other  intent  being  the  cor- 
rupt intent  charged,  evidence  of  other  similar  offenses  is  admissible 
as  to  such  defendants  for  the  sole  purpose  of  proving  such  corrupt 
intent,  if  such  evidence  tends  to  prove  such  intent. 

People  vs.  Pouchot,  174  App.  1. 

In  prosecution  against  two  defendants  for  conspiracy,  evidence 
of  commission  of  similar  offense  by  one  of  the  defendants,  is  inad- 
missible. 

Johnson  vs.  People,  124  App.  213;  Towne  vs.  People,  89  App.  258; 
Cf.  People  vs.  Warfield,  172  App.  1. 

Where  issue  is  whether  a  party  is  guilty  of  a  general  conspiracy, 
distinct  overt  acts  of  conspiracy  may  be  given  in  evidence,  and  when 
issue  is  whether  party  is  guilty  of  a  specific  overt  act,  it  is  com- 
petent to  show  other  overt  acts  constituting  a  part  of  the  res  gestae. 
McDonald  vs.  People,  126  111.  150. 

—  Con-fhdence  Game:  It  is  proper,  for  purpose  of  showing  guilty 
knowledge,  to  prove  that  the  defendant  obtained  money  of  other 
persons  by  the  same  scheme,  by  which  he  obtained  money  of  com- 
plaining witness. 

People  vs.   Donaldson,   255   111.    19;    People  vs.   Weil,   243   111.    20S; 
People  vs.  Weil,  244  111.  176. 
Evidence  of  similar  transactions  in  which  accused  made  use  of 
bogus  checks  as  alleged,  is  admissible  for  purpose  of  showing  guilty 

knowledge. 

Juretich  vs.  People,  223  111.  484. 

Evidence  of  similar  transactions  practiced  by  accused  upon  other 
parties  is  admissible  not  for  purpose  of  showing  a  willingness  on 
part  of  accused  to  commit  the  offense  charged,  but  to  show  guilty 
knowledge  of  which  he  claims  himself  to  be  innocent. 

Dubois  vs.  People,  200  111.  157;  Morton  vs.  People,  47  111.  468. 

—  Abortion :    To  show  guilty  knowledge,  proof  of  abortions  per- 


SERVICE  1173 

formed  by  defendant  upon  other  women  than  deceased,  is  admis- 
sible. 

People  vs.  Hagenow,  23G  111.  514. 


SEPARATION  OF  WITNESSES 

See  Exclusion  and  Separation  of  Witnesses. 

SERVICE 

See  Judgments,  Foreign  Judgments,  Justice  of  the  Peace, 
Judicial  Notice,  Records,  Parol. 
OFFICIAL  RETURN: 
Judicial  Notice: 

Courts  will  take  judicial  notice  of  its  own  officers  and  w^hen 

terms  expire. 

Glos  vs.  Greiner,  226  111.  546;   Dyer  vs.  Last,  51  111.  179;  Brackett 
vs.  People,  115  111.  29;  XII  111.  Notes  473,  §8. 
But  this  only  w'hen  officer  assumes  to  act  as  such. 

Brush  vs.  Lenuon,  76  111.  496;  Chambers  vs.  People,  5  111.  351. 

Presumptions : 

Every  presumption  in  favor  of  the  return  will  be  indulged  and 
it  will  not  be  set  aside  upon  the  uncorroborated  testimony  of  the 
party  upon  whom  service  purports  to  have  been  made.  A  sound 
public  policy,  the  security  of  the  litigants,  and  the  stability  of  legal 
proceedings  demand  that  the  return  of  the  sworn  officer  shall  not  be 
set  aside  or  impeached  except  upon  satisfactory  evidence. 

Hilt  vs.  Heimberger,  235  111.  235;  Callender  vs.  Gates,  45  App.  374; 
Sullivan  vs.  Niehoff,  27  App.  421;  XIV  111.  Notes  140,  §68. 

How  Questioned: 

Before  judgment,  by  plea  in  abatement. 

Waterbury  Nat'l  Bank  vs.  Reed,  231  111.  246;  Elec.  Co.  vs.  Mfg.  Co., 
Ill  111.  309;  Union  Natl.  Bank  vs.  Chi.  Natl.  Bank,  90  lU.  56; 
Siebert  vs.  Thorpe,  77  111.  43;  Callender  vs.  Gates,  45  App.  374. 

Amendment : 

AVhere  the  officer  is  willing  and  desirous  of  correcting  his  return, 
so  as  to  show  a  legal  service,  parol  evidence  is  admissible  for  the 
purpose  of  showing  the  propriety  of  amending  his  return. 
Spellmeyer  vs.  Gaff,  112  111.  29. 

After  the  death  of  the  officer,  parol  evidence  is  incompetent  to 

aid  return. 

Wilson  vs.  Greathouse,  2  111.  174. 

Effect  as  Evidence: 

The  sheriff's  return  of  service  does  not  import  absolute  verity, 
but  is  only  2irima  facie  evidence  of  the  truth  of  the  matters  therein 

stated.  ■  _,  „„  _„    ,^ 

Hilt  vs.  Heimberger,  235  111.  235;  Siebert  vs.  Thorpe,  77  111.  43; 
Hickey  vs.  Stone,  60  111.  458;  Harper  vs.  Mangel,  98  App.  526; 
Newman  vs.  Greeley  State  Bank,  92  App.  638;  Contra,  Fitzgerald 
vs.  Kimball,  86  111.  396 ;  Bottsford  vs.  O  'Conner,  57  111.  72. 

When  May  be  Contradicted: 

Where  the  rights  of  third  persons  have  been  acquired  ni  good 


1174  SERVICE 

faith,  the  return  of  an  officer  showing  service  of  summons  cannot 

be  contradicted ;  but  as  against  parties  acquiring  rights  with  notice, 

the  return  is  not  conclusive  and  may  be  impeached  by  clear  and 

satisfactory  evidence. 

Hilt  vs.  Heimberger,  235  111.  235;  Jones  vs.  Neely,  82  111.  71. 

If  officer,  by  fraud  or  collusion  with  a  party,  or  by  mistake,  makes 

a  false  return,  a  court  of  equity  has  full  power  and  jurisdiction  to 

interpose  and  give  the  appropriate  relief,  and  to  permit  the  party 

injured  to  aver  against  the  truth  of  the  return  and  to  show  it  to 

be  false,  although  it  is  a  matter  of  record. 

Waterbury  Natl.  Bank  vs.  Eeed,  231  111.  246;  Kochman  vs.  O'Neill, 

202  111.  110;  How  vs.  Mortell,  28  111.  478;  Harper  vs.  Mangel,  98 

App.  526. 

In  regard  to  injunctions,  after  a  judgment  at  law,  it  may  be 

stated  as  a  general  principle  that  any  facts  which  prove  it  to  be 

against  conscience  to  execute  a  judgment  and  of  which  the  injured 

party  could  not  have  availed  himself  in  a  court  of  law,  or  of  which 

he  might  have  availed  himself  at  law  but  was  prevented  by  fraud 

or  accident  unmixed  with  any  fraud  or  negligence  in  himself  or 

agents,  will  authorize  a  court  of  equity  to  interfere. 

Higgins  vs.  Mullock,  73  111.  205 ;  Owens  vs.  Eanstead,  22  111.  161. 
In  setting  aside  default  official  return  may  be  contradicted. 

Wildav  vs.  McConnell,  63  111.  278. 

COLLATERAL  PEOCEEDINGS: 

Domestic  Judgment  of  Court  General  Jurisdiction: 

Where  a  return  is  without  date,  but  decree  recites  the  defend- 
ants were  duly  served,  it  will  be  presumed  court  became  satisfied, 
in  some  legitimate  mode  and  by  proper  evidence,  that  service  was 

in  season. 

Eivard  vs.  Gardner,  39  111.  125;  Harrison  vs.  Hart,  21  App.  348. 

—  Recital  of  Service  in  Judgment:     Such  a  finding,  like  any 

other  judicial   determination,   can  never  be   contradicted,   varied 

or  explained  in  a  collateral  proceeding  by  parol  or  other  evidence 

beyond   or   outside    of   the    record   itself.     The    question   must  be 

tried  by  the  record,  and  while  finding  may  be  rebutted  by  other 

portions  of  the  same  record,  it  cannot  be  overcome  by  other  means. 

If,  by  an  inspection  of  the  whole  record,  it  is  seen  there  was  no 

jurisdiction,  the  finding  is  overcome. 

,  I.  C.  E.  R.  Co.  vs.  People,  189  111.  119 ;  Lancaster  vs.  Snow,  184  111. 
534;   Swift  vs.  Yauaway,   153  111.   197;   Dickison  vs.  Dickison,   124 
111.  483;   Hunter  vs.  Stoneburner,  92  111.  75;   Haywood  vs.  Collin, 
60  111.  328. 
Where  court  has  proceeded  to  adjudicate  a  case,  it  will  be  pre- 
sumed that  the  court  had  evidence  of  such  service  or  appearance 
as  conferred  jurisdiction  of  the  person.     The  question  is  primary 
and  must  be  first  determined,  but  the  presumption  may  be  rebutted. 
If  record  shows  insufficient  service,  and  fails  to  show  the  court 
otherwise  acquired  jurisdiction,  then  the  presumption  is  rebutted, 
and  court  will  be  held  to  have  acted  upon  insufficient  service. 
When  the  return  appears  in  the  record,  and  there  is  no  finding 
from  which  it  may  be  inferred  the  court  otherwise  acquired  juris- 
diction, it  will  be  held  that  the  court  acted  on  the  service  appear- 
ing in  the  record. 
.--.\.        Bottsford  vs.  O'Conner,  57  HI.  72.     (See  Eecords.) 


SERVICE  1175 

Courts  Inferior  Jurisdiction: 

There  is  no  presumption  in  favor  of  judgment  of  court  of  in- 
ferior and  limited  jurisdiction,  but  tlie  facts  must  appear  in  the 

record,  showing  the  jurisdiction. 

Osgood  vs.  Blackinore,  59  111.  261. 

SUBSTITUTED  SERVICE: 

Copy  of  Bill: 

—  Affidavit  Before  Foreign  Notary:  An  affidavit  of  the  service 
of  process  upon  defendant  in  another  state,  made  before  a  notary- 
public  of  such  state,  is  not  competent  evidence  of  the  fact  in  absence 
of  proof  as  to  authority  of  the  officer  to  administer  oaths,  and  does 
not  confer  jurisdiction. 

Trevor  vs.  Colgate,  181  111.  129. 
The  certificate  of  clerk  of  a  court  of  record  of  foreign  state,  under 
his  official  seal,  and  attached  to  jurat  of  justice  of  the  peace  resid- 
ing in  the  county,  stating  that  the  justice  was  authorized  to  take 
acknowledgment  and  administer  oaths,  is  sufficent  proof  of  his 
authority  to  administer  the  oath  to  the  person  making  the  affidavit 

of  service  of  notice. 

Williams  vs.  "Williams,  221  HI.   541. 

—  Service  in  the  State:     Not  good  by  copy  of  the  bill. 

Townsand  vs.  Townsand,  21  111.  540. 

—  Applies  to  Infants:  Statute,  which  provides  for  service  on 
defendants  residing  or  being  without  the  state,  by  the  delivery  of  a 
copy  of  the  bill  and  notice  of  commencement  of  the  suit,  applies  to 
and  includes  non-resident  infants  as  well  as  adults. 

Hale  vs.  Hale,  146  HI.  226. 

—  Summons  Need  Not  Issue:  The  statute  does  not  make  the 
issue  and  return  of  summons  necessar^^  to  the  validity  of  a  service 
by  a  copy  of  the  bill,  with  a  notice  of  the  commencement  of  the 
suit,  as  to  non-resident  defendants. 

Cloyd  vs.  Trotter,  118  111.  391. 

—  Of  the  Notice:  The  notice  of  the  commencement  of  a  chanc- 
ery suit  and  the  copy  of  bill  to  which  notice  is  attached,  are  to  be 
considered  as  one  instrument,  and  the  fact  that  the  term  at  which 
defendant  is  to  appear  is  not  stated  in  notice  does  not  render 
service  thereof  insufficient,  if  the  term  of  court  appears  from  at- 
tached copy  of  bill. 

Williams  vs.  Williams,  221  111.  541. 

—  Period  of  Service  and  Default:  Service  of  a  notice  and  copy 
of  bill  less  than  thirty  days  before  term  at  which  defendant  is 
required  to  appear  does  not  preclude  acquiring  of  jurisdiction 
where  default  is  not  entered  until  term  following  the  one  at  which 
defendant  was  required  to  appear,  the  beginning  of  which  is  more 
than  thirty  days  from  the  time  notice  and  copy  were  served. 

Williams  vs.  Williams,  221  111.  541. 

Publication : 

—  Corporation:  Proof  may  be  made  of  the  publication  of  a 
notice  by  an  agent  of  the  publisher,  notwithstanding  publisher  may 
be  a  corporation.    A  corporation  may  have  an  agent  as  well  as  an 

individual  or  a  co-partnership. 

Maass  vs.  Hess,  140  111.  576;  XIV  111.  Notes  141,  §  72. 


1176  SET-OFF  AND  COUNTER  CLAIM 

A  certificate,  with  the  corporate  seal  attached,  made  by  an  agent 
of   corporation   other   than   the   president,   is   sufficient   where   it 
is  shown  by  the  minutes  of  the  board  of  directors,  that  such  agent 
was  expressly  authorized  to  make  certificates  of  publication. 
Pentzel  vs.  Squire,  161   111.  346. 

The  seal  of  a  corporation  publishing  a  delinquent  tax  list  need 
not  be  affixed  to  the  certificate  of  publication  made  by  its  president, 
the  act  being  an  individual  and  not  a  corporate  act. 
Hertig  vs.  People,  159  111.  237. 

If  a  publisher's  certificate  is  signed  by  his  agent,  his  authority 
must  appear.  But  if  the  publisher  is  a  firm  or  corporation,  sig- 
nature of  a  member  of  firm  or  officer,  showing  his  official  connection 

with  the  newspaper  is  enough. 

Fox  vs.  Turtle,  55  111.  377;  Smith  vs.  Smith,  62  111.  493. 

—  How  Certificate  Must  Be  Signed:  A  certificate  of  publication 
of  notice  which  does  not  purport  to  be  signed  by  the  publisher  or 
his  agent,  and  which  shows  on  its  face  it  was  not  so  signed,  is  of  no 
efi'ect,  as  it  does  not  comply  with  statute. 

Kearney  vs.  City  of  Chicago,   163  111.  293. 

—  Extrinsic  Evidence  to  Aid:  Defective  certificate  of  publica- 
tion may  be  aided  by  extrinsic  evidence. 

"Barnett  vs.  Wolfe,  70  111.  76;  Eue  vs.  City  of  Chicago,  66  111.  256; 
Drainage  Dist.  vs.  Highway  Comrs.,   238   111.  521. 
Certificate  of  publisher  is  not  the  only  evidence  that  may  be  had 
with  reference  to  proof  of  publication. 

McChesney  vs.  People,  178  111.  542;  Lingle  vs.  City  of  Chicago,  172 
111.  170;  Harris  vs.  Lester,  80  111.  307;   Kiely  vs.  Barton,  32  App. 
524;  I.  C.  B.  B.  Co.  vs.  People,  189  111.  119. 
And  is  admissible  though  objector  appears  specially. 

Lingle  vs.  City  of  Chicago,  172  111.  170. 
To  fix  the  date  of  an  undated  notice,  reference  may  be  had  to 
the  date  of  a  newspaper  containing  the  notice. 

Pinch  vs.  Sink,  46  111.  169;  Goudy  vs.  Hall,  36  111.  313. 
Judgment  void  for  want  of  service  of  process  cannot  be  made 

valid  1)3^  parol  evidence. 

Haywood  vs.  Collins,  60  111.  328. 
Evidence  extrinsic  to  the  record  is  inadmissible  to  impeach  a 
decree  and  to  prove  that  the  court  had  no  jurisdiction,  e.  g.  to 
prove  absence  of  service  by  publication. 

Eeedy  vs.  Camfield,  159  111.  254;  Connelly  vs.  Eue,  148  111.  207; 
Bickerdike  vs.  Allen,  157  111.  95;  Seilbeck  vs.  Grothman,  248  111. 
435. 


SET-OFF  AND  COUNTER  CLAIM 

See  Assumpsit,  Money  Counts. 
Burden  of  Proof: 

—  In  General:  Although  recoupment,  considered  as  a  right, 
enables  a  delinquent  defendant,  conceding  to  the  plaintiff  a  right 
of  action,  to  prevent  a  recovery  or  reduce  its  amount,  it  is  not  upon 
any  merit  of  his  own,  but  for  the  fault  of  the  plaintiff,  in  connec- 
tion with  the  same  transaction  on  which  he  sues.  The  burden  of 
proving  such  fault  rests  upon  him  and  is  the  same  that  it  would  be 


SET-OFF  AND  COUNTER  CLAIM  1177 

if  he  n^ere  plaintiff  suing  for  the  damages  caused  by  it ;  and  if  that 
fault  consists  in  the  breach  of  another  agreement,  independent  of 
the  one  in  which  plaintiff  sues,  but  contained  in  the  same  instru- 
ment, and  relating  to  the  same  subject  matter,  he  must  show,  in 
like  manner,  that  he  is  not  himself  in  default  as  to  that  agreement. 
Harber  Bros.  vs.  Moffat  Cycle  Co.,  151  111.  84;  Purcell  vs.  Sage, 
2U0  111.  342 ;  N.  S.  Lumber  Co.  vs.  S.  S.  Lumber  Co.,  176  App.  96. 

A  defense  of  recoupment  is  admissible  under  general  issue. 

Hubbard  vs.  Eoehe,  133  App.  602. 
In  pleading  a  set-off  the  defendant  as  to  it  assumes  the  attitude 
of  a  plaintiff  and  is  bound  to  prove,  in  reference  to  it,  the  same 
facts  as  if  he  had  instituted  his  action  upon  it. 

Lairfl  vs.  Warren,  92  111.  204;  Eussell  vs.  Excelsior  Co.,  120  App. 
23;  Kelly  vs.  Garrett,  1  Gil.  649;  Holmes  vs.  McKenuan,  120  App. 
320;  Messmore  vs.  Larson,  86  111.  268;  XIV  111.  Notes  552,  §38. 

—  Must  Exist  at  Commencement  of  Action:  Plea  is  an  affirm- 
ative one,  and  it  is  incumbent  upon  defendant  to  prove  as  well 
the  genuineness  of  the  demand  he  seeks  to  set  off  as  that  it  was 

due  him  when  suit  w^as  brought. 

Osgood  vs.  Groseclose,  159  111.  511;  Ellis  vs.  Cothran,  117  111.  458; 
Pettis  vs.  Westlake,  4  111.  535;  Brass  vs.  Green,  113  App.  58. 

Since  the  claim  sought  to  be  set  off  against  plaintiff's  demand 
must  have  been  owned  by  defendant  when  suit  was  brought,  an 
assignment  of  an  open  account,  made  on  day  of  trial,  is  not  admis- 
sible to  prove  a  sale  of  the  account  to  defendant. 
Ewens  vs.  Wilbor,  208  111.  492. 

—  Affecting  Burden   of  Plaintiff:    A   plea   of  set-off,    counter 

claim  or  recoupment,  does  not  relieve  plaintiff  of  his  burden  in 

first  instance  of  making  out  a  prima  facie  case. 
Eobinson  vs.  Parish,  62  111.   130. 

What  Subject  of  Set  Off: 

AVherever  an  action  can  be  maintained  in  assumpsit  for  money 
had  and  received,  on  the  common  counts,  such  a  demand  ought  to 
be  a  subject  of  set  off.  Money  paid  under  a  mistake  of  fact  may  be 
set-oft'  by  defendant  in  assumpsit  against  a  debt  claimed  to  be 
due  plaintiff.  When  one  person  obtains  money  of  another,  which 
it  is  inequitable  and  unjust  for  him  to  hold,  the  person  entitled  to 
it  may  maintain  an  action  for  money  had  and  received  for  its 
recovery.  Promise  may  be  implied,  and  it  is  intended  by  statute 
that  any  promise  to  pay  money,  express  or  implied,  is  proper  set- 
off. 

Gary  vs.  Niblo,  155  App.  338;   Com.  Union  Assn.  vs.  Seammon,  133 
111.  627 ;  Devine  vs.  Edwards,  101  111.  138. 

A  joint  indebtedness  cannot  be  set  off  against  a  separate  demand, 
nor  can  a  separate  demand  be  set  off  against  a  joint  indebtedness. 
Dameier  vs.  Bayor,  167  111.  547. 

Nor  unliquidated  damages  arising  from  a  separate  transaction. 
Bevier  vs.  Horn,  180  App.  547. 

It  is  not  necessary  to  show  a  distinct  agreement  that  the  one 
demand  shall  be  applied  in  liquidation  or  in  set-off  of  the  other,  in 
order  to  establish  a  mutual  credit  between  parties.  It  is  sufficient 
to  show  that  credit  was  given  under  circumstances  warranting 


1178  SET-OFF  AND  COUNTER  CLAIM 

conclusion  tliat  parties  acted  upon  understanding  that  such  appli- 
cation was  to  be  made. 

Ealeigli  vs.   Kalcigh,  35  111.  512. 

Sufficiency  of  Evidence: 

Preponderance  of  evidence  is  all  that  is  required  to  establish 
defense  of  set-off  or  recoupment. 

Laird  vs.  Warren,  92  ill.  204;  Bonuell  vs.  Wilder,  67  111.  327;  Choc- 
olate Co.  vs.  Crocker  Co.,  125  App.  241;  Leathe  vs.  Thomas,  109 
App.  434. 

Recoupment  is  in  the  nature  of  a  cross  action.  In  order  to 
sustain  such  defense,  defendant  is  subject  to  same  requirements 
in  respect  to  evidence  to  which  he  would  have  been  subject  had  he 
brought  a  distinct  action  against  plaintiff  to  recover  for  the  same 
matter. 

Harber  Bros.  vs.  Moffat  Cycle  Co.,  151  111.  84;  Winship  vs.  Wine- 
man,  77  App.  161;  Hedstrom  vs.  Baker,  13  App.  104;  Mendel  vs. 
Fink,  8  App.  378. 

Defendant  must  sustain  his  plea  of  set  off,  when  interposed,  by 
a  preponderance  of  the  evidence,  before  he  can  recover  under  it. 

Laird  vs.  Warren,  92  111.  204;  Osgood  vs.  Groseclose,  159  111.  511; 
Mendel  vs.  Fink,  8  Aj^p.  378;  Hedstrom  vs.  Baker,  13  App.  104. 

But  any  evidence,  no  matter  by  whom  introduced,  tending  to 
make  for  the  defendant,  would  be  evidence  for  him,  and  by  which 
he  would  have  a  right  to  sustain  that  part  of  his  defense  to  which 
it. is  pertinent.  He  is  not  limited  to  proofs  which  he  introduces, 
but  may  have  the  benefit  of  evidence  which  makes  in  his  favor, 
although  introduced  by  the  plaintiff. 

Laird  vs.  Warren,  92  111.  204;  Boudinot  vs.  Winter,  190  111.  394. 

Defendant  must  prove  that  he  is  not  in  default ;  that  he  has  per- 
formed the  essential  requirements  of  the  contract  or  w^as  ready  and 
willing  to  do  so. 

Purcell  Co.  vs.  Sage,  200  111.  342. 

Affirmative  Judgment: 

A  set-oft'  or  counterclaim  can  be  pleaded  where  there  is  an  in- 
debtedness from  plaintiff  to  defendant  which  might  be  made  the 
subject  of  an  independent  suit.  Set-off  usually  arises  out  of  a 
transaction  extrinsic  to  plaintift"s  cause  of  action,  and  which,  if 
allowed,  may  exceed  the  allowable  claim  of  plaintiff.  In  recoup- 
ment, the  demand  sued  for  and  that  recouped  must  arise  out  of  the 
same  transaction.  And  in  action  at  law,  while  defendant  may 
recoup  unliquidated  damages  arising  out  of  same  transaction  to 
the  extent  of  the  plaintiff' 's  claim,  he  cannot  have  an  affirmative 
judgment  for  any  excess  of  damages. 
Bostrom  vs.  Becker,  172  App.  410. 

Special  damages  cannot  be  recovered  or  recouped  unless  they 
are  specially  set  forth  in  appropriate  pleas. 
Koch  vs.  Merk,  48  App.  26. 

After  assignment  of  a  contract  and  notice  of  such  assignment  to 
the  other  party,  such  other  party  has  no  right  to  purchase  claims 
against  assignor  of  such  contract  and  interpose  them  as  against  the 
assignee. 

Felthousen  vs.  Lanward  Pub.  Co.,  159  App.  416. 

In  an  action  commenced  before  a  justice  of  the  peace,  a  set-off 


SIDEWALKS  1179 

cannot  be  interposed  if  the  amount  claimed  by  reason  thereof  is 
in  excess  of  the  jurisdiction  of  the  justice. 
Turginson  vs.  Meyer,  155  App.  553. 


SETTLEMENT 

See  Compromise  and  Settlement,  Payment. 

SIDEWALKS 

NOTICE  OF  MUNICIPALITY  AS  TO  CONDITION: 

Actual : 

—  Officer:     The  evidence  must  show  that  notice  of  the  defective 

condition  was  brought  to  an  officer  or  agent  of  the  city  charged 

with  a  duty  respecting  it,  in  order  to  constitute  actual  notice  to  city. 
Lifschitz  vs.  City  of  Chicago,  150  App.  201. 

— -Notice  to  Policeman:  Notice  to  a  policeman  is  notice  to  the 
city,  where  policemen  have  for  several  years  been  charged  with 
duty  of  reporting  defects  in  sidewalks,  by  writing  in  a  book  kept 
for  that  purpose,  with  the  knowledge  of  the  superintendent  of  the 
streets,  who  resorted  to  such  reports  for  information. 
City  of  Joliet  vs.  Looney,   159  111.  471. 

Courts  take  notice  that  the  affairs  of  a  large  city  are  admin- 
istered through  different  departments  whose  spheres  of  duty  are 
entirely  independent  of  each  other;  and  to  charge  the  officers  in 
charge  of  streets  and  sidewalks  with  notice  of  everything  concern- 
ing their  condition  that  may  come  to  the  attention  of  a  police  officer, 
without,  at  least,  showing  in  the  first  instance,  or  offering  to  show 
later,  as  a  condition  of  the  admission  of  the  evidence,  that  the 
police  officer  was  charged  with  a  duty  in  such  respect,  w^ould  lead 
to  great  abuse,  and  would  open  up  numerous  collateral  issues  that 

ought  not  be  allowed  to  creep  into  the  case  on  trial. 

Reid  vs.  City  of  Chicago,  83  App.  554;   City  of  Chicago  vs.  Davies, 
100  App.  427:  XIII  111.  Notes  886,  §1018. 
— ■  Other  Officers-:    Notice  to  a  city  treasurer,  police  magistrate 
or  other  municipal  officer,  whose  duties  in  no  way  relate  to  the 
care  of  streets,  is  not  notice  to  city  so  as  to  charge  it  with  lia- 
bility. 

City  of  Savannah  vs.  Trusty,  98  App.  277. 

—  Admissions  of  Officers:  The  statements,  after  an  accident, 
of  a  trustee  of  the  village,  who  was  chairman  of  the  street  com- 
mittee at  the  time,  and  as  such  had  the  condition  of  the  streets 
especially  in  charge,  is  competent  as  tending  to  show  thai  he  and 
the  village  authorities  generally  knew  before  the  injury  occurred 

that  the  street  was  defective. 

Mount  Morris  vs.  Kanode,  98  App.  373. 

—  Private  Night  Watchman:     Notice  to  private  night  watchman 

is  not  to  city  officer  by  whom  actual  notice  may  be  shown.     But 

such  witness  is  not  incompetent  to  testify  to  facts  and  circumstances 

tending  to  show  constructive  notice  to  city. 
City  of  Ottawa  vs.  Hayne,  214  111.  45. 


1180  SIDEAVALKS 

—  Ordinance :    An  ordinance  making  it  the  duty  of  certain  offi- 
cials to  keep  the  streets  and  sidewalks  in  good  condition  is  admis- 
sible, the  purpose  of  the  evidence  being  to  show  that  complaints  of 
defective  condition  of  the  walk  w^ere  made  to  the  proper  parties. 
City  of  Gibsou  vs.  Murray,  216  111.  589. 

Constructive : 

Lajjse  of  Time:    Actual  notice  is  not  the  only  test  of  the 

liabilitv  of  a  city,  as  it  is  chargeable  with  constructive  notice  if 
the  sidewalk  has  been  out  of  repair  so  long  that  the  city,  through 
its  proper  officers,  in  exercise  of  reasonable  diligence,  could  have 

discovered  the  defects.  ^.„  ^4. 

City  of  Joliet  vs.  Johnson,  177  111.  178;  City  of  Chicago  vs.  Gillett, 
108  App.  455;   XIII  111.  Notes  886,   §1025. 
Proof  of  the  length  of  time  a  sidewalk  has  been  continuously 
out  of  repair  immediately  prior  to  plaintiff's  injury  therefrom,  is 
competent  on  question  of  notice,  where  the  city  is  denying  that  the 
walk  was  out  of  repair,  or  that  it  had  notice  that  it  was. 

City  of  Elgin  vs.  Nofs,  200  111.  252;   City  of  Chicago  vs.  Dalle,  llo 
111.  386;   Goodsall  vs.  City  of  Joliet,  150  App.  519. 
Such  evidence  is  not  confined  to  the  exact  place  of  accident,  but^ 
is  competent  where  at  or  near  the  place. 

City  of  Elgin  vs.  Nofs,  200  111.  252 ;  City  of  Taylorville  vs.  Stafford, 
196  111.  288. 
And  within  a  reasonable  time  before  and  after  the  accident. 

City  of  Chicago  vs.  Jarvis,  226  111.  615;  City  of  Bloomington  vs. 
Osterle,  139  111.  120;  City  of  Chicago  vs.  Dalle,  115  111.  386;  City 
of  Chicago  vs.  Stearns,  105  111.  554. 

Other  Accidents:     Proof  that  numerous   other  persons  had 

previously  stumbled  and  fallen  at  the  same  place  is  competent, 
not  for  the  purpose  of  showing  independent  acts  of  negligence,  but 
as  tending  to  show  that  the  common  cause  of  the  accident  was  a 
dangerous  and  unsafe  thing,  and  the  frequency  of  such  accidents 
also  tends  to  raise  presumption  of  knowledge. 

City   of    Chicago    vs.    Jarvis,    226    111.    014;    City   of    Taylorville    vs. 
Stafford,  196  111.  288;   City  of  Bloomington  vs.  Legg,  151  111.  9; 
Brodie  vs.  City  of  Lewistown,  164  App.  335. 
Evidence  of  subsequent  accident  is  inadmissible. 
City  of  Chicago  vs.  Vesey,  105  App.  191. 

—  Ordinance:  An  ordinance  requiring  property  owners  to  re- 
pair a  sidewalk,  passed  some  months  prior  to  time  plaintiff  was 
injured  on  such  walk,  is  admissible  in  order  to  show  notice. 

City  of  Beardstown  vs.  Clark,  204  111.  524. 

—  Resolution:     Is  admissible. 

City  of  Aurora  vs.  Pennington,  92  111.  564. 
Ordinances  making  it  the  duty  of  policemen  to  endeavor  to  re- 
move obstructions  from  sidewalks,  or  report  same  to  department  of 
public  works,  is  admissible  on  question  of  notice,  unless  same  is 

not  controverted. 

Bibbins  vs.  City  of  Chicago,  193  111.  359. 
Such  evidence  tends,  in  some  degree,  at  least,  to  show  that  city 
authorities  knew,  before  happening  of  accident,  that  sidewalk,  at 
point  in  controversy,  needed  repairs. 

City  of  Bloomington  vs.  Pennington,  92  111.  564. 

Dangerous  Condition: 

—  Opinions  of  Witnesses:     Opinion  of  person  not  shown  to  be 


SIGNATURES  1181 

expert,  as  to  whether  side  walk  was  safe  or  dangerous,  inadmissible. 
Village  of  Fairbury  vs.  Eogers,  98  111.  554. 
Opinion  as  to  whether  sidewalk  was  in  condition  for  people  to 

walk  over,  incompetent. 

City  of  Mt.   Vernon  vs.  Brooks,  39   App.  426. 
Statement  by  witness  that  walk  was  "in  poor  condition,"  is  not 
prejudicial  where  he  afterwards  gives  reason. 

City  of  Joliet  vs.  Johnson,  177  111.  178. 
Question  whether  a  sidewalk  made  of  rough  planks,  laid  on 
stringers,  is  properly  constructed  is  not  a  question  for  expert 
altogether,  only  to  be  put  to  and  answered  by  one  who  has  a  repu- 
tation for  skill  in  such  work  and  in  the  handling  of  tools  and 
quality  and  adaptation  of  materials.  Any  man  of  common  sense 
and  ordinary  observation  and  experience  can  pronounce  as  satis- 
factorily upon  such  a  question  as  the  most  aci?omplislied  mechanic, 
and  it  is  error  to  exclude  such  testimony  from  the  jury. 

Alexander  vs.  Mt.  Sterling,  71  111.  366. 

DEFENSES : 

Construction  By  Other  Cities: 

It  is  incompetent  for  defendant  to  give  evidence  of  the  manner 
in  which  other  cities  and  towTis  of  similar  size  and  character  in  the 
immediate  section  of  the  country  constructed  their  sidewalks. 
City  of  Champaign  vs.  Patterson,  50  111.  61. 

Number  of  Miles  of  Sidewalk : 

Immaterial. 

City  of  Chicago  vs.  Elzeman,  71  111.  131. 

NOTICE  OF  INJURY: 

Giving  of  notice  must  be  averred  and  proved. 

Ouimette  vs.  City  of  Chicago,  242  111.  501;   Walters  vs.  City  of  Ot- 
tawa, 240  111.  *259. 
Notice  is  required,  though  action  by  employe  of  city. 

Condon  vs.  City  of  Chicago,  249  111.  596. 
Notice  is  not  required  in  action  by  administrator  under  statute. 

Prouty  vs.  City  of  Chicago,  250  "ill.  222. 

General  issue   requires  proof  of  notice. 
Condon  vs.  City  of  Chicago,  249  111.  596. 

Notice  must  give  hour  of  accident. 

Ouimette  vs.  City  of  Chicago,  242  111.  501 ;  Zyciuski  vs.  City  of  Chi- 
cago, 163  App.  413. 


SIGNATURES 

See  Handwriting,  Forgery,  Photographs,  Denial  of  Execu- 
tion. Subscribing  Witness,  Seals. 
Knowledge : 

AVhere  the  signature  to  a  written  instrument  is  proven  to  be 
genuine,  the  instrument  affords  prima  facie  evidence  that  its  con- 
tents w^ere  known  to  the  subscriber  and  that  it  was  his  act,  and 
the  burden  of  overcoming  such  prima  facie  showing  is  upon  those 

who  assert  the  contrary. 

Jones  vs.  Abbot,  235  111.  220;  Todd  vs.  Todd,  221  HI.  410;  Compher 
vs  Browning,  219  111.  429;  Sheer  vs.  Sheer,  159  111.  591;  Hartford 
Ins.  Co.  vs.  Gray,  80  111.  28 ;  XII  111.  Notes  478,  §  36. 


1182  SIMILAR  FACTS  AND  TRANSACTIONS 

And  there  is  no  distinction  in  this  respect  between  those  who 

can  and  tliose  who  cannot  write. 
Doran  vs.  Mullen,  78  111.  342. 

Sufficiency: 

In  general,  where  a  signature  is  required,  party's  name  printed 

on  the  instrument  with  his  sanction  will  suffice. 
Morrison  vs.  People,  196  111.  454. 
Or   written   at   his   dictation. 

Morton  vs.  Murray,  176  111.  54;  Elston  vs.  Montgomery,  243  111.  348. 


SILENCE 

See  Confessions,   Admissions  and  Declarations. 

SIMILAR  FACTS  AND  TRANSACTIONS 

See  Separate  and  Similar  Offenses,  Habits,  Intent,  Animals, 
Accident,  Sidewalks,  Fires,  Eminent  Domain. 
Similar  Accidents: 

—  In  General:  Proof  of  similar  accidents  is  admissihle  where 
arising  from  same  physical  defect,  but  not  where  accident  results 

from  conduct  of  particular  individual. 

Sladler  vs.  Chi.  City  Ey.  Co.,  180  App.  313;  XII  111.  Notes  486,  §  87. 

Evidence  of  similar  accidents  from  same  cause,  though  of  slight 
probative  force,  is  sometimes  admitted  as  tending  to  show  the  dan- 
gerous character  of  machine.  The  better  rule  allows  such  evi- 
dence on  question  of  master's  knowledge  of  condition  of  appliance, 
and  for  that  purpose  only.  Similar  accidents  would  create  a  pre- 
sumption of  knowledge. 

Strong  vs.  Armour,  154  App.  649. 

Such  evidence  is  admissible,  not  for  purpose  of  showing  inde- 
pendent acts  of  negligence,  but  as  tending  to  show  the  common 
cause  of  these  accidents  as  a  dangerous  and  unsafe  thing. 
Lowe  vs.  Alton  Baking  Co.,  158  App.  458. 

To  render  evidence  of  a  similar  accident,  resulting  from  same 
cause,  competent,  it  must  appear  that  the  instrument  or  agency 
causing  the  injury  was  in  substantially  the  same  condition  at  time 
of  such  other  accidents  as  at  time  of  accident  complained  of. 

City  of  Bloomiugton  vs.  Legg,  151  111.  9;  City  of  Aurora  vs.  Plum- 
liier,  122  App.  143;   Vance  vs.  Monroe  Co.,  149  App.  499. 

—  Action  Against   City:     Proof  that  numerous  other  persons 

than   plaintiff  had   been   injured   on   account   of  same    defect   in 

sidewalk,  is  admissible  as  tending  to  show  dangerous  condition, 

and  also  as  tending  to  raise  presumption  of  knowledge,  on  part  of 

city,  of  such  condition. 

City  of  Chicago  vs.  Jarvis.  226  111.  614;  City  of  Taylorville  vs. 
Stafford,  196  111.  288;  City  of  Bloomington  vs.  Legg,  151  111.  9; 
City  of  Chicago  vs.  Powers,  42  111.  169;  XIII  111.  Notes  895,  §  1090. 

Evi<lonce  that  another  person  had  previously  met  with  an  acci- 
dent as  a  result  of  same  defect,  is  admissil)le  to  show  length  of 
time  the  way  had  been  out  of  repair,  as  bearing  on  the  question  of 


SIMILAR  FACTS  AND  TRANSACTIONS  1183 

notice;  and  reasonable  presumption  and  inferences  may  be  in- 
dulged in  this,  as  in  other  cases,  but  evidence  of  an  accident  hap- 
pening subsequently  is  inadmissible. 

City  of  Chicago  vs.  Vesey,  105  App.  191. 

Evidence  of  accidents  of  similar  character,  upon  same  sidewalk, 
to  other  persons,  while  not  competent  for  purpose  of  showing  inde- 
pendent acts  of  negligence,  is  competent  as  tending  to  show  no- 
tice to  the  city,  and  that  common  cause  of  accidents  was  a  danger- 
ous and  unsafe  thing. 

Brodie  vs.  City  of  Lewistown,  164  App.  336;  City  of  Kankakee  vs. 
Phipps,  135  App.  585. 

—  Mines  and  Mining:  Where  negligence  charged  is  failure  to 
keep  a  sufficient  light  at  the  bottom  of  the  shaft,  proof  that  de- 
fendant had  failed  to  properly  light  the  bottom  of  the  shaft  on 
former  occasions  is  proper,  as  bearing  on  question  whether  defend- 
ant wilfully  violated  statute. 

Eobertson  vs.  Donk  Bros,  Coal  Co.,  238  111.  344. 

But  when  from  failure  to  furnish  props,  cannot  be  shown  that 
roof  in  another  part  of  mine  had  fallen  on  previous  occasions, 
where  such  fact  as  to  what  occurred  then  had  no  influence  in  caus- 
ing accident  in  question. 

S.  C.  IVOning  Co.  vs.  Peterson,  177  111.  324. 

Where  the  only  direct  evidence  as  to  rate  of  speed  at  which  cage 
was  being  lowered  into  mine,  is  that  of  plaintiff  and  defendant's 
engineer,  who  contradict  each  other,  evidence  that  engineer  had 
repeatedly  lowered  the  cage,  on  former  occasions,  at  a  prohibited 
rate  of  speed,  is  admissible  as  tending  to  show  knowledge  that  the 
cage  was  being  lowered  at  a  prohibited  rate  of  speed  at  time  plain- 
tiff was  injured. 

Taylor  Coal  Co.  vs.  Dawes,  220  111.  145. 

—  Accidents  in  Use  of  Machinery :  Evidence  that  another  per- 
son had  been  injured  by  same  machine  prior  to  injury  of  plain- 
tiff, and  that  such  person  notified  defendant  that  machine  was  out 
of  repair,  is  competent  to  show  notice. 

Franke  vs.  Hanly,  215  111.  216;  Vance  vs.  Monroe  Co.,  149  App.  499. 

Evidence  of  accidents  must  affirmatively  appear  to  have  oc- 
curred before  accident  in  suit.  Subsequent  happenings  are  inad- 
missible. 

Schlesinger  vs.  Scbeunemann,  114  App.  457. 

Evidence  that  another  person  had  been  injured  in  a  similar 
manner,  by  same  machinery,  is  admissible  to  show  the  machinery, 
when  unskillfully  handled,  was  dangerous. 

Frasier  vs.  Schroeder,  163  lU.  459. 
Where  defendant  introduced  evidence  to  effect  that  it  was  not 
possible  for  injury  to  have  occurred  as  stated  by  plaintiff,  the 
latter,  in  rebuttal,  may  show  that  similar  occurrences  had  hap- 
pened in  the  same  way  as  with  plaintiff.  He  may  show  that  the 
injury,  in  the  way  claimed,  was  not  only  possible,  but  had  actu- 
ally taken  place. 

C.  &  A.  Brick  Co.  vs.  Eeinninger,  140  111.  334. 

—  Street  Railways:  Proof  that  same  car  had  jumped  the  track 
at  various  places  where  the  track  was  good  and  the  car  running 


1184  SIMILAR  FACTS  AND  TRANSACTIONS 

slowly,  is  admissible  for  purpose  of  showing  that  defendant  had 
notice  of  defective  condition  of  car. 

E.  St.  L.  Ey.  Co.  vs.  Ziuk,  229  111.  180;  Afifg.  133  App.  127. 
Evidence  tending  to  show  that  other  boys,  at  other  times,  went 
under  elevated  railroad  structure  where  plaintiff  was  injured,  to 
pick  up  chips  as  he  had,  is  admissible  as  tending  to  show  notice 
to  workmen  of  presence  of  boys,  and  extent  of  care  required  of 
workmen  to  guard  against  wantonly  inflicting  injury  upon  them. 
Evidence  relating  to  whole  situation,  properly  regulated  by  in- 
structions, is  admissible. 

N.  W.  El.  Ry.  Co.  vs.  0 'Malley,  107  App.  599. 

—  Action   against  Landlord:     In   action   for  injuries  received 
from  falling  through  trap  door  in  floor,  evidence  that  defendant 
had  twice  fallen  through  same  place  is  admissible. 
Petty  vs.  Stebbius,  164  App.  439. 
In  action  for  injury  from  falling  of  mass  of  ice  from  gutter, 
proof  that  windows  in  building  other  than  one  where  plaintiff  was, 
were  broken  by  falling  ice,  and  other  breakage  caused  thereby,  is 
competent  as  tending  to  show  force  with  which  the  ice  fell. 
Richardson  vs.  Nelsou,  221  111.  254. 

Fraud : 

Other  acts  of  fraud  are  admissible  in  evidence  to  prove  fraudu- 
lent acts  charged,  where  evidence  shows  the  two  acts  were  com- 
mitted in  pursuance  of  common  purpose  to  defraud. 

Loekwood  vs.  Doane,  107  111.  235;  Gray  vs.  John,  35  111.  222;  Heut- 
macher  vs.  Lownian,  66  App.  448. 

In  action  for  fraudulently  mixing  sand  with  oats,  evidence  of 

sand  in  oats  sold  others  is  inadmissible. 
Burroughs  vs.  Comegys,  17  App.  653. 

Fraudulent    misrepresentations   to    others    admissible    to   show 

intent. 

Standard  Mfg.  vs.  Brons,  118  App.  632. 

Evidence  that  other  notes  were  obtained  by  same  device  ad- 
missible on  issue  of  fraud. 

Blaloeh  vs.  Randall,  76  111.  224. 

So  complaint  of  others,  made  to  party  charged,  in  relation  to 

similar  transactions,  are  competent  to  show  knowledge. 

Allen  vs.  Miilison,  72  111.  201;  Blaloek  vs.  Randall,  76  111.  224. 

But  if  such  other  acts  are  distinct  and  not  connected  with  the 
fraud  they  are  intended  to  prove,  they  are  not  admissible,  though 
of  a  similar  kind. 

Henderson  vs.  Miller,  36  App.  382 ;  Burroughs  vs.  Comegys,  17  App. 
653;   Merritt  vs.  Boyden,  191  111.  136. 

A  fraudulent  conveyance  of  chattels  to  one  person  is  irrelevant 

on  issue  of  fraud,  to  show  that  another  and  different  transaction 

with  other  parties  is  alike  fraudulent. 
Simkins  vs.  Berggren,  2  App.  101. 

Where  fraud  is  the  basis  of  a  defense  to  a  written  instrument, 
it  is  not  competent,  in  support  thereof,  to  show  a  like  fraud  com- 
mitted upon  another,  not  connected  with  the  suit,  where  it  does 
not  appear  that  the  facts  and  circumstances  are  admitted  and  in- 
tent to  defraud  is  denied,  and  where  there  is  no  offer  to  show  a  gen- 


SIMILAR  FACTS  AND  TRANSACTIONS  1185 

eral  scheme  or  plan  to  defraud  the  public  by  means  alleged  to  have 
been  practiced  in  the  particular  instance. 
Buckley  vs.  Acme  Food  Co.,  113  App.  210. 

Animals : 

—  Runaway  Horses:  Where  negligence  charged  is  leaving  horses 
untied,  in  consequence  of  which  they  escaped  from  the  barn,  evi- 
dence that  they  had  escaped  on  previous  occasions  when  left  un- 
tied, is  competent. 

Maxwell  vs.  Durkin,  185  111.  546. 
Evidence  that  horse  ran  away  a  second  time,  a  week  or  ten  days 
after  the  accident,  is  incompetent. 

I.  C.  R.  R.  Co.  vs.  Griffin,  184  111.  9. 
That  other  horsese  were  frightened  by  steam  roller  in  street 
is  competent. 

City  of  Elgin  vs.  Thompson,  98  App.  358. 

And  that  other  horses  were  likely  to  be  frightened  by  it. 

Gait  vs.  Wolliver,  103  App.  71. 

Proof  that  horse  had  previously  run  away  is  admissible  to  show 

that  cause  of  runaway  was  other  than  that  alleged. 
Clark  vs.  Hemmingson,  132  App.  619. 

—  Miscellaneous:  Evidence  of  other  instances  where  horses 
passed  over  similar  guards  admissible  to  show  them  defective. 

L.  E.  &  W.  Ry.  Co.  vs.  Murray,  69  App.  274. 

It  is  competent,  as  tending  to  rebut  presumption  of  negligence 

in  transportation  of  mules,  to  show  that  other  mules  carried  on 

same  train  in  another  car  reached  their  destination  without  injury. 
Sincebaugh  vs.  C.  B.  &  Q.  Ry.  Co.,  149  App.  642. 

Evidence  that  no  other  animal  sold  at  same  auction  was  dis- 
eased is  inadmissible. 

Moulton  vs.  Gibbs,  105  App.  104. 

Proof   that   horse,   working  with   another,   became   diseased,   is 

admissible  to  show  that  other  horse  had  such  disease. 
Wallace  vs.  Wren,  32  111.  146. 

Gapibling-  Transactions : 

Proof  of  similar  transactions,  after  one  in  issue,  is  relevant  and 
competent  on  question  of  intention. 

Gardner  vs.  Meeker,  169  111.  40;  Pratt  vs.  Ashmore,  224  111.  587; 
JamieSon  vs.  Wallace,  167  111.  388. 

Transactions  with  third  parties  are  also  admissible. 
First  Natl.  Bank  vs.  Miller,  235  111.  135. 

Sales : 

Recent  sales  of  property  similarly  situated  admissible  to  show 
value. 

Crosby  vs.  Dorward,  248  111.  471 ;  Chi.  &  G.  W.  Ey.  Co.  vs.  Wedel,  144 
111.  9;  Elmore  vs.  Johnson,  143  111.  513;  Provision  Co.  vs.  Chicago, 
111  111.  651;  XII  111.  Notes  487,  §93. 

An  actual  sale  made  by  a  reliable  concern,  of  the  kind  of  com- 
modity in  question,  tends  to  establish  the  market  value  of  such 
merchandise  at  time  of  sale. 

Hasler  vs.  G.  F.  Co.,  133  App.  635;  I.  C.  R.  R.  Co.  vs.  Cobb,  72 
111.  148. 

It  is  competent,  in  suit  for  purchase  price  of  perishable  com- 
modity, alleged  to  have  been  spoiled,  to  prove  that  like  commodity, 
made  at  same  time,  was  in  good  condition  after  sale,  as  tending 

to  show  that  that  sold  was  also  good. 
Leugert  vs.  Volker,  153  111.  385. 
EJv. — ^75 


1186  SIMILAR  FACTS  AND  TRANSACTIONS 

But  evidence  that  goods  purchased  of  plaintiff  hy  another  party- 
were  bad,  is  inadmissible  unless  offer  is  made  to  prove  they  were 

of  same  lot  purchased  by  defendant. 
Leutgert  vs.  Volker,  153  111.  385. 

In  action  to  recover  alleged  balance  due  on  shipment  of  cheese, 

evidence  that  plaintiff'  had  shipped  quantities  to  another  state  for 

number  of  years,  is  irrelevant  and  incompetent. 

Chivers  vs.  Sigmiind,  164  App.  555. 

Or  that  he  had  sold  portions  to  third  party,  who  had  returned 

same  as  being  in  bad  condition,  is  incompetent  to  show  condition 

of  cheese. 

Chivers  vs.  Sigmniid,  164  App.  555. 

Controversy  with   third  person  over  claim  similar  to   that  in 

suit  is  inadmissible. 

Hobart  vs.  VanAerman,  146  App.  1. 

Evidence  of  price  of  similar  goods,  admissible  on  question  as  to 

whether  merchandise  in  question  was  sold  at  cost. 

Kendall  vs.  Young,  141  111.  188. 

Instance  where  invoice  called  for  more  goods  than  delivered, 

admissible. 

Moline  Paper  Co.  vs.  Union  Ptg.  Co.,  19  App.  635. 

It  is  not  admissible  to  show  that  other  manufactured  articles 

sold  by  defendant  gave  satisfaction. 

Jewel  Filter  Co.  vs.  Kirk,  200  111.  382. 

Guaranty : 

Evidence  that  other  firms  would  not  give  guaranty  claimed,  inad- 
missible as  tending  to  show  no  guaranty. 
Cary  vs.  Niblo,  155  App.  338. 

Contracts : 

Evidence  of  disconnected  transactions  inadmissible. 
North  vs.  North,  166  111.  179. 

Proof  of  similar  transactions  between  parties  admissible  to  estab- 
lish contract,  where  such  transactions  are  of  same  nature.  ,^ 
Phillips  vs.  Roberts,  90  111.  49l! ;  Skeltou  vs.  Dnstin,  9,2  111.  49.         •     '- 

So  proof  of  transaction  with  third  persons,  of  same  kind,  done 
in  same  way,  admissible  in  corroboration. 

Stolp  vs.  Blair,  68  111.  541;  McClurg  &  Co.  vs.  Williams,  180  App.  699. 

Evidence  of  general  offers  to  do  work  at  certain  price  competent 
on  issue  of  contract  price. 

Devine  vs.  McMillan,  61  App.  571. 

Prior  agreement  between  different  parties  admissible  in,_action 
on  subsequent  contract  based  thereon.  ---dnv 

Petillion  vs.  Wilmarth,  86  111.  418;  Pick  vs.  Collins,  49  App.  361.  ' 

Mine  Royalties: 

In  suit  to  recover  unpaid  balance  of  royalties,  it  is  improper 
to  permit  comparison  between  out-put  of  mine  and  other  mines. 
Such  evidence  might  be  competent  for  failure  to  work  a  mine,  or 
to  make  it  produce  what  it  might  or  should  have  produced. 

M.  &  I.  Coal  Co.  vs.  Eeiehert,  119  App.  148. 

Settlement: 

Evidence  that  defendant  had  settled  with  another  person  in- 
jured in  same  accident,  inadmissible. 

Chi.  City  Ey.  Co.  vs.  Cooney,  95  App.  471. 


SIMILAR  FACTS  AND  TRANSACTIONS  1187 

Evidence  as  to  how  much  another  received  for  similar  injury  is 
inadmissible. 

City  of  Chieacro' vs.  Saldman,  129  App.  282. 

Bonds  Signed  by  Corporation: 

As  tending  to  show  purpose  of  execution  of  a  bond  by  corpora- 
tion, evidence  that  similar  bonds  had  been  executed  by  company 
is  admissible,  where  plea  of  ultra' vires  is  filed. 
Cent.  Lumber  Co.  vs.  Kelter,  -01  111.  503. 

Nuisance  and  Injury  to  Property  and  Persons : 

For  purpose  of  proving  that  odors  are  capable  of  producing  dis- 
comfort and  sickness,  it  is  competent  to  permit  persons  other  than 
plaintiff  to  testify  that  they  were  severally  nauseated  and  made  sick 
by  such  odors. 

Fairbanks  vs.  Bahre,  112  App.  290 ;  Litchfield  vs.  Whitenaek,  78  App. 
364. 

In  suit  against  railroad  company  for  injury  resulting  to  per- 
sonal property  by  reason  of  its  negligently  allow^ing  smoke,  soot, 
etc.,  to  escape  from  its  premises,  it  is  incompetent  to  show  that  per- 
sons other  than  plaintiff  were  annoyed  from  a  like  cause. 
Kuhn  vs.  I.  C.  R.  E.  Co.,  Ill  App.  823. 

In  action  for  injuries  from  sewage,  proof  of  death  of  other  mem- 
bers of  family  inadmissible  unless  connected. 
City  of  Joliet  vs.  Fox,  135  App.  444. 

Proof  of  effect  of  same  on  persons  and  property'-  similarly  situ- 
ated, is  competent. 

Wylie  vs.  Elwood,  134  111.  281;  Fairbanks  vs.  Bahre,  112  App.  290. 
Where  damages  to  buildings  claimed  caused  by  smut,  it  is  com- 
petent to  show  that  smut  was  thrown  on  other  buildings,  as  tend- 
ing to  show  that  agency  claimed  was  capable  of  producing  the 
injury. 

Cooper  vs.  Eandall,  59  111.  317. 

"Where  it  is  claimed  that  injuries  resulted   from  blasting,  the 
effect  upon  other  property  in  the  neighborhood  may  be  shown. 
FitySimnions  vs.  Braun,  94  App.  533. 

Adequate  Consideration : 

The  fact  that  the  consideration  paid  for  an  alleged  distracted 
person's  land  was  the  same  as  that  paid  his  brother  and  sister  for 
their  land  similarly  situated,  is  admissible  as  tending  to  show  ade- 
quacy of  consideration. 

Saffer  vs.  Mast,  223  111.  108. 

Bona  Fide  Transaction: 

On  question  of  claimed  separate  property  of  wife,  proof  of  sim- 
ilar financial  transactions  competent  on  issue  of  bona  fides. 
Eagland  vs.  McFall,  36  App.  135. 

Building"  Line: 

In  suit  to  enjoin  defendants  from  maintaining  a  building  within 
the  limits  of  the  building  line  established  by  plat  of  a  subdivision, 
evidence  that  other  property  owners  in  another  adjoining  subdi- 
vision had  violated  a  building  restriction  is  immaterial. 

Simpson  vs.  Mikkelsen,  196  111.  575. 

Libel  and  Slander: 

Subsequent  publications  are  competent  to  prove  malice. 

Gaines  vs.  Gaines,  109  App.  226;  Sheen  vs.  Peoria  Journal  Co.,  53 
App.  267;  Spolek-Hlasatel  vs.  Hofleman,  105  App.  170;  XIII  111. 
Notes  301,  §  139. 


1188  SLANDER 

Where  defendant  is  publisher  of  a  newspaper,  it  is  incompe- 
tent for  him  to  introduce  evidence  of  a  similar  publication  in 

another  newspaper. 

Sheahan  vs.  Collins,  20  111.  326. 

Insurance  Premium: 

Proof  of  payment  of  other  premiums,  upon  other  insurance,  on 
a  certain  date,  inadmissible  to  show  payment  of  premiums  in  ques- 
tion. 

Ballah  vs.  Peoria  Life  Assn.,  159  App.  222. 

Precautions  to  Avoid  Accident: 

Tliat  precautions  taken  to  avoid  accident  were  similar  to  those 
taken  by  others,  inadmissible  unless  in  vicinity  and  to  property 

similarly  situated  or  under  similar  circumstances. 

Calumet  Gas  Co.  vs.  Creutz,  80  App.  96. 

Previous  Neg-ligence: 

Proof   that   on   previous   trips  engineer  had   carried  excessive 

steam  pressure  inadmissible. 

C.  &  A.  E.  R.  Co.  vs.  Shannon,  43  111.  338. 

Condition  of  Equipment: 

Evidence  of  lack  of  fastenings  admissible  to  show  that  door  was 

swinging  open. 

M.  &  O.  E.  E.  Co.  vs.  Healy,  109  App.  531. 

Where  semaphores  on  two  tracks  worked  by  same  wire,  evidence 
of  light  displayed  on  one  track  admissible  to  show  signal  on  other. 
C.  &  A.'  B.  E.  Co.  vs.  Vipond,  212  111.  199. 

SLANDER 

See  Libel  and  Slander. 

SODOMY 

Weight  and  Sufficiency: 

—  Uncorroborated  Evidence  of  Accomplice:  The  uncorrobo- 
rated evidence  of  an  accomplice  may  be  legally  sufficient  to  sus- 
tain a  conviction  for  the  crime  against  nature,  although  his  state- 
ments are  denied  by  defendant. 

Kelly  vs.  People,  192  111.  119;  Honselman  vs.  People,  168  111.  172. 

—  Delay  in  Making  Complaint:  A  delay  of  over  a  year  by  the 
prosecuting  witness  before  making  a  complaint  charging  the 
defendant  with  committing  the  crime  against  nature,  upon  the 
person  of  the  witness,  will  not  of  itself  cast  doubt  upon  the  truth 
of  the  charge,  where,  at  the  time  the  crime  was  committed,  the 
witness  was  but  a  boy  of  fourteen. 

Honselman  vs.  People,  168  111.  172. 

SOLVENCY 

See  Insolvency, 

SPACE  AND  DISTANCE 

See  Experiments,  Judicial  Notice,  Positive  and  Negative, 
Expert  and  Opinion,  Speed. 


SPECIFIC  PERFORMANCE  1189 

SPECIFIC  PERFORMANCE 

See  Statute  of  Fr.\uds,  Description. 
Mutuality  of  Contract: 

Before  a  contract  will  be  specifically  enforced,  there  must  be 
mutuality  in  the  contract,  so  that  it  may  be  enforced  by  either 
party. 

Welty  vs.  Jacobs,  171  111.  G24;  Lancaster  vs.  Eoberts,  144  111.  213; 
Baxter  vs.  Lamont,  60  111.  237;  Clark  vs.  Potts,  255  111.  183;  See 
also,  Joliet  Bott.  Co.  vs.  Brew.  Co.,  254  111.  215;  Higbee  vs.  Rust, 
211  111.  33;  Vogel  vs.  Pekoe,  157  III.  339;  Amer.  Eef.  Co.  vs.  Cliiltou, 
94  App.  6. 

Admissibility  of  Evidence : 

—  Parol  to  Aid  Description:  The  description  in  a  contract  for 
the  sale  of  land  is  not  so  uncertain  as  to  prevent  specific  per- 
formance if,  from  the  words  employed,  the  description  can  be 
made  certain  by  extrinsic  evidence  of  fact,  physical  conditions, 

measurements  and  monuments  referred  to  in  the  contract. 

Hedrick  vs.  Donovan,  248  111.  479;  Fowler  vs.  Fowler,  204  111.  82; 
Evans  vs.  Gerry,  174  111.  549;  Wetmore  vs.  Watson,  253  111.  88. 

Although  the  subject  matter  of  the  contract  is  defectively  set 
out  in  writing-,  extrinsic  evidence  is  competent  to  show  what  was 
intended  for  the  purpose  of  correcting  the  defect  and  does  not 
contradict  or  vary  the  contract,  but  only  identifies  the  subject 
matter. 

Clayton  vs.  Lemen,  233  111.  435;  Elwell  vs.  Hicks,  238  111.  170. 

This  rule  applies  even  where  Statute  of  Frauds  has  been  pleaded. 
Hedrick  vs.  Donovan,  248  111.  479. 

—  Agent's  Autliority:  Contract  itself  is  the  only  legitimate 
evidence  as  to  whether  it  is  within  agent's  authority. 

Oliver  vs.  Sattler,  233  111.  536;  Memory  vs.  Niepert,  131  111.  623; 
Cf.  Hedrick  vs.  Donovan,  248  111.  479. 

—  Party's  Understanding  of  Contract:  Competent  for  pur- 
pose of  showing  offer  of  such  party  to  perform  as  he  understood 
same. 

Carrier  vs.  Hooper,  247  111.  502 ;  XIV  111.  Notes  595,  §  88. 
— ■Consideration:      In    proceeding    for    specific    performance, 
court  may  inquire  into  the   real   consideration,   notwithstanding 
contract  is  under  seal. 

Corbett  vs.  Cronkhite,  239  111.  9;   Crandall  vs.  Willig,  166  111.  233; 
Poe  vs.  Ulrey,  233  111.  56;  Bullen  vs.  Morrison,  98  App.  669. 
Seal  imports  consideration. 

Forthman  vs.  Deters,  206  111.   159. 

Consideration  is  not  supplied  by  fact  that  promisee  incurred 
expense  in  investigating  promisor's  land. 
Corbett  vs.  Cronkhite,  239  111.  9. 

—  Acceptance:     May  be  shown  by  parol. 

Carter  vs.  Love,  206  111.  310;  Guyer  vs.  Warren,  175  HI.  328;  Cran- 
dall vs.  Willig,  166  111.  233. 

Where  a  party  accepts  and  adopts  a  w^ritten  contract,  even 
though  it  was  not  signed  by  him,  he  shall  be  deemed  to  have 
assented  to  its  terms  and  conditions  and  be  bound  by  them. 

Forthman  vs.  Deters,  206  111.  159;  Memory  vs.  Niepert,  131  111.  623. 

—  At)andonment:  A  contract  may  be  shown  by  parol  testimony 
to  have  been  abandoned  or  rescinded. 

Lasher  vs.  Colton,  190  111.  150;  Cuppy  vs.  Allen,  176  111.  162;  Hale 
vs.  Bryant,  109  111.  34. 


1190  SPECIFIC  PERFORMANCE 

—  Title :     Marketable  title  may  be  shown  in  part  by  parol. 

Clark  vs.  Jackson,  222  111.  13;  Bear  vs.  Fletcher,  252  111.  206. 

And  ex  parte  affidavits  are  competent  when  part  of  abstract. 
Attebery  vs.  Blair,  244  111.  363. 

But  where  a  vendor  in  a  contract  for  sale  of  land  has  agreed 
to  furnish  an  abstract  of  title  showing  good  merchantable  title 
to  him,  all  the  vendee  need  do  to  defeat  a  bill  by  vendor  for  spe- 
cific performance  is  to  show  title  which  vendor  was  prepared  to 

convey  was  doubtful  in  character. 
Smith  vs.  Hunter,  241  111.  514. 

—  Surrouncling  Circumstances:  Court  may  inquire  whether  in 
equity  and  good  conscience  contract  should  be  specifically  enforced, 

and  decision  involves  hearing  of  evidence  of  extrinsic  facts. 

McKennan  vs.   Mickleberry,   242   111.   117;    Sugar   vs.   FroeMich,    22'J 
111.  397;   Espert  vs.  Wilson,  190  111.  629. 

Allegations  and  Proofs : 

Proof  must  establish  the  case  made  by  the  bill  and  though  a 
case  may  be  shown  by  the  evidence,  which,  if  alleged  in  the  bill, 
would  have  entitled  the  party  to  relief,  still  the  relief  cannot  be 
granted  where  the  allegations  of  the  bill  will  not  support  it. 

Markham  vs.  Katzeustein,  209  111.  607;   Clark  vs.  Janowski,  255  111. 
129;   Leahy  vs.  Nolan,  261  111.   219. 

Weig-ht  and  Sufficiency  of  Evidence : 

Complainant  must  adduce  such  proof  as  will,  Mnthout  consid- 
ering opposing  evidence,  prima  facie  entitle  him  to  a  decree. 
Poaff  vs.  Cilsdorf,  173  111.  86. 

Specific  performance  of  an  alleged  oral  contract  to  convey  land 
cannot  be  decreed  unless  the  proof  is  clear  and  definite  that  the 
contract  alleged  was  in  fact  made,  and  that  the  promisee,  in  pur- 
suance of  the  contract,  took  possession  of  the  land  and  made  such 
valuable  and  lasting  improvements  as  to  take  the  case  out  of  the 

Statute  of  Frauds. 

Eeynolds  vs.   Witzler,  254  III.   607;   White  vs.  White,  241   111.   551; 

Sanson  vs.  Eanson,  233  111.  369;  Watson  vs.  W^atson,  225  111.  412; 

Standard   vs.    Standard,    223    111.    255;    Padfield    vs.    Padfield,    92 

111.  198 ;   XIV  111.  Notes  595,   §  90. 

Specific  performance  of  a  contract  to  convey  land  is  as  much 

a  matter  of  course  as  of  an  action  of  damages  for  its  breach  and  a 

court    will    ordinarily    grant    such    relief   where    the    contract    is 

valid  at  laAV,  fairlj^  entered  into  and  unobjectionable  in  any  of  its 

features  which  address  themselves  to  the  chanceller's  discretion. 

Anderson  vs.   Anderson,   251   111.   415;    Zempel   vs.   Hughes,   235   111. 

424;   Cumberledge  vs.  Brooks,  235  111.  249. 

In  order  to  entitle  a  person  to  a  specific  performance  of  an 

alleged   contract   to   convey   land,   the   contract   must   be   clearly 

proven. 

Gladville  vs.  McDole,  247  111.  34;   Vail  vs.  Eynearson,  249  111.  501; 

Clark  vs.  Clark,  122  111.  388;   Galloway  vs.  Garland,  104  111.  275; 

Worth  vs.  Worth,  84  111.  442;  Bower  vs.  Livingston,  251  111.  330. 

But  direct  proof  is  not  essential ;  nor  that  either  party  stated 

the  contract  to  any  witness  when  both  the  parties  were  together. 

Willis  vs.  Zorger,  258  111.   574. 
Proof  of  declarations  of  intention  to  give,  coupled  with  proof 
of   knowledge   of   declarant   of   improvements   by   promisee,    not 

sufficient. 

Kanson  vs.  Eanson,  233  111.  369;  Galloway  vs.  Garland,  104  111.  275; 
Cassel  vs.  Cassel,  104  111.  361. 


SPEED  1191 

Burden  of  Proof: 

—  Of  Establishing  Contract:  Contract  should  be  clear  and 
unmistakable  in  its  terms  and  be  established  by  testimony  of  an 
undoubted  character  by  party  seeking  to  enforce  it. 

Clanty  vs.  Flusky,  187  111.  605;  Wright,  vs.  Kaftree,  181  ill.  464; 
Young  vs.  Farwell,  146  111.  466;  Haitwell  vs.  Black,  48  111.  301. 

—  Readiness  to  Perform:  Party  seeking  specific  performance  is 
required  to  show  he  has  been  in  no  default  in  not  having  per- 
formed the  agreement  and  that  he  has  taken  all  proper  steps 
toward  performance  on  his  part,  or  can  show  a  reasonable  and 

just  excuse  for  non-performance. 

Bothwell  vs.  Schmidt,  248  111.  586;  Forthman  vs.  Deters,  206  111. 
159;  Tryce  vs.  Dittiis,  199  111.  189;  Dupuy  vs.  Williams,  152  111. 
102. 

That  he  has  always  been  ready,  willing  and  eager  to  perform 

and  that  there  is  nothing  further  to  be  done  on  his  part. 

Bennett  vs.  Burkhalter.  257  111.  572;   Wood  vs.  Shefter,  248  111.  617. 

—  Title :     Vendor  seeking  specific  performance  must  show  the 

ownership  of  lands  described  in  contract. 

Pfaff  vs.  Cilsdorf,  173  111.  86;  Hull  vs.  Glover,  126  III.  122. 

—  Agent's  Authority:     Burden  of  proof  is  upon   complainant 

to  establish  power  by  something  more  than  a  bare  preponderance 

of  the  evidence. 

Proudfoot  vs.  Wightman,  78  111.  553. 

—  Want  of  Consideration:  Where  writing  recites  considera- 
tion, burden  of  proof  rests  upon  defendant  to  establish  defense 
of  want  of  consideration  for  his  agreement  by  clear  and  sat- 
isfactory evidence. 

Batcheller  vs.  Bateheller,  144  111.  471. 

—  Change  of  Contract:  If  defendant  sets  up  a  subsequent 
change  of  terms  of  written  contract  whereby  complainant  agrees 
to  perform  further  conditions  to  entitle  him  to  a  deed,  burden  of 

proof  will  rest  upon  defendant  to  establish  such  modification. 

Gray  vs.  Suspension  Car  Co.,  127  III.  187. 

Personal  Property: 

Contracts   which   relate   to   personal   property   only   and   those 

requiring  continuing  personal  services  extending  through  a  series 

of  years  will  not  be  specifically  enforced.     Before  a  contract  will 

be  specifically  enforced,  there  must  be  mutuality  of  contract  so 

that  it  may  be  enforced  by  either. 

Lee  vs.  Chi.  Ball  Club,"l69  App.  525;  Anderson  vs.  Olson,  188  111.  502; 
Cohn  vs.  Mitchell,  115  111.  124;  Gore  vs.  Kramer,  117  111.  176. 

SPEED 

Of  Railroad  Train : 

—  Opinion  and  Expert:    "Where  question  of  the  speed  of  train 

is  involved,  opinions  of  witnesses  may  be  received  as  to  that  fact. 
C.  B.  &  Q.  Kv.  Co.  vs.  Johnson,  'l03  111.   512;   XII  111.  Notes  523, 
§  374. 

A  witness  who  has  been  a  brakeman  on  a  train  for  several  years 
may  state  his  opinion  as  to  rate  of  speed  at  which  a  train  was 
running  at  time  of  accident. 

L.  N.  A.  &  C.  Ey.  Co.  vs.  Shires,  108  HI.  617. 


1192  SPEED 

Witnesses  familiar  with  trains  are  competent  to  testify  as  to 

rate  of  speed  at  which  train  was  running  when  observed  by  them. 

C.  B.  &  Q.  Ey.  Co.  vs.  Gunderson,  174  111.  495;  Eeidel  vs.  C.  R.  I.  & 

P.  Ey.  Co.,  144  App.  424. 

Evidence    that    train    was    "going    fast"    is    not    incompetent 

although  witness  is  unable  to  state  speed  in  miles  per  hour,  the 

weight  being  for  the  jury. 

Overtooni  vs.  C.  &  E.  I.  E.  E.  Co.,  181  111.  323;  I.  C.  E.  E.  Co.  vs. 
Ashliue,  171  111.  313. 
Evidence  as  to  how  far  trains  of  cars  ran  after  striking  a  per- 
son is  competent  as  tending  to  show  the  train  was  running  at  a 
greater  speed  than  allowed  by  ordinance  of  city  in  which  the 
accident  occurred,  and  also  that  train  was  not  under  proper  con- 
trol. 

Penn  Co.  vs.  Conlan,  101  111.  93. 

Upon  question  whether  the  train  was  running  faster  than  ordi- 
nance limit,  evidence  that  witness  did  not  see  train  until  it  was 
upon  him,  but  that  "he  was  told  it  must  be  going  twenty-five 
or  thirty  miles  an  hour,"  should  be  excluded  from  the  jury  on 

motion. 

C.  &  E.  I.  vs.  Donworth,  203  111.  192. 

Opinion  of  witness  as  to  what  was  reasonable  running  time  for 
a  railroad  train  between  certain  designated  points  is  incompe- 
tent. 

G.  C.  C.  &  St.  L.  Ey.  Co.  vs.  MeNutt,  138  App.  66. 

—  Violation  of  Ordinance:    Running  a  train  through  a  city  at 

a  prohibited  rate  of  speed  is  negligence. 

C.  &  E.  I.  E.  E.  Co.  vs.  Mochell,  193  111.  208;  C.  &  E.  I.  E.  E.  Co. 
vs.  Crose,  214  111.  602. 

And  is  not  confined  to  cases  of  actual  collision. 
I.  C.  E.  E.  Co.  vs.  Crawford,  169  111.  554. 

Violation  of  speed  ordinance,  set  out  in  declaration  and  proved 

on  trial,   by  running  train  through  the   village   limits   is,   under 

the  statute,  prima  facie  negligence,  and  the  question  whether  the 

proof  rebuts  such  presumption  is  a  question  of  fact  for  the  jury. 

Winn  vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  239  111.  132;  C.  &  E.  I.  E.  E. 

Co.  vs.  Crose,  214  111.  602;  Southern  Ey.  Co.  vs.  Drake,  107  App. 

12 ;  Cook  vs.  C.  E.  I.  &.  P.  Ey.  Co.,  153  App.  596. 

The  presumption  of  negligence  which  arises  from  the  fact  that 
at  the  time  of  accident  defendant's  train  was  running  at  an 
unlawful  and  excessive  rate  of  speed,  is  merely  prima  facie  and 

subject  to  be  rebutted. 

C.  &  N.  W.  Ey.  Co.  vs.  Jamieson,  112  App.  69. 

—  Unreasonable  Rate:  High  speed  is  not  negligence  as  a  mat- 
ter of  law,  but  the  jury  may  properly  find  it  negligence  as  a  mat- 

,.:,..,  Boyd  vs.  C.  B.  &  Q.  Ey.  Co.,  103  App.  199. 

Proof  that  crossing  at  which  intestate  was  killed  was  in  thickly 

settled  and  populous  part  of  city,  and  constantly  traveled  over  by 

large  number  of  people,  is  admissible  in  support  of  allegation  that 

train  was  running  at  an  unreasonable  rate  of  speed. 

E.  J.  &  E.  Ey.  Co.  vs.  Lawlor,  229  111.   621;   Overtoom  vs.  C.  &  E. 
I.  Ey.  Co.,  181  111.  323. 

Negligence  in.  operating  a  particular  train  cannot  be  justified 


SPEED  1193 

by  showing  that  train,  at  place  of  accident,  was  running  at  a  rate 

of  speed  permitted  by  city  ordinance. 

C.  &  W.  q.  Ky.  Co.  vs.  Newell,  212  111.  332. 
The  law  which  prohibits  the   running  of  trains  at  a  greater 
speed  than  ten  miles  an  hour  in  cities,  is  not  license  to  run  them 

at  such  speed  in  all  cases. 

Wabash  Ey.  Co.  vs.  Henks,  91  111.  406. 

Of  street  Car: 

—  Expert  and  Opinion:  Proof  of  the  speed  at  which  a  street  car 
was  traveling  may  be  made  by  taking  the  opinions  of  those  wit- 
nesses who  saw  it  in  motion  at  the  time  in  question. 

Chi.  St.  Ey.  Co.  vs.  Hyndshaw,  116  App.  367;  Chi.  St.  Ey.  Co.  vs.  Eohe, 
118  App.  322;  Fuhry  vs.  Chi.  City  By.  Co.,  144  App.  521. 

A  non-expert  witness  may  characterize  the  speed  of  a  street 

car,  even  though  unable  to  estimate  the  speed  in  miles  per  hour. 
Chi.  City  Ey.  Co.  vs.  Bundy,  210  111.  39;  Chi.  City  Ey.  Co.  vs.  Pural, 
224  111.  324. 
The  fact  that  witness  did  not  see  the  car  until  instant  before  he 

was  struck,  goes  merely  to  the  weight  of  the  testimony. 
Fuhry  vs.  Chi.  City  Ey.  Co.,  239  111.  548. 

A  witness  who  testifies  as  to  possibility  of  stopping  car  within 

stated  distance  may  answer  to  source  and  basis  of  his  knowledge. 

Chi.  City  Ey.  Co.  vs.  McLaughlin,  146  111.  353. 

Witness  present  at  time  of  collision  may  express  opinion  as  to 
rate  of  speed  at  which  car  was  traveling,  and  his  testimony  should 
not  be  stricken  out  because  he  stated,  on  cross  examination,  that 
he  knew  the  car  was  going  at  a  certain  rate  of  speed,  "because  I 
know  it  to  go  very  fast  out  there." 
Eckels  vs.  Muttschall,  230  111.  462. 

Notwithstanding  a  witness  may  testify  he  has  ridden  on  street 

cars  for  a  number  of  years,  if  he  further  says  he  has  had  no 

experience  in  judging  their  speed  he  is  incompetent  to  testify  upon 

question. 

Gnulzinski  vs.  Chi.  City  Ey.  Co.,  165  App.  152. 

The   following  answer  should  not  be   stricken  out  because   of 
the  use  of  the  words  "I  suppose,"  "after  application  of  brakes,  I 
suppose  that  car  was  moving  about  four  miles  an  hour,"  inasmuch 
as  the  speed  of  the  car  is  necessarily  a  matter  of  opinion. 
Wilson  vs.  Chi.  City  Ey.  Co.,  154  App.  632. 

If  v/itness  has  testified  that  she  knows  when  an  electric  car  is 
going  at  full  speed  and  when  it  is  not,  she  may  be  allowed  to 
state  that  car  was  going  full  speed,  she  being  a  passenger  on  the 
car  at  the  time. 

Potter  vs.  O'Donnell,  199  111.  119. 
Evidence  that  an  electric  car  "was  going  as  fast  as  it  could," 
is  beyond  the  realm  of  common  observation  and  is  incompetent. 
Pfeiffer  vs.  Chi.  City  Ey.  Co.,  96  App.  10. 
Expressions   such    as   "very    fast,"    "s^^dden    jerk,"    etc.,    are 
vague,   indefinite  and  meaningless  and  unaccompanied   by  other 
and  more  definite  evidence,  do  not  tend  to  prove  negligence. 
Chi.  Union  Trac.  Co.  vs.  Duckstein,  136  App.  389. 

—  Schedule:  Evidence  of  distance  of  the  round  trip  of  cars, 
and  of  schedule  time  in  making  such  trip,  is  admissible  in  con- 


1194  SPEED 

nection  with  expert  testimony  introduced  as  to  the  rate  of  speed 
of  car  at  time  of  collision. 

Proof  of  time  fixed  by  company  in  its  schedule  tends  to  estab- 
lish the  rate  of  speed.     Such  evidence  is  not  conclusive,  but  it  is 
admissible  as  tending  to  prove  such  average  rate  of  speed. 
Central  Ky.  Co.  vs.  Allmon,  147  111.  471. 

—  Stopping  Car:  Circumstance  that  car  ran  an  unusual  dis- 
tance is  some  evidence  of  improper  management. 

Chi.  City  Ey.  Co.  vs.  Tnohy,  196  111.  410. 
And  of  rate  of  speed  at  which  it  was  traveling. 
Chi.  City  Ey.  Co.  vs.  Benson,  108  App.  193. 

—  Condition  after  Collision:  Proof  of  badly  broken  condition 
of  cars  after  collision  is  proper  as  tending  to  sustain  the  allegation 
of  the  declaration  charging  that  car  was  driven  at_  dangerous  rate 
of  speed,  where  rate  of  speed  is  a  contested  question  of  fact. 

E.  A.  &  S.  Trac.  Co.  vs.  Wilson,  217  111.  47. 

—  Lurching  of  Car:    AVhere  there  is  testimony  that  w^hile  car 

was  running  at  a  pretty  rapid  rate  of  speed,  car  "lurched"  and 

passengers  "bumped  about,"  such  evidence  tends  to  show  car  was 

running  at  a  "dangerous"  rate. 

Alton  L.  &  T.  Co.  vs.  Oiler,  119  Ajip.  181, 

Fire  Engine: 

Rapid  driving  of  fire  engine  in  street  is  not  per  se  necessarily 
reckless   or    negligent    driving,    constituting    contributory    negli- 
gence, as  a  matter  of  law.     Question  is  a  matter  of  fact. 
Chi.  City  Ey.  Co.  vs.  Kenyon,  137  App.  126. 

It  is  no  proof  of  negligence  that  a  fire  engine  is  driven  at  a 
higher  rate  of  speed  than  is  allowable  in  the  streets  for  a  private 

carriage. 

City  Ey.  Co.  vs.  McDonough,  125  App.  223 ;  Affd.,  221  111.  69. 

Wagon : 

An  ordinance  regulating  speed  for  driving  in  streets  and  pro- 
hibiting heedless  driving  is  properly  admissilile  where  declaration 
charged  careless  and  negligent  driving  and  there  is  evidence  tend- 
ing to  sustain"  the  charge. 

Staw  Brew.  Co.  vs.  Hauck,  222  111.  348. 

Violation  of  ordinance  is  prima  facie  negligence. 
U.  S.  Brg.  Co.  vs.  Stoltenburg,  211  111.  531. 

Ordinance  regulating  driving  of  horses  on  public  streets  is  prop- 
erly admitted  in  action  for  damages  for  injuries  received  from  care- 
less driving,  where  jury  are  left  to  determine  whether  ordinance 
w'as  violated  and  if  so,  whether  its  violation  caused  or  contrib- 
uted to  the  injury. 

Brinks  City  Express  Co.  vs.  Kinnare,  168  111.  643. 

Whether  the  driver  of  a  wagon  could  have  stopped  his  horse 
in  time  to  avoid  running  over  a  person  had  he  seen  him,  is  ques- 
tion for  jury,  and  not  one  upon  which  witnesses  may  give  opin- 
ions. 

Brinks  City  Express  Co.  vs.  Kinnare,  168  111.  643. 

Automobile : 

Witness  may  give  opinion  as  to  rate  of  speed  at  which  automo- 
bile was  running. 

Book  vs.   Aschenbrenner,   165  App.  23. 


STATUTES  1195 

Horses : 

Non-expert  witnesses  may  state  that  horses  were  "going  at  a 

fair  speed";  "going  at  a  pretty  fast  gait"  or  were  running  fast. 
Heideurioh  vs.  Bremnier,  176  Apj).  230. 


SPOLIATION 

See  Destruction  and  Suppression. 


STAMP  ACT 

Federal  Act : 

The  provision  of  act  of  Congress  that  instruments  not  stamped 
as  provided  in  the  act  shall  not  be  admitted  in  evidence  in  any 
court,  applies  only  to  Federal  Courts  and  not  to  state  courts, 
Congress  has  no  constitutional  power  to  prescribe  what  shall  be 

competent  or  incompetent  in  the  state  courts. 

Eichardson  vs.  Roberts,  195  111.  27 ;  Pierpont  vs.  Johnson,  104  App.  27 ; 
Accident  Ins.  Co.  vs.  Seed,  95  App.  43 ;  Mullin  vs.  Johnson,  98  App. 
621;  Bowen  vs.  Byrne,  55  111.  467;  Wilson  vs.  McKenna,  52  111. 
43;  Hanford  vs.  Obrecht,  49  111.  146;  Bunker  vs.  Green,  48  111. 
243;  Craig  vs.  Dirnock,  47  111.  308;  Latham  vs.  Smith,  45  111.  29; 
U.  S.  Express  Co.  vs.  Haines,  48  111.  248;  XII  111.  Notes  1216,  §  1. 

Foreign  State: 

Although  a  stamp  be  required  by  the  revenue  laws  of  a  foreign 
state,  before  a  document  can  be  received  in  evidence  there,  such 
document  may,  nevertheless,  be  admitted  in  evidence  without  the 
stamp  in  the  country  where  the  suit  is  brought. 
Cromley  vs.  Dean,  177  App.  67. 


STATUTES 

See  Legislative  Acts  and  Journals,  Foreign  Law, 
Judicial  Notice: 

—  Act  Found  in  Statutes:     Court  will  take  judicial  notice  that 

an  act  is  found  in  the  statutes. 

People  vs.  Braun,  246  111.  428;  P.  Ft.  W.  &  C.  K.  R.  Co.  vs.  Moore,  110 
App.  304;  XII  111.  Notes  473,  §  5. 

But  courts  will  not  take  judicial  notice  of  the  order  in  which 
bills  are  actually  passed  by  the  legislature  at  same  session. 

Cantrell  vs.  Seaverns,  168  111.  165. 

—  Puhlic  Act:     Where  the  legislature  declares  an  act  to  be  a 

public  one,  it  will  be  noticed  as  such. 

Doyle  vs.  Village  of  Bradford,  90  111.  416. 

—  Private   Statute:     Court   will   not   judicially   notice  private 

statute. 

Minck  vs.  People,  6  App.  127 ;  Lavelle  vs.  People,  68  111.  252. 

Statute  of  private  character  will  be  judicially  noticed  as  a  pub- 
lic statute  if  it  is  declared  to  be  such  by  a  clause  contained  within 

itself. 

Nimmo  vs.  Jackman,  21  App.  607. 


1196  STATUTES 

Or  whicli  has  been  amended  hy  a  public  act. 
Lavelle  vs.  People,  6  App.  157. 

Presumptions : 

Every  presumption  will  be  indulged  in  favor  of  the  validity 
of  au  act,  as  no  act  is  presumed  beyond  the  power  of  the  legisla- 
ture unless  there  is  no  reasonable  doubt  that  it  is. 

People  vs.  MeCullougli,  254  111.  9;  People  vs.  Joyce,  24G  111.  124. 

An  act  found  in  the  office  of  the  Secretary  of  State,  duly  authen- 
ticated, is  presumed  to  have  been  duly  passed. 

People  vs.  MeCullough,  210  111.  488. 

So  a  vetoed  bill  found  in  office  of  Secretary  of  State,  with  proper 
record  entries  showing  filing -of  same,  accompanied  by  veto,  af- 
fords presumption  that  same  did  not  become  a  law. 

People  vs.  MeCullough,  210  111.  488. 

And  it  will  be  presumed  that  a  law  certified  to  by  the  Secretary 

of  State  is  in  the  form  in  which  it  was  passed  by  the  legislature. 

Erford  vs.  City  of  Peoria,  229  111.  546. 

Court  will  presume  that  a  law  certified  to  by  the  Secretary  of 

State  is  in  the  form  in  which  it  was  passed  by  the  legislature,  and 

bears  the  same  title. 

Erford  vs.  City  of  Peoria,  229  111.  546;  I.  C.  E.  E.  Co.  vs.  Wren,  43 
111.  77;  Binz  vs.  Weber,  81  111.  288. 

;,  Where  a  law  is  signed  by  the  speakers  of  both  houses  and  ap- 
proved by  the  governor,  it  will  be  presumed  to  have  been  passed 
in  conformity  with  all  the  requirements  of  the  constitution,  and 
that  it  is  valid,  until  presumption  is  overcome  by  legitimate  proof, 
clear  and  convincing  in  its  character. 

I.  C.  E.  E.  Co.  vs.  People,  143  111.  434;  Larrison  vs.  P.  A.  &  D.  Ey. 

Co.,  77  111.  11 ;   People  vs.  Loeweuthal,   93  111.   191 ;    Spangler  vs. 

Jaeobr,  14  Til.  296. 

Admissibility  of  Evidence  to  Impeach : 

—  Parol:  Courts  cannot  receive  parol  evidence  that  a  law  never 
has  been  adopted,  or  that  any  act  essential  to  its  validity  has  been 

performed. 

People  vs.  MeCullough,  210  111.  488;   I.   C.  E.  E.   Co.  vs.  Wren,  43 
111.  77;  People  vs.  Eose,  254  111.  332. 
The  record  of  the  Secretary  of  State  which  involves  the  exist- 
ence or  non-existence  of  a  statute  cannot  be  impeached  by  parol 

evidence. 

People  vs.  Seeberger,  164  App.  159. 

Courts  cannot  take  judicial  notice  of  legislative  journals. 

People  vs.  Braun,  246  111.  428;   Erford  vs.  City  of  Peoria,  229  111. 
546;  Grob  vs.  Cushman,  45  111.  119. 
And  journal  must  be  introduced  in  evidence  like   any   other 
record. 

Erford  vs.  City  of  Peoria,   229   111.  546;   Grob  vs.   Cushman,  45  111. 
119. 

They  may  be  identified  by  parol. 

People  vs.  MeCullough, "210  111.  488. 

Whether  act  w^as  properly  passed  is  a  matter  of  fact  to  be 
proved   before   cause   is   submitted   to   jury. 
Devine  vs.  Fish  Furniture  Co.,  258  111.  389. 

—  Journals:  Journals  of  either  branch  of  the  legislature  are 
admissible  to  show  that  an  act  has  not  been  passed  in  manner 
prescribed  by  the  constitution,  and  in  such  case,  the  journals  must 


STATUTES  1197 

be  accepted  as  containing  a  true  record  of  proceedings  of  the  leg- 
islative body. 

Neiberger  vs.  McCnllongh,  253  111.  312;  People  vs.  Bowman,  247  111. 

276;  People  vs.  McCullough.  210  111.  488;  Chi.  Tel.  Co.  vs.  N.  W. 

Tel.  Co.,  199  111.  324;  XIV  111.  Notes  649,  §  277. 

—  Transcript  of  Journals:    A  transcript  of  the  record  of  either 

house  of  the  legislature,  of  its  proceedings,  certified  by  Secretary 

of  State,  is  admissible  in  evidence  to  prove  facts  therein  recorded. 

It  is  not  necessary  to  produce  original  minutes  made  by  officers 

of  respective  houses,  or  copies  thereof. 

The  law  does  not  require  that  the  officers  of  the  General  Assem- 
bly shall  sign  the  records  of  the  proceedings  of  either  house,  or 
that  the  copying  clerks  shall  certify  to  the  accuracy  of  their  work, 
in  order  to  make  same  admissible  in  evidence. 

Miller  vs.  Goodwin,  70  111.  659;  I.  C.  K.  R.  Co.  vs.  Wren,  43  111.  77. 

Weight  and  SuiRciency: 

Silence  of  journals  as  to  matter  required  to  be  shown  is  evi- 
dence of  its  non-existence. 

People  vs.  Bowman,  247  111.  276;  Eyan  vs.  Lynch,  68  111.  160. 

The  journals  of  either  branch  of  the  legislature  may  be  resorted 
to  for  purpose  of  showing  invalidity;  and  it  may  be  shown  from 
the  journals  that  an  act  was  not  passed  in  the  mode  prescribed  by 
the  constitution;  and  where  the  journal  is  silent  as  to  whether 
any  requirement  of  the  constitution  in  the  passage  of  a  bill  has 
been  complied  with,  the  silence  of  the  journal  is  accepted  as  evi- 
dence of  such  non-compliance. 

People  vs.  McCullough,  210  HI.  488 ;  Chi.  Tel.  Co.  vs.  N.  W.  Tel.  Co., 
199  111.   324;   People  vs.  Lowenthal,  93  111.  191;   Eyan  vs.  Lynch. 
68  111.  160. 
But  where  the  constitution  does  not  require  a  fact  to  be  re- 
corded upon  the  journal,  and  it  can  be  inferred  from  the  recital 
in  the  journal  that  such  fact  existed,  or  such  step  was  taken,  then 
the  presumption  will  be  indulged  that  such  fact  did  exist,  or  such 
step  was  taken,  in  order  to  sustain  the  validity  of  the  law,  where 
the  contrary  does  not  appear  from  the  journal  itself. 

Chi.  Tel.  Co.  vs.  N.  W.  Tel.  Co.,  199  111.  324;  Wabash  Ey.  Co.  vs. 
Hughes,  38  111.  174. 
The  certificate  of  the  Secretary  of  State,  showing  what  proceed- 
ings were  had  in  either  branch  of  the  general  assembly  in  relation 
to  the  passage  of  a  bill,  is  competent  evidence  to  show  whether  or 
not  the  same  was  passed  in  the  constitutional  mode;  and  where 
such  certificate,  in  due  form,  purports  to  give  all  the  proceed- 
ings, there  can  be  no  inference  that  any  other  proceedings  were 
had  in  relation  to  passage  of  the  bill. 

Eyan  vs.  Lynch,  68  111.  160;  People  vs.  McCullough,  210  111.  488;  Chi. 
Tel.  Co.  vs.  N.  W.  Tel.  Co.,  199  111.  324. 

Construction : 

Where  a  statute  is  adopted  from  another  state  it  will  be  presumed 
that  the  legislature  intended  it  to  receive  the  construction  given 
by  the  courts  of  that  state,  if  it  had  previously  been  construed, 
unless  in  conflict  with  the  spirit  and  policy  of  our  laws. 

People  vs.  Griffith,  245  111.  532 ;  Ehoads  vs.  C.  &  A.  E.  E.  Co.,  227  III. 
328;  Ee  Qua  vs.  Graham,  187  111.  67. 


1198  STATUTE  OF  FRAUDS 

STATUTE  OF  FRAUDS 

See   Assumpsit,   Description,    Identity,   Ambiguity,   Specific 
Performance,  Parol,  Consideration,  Trusts. 
Pleading- : 

—  Equity:     In  proceeding  in  equity,  Statute  of  Frauds  must 

be  pleaded.     If  not  pleaded,   cause  must  be  considered  without 

reference  to  it. 

Domeracki  vs.  Janikowski,  255  111.  575;   Clayton  vs.  Leman,  233  111. 
435;  iSanford  vs.  Davis,  181  III.  570;  XII  ill.  Notes  780,  §  118.    . 

But  to  avail,  statute  need  not  be  referred  to  by  title. 
Koeuig  vs.  Dohm,  209  111.  468. 

Failure  to  plead  cannot  be  excused  because  it  could  not  be  an- 
ticipated what  the  nature  of  the  proof  by  complainant  would  be. 
Cohen  vs.  Friedman,  259  111.  416 ;  Taylor  vs.  Merrill,  55  lU,  52. 

Defense  is  waived  by  default. 

Clayton  vs.  Leman,  1^33  111.  435, 

Statute  of  Frauds,   as  defense  to  bill  in   chancery  to  convey 

lands,  can  only  be  raised  by  demurrer,  where  it  appears  from 

face  of  bill  contract  is  not  in  writing. 

Fowler  vs.  Fowler,  204  111.  82;  Butnian  vs.  Butman,  213  111.  104. 

—  Common  Laiv  Action:  If  the  contract  is  declared  on  spe- 
cially, defense  of  statute  must  be  pleaded. 

Beard  vs.  Converse,  84  111.  512;  Hodges  vs.  Bankers  Surety  Co.,  152 
App.  372;  Cf.  Highley  vs.  Metzger,  187  111.  237. 
But  where   declaration  is  upon   common  counts  only,   defense 

may  be  relied  upon  under  general  issue. 

Beard  vs.   Converse,   84   111.   512 ;    Meyers   vs.   Schemp,   67   111.   469 ; 
Eozenski  vs.  Dewes  Brew.  Co.,  93  App.  370;  Snow  vs.  Griesneimer, 
120  App.  516. 
Question  is  not  presented  merely  by  request  for  a  directed  ver- 
dict. 

Tyrrell  vs.  Eobinson,  180  App.  286. 

Executed  Contracts: 

Statute  of  Frauds  cannot  be  invoked  to  avoid  contracts  that 
have  been  carried  into  execution. 

C.  C.  C.  &  St.  L.  Ey.  Co.  vs.  Wood,  189  111.  352;  Pearce  vs.  Pearce, 
184  111.  289. 
Nor  has  Statute  of  Frauds  any  application  to  suit  to  correct  a 
deed  on  the  ground  of  mistake,  to  make  it  conform  to  the  inten- 
tion of  the  parties. 

Wylke  vs.  Bartholomew,  258  111.  358;  Hunter  vs.  Bilyeu,  30  111.  228. 

Executory  Contracts: 

Exoeutorj^   contracts  may  be   avoided   by   Statute   of  Frauds; 

executed  contracts  may  not  be. 

Becker  vs.  Becke'r,  250  111.  117;   Swanzy  vs.  Moore,  22  111.  63. 

Defense  Personal: 

The  Statute  of  Frauds  can  only  be  invoked  by  parties  to  the 

contract  and  not  by  strangers  to  it. 

Pasquay  vs.  "Pasquay,   235   111.   48;    Gary  vs.   Newton,   201   lU.   170; 
Green  vs.  Johnson,  151  App.  63. 

Agreements  Not  to  Be  Performed  Within  a  Year : 

A  contract  is  not  within  the  Statute  of  Frauds  because  it  is  not 
to  be  performed  within  a  year,  unless  its  terms  show  affirmatively 
that  it  is  not  to  be  performed  within  that  time. 


STATUTE  OF  FRAUDS  1199 

Contracts  which  may  or  may  not  be  performed  within  a  year  are 

not  embraced  within  the  statute. 

Presbyterian  Church  vs.  iSwanson,  100  App.  39. 

No  special  form  of  writing  is  necessary  to  make  a  memorandum 
sufficient  to  take  an  unsigned  contract  out  of  the  operation  of  the 
statute;  such  memorandum  is  sufficient  where  there  is  any  writ- 
ing signed  by  the  party  stating  the  terms  of  the  contract  and 
admitting  its  existence. 

The  fact  that  the  writing  was  intended  for  some  other  purpose 
does  not  prevent  its  being  a  sufficient  memorandum  to  meet  the 
requirements  of  the  Statute  of  Frauds. 

The  memorandum  need  not  be  signed  by  both  parties  to  the 

contract.    It  is  sufficient  if  it  be  signed  by  the  party  to  be  charged. 

Presbyterian  Church  vs.  Swanson,  100  App.  39. 

And  mere  written  offer,  with  proof  of  acceptance,  may  be  suffi- 
cient. 

West  Union  Co.  vs.  Chi.  City  Ry.  Co.,  86  111.  246. 

Promise  to  Answer  for  Debt,  Default  or  Miscarriage  of  Another: 

—  The  Promise:  Promise  may  be  shown  from  facts  and  cir- 
cumstances and  course  of  business. 

Yawger  vs.  Bachs,  119  App.  61. 

—  Valid  Dcht:  It  is  essential  that  there  be  a  binding  and  sub- 
sisting obligation  or  liability  to  the  promisee  to  which  the  prom- 
ise is  collateral. 

Eesseter  vs.  Waterman,  151  111.  169. 

—  New  Consideration:  The  verbal  promise  to  pay  the  existing 
debt  of  another  is  not  within  the  Statute  of  Frauds,  if  there  is  a 
new  consideration  to  support  such  a  promise,   as,   for  instance, 

forbearance. 

Beltine  Mfg.  Co.  vs.  Zulfer,  152  App.  308;  Ruehle  vs.  Montelius,  149 
App.  416. 
It  must  be  alleged  and  proven  that  one  forbearing  to  sue,  in 
good  faith  believed  himself  entitled  to  maintain  such  action  and 
actually  intended  to  bring  it. 

Euehle  vs.  Montelius,  149  App.  416. 

—  Character  of  Undertaking:  "Whether  a  promise  is  original 
or  collateral,  the  test  is  whether  the  credit  is  given  tlie  person 
sought  to  be  charged,  or  to  some  one  else  whom  the  person  sought 
to  be  charged  guaranteed  should  pay  the  debt. 

Lush  vs.  Throop,  189   111.   127;   Geary  vs.  O'Neal,   7.3  111.  593;   Chi. 
Coal  Co.  vs.  Liddell,  69  111.  639. 

Parol  proof  is  competent  to  show  that  the  promise  in  question, 
although  in  form  a  guarantee,  is  in  reality  a  promise  to  pay  the 
debt  of  the  person  himself. 

Darst  vs.  Bates,  95  111.  493. 

That  goods  are  charged  upon  the  seller's  books  to  the  person 
receiving  them,  and  not  to  the  person  at  wdiose  request  they  were 
furnished,  is  a  fact  which,  if  unexplained,  tends  strongly  to  show 
that  credit  was  given  to  the  party  receiving  the  goods;  but  such 
fact  may  be  explained,  as  where  the  promisor  has  a  separate  ac- 
count, and  the  charge  is  made  to  party  receiving  the  goods  in 
order  to  avoid  confusion. 

Whether  charging  goods  to  the  person  receiving  them  proves 


1200  STATUTE  OF  FRAUDS 

that  credit  was  given  him,  always  involves  the  question  of  inten- 
tion with  which  the  charge  was  made. 

Lusk  vs.  Throop,  189  111.  127 ;  Ruggles  vs.  Gatton,  50  111.  412. 

—  Delivery  of  Goods:  Although  goods  are  delivered  to  a  per- 
son other  than  the  one  to  whom  they  are  sold,  and  to  whom  credit 
is  given,  if  they  are  so  delivered  at  the  request  of  the  purchaser, 

he  will  be  liable. 

Geary  vs.  O'Neill,  73  111.  593. 
Where  a  person  tells  a  merchant  to  sell  goods  to  his  tenant  and 
promises  he  will  pay  for  them,  it  is  an  original  undertaking  by 
him  to  pay  for  the  goods,  and  it  is  not  necessary  for  the  promise 

to  be  in  writing. 

Clark  vs.  Smith,  87  App.  409, 

Oral  Contract  to  Convey: 

—  The  Contract:  In  order  to  entitle  a  person  to  a  specific  per- 
formance of  an  alleged  contract  to  convey  land,  the  contract  must 
be  proven. 

Vail  vs.  Eynearson,  249  III.  501;  Clark  vs.  Clark,  122  111.  388;  Gallo- 
way vs.  Garland,  104  111.  275;  Worth  vs.  Worth,  84  111.  442. 

And  its  terms  certain  and  specific. 
Anderson  vs.  Manners,  243  111.  405. 

—  Part  Performance:     To  wan-ant  the  enforcement  in  equity 

of  a  parol  contract  for  conveyance  of  land,  such  performance  on 

the  part  of  the  promisee  must  be  proven  as  will  take  the  contract 

out  of  the  operation  of  the  Statute  of  Frauds. 

White  vs.  White,  241  111.  551;  Geer  vs.  Goudy,  174  111.  514, 

—  Weight  and  Sufficiency:  Specific  performance  of  an  alleged 
oral  contract  to  convey  land  cannot  be  decreed  as  against  a  plea 
of  Statute  of  Frauds  unless  the  proof  is  clear  and  definite  that  the 
alleged  contract  was  in  fact  made,  and  that  the  promisee,  in  pur- 
suance of  the  contract,  took  possession  of  the  land  and  made  such 
valuable  and  lasting  improvements  as  to  take  the  case  out  of  Statute 
of  Frauds. 

White  vs.  White,  241  111.  551;  Ranson  vs.  Eanson,  233  111.  369;  Wat- 
son vs.  Watson,  225  111.  412;  Standard  vs.  Standard,  223  111.  255; 
Padfield  vs.  Padfield,  92  111.  198 ;  Gorham  vs.  Dodge,  122  111.  528. 

Proof  of  declaration  of  intention  to  give,  coupled  with  proof  of 

knowledge  of  declarant  of  improvements  by  promisee,  not  sufficient, 
Eanson  vs.  Eanson,  233  111.  369;  Galloway  vs.  Garland,  104  111.  275; 
Cassell  vs.  Cassell,  104  111.  361. 

Written  Contract  to  Convey: 

— ■Sufficiency  of  Writing:  A  warranty  deed  in  the  usual  form, 
prepared  for  execution  by  defendants,  which  conveys  certain  de- 
scribed lands,  but  contains  no  conditions  whatever,  nor  any  refer- 
ence to  the  terms  of  the  contract  under  which  the  deed  was  made, 
is  not  a  note  or  memorandum  of  the  contract;  nor  is  a  notice  to 
defendants  to  examine  and  execute  the  deed  a  note  or  memorandum 

of  such  contract. 

Hartenbower  vs.  Uden,  242  111.  434;   XTI  111.  Notes  773,  §62. 

To  satisfy  the  Statute  of  Frauds  affecting  oral  contracts  relat- 
ing to  land,  the  writing  must  contain  the  names  of  the  parties, 
the  terms,  price  and  description  of  property,  either  by  recitals  on 

face  or  by  reference  to  other  writings  wherein  such  facts  are  stated. 

Elwell  vs.  Hicks,  238  111.  170. 

The  Statute  of  Frauds  requires  that  a  contract  for  the  sale  of 
land,  or  some  note  or  memorandum  thereof,  shall  be  in  writing, 


STENOGRAPHERS'   NOTES  1201 

and  while  no  particular  form  is  necessary,  yet  the  writing  or  writ- 
ings must  contain  everything  necessary  to  show  the  contract  be- 
tween the  parties,  so  that  there  is  no  necessity  for  parol  proof  of 
any  of  the  terms  or  conditions  of  the  sale  or  intention  of  the 

parties. 

Hartenbower  vs.  Uden,  242  111.  434. 

And  letters  addressed  to  third  person,  showing  the  terms  of  con- 
tract, may  be  sufficient  evidence  to  satisfy  statute. 
Wood  vs.  Davis,  82  111.  311. 

Writing  need  not  be  signed  by  both  parties. 
Ullsperger  vs.  Meyer,  217  111.  262. 

—  Acceptance:    Acceptance  mav  be  shown  by  parol. 

Ullsperger  vs.  Meyer,  217  111.  262;  Farwell  vs.  Lowther,  18  111.  252; 
McCormick  vs.  Loomis,  165  App.  214. 

—  Identity  of  Subject  Matter:  Although  the  subject  matter  of 
the  contract  is  defectively  set  out  in  writing,  extrinsic  evidence  is 
competent  to  show  what  was  intended,  for  the  purpose  of  correct- 
ing the  defect,  and  does  not  contradict  or  vary  the  writing,  but 
only  identifies  the  subject  matter. 

Hedrick  vs.  Donovan,  248  111.  479;   Clayton  vs.  Lemen,  233  111.  435; 
Elwell  vs.  Hicks,  238  111.  170. 

—  Signed  hy  Another:  An  action  concerning  land  may  be 
brought  on  an  instrument  written  and  executed  by  the  hand  of 
another,  in  the  presence  and  at  the  dictation  of  the  party  to  be 
charged,  without  violating  the  Statute  of  Frauds,  as  the  act  must 
be  regarded  as  the  act  of  the  party  to  be  charged,  and  not  that  of 
an  agent  requiring  proof  of  written  authority. 

The  fact  that  a  letter  written  by  the  hand  of  another  was  written 
at  the  dictation  and  in  presence  of  party  to  be  charged,  may  be 
proven  by  parol  evidence  of  statements  of  party  to  be  charged,  or 
of  any  other  relevant  circumstances. 
Morton  vs.  Murray,  176  111.  54. 


STATUTE  OF  LIMITATIONS 

See  Limitations. 

STEALING 

See  Burglary,  Embezzlement,  Larceny,  Receiving  STOiiEN 
Property,  Robbery. 

STENOGRAPHERS'  NOTES 

See  Former  Testimony,  Coroner's  Inquest. 
ADMISSIBILITY: 
Former  Testimony: 

—  Insane  Witness:  Testimony  on  former  trial  by  witness,  since 
insane,  may  be  proven  by  reporter  by  reading  transcript  of  notes 
then  taken. 

P.  C.  C.  &  St.  L.  E.  E.  Co.  vs.  story,  104  App.  132;  Stout  vs.  Cook, 
47  111.  530. 

—  Deceased  Witness:  Upon  proof  that  a  deceased  witness  test- 
ified on  a  former  trial,  and  that  the  transcript  produced  is  a  cor- 

Ev. — 176 


1202  STENOGRAPHERS'  NOTES 

rect  copy  of  the  shorthand  notes  taken  at  the  trial,  such  transcript 

may  be  read  in  evidence. 

Luetgert  vs.  Voelker,  153  HI.  385;  Leviue  vs.  Carroll,  121  App.  105; 
Bredt  vs.   Simpson  Co.,  95  App.   333;    C.   K.   I.   &  P.   Ky.  Co.  vs. 
Harmon,  17  App.  640;  XIV  111.  Notes  1158,  §  327. 
The  testimony  of  a  witness,  since  deceased,   cannot  be   shown 

by  a  bill  of  exceptions  taken  at  the  trial. 

K.  &  S.  Ey.  Co.  vs.  Horan,  131  111.  288;  Stern  vs.  People,  102  111.  540; 
Both  vs.  People,  54  111.  431. 

—  Impeachment  of  Witness:  Where  proper  foundation  is  laid, 
the  testimony  of  a  stenographer  reporting  at  former  trial  of  same 
cause  is  admissible  for  purpose  of  impeaching  witness  by  showing 
that  such  witness  on  former  trial  had  given  evidence  wholly  in- 
consistent with  his  present  version  of  same  transaction.  It  may 
be  proven  by  such  reporter  that  all  the  evidence  on  the  former 
trial  was  correctly  taken  down  in  shorthand  at  the  time  the  evi- 
dence was  given  and  reporter  may  then  read  his  notes  to  the  jury. 

C.  &  A.  E.  E.  Co.  vs.  Eobinson,  16  App.  229;  Dady  vs.  Coudit,  104 
App.  507. 

It  is  imperative  that  proper  foundation  be  laid. 
Phares  vs.  Barber,  61  111.  271. 

Where  attention  of  witness  is  specifically  called  to  former  testi- . 
mony  contradictory  of  or  inconsistent  with  his  present  testimony, 
and  given  an  opportunity  to  explain  same,  his  former  statements 
may  be  shown  by  stenographic  reports  of  such  former  testimony, 
when  properly  verified  and  such  report  is  admissible  in  contradic- 
tion. Other  parts  of  his  former  testimony  to  which  his  attention  is 
not  called  cannot  be  shown. 

Campbell  vs.  Campbell,  138  111.  612. 

Stenographic  reports  of  the  testimony  taken  by  one  present  at  a 

coroner's  inquest  are  inadmissible  to  contradict  a  witness  since  the 

deposition  of  such  witness,  required  to  be  preserved  by  the  coroner, 

is  the  best  evidence. 

Overtoom  vs.  I.  C.  E.  E.  Co.,  181  111.  323. 

But  on  cross-examination  as  to  former  testimony  inquiry  may  be 
made  without  restriction  to  signed  statements  at  inquest. 
Briggs  vs.  People,  219  111.  330. 

—  Absent  Wit'uess:  What  a  witness,  who  is  beyond  the  juris- 
diction of  the  court  and  whose  deposition  cannot  be  procured,  irtsy 
have  testified  to  on  a  former  trial  between  the  same  parties  may- 
be proven  by  any  person  who  may  have  heard  and  could  remember 
the  evidence,  but  a  bill  of  exceptions  is  not  admissible  for  that 
purpose  even  though  his  testimony  was  taken  in  shorthand. 

I.  C.  E.  E.  Co.  vs.  Asliline,  171  111.  313;  Contra,  Plane  Mfg.  Co.  vs. 
Pannenter,  56  App.  258. 
Official  court  reporter's  notes  are  not  admissible  to  prove  former 

testimony  of  absent  witness. 

i.  C.  E.  E.  Co.  vs.  People,  59  App.  256. 
Former  testimony  cannot  be  introduced  by  counsel  reading  same 

from  his  abstract. 

C.  &  A.  E.  E.  Co.  vs.  Mayer,  91  App.  372. 

In  absence  of  any  question  involving  the  right  of  defendant  to 
meet  the  witnesses  face  to  face,  parties  may  agree  to  the  presen- 
tation of  the  testimony  of  a  witness  at  a  former  trial  by  the  court 


STENOGRAPHERS'  NOTES  1203 

reporter,  upon  proper  preliminary  proof  that  he  correctly  transr 
cribed  it. 

The  admission  of  evidence  of  a  witness  at  a  former  trial  is  not 
a  violation  of  the  constitutional  rights  of  defendants  to  meet  wit- 
nesses face  to  face  and  hear  them  testify,  where  they  had  that 
opportunity  at  such  former  trial  and  availed  themselves  of  right 

of  cross  examination. 

Gillesi)ie  vs.  People,  176  111.  238. 
— •  Witness  Disqualified:    Where,  by  the  death  of  a  witness,  a 
party  to  an  action  is  rendered  incompetent,  a  stenographic  trans- 
cript of  the  testimony  of  such  party,  taken  at  a  former  trial,  when 

he  was  not  so  disciualified,  cannot  be  read  in  evidence. 
Trunkey  vs.  Hedstrom,  33  App.  397. 

— -Bill  in  Equity  for  Neio  Trial:     On  hearing  of  bill  in  equity 

for  a  new  trial,  in  suit  at  law,  the  transcript  of  the  evidence  on  the 

trial  of  such  suit  at  law  is  properly  admitted  in  evidence  where 

the  short-hand  reporter  who  reported  the  same  testified  that  he 

wrote  up  the  testimony,  dictated  same  to  copj-ists  and  that  the 

transcript  of  the  evidence  was  correct ;   that  the  witnesses  were 

sworn  and  testified  as  therein  stated. 
Brown  vs.  Luehrs,  79  111.  575. 

— -Identity  of  Action:  Pleadings,  stenographers  notes  and  in- 
structions are  admissible  for  purpose  of  establishing  identity  of  a 

point  determined  in  a  former  action. 

Henry  Co,  vs.  Mahoney,  97  App.  313, 

—  Prosecution  for  Perjury:  In  prosecutions  for  perjury,  the 
testimony  given  by  the  accused  may  be  proven  by  the  official  re- 
porter of  the  court  who  took  the  same,  by  reading  a  typewritten 

transcript  of  his  stenograi^hic  notes  taken  at  the  trial. 
Hereford  vs.  People,   197  111.  222, 

Refreshing  Memory  of  Jury : 

Court  should  refuse  to  allow  stenographer's  notes  to  be  read  to 

the  jury  as  a  part  of  the  evidence  to  refresh  the  jury's  mind  as 

to  what  the  evidence  was. 

Westgate  vs.  Asehenbrenner,  39  App.  263.  ■ 

As  Independent  Evidence: 

A  transcript  properly  proven  as  correct  is  admissible  as  inde- 
pendent evidence,  where  witness  is  deceased. 

Bredt  vs.  Simpson  Co.,  95  App.  333;  C.  B.  I.  &  P.  Ey.  Co.  vs.  Har- 
mon, 17  App.  640. 

Preliminary  Proof: 

Where  proceedings  in  court  were  taken  down  by  expert  stenog- 
rapher, who  testified  that  they  were  fully  and  correctly  written 
at  the  time,  he  may  testify  to  the  contents  of  the  writing  tliough  he 
has  no  independent  recollection  of  the  facts  therein  contained. 
In  such  cases,  however,  the  writing  must  be  produced  in  court  to 

enable  the  opposite  party  to  cross  examine  in  reference  to  it. 

Dady  vs.  Condit,  104  App.  507;   C,  &  A.  E.  E.  Co,  vs,  Eobinson,  16 
App.  229. 
*'I  am  a  stenographer  and  short  hand  writer,  and  have  been 
such  for  more  than  fifteen  years.     I  acted  in  that  capacity  on  the 
former  trial  of  this  cause.     There  was  a  witness  sworn  and  testi- 
fied on  that  trial  by  the  name  of  Paulina  Kurster.     I  reported  her 


1204  STEREOSCOPIC  VIEW 

evidence.  My  report  of  same  is  correct.  That  evidence  was  trans- 
lated into  long-hand  on  a  type-writer.  I  have  compared  the  trans- 
cript with  my  original  notes,  and  it  is  correct,  and  this  is  my 
transcript."     Court  then  allowed  a  transcript  of  the  evidence  to 

be  read.     Held  correct. 

Luetgert  vs.  Voelker,  153  111.  385;  Brown  vs.  Luehrs,  79  HI.  575. 

TRANSCRIPT: 

Reporter  may  read  a  typewritten  transcript  of  his  stenographic 

notes  taken  upon  former  trial. 

Hereford  vs.  People,  197  111.  222;  Leutgert  vs.  Voelker,  153  111. 
385;  Brown  vs.  Leuhrs,  79  111.  575;  Contra,  Pharos  vs.  Barber,  61 
lU.  Z7h 


STEREOSCOPIC  VIEW 

Use  by  Jury: 

Allowed  where  preliminary  proof  of  correctness  of  photographs 

made,  and  evidence  of  expert  as  to  effect  of  stereoscope. 

City  of  Eockford  vs.  Eussell,  9  App.  229;  XII  111.  Notes  510,  §  277. 
(See  Photogbaphs.) 


STIPULATION 

Of  Attorney: 

—  Trial:  An  attorney  or  solicitor  retained  in  the  case,  from 
the  nature  of  the  employment,  may,  on  the  trial  or  hearing  of  the 
cause,  make  admissions  and  waive  rights  of  his  client  which  will 
be  as  binding  as  if  made  by  himself,  in  the  absence  of  fraudulent 
collusion  with  the  other  party. 

Wilson  vs.  Spring,  64  111.  14 ;  Leahy  vs.  Stone,  115  App.  138 ;  Merid- 
ian Arc  Light  Co.  vs.  Anderson,  111  App.  449;  XIV  ill.  Notes 
653,  §  23. 

And  has  power  to  promise  the  opposite  party  to  pay  the  amount 
claimed  in  consideration  of  dismissal  of  suit,  and  such  promise 
is  binding  upon  his  client. 

Grand  Lodge  vs.  Ohnstein,  110  App.  312. 

A  party  cannot  object  to  the  admission  of  evidence  for  want  of 
proper  pleading  when  it  is  stipulated  that  the  plaintiff  may 
introduce  any  evidence  which  he  could  under  pleadings  properly 
pleaded  and  necessary  to  make  out  his  case,  and  that  the  defend- 
ant may  do  likewise  as  to  his  defense,  under  the  general  issue. 
This  is  a  waiver  of  all  technicalities  and  consent  to  try  the  case 
on  its  merits. 

Whitehouse  vs.  Halstead,  90  111.  95. 

But  a  stipulation  to  introduce  all  proof  under  general  issue  does 
not  include  such  matters  as  are  required  by  the  practice  act  to  be 
under  plea  verified. 

Schuyler  vs.  Mo.  Bridge  Co.,  256  HI.  348. 

—  Consent  to  Judgment:    An  attorney  at  law  has  no  implied 

authority  to  compromise  or  to  give  up  any  right  of  his  client,  or 

to  consent  to  a  judgment  against  his  client. 
Wadhams  vs.  Gay,  73  111.  415. 


STIPULATION  1205 

Where  an  attorney,  in  making  an  agreement  with  the  opposite 
party,  compromises  a  claim  for  less  than  that  which  already 
secures  the  claims,  or  accepts  anything  other  than  money  in  pay- 
ment of  the  claim,  such  party  is  put  upon  inquiry  as  to  the  at- 
torney's authority  to  make  such  a  compromise  or  settlement;  and 
if  he  omits  to  make  inquiry  or  to  demand  production  of  authority, 
he  deals  with  the  attorney  at  his  peril. 

McClintock  vs.  Helberg,  168  111.  384;  Brooks  vs.  Kearns,  86  111.  547; 
Miller  vs.  Lane,  13  App.  648. 

An  agreement  in  open  court  by  an  attorney,  who  has  been  re- 
tained by  defendant,  that  a  judgment  may  be  taken  against  his 
client  for  a  certain  sum,  is  binding  upon  such  client  in  absence  of 
fraud,  collusion,  surprise  or  some  ground  of  the  same  nature, 
unless  it  appear  that  such  attorney  is  insolvent. 

An  attorney  cannot  bind  his  client  as  to  matters  collateral  to 
his  employment,  while  he  may,  subject  to  certain  expectations,  do 
so  as  to  matters  which  are  directly  within  his  employment  as  at- 
torney, 

Meriden  Arc  Light  Co.  vs.  Anderson,  111  App.  449. 

—  Arhitration  Stipulation:  Ratification  may  be  shown  by  cir- 
cumstances. 

Coimett  vs.  Chicago,  114  111.  233;  Ives  vs.  Ashelby,  26  App.  244. 

Effect  as  Evidence: 

—  Unfiled:  A  mere  unfiled  stipulation  between  parties  is  a 
thing  to  which  attention  must  be  called  if  it  is  expected  that  court 
act  thereon. 

Gershenow  vs.  West  Chi.  St.  Ey.  Co.,  103  App.  591. 

—  Oral  Agreement:  The  court,  in  absence  of  reasonable  doubt 
as  to  making  of  agreement,  is  bound  to  carry  it  into  effect  as  if  it 
had  been  reduced  to  writing  by  the  parties. 

Toupin  vs.  Garhneier,  12  111.  79;  Henchey  vs.  Chicago,  41  111.  136. 
And  will  be  enforced  where  acted  upon. 

C.  &  N.  W.  E.  E.  Co.  vs.  Hintz,  132  111.  265. 

—  Will  Be  Enforced:  Where  parties  to  an  action  at  law  make 
an  agreed  statement,  none  of  the  matters  so  agreed  can  be  disputed 
in  trial  by  either  party. 

Catling  vs.  Traders  Ins.  Co.,  83  App.  40. 
A  stipulation  with  reference  to  testimony  should  be  liberally 
construed. 

Denunzio  vs.  Penn.  Co.,  172  App.  277. 
A  stipulation  entered  into  in  open  court  by  attorneys  in  a  case 
with  reference  to  certain  facts,  will,  when  reduced  to  writing  and 
acted  upon,  be  enforced. 

Culver  vs.  Cougle,  165  HI.  417;   Telluride  Power  Co.  vs.  Crane  Co., 
208  111.  218. 

A  stipulation  by  a  party,  as  to  facts  of  a  case,  so  long  as  it 
stands,  is  conclusive  upon  him,  and  cannot  be  contradicted  by  evi- 
dence tending  to  show  the  facts  otherwise.  If  a  stipulation  is 
entered  into  unadvisably  or  through  misinformation,  the  party  in- 
jured should  seek  to  have  it  set  aside  by  some  direct  proceeding. 
City  of  Chicago  vs.  Drexel,  141  HI.  89. 

—  Eecitals:  A  stipulation  by  the  attorney  for  city,  in  action 
of  covenant  on  lease  for  water  office,  that  there  was  an  appropri- 


1206  STIPULATION 

ation  for  the  rent  sufficient  to  cover  the  entire  period  up  to  the 
time  of  the  suit,  must  be  regarded  as  evidence  of  such  appropri- 
ation, as  against  city's  objection,  that  no  proof  of  an  appropriation 

was  made. 

City  of  Chicago  vs.  English,  180  111.  476. 

Where,  at  the  beginning  of  a  trial,  it  is  admitted  by  both  parties 
that  the  property  injured  fronts  on  a  certain  street  and  is  situated 
in  a  certain  block  of  the  city,  the  parties  cannot  be  allowed  to 
insist  that  the  property  is  situated  otherwise  than  thus  admitted, 
and  thus  defeat  a  recovery  for  an  injury  thereto, 
L.  E.  &  W.  E.  R.  Co.  vs.  Miadlecoflf,  150  111.  27. 

—  Minors:    A  stipulation  of  facts  is  not  binding  upon  minors. 

Anderson  vs.  Anderson,  191  111.   100;   Knights  Templar  vs.  Craytou, 
209  111.  550. 

—  Persons  Not  Parties:  A  stipulation  of  facts  cannot  be  used 
as  evidence  against  or  in  favor  of  others  not  parties  to  the  stipu- 
lation. 

Hoffmann  vs.  Sehoyer,  143  111.  598. 

—  Suhsequent  Trial:  The  stipulation  of  facts  upon  which  a  trial 
is  had  is  not  admissible  on  second  trial,  if  objected  to  by  either 
party. 

Rigdon  vs.  More,  242  111,  256;  City  of  Alton  vs.  Foster,  207  Til.  150; 
Town  of  Carthage  vs.  Buckner,  8  App.  152;   Hardin  vs.  Forsythe, 
.  99  111.  312;  XIV  111.  Notes  653,  §  20. 

—  ExJiihits :  An  agreement  as  to  what  the  exhibits  in  a  cause 
proved,  on  hearing,  will  not  operate  as  evidence  on  a  hearing  sub- 
sequently had,  upon  reversal  of  first  decree ;  and  if  such  agreement 
could  be  given  any  effect  upon  the  second  hearing,  as  to  the  parties 
in  court  at  the  time  it  was  made,  it  could  not  bind  new  parties  to 
the  record  who  gave  no  assent  thereto. 

Thomas  vs,  Adams,  59  111.  223, 

—  WJien  May  he  Withdrawn:  An  admission  by  counsel  may  be 
withdrawn  by  permission  of  the  court,  where  adverse  party  is  not 
deprived  of  any  right,  and  the  party  making  it  is  given  no  undue 

advantage  thereby. 

Sullivan  vs.   Eddy,  154  111.   199;    McKinley  vs.  Mining  Co.,  7   App. 
386;  Brockway  vs,  McClun,  148  App.  465. 

—  Excess  of  Authority:  A  stipulation  beyond  the  implied 
power  of  the  attorney  and  not  expressly  authorized  by  the  party, 
or  by  a  party  as  to  a  subject  within  the  exclusive  control  of  the 
attorney,  will  be  set  aside  upon  application. 

An  attorney  who  is  conducting  a  condemnation  suit  for  a  corpo- 
ration has  no  implied  authority  to  bind  the  petitioner  by  a  stipu- 
lation respecting  its  plans  or  methods  of  construction. 

DePont  vs.  San.  Dist.,  203  111.  170;  T.  &  M.  N.  Ry.  Co.  vs.  Haws,  194 
111.  92. 

—  Criminal  Trial:  Where  the  parties  enter  into  an  agreement 
wnth  reference  to  the  course  to  be  pursued  in  any  particular  litiga- 
tion, they  will  not  afterward  be  heard  to  complain  that  the  court 
acted  upon  the  stipulation,  unless  as  a  result  of  doing  so  the  court 
has  exercised,  or  attempted  to  exercise,  jurisdiction  not  given  by 

law. 

People  vs.  Anderson,  239  111.  168. 


STRIKING  OUT  EVIDENCE  1207 

Testimony    given   on    former    trial    may   be   introduced   under 
stipulation. 

Gillespie  vs.  People,  176  111.  238. 
And  people  may  admit  testimony  as  alleged  in   affidavit  for 

continuance. 

Keating  vs.  People,  160  111.  480. 


STOCKHOLDERS 

See  Corporations,  Witnesses. 

STOLEN  GOODS 

See  Receiving  Stolen  Property. 

STREETS 

See  Abandonment. 


STRIKING  OUT  EVIDENCE 

See  Witnesses,  Objections,  Relevancy. 
Propriety  of  Motion: 

A  party  who  considers  himself  aggrieved  by  the  admission  of 
improper  testimony,  the  tendency  of  which  is  not  always  perceived 
at  the  moment,  and  while  the  trial  is  in  progress,  or  the  giving  of 
which  many  times  cannot  be  prevented  as  it  comes  out  spontaneously 
from  the  witness,  and  not  in  reply  to  any  particular  question,  may 
relieve  himself  from  the  effects  of  such  improper  evidence  either 
by  making  a  formal  motion  to  exclude  it  from  the  consideration  of 
the  jury  or  by  asking  instructions  calculated  to   counteract  its 

force. 

Greenup  vs.  Stoker,  7  111.  688;  XIV  111.  Notes  853,  §  108. 

Time  for  Motion: 

Motion  sliould  be  made  while  witness  is  on  the  stand. 
Coburn  vs.  Moline  Ey.  Co.,  149  App.  132. 

A  motion,  even  if  in  proper  form,  to  strike  out  the  improper 

parts  of  the  answer  of  a  witness,  is  too  late  if  not  made  at  time 

answer  is  given. 

McKeown  vs.  Dyniewicz,  83  App.  509. 

IMotion  cannot  be  made  after  examination  of  witness  has  been 

concluded. 

Shorb  vs.  Webber,  89  App.  474. 

Statements  in  a  deposition,  which  are  not  legitimate  evidence, 

like  hearsay,  may  be  objected  to  on  the  trial,  but  those  which  are 

objectionable,   merely   because   of  secondary   evidence,   should  be 

objected  to  before  the  trial. 

Cooke  vs.  Orne,  37  111.  187;  L.  N.  &  A;  Ey.  Co.  vs.  Shires,  108  111. 
617;  Hickox  Pub.  Co.  vs.  Dawes  I\Ifff.  Co.,  64  App.  630. 

If  an  objection  is  only  formal,  it  shall  be  determined  before  the 


1208  STRIKING  OUT  EVIDENCE 

trial.  It  is  otherwise  with  suhstantial  ohjections.  If  the  evidence 
is  irrelevant,  it  may  be  excluded  on  the  trial,  but  if  the  objection 
is  only  to  the  form,  the  party  should  have  an  opportunity  of  remov- 
ing the  objection  by  procuring  the  witness  or  obtaining  the  evi- 
dence, if  it  may  be  legally  done. 

I.oekAvood  vs.  Mills,  39  111.  602.. 

Form  of  Motion: 

Motions  to  strike  out  evidence  of  two  witnesses  should  be  made 

separately,  when  evidence  of  one  is  competent. 

A  motion  to  exclude  should  specify  the  particular  answers  or 

the  particular  part  of  answei^s  which  it  is  claimed  are  incompetent. 
Coburn  vs.  Moline  Ey.  Co.,  149  App.  132. 

Answers  to  Cross  Examination: 

Counsel  will  not  be  allowed  to  cross  examine  a  witness  and  if  the 

testimony  elicited  is  not  satisfactory,  have  it  excluded.     A  party 

will  not  be  permitted  to  experiment  with  a  witness  in  this  way. 
Capen  vs.  DeSteiger  Glass  Co.,  105  111.  185. 

One  obtaining  a  fairly  responsive  answer  to  a  question  put  by 

him  upon  cross  examination  cannot  object  to  its  competency. 
Board  of  Trade  vs.  Bliime,  17(3  111.  247, 

Scope  of  Motion: 

A  motion  to  strike  out  answer  of  a  witness,  when  a  part  of  it  is 

clearly  proper,  must  be  directed,  specifically  to  the  irresponsive 

and  incompetent  parts  of  the  answer,  and  not  generally  against 

the  whole. 

McKeown  vs.  Dyniewicz,  83  App.  509  j  FitzSimmons  vs.  Braun,  199 
111.  390. 

Applies  to  criminal  cases. 

Mash  vs.  People,  220  111.  86. 

Stating  Grounds : 

Grounds  of  motion  should  be  stated  by  counsel. 

City  of  Chicago  vs.  Seben,  62  App.  248;  Butler  vs.  Cornell,  148  111. 
276 ;   McCormick  Mach.  Co.  vs.  Burandt,  37  App.  165. 

Improper  Answer: 

An  improper  answer  to  a  proper  question,  which  was  objected 

to,  is  not  ground  of  reversal,  in  absence  of  any  subsequent  request 

to  exclude  the  answer. 

Hill  vs.  Bahrus,  158  111.  314, 

"Where  an  improper  answer  is  made  by  a  witness  to  a  proper  and 
unobjectionable  question,  the  party  claiming  to  be  injured  hy  the 
objectionable  evidence  should  move  to  exclude  it  or  ask  an  instruc- 
tion directing  jury  to  disregard  it.  If  he  fails  to  do  either,  he  can- 
not complain. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Blume,  137  111.  448. 

Irresponsive  Answers : 

Court  should  strike  out  answers  not  responsive. 
Math  vs.  Chi.  City  Ey.  Co.,  243  111.  114. 

Improper  Evidence: 

Evidence  erroneously  admitted  should  not  be  left  in  a  case  and 
jury  instructed  to  render  a  judgment  against  it,  nor  should  the 
court  act  upon  a  conclusion  that  a  ruling  was  erroneous,  without 
setting  aside  the  ruling  in  some  way  so  as  to  give  the  aggrieved 
party  the  opportunity  of  preserving  his  rights  bv  exception. 

Clark  vs.  Carr,'  45  App.  469 ;   Eowell  vs.  C.  G.  "W.  Ey.  Co.,  92  App. 
103. 


STRIKING  OUT  EVIDENCE  1209 

Refusal  of  Witness  to  Answer  on  Cross  Examination: 

if  a  witness  refuse  to  answer,  on  cross  examination,  competent 

questions  relating  to  important  or  vital  matters,  in  respect  to  which 

lie  testitied  in  chief,  his  direct  examination  should  be  excluded. 
Dowie  vs.  Black,  90  App.  167. 

When,  in  answer  to  a  proper  question,  a  witness  gives  testimony 

which  is  incompetent,  it  is  the  duty  of  the  court,  on  motion  of 

party  against  whom  the  testimony  is  given,  to  exclude  it. 

People  vs.  Seattura,  238  111.  SKJ. 

Evidence  Admissible  for  Any  Purpose: 

A  motion  to  exclude  the  entire  testimony  of  a  witness  is  properly 
denied  if  some  part  of  his  testimony  is  competent ;  and  such  a 
motion  does  not  raise  the  question  whether  some  one  item  of  his 
testimony  was  incompetent.  ■■,i<!*, 

C.  &  A.  E.  E.  Co.  vs.  Amer.  S.  B.  Co.,  91  App.  635;  E.  J.  &  E.  Ey. 

Co.  vs.  Lawlor,  132  App.  280;   Goggin  vs.  Chicago,  162  App.  368. 

When  evidence  is  relevant,  material  and  competent,  it  should  not 

l)e   stricken   out,    even   though    admitted   for   special    purpose   on 

promise  of  counsel  to  connect  other  testimony  in  a  cause,  which  is 

not  done. 

Star  Brew.  Co.  vs.  Farnsworth,  172  111.  247;  Coburn  vs.  Moline  Ey. 
Co.,  149  App.  132. 
If  a  single  motion  is  made  to  exclude  the  testimony  of  several 
witnesses,  it  is  properly  denied  if  the  testimony  of  one  of  such  wit- 
nesses is  competent. 

Colmrn  vs.  Moline  Ey.  Co.,  149  App.  132. 

Failure  to  Object: 

A  motion  to  strike  out  testimony  relative  to  the  physical  condi- 
tion of  plaintiff  in  a  personal  injury  case,  is  properly  denied, 
where  the  testimony  was  admitted  without  objection  or  any  promise 
on  part  of  plaintiff's  counsel  to  show  that  such  conditions  were 

the  result  of  the  injury. 

Chi.  U.  Trac.  Co.*  vs.  May,  221  111.  530. 

Improper   testimony   should   be   stricken   out,    on   motion,    even 

though  admitted  without  objection,  where  it  was  given  by  plaintiff 

while   describing  his  injuries  and  subsequent  disabilities  and  its 

objectionable  nature  could  not  have  been  known  until  after  it  was 

given. 

Kellelier  vs.  Chi.  City  Ey.  Co.,  256  111.  454. 

Evidence  Conditionally  Admitted: 

Where  the  court  admits  evidence  over  objection,  with  the  state- 
ment that  same  might,  on  condition,  be  excluded,  it  is  essential  that 
such  motion  should  be  made  in  order  to  urge  the  incompetency  of 

sucli  evidence. 

C.  &  A.  E.  E.  Co.  vs.  Vipond,  112  App.  558;  Chi.  City  Ey.  Co.  vs. 
Hyndshaw,  116  App.  367. 

Waiver : 

Refusal  to  exclude  evidence  for  plaintiff,  admitted  without  objec- 
tion, at  the  time,  is  proper  where  defendant  introduced  testimony 
for  the  purpose  of  contradicting  the  evidence  sought  to  be  excluded. 
C.  &  E.  I.  E.  E.  Co.  vs.  Schmitz,  211  111.  446. 

But  the  fact  that  the  party  against  whom  the  testimony  is  given 
does  not  move  to  exclude  it  does  not  waive  his  right  to  raise  the 
cjuestion  of  its  competency,  if  it  was  not  competent  in  any  event, 


1210  STRIKING  OUT  EVIDENCE 

and  no  other  evidence  to  prove  the  same  facts  could  have  been 
introduced  had  the  evidence  been  excluded. 

People  vs.  Scattura,  2S8  111.  313. 
One  who  fails  to  object  to  a  question  until  after  it  is  answered, 
and  pursues  the  witness  with  questions  on  the  same  subject  on  cross 
examination  after  court's  refusal  to  strike  out  the  answer,  cannot 
complain  of  the  evidence  on  appeal. 

Poehlman  vs.  Kertz,  204  111.  418. 
The  proper  defense  to  incompetent  evidence  is  an  objection  or 
a  motion  to  exclude.     Parties  cannot  by  mere  silence  or  consent 
create  a  right  to  try  an  immaterial  issue  when  they  might  have 
had  the  adverse  evidence  kept  out  or  stricken  out. 

People  vs.  Newman,  261  111.  11. 

But  if  objection  or  motion  is  made  and  overruled,  like  evidence 

to  contradict   that   admitted   may   be   introduced   without   losing 

rights  on  appeal. 

Chi.  City  Ry.  Co.  vs.  Uhter,  212  111.  174.    (See  Rebuttal,  Objections.) 

Effect  of  Striking  Out: 

—  In  General :  AYhere  improper  evidence  is  stricken  out  by  the 
court,  its  admission  will  not  be  reversible  error  unless  it  appears 
that  the  jurv  were  influenced  by  the  introduction  of  same. 

Brown  vs.   I.  I.  &  M.   Ry.   Co.,  209   111.   402;    Ide  vs.  Fratcher,   194 
111.  552 ;  C.  &  G.  T.  R.  R,  Co.  vs.  Gaeinowski,  155  111.  189. 

''In  some  cases  where  irrelevant  evidence  has  been  admitted  and 
the  jury  afterwards  properly  instructed,  it  may  be  that  the  judg- 
ment need  not  be  reversed  on  that  account.  This  cannot  properly 
be  done  unless  the  case  is  such  that  it  clearly  appears  that  no  in- 
justice or  wrong  has  been  done  to  the  party  complaining  of  the 

error. ' ' 

Howe  Mach.  Co.  vs.  Rosine,  87  111.  105. 

"It  is  not  easy  to  remove  from  the  minds  of  the  jury,  by  in- 
struction, impressions  produced  by  improper  testimony,  which  the 
court  has  admitted  against  objections.  The  inevitable  tendency  of 
such  evidence  is,  in  doubtful  cases,  to  mislead,  and  the  extent  of 
the  mischief  produced  by  it  cannot  well  be  calculated. ' ' 

>  Lyconiiug  Ins.  Co.  vs.  Rubin,  79  111.  402;  L.  B.  &  M.  Ry.  Co.  vs. 
Winslow,  66  111.  219;  Foster  vs.  Shepherd,  258  111.  164. 
"Where,  over  objection,  incompetent  evidence  has  been  received, 
in  a  jury  trial,  it  must  appear  that  the  verdict  rendered  was  not 
affected  by  it  or  the  judgment  will  be  reversed,  even  though  it  was 
afterAvards  stricken  out,  as  such  testimony  may  influence  the  jury, 
notwithstanding  the  efforts  of  the  court  to  counteract  it." 

Chi.  City  Ry.  Co.  vs.  "White,  110  App.  23;   Tumalty  vs.  Parker,  100 
App.  382;  Chi.  IT.  Trac.  Co.  vs.  Arnold,  131  App.  599;  Adams  vs. 
Rnssell,   85  111.  284;   Crty  of  Chicago  vs.   Brenuan,   61   App.   247; 
Rollins  vs.  Duffy,  18  App.  398. 
Error  in  admitting  incompetent  evidence  is  not  cured  by  its 
subsequent  striking   out,   where   it  is  apparent   counsel   knew   it 
would  have  to  be  stricken  out,  but  secured  its  admission  for  the 
evident  impression  it  -would   make  on   the  minds  of  the  jurors 
even  though  it  should  be  immediately  stricken  out. 
Foster  vs.  Shepherd,  258  111.  164. 
—  Instruction  Alone:     If  it   is   apparent  a  verdict  could  not 


SUBSCRIPTION  1211 

have  been  returned  unless  the  jury  had  considered  improper  ele- 
ments of  damage,  the  error  is  not  cured  by  instruction. 
I.  C.  R.  E.  Co.  vs.  Trustees  of  Schools,  1212   111.  40(5. 
—  When  Harmless:     Where  in  view  of  all  instructions,  it  does 
not  appear  that  the  evidence,  improperly  admitted,  in  any  way 

affected  the  party. 

Henrietta  Coal  Co.  vs.   Martin,   221  111.   460;   Ledwell  vs.   Chi.  City 
Ey.  Co.,  160  App.  596. 
"Where  the  court  refused  to  strike  out  the  answer  of  a  witness 
because  no  objection  was  made  to  the  question,  but  the  answer 
was  afterwards  stricken  out  by  consent  of  counsel  conducting  the 
examination,  it  was  held  that  the  party  moving  to  strike  out  the 
answ^er  had  no  legal  ground  of  complaint. 
Weber  Wagon  Co.  vs.  Kehl,  139  111.  644. 

"Wliere  from  whole  evidence  evil  mentioned  was  reasonably  cer- 
tain to  appear. 

Chicago  vs.  Jarvis,  226  111.  615, 

Where  evidence  tending  to  increase  the  measure  of  damages  is 

improperly  admitted,  luit  the  court,  in  instructing  the  jury,  directs 

them  in  assessing  the  damages,  not  to  allow  anything  for  the  kind 

of  damages  referred  to  in  the  evidence  improperly  admitted,  and 

instructs  them  as  to  the  proper  measure  of  damages  in  the  case, 

the  error  is  harmless,  unless  it  appears  from  the  verdict  that  the 

jury  were  misled  bv  the  admission  of  such  evidence. 

111.  Steel  Co.  vs.  Ostrowski,  93  App.  57;  Affirmed,  194  111.  376. 

Review : 

An  improper  and  unresponsive  answer  to  a  proper  question  will 
not  be  reviewed  unless  a  ruling  of  the  trial  court  is  taken  upon 

motion  to  strike  out  or  withdraw  such  answer. 

Natl.  Syrup  Co.  vs.  Carlson,  155  111.  210;  City  of  Chicago  vs.  Didier, 
131  App.  406. 


SUBSCRIBING  WITNESS 

See  Wills,  Privileged  Communications,  Impeachment. 
Execution  of  Instrument: 

In  action  on  instrument  signed  by  mark,  the  witness  need  not 
be  produced.     Execution  may  be  proved  by  secondary  evidence. 
Snyder  vs.  Travers.  45  App.  253;  XII  111.  Notes  511,  §290. 

Prior  to  statute,  if  subscribing  witness  was  without  state,  execu- 
tion might  be  proven  from  handwriting  of  subscribing  witnesses. 
Hartford  Ins.  Co.  vs.  Gray,  80  111.  28;  Newsoni  vs.  Luster,  13  111.  176; 
Wiley  vs.  Bean,  6  HI.  302, 


SUBSCRIPTION 

WRITING  AS  EVIDENCE  OF  PROMISE: 

A  subscription  paper  is  evidence  to  all  who  see  it,  that  the  per- 
sons whose  names  appear  upon  it  as  subscribers  have  promised  to 
pay  the  amount  set  opposite  their  respective  names. 

McClure  vs.  Williams,  43  111.  356.  ,i 


1212  SUICIDE 

BURDEN  OF  PROOF: 

In  au  action  on  a  subscription  conditioned  upon  a  certain  amount 
being  subscribed,  it  is  incumbent  on  plaintiff  to  show  affirmativelj^ 
that  the  amount  named  has  been  subscribed  before  suit.  Without 
such  proof,  he  cannot  recover. 

G.  &  S.  W.  E.  R.  Co.  vs.  Ennor,  116  111.  55. 

DENIAL  OF  EXECUTION: 

Must  be  put  in  issue  by  sworn  plea. 
Williard  vs.  Trustees,  66  111.  55. 

ADMISSIBILITY  OF  PAROL  EVIDENCE: 
Stock  Subscriptions: 

—  In,  General:  Parol  evidence  is  incompetent  to  show  that  stock 
subscriptions,  on  their  face  unconditional,  were,  in  fact,  condi- 
tional. 

Corwith  vs.  Culver,  69  111.  502;  Merriek  vs.  Consumers  Heat  Co.,  Ill 
App.  153. 

Nor  to  show  contemporaneous  secret  agreement  between  sub- 
scriber and  corporation. 

Stone  vs.  Vandalia  Coal  Co.,  59  App.  536;  Lyon  vs.  Worchester,  49 
App.  639. 

Representations  not  fraudulently  made  are  inadmissible  to  vary 
written  subscription. 

Hays  vs.  O.  O.  &  F.  R.  R.  Co.,  61  111.  422 ;  Dill  vs.  Wabash  Valley  R. 
R.  Co.,  21  111.  90;  XII  111.  Notes  516,  §  330. 

—  Delivery:  Parol  evidence  is  admissible  to  show  that  written 
agreement  was  to  take  effect  on  conditions.  Such  proof  is  not 
admitted  for  the  purpose  of  changing  terms,  but  for  the  purpose 
of  determining  whether  contract  had  legal  existence. 

Great  West  Tel.  Co.  vs.  Lowenthal,  154  111.  261 ;  0.  O.  &  F.  R.  R.  Co. 
vs.  Hall,  1  App.  612. 

Book  Subscription : 

Evidence  offered  to  show  that  the  book  was  not  prepared  in 

accordance  wdth  certain  representations  of  the  person  who  took 

the  subscription  is  inadmissible  as  being  an  attempt  to  vary  the 

terms  of  the  written  instrument  by  parol. 
Williams  vs.  Gottschalk,  231  111.  175. 

Church  Subscriptions: 

An  unconditional  subscription  for  the  erection  of  a  church  can- 
not be  varied  by  parol  proof  of  a  representation  that  the  building 
would  be  erected  upon  a  certain  site. 

Howell  vs.  Trustees  of  M.  E.  Church,  61  App.  121. 


SUBSTITUTED  SERVICE 

See  Service. 


SUICIDE 

See  Experiments,  Sanity  and  Insanity. 
Defined : 

The  word  "suicide"  means  voluntary,  intentional  self-destruc- 
tion, and  not  self-destruction  by  one  who  at  the  time  is  incapable, 
by  reason  of  unsoundness  of  mind,  of  resisting  an  insane  impulse 


SUICIDE  1213 

to  take  his  own  life  or  to  understand  the  general  nature  or  con- 
sequences and  effect  of  his  act. 

Supreme  Council  Eoyal  Arcauum  vs.  Pels,  209  111.  3S. 

Presumptions : 

In  tlie  absence  of  proof  of  cause  of  death,  natural  or  accidental 

causes  will  be  presumed. 

Kuights  Templar  vs.  Crayton,  209  111.  550;  F.  &  C.  Ins.  Co.  vs.  Weise, 
182  111.  496;  Amer.  Home  Circle  vs.  Schneider,  134  App.  601;  XII 
111.  Notes  55,  §  11. 
The  presumption  of  the  law  is  that  all  men  are  sane  and  pos- 
sessed of  the  love  of  life;  are  animated  by  the  instincts  of  self- 
preservation  and  the  natural  desire  to  avoid  personal  injuries  and 
death.     This  presumption,  in  the  absence  of  countervailing  proof, 
may  be  sufficient  within  itself  to  establish  prima  facie  that  death 
occurred  otherwise  than  by  self-destruction,  and  to  cast  upon  the 

defendant  company  the  burden  of  producing  evidence  on  the  point. 

Wilkinson  vs.  Aetna  Ins.  Co.,  240  111.  205. 

Where  the  evidence  shows  that  the  assured  has  suffered  an  injury 

which  caused  his  death,  and  there  is  no  proof  from  which  it  can  be 

determined  whether  the  injury  was  accidental  or  self-inflicted,  the 

presumption  is  that  the  injury  was  accidental. 
Wilkinson  vs.  Aetna  Ins.  Co.,  240  111.  205. 

Burden  of  Proof: 

— -Benefit  Society:  A  benefit  society  has  the  burden  of  showing 
that  the  deceased  committed  suicide,  where  such  defense  is  relied 
upon,  notwithstanding  the  proofs  of  death  tend  to  show  that  fact, 
and  in  the  absence  of  such  proof,  death  by  natural  or  accidental 

causes  may  be  presumed. 

Knights  Templar  vs.  Crayton,  209  111.  550 ;  Supreme  Lodge  K.  O.  T.  M. 
vs.  Stensland,  206  111.  124;  Kumbold  vs.  Eoyal  League,  206  111.  513; 
XII  111.  Notes  1203,  §  881. 

Infants  are  not  bound  by  admissions. 

Knights  Templar  vs.  Crayton,  209  111.  550. 

But  where  certificate  stipulates  association  will  not  pay  benefits 
where  member  commits  suicide,  whether  sane  or  insane,  except  it 
be  committed  in  delirium,  or  while  member  is  under  treatment  for 
insanity,  beneficiary  must  prove  by  a  preponderance  of  the  evi- 
dence that  the  act  came  within  the  exception. 

Supreme  Court  of  Honor  vs.  Peacock,  91  App.  632. 

A  clause  exonerating  society  from  liability  unless  beneficiary 
prove  affirmatively  that  member  had  been  judicially  declared  in- 
sane, or  was  under  treatment,  merely  relieves  beneficiary  from 
proving  degree  of  insanity  in  case  he  proves  any  of  the  facts  spec- 
ified. 

Supreme  Lodge  Eoyal  Arcanum  vs.  Pels,  209  111.  33. 

—  Accident  Policy:  The  burden  resting  upon  plaintiff  in  action 
upon  accident  policy  to  establish,  by  a  preponderance  of  the  wliole 
evidence,  that  assured  met  an  accidental  death,  is  not  shifted  to 
defendant  company  by  pleas  raising  the  defense  of  a  stipulation 
in  the  policy  that  if  deceased  committed  suicide  while  insane  only 
premiums  should  be  recovered,  so  as  to  require  the  defense  to  be 
proven  by  preponderance  of  the  evidence. 

Wilkinson  vs.  Aetna  Ins.  Co.,  240  111.  205 ;  F.  &  C.  Ins.  Co.  vs.  Weise, 
182  111.  496. 


1214  SUNDAY 

Weight  and  Sufficiency: 

Defense  of  suicide  upon  an  insurance  policy  need  only  be  estab- 
lished by  a  preponderance  of  the  evidence. 

William  vs.  Court  of  Honor,  120  App.  263  j  Aff.,  Williams  vs.  Court  of 
Honor,  221  111.  152. 

Admissibility  of  Evidence : 

—  Habits  and  Temperament:  Proof  of  the  habits  and  temper- 
ament of  the  insured  is  competent  on  the  question  whether  the 
injuries  received  by  him  Avere  accidental  or  intentionally  self-in- 
flicted ;  and  if  defendant  files  a  plea  presenting  the  defense  of  sui- 
cide, proof  of  such  habits  and  temperament  is  admissible  as  evi- 
dence in  chief. 

Wilkinson  vs.  Aetna  Ins.  Co.,  240  111.  205. 

—  Written  Statement  Found  o)i  Body:  A  written  statement 
found  on  the  body  of  deceased,  addressed  to  "father,  mother  and 
sister,"  unsigned,  but  written  upon  a  page  of  a  book  found  on  the 
person  of  deceased,  and  making  disposition  of  effects,  indicating 
his  desire  as  to  funeral  services,  is  proper  to  be  admitted  in  evi- 
dence as  tending  to  show  that  he  came  to  his  death  by  his  own  act. 

Welrl  vs.  Mutual  Life  Ins.  Co.,  61  App.  187. 

Inducing-  Another  to  Commit : 

Proof  that  accused  induced  another  person  to  commit  suicide  by 

taking  poison  is  sufficient  to  warrant  his  conviction  for  murder, 

but  in  such  cast  strict  proof  that  the  poison  was  taken  by  his 

procurement  is  required. 

Burnett  vs.  People,  204  111.  208. 

The  survivor  of  an  attempted  double  suicide  cannot  be  convicted 

of  murder  in  absence  of  evidence  that  he  actually  killed  deceased 

or  that  he  did  or  said  something  which  aided  or  encouraged  her 

to  kill  herself. 

Burnett  vs.  People,  204  111.  208. 

Homicide : 

On  the  trial  of  a  wife  and  her  paramour  for  the  murder  of  her 

husband  by  administering  poison  to  him,  declaration  of  deceased, 

made  at  different  times  within  the  j^ear  liefore  his  death,  and  prior 

to  his  last  sickness,  that  he  intended  to   take  his  own  life,  not 

accompanied  by  any  act  of  deceased  which  they  might  explain, 

being  merely  hearsay,  are  inadmissible  on  the  part  of  the  defense. 
Sell)ert  vs.  People,  143  111.  571. 

Circumstance  Tending  to  Prove  Guilt : 

Fact  that  accused  attempted  suicide  while  in  jail  may  be  proven. 
People  vs.  Duncan,  261  111.  339. 

SUNDAY 

See  Judicial  Notice. 

SURETYSHIP 

See  Principal  and  Surety. 

SURVEYS,  FIELD  NOTES  AND  MONUMENTS 

See  Boundaries,  Plats. 


SURVEYS,  FIELD  NOTES  AND  MONUMENTS      1215 

SURVEYOR'S  RECORD: 

Admissibility : 

Certilicate  of  county  surveyor  is  not  evidence;  a  copy  of  his 

record  of  a  survey  is  prima  facie  evidence. 

Kylo  vs.  Town  of  l^oyau,  87  ill.  04;  XJL  111.  Notes  509,  §  272. 

And  may  be  made  by  iiis  successor. 
Waterman  vs.  Eaymond,  34  111.  42. 

Prior  Survey: 

A  survey  recorded  as  the  true  survey  of  certain  commons,  made 
four  days  before  making  of  recorded  plat  the  purpose  of  which  is 
to  designate  the  "limits  and  position"  of  such  commons,  is  admis- 
sible in  ejectment  to  explain  meaning  of  platted  lines  appearing 

upon  certified  copies  of  plat  already  in  evidence. 

Wiggins  Terry  Co.  vs.  L.  E.  &  St.  L.  Ry.  Co.,  178  111.  473;  England 
vs.  Vanderniark,  147  111.  76. 

Weight  and  Sufficiency: 

The  survey  and  plat  of  a  public  road  made  and  returned  by  the 
highway  commissioners  when  they  located  it,  is  legitimate  evidence 
as  to  location  of  road,  but  is  not  conclusive  as  to  where  the  place 
or  precise  line  may  be  found,  but  is  open  to  correction  by  parol 

evidence. 

Hiner  vs.  People,  34  111.  397;   Town  of  Lovington  vs.  Adkins,   232 

111.  510. 
But  survey  of  boundary  established  in  conformity  wdth   well 
recognized  method  of  surveying  irregular  section  and  recognized 
by  adjoining  OAvners  cannot  be  questioned  collaterally. 
Blooniington  Cem.  Assn.  vs.  People,  139  111.  1(5. 

FIELD  NOTES: 
Presumption : 

The  held  notes  and  plat  of  survey  of  public  lands  are  presumed 

to  be  correct  until  contrary  is  shown. 

Town  of  Kane  vs.  Farrelly,  192  111.  521. 

Authentication : 

—  In  General:  Field  notes  are  not  admissible  without  authen- 
tication. 

Owens  vs.  Crossett,  105  Til.  354. 

—  Field  Notes  Certified  hij  Town  Clerk:  A  document  certified 
by  the  town  clerk  to  be  a  copy  from  an  original  plat  and  field  notes 
of  a  re-survey  of  a  road  made  and  certified  by  a  county  surveyor, 
and  filed  in  town  clerk's  office,  before  the  act  of  1861,  is  not  com- 
petent evidence  to  establish  the  location  of  a  public  road.  Nor  are 
the  original  notes  of  any  but  a  county  surveyor  admissible  in  evi- 
dence in  such  case.  But  a  copy  from  the  books  of  the  county  sur- 
veyor is  made  so  by  statute. 

Gray  vs.  Waterman,  40  111.  522, 

—  Sn.rvey  From  Field  Notes  Not  Properly  Certified:  Two  wit- 
nesses testified  that  they  made  a  survey  of  the  line  from  a  copy 
of  the  original  field  notes,  not  certified  by  a  competent  authority 
to  be  a  true  copy.  The  field  notes  from  which  they  ran  the  lines 
were  shoAvn,  in  particulars  affecting  the  correctness  of  the  survey, 
to  be  a  copy  of  the  original  field  notes:     Held,  that  the  copy  used 

by  witnesses  was  admissible. 

England  vs.  Vandermark,  147  111.  76. 


1216  SURVIVORSHIP 

Weight : 

Field  notes  are  important  evidence  in  ascertaining  where  mon- 
uments are  located;  but  if  the  location  of  monuments  is  clearly 
shown  by  other  evidence  to  be  at  a  distance  different  from  that 
given  in  the  field  notes  and  plat,  the  latter  must  give  way. 
Ofijilvie  vs.  CoiJeland,  145  111.  98. 

MONUMENTS: 
Presumption  as  to  Existence : 

Monuments  mentioned  in  description  of  land  as  marking  its 
boundaries  are  presumed  to  exist  until  contrary  is  shown. 
Kleiner  vs.  Bowen,  166  111.  537. 

May  be  Shown  by  Extrinsic  Evidence : 

The  location  of  a  monument  may  be  shown  by  extrinsic  evidence. 
Village  of  Itasca  vs.  Schroeder,  182  111.  192 ;  Kleiner  vs.  Bowen,  166 
111.  537;  Smiley  vs.  Fries,  104  111.  416;  Chi.  Dock  Co.  vs.  Kinzie,  93 
111.  415;  XI  111.  Notes  660,  §  49. 

Weight  as  Evidence: 

Monuments  placed  by  the  original  surveyor  mark  the  true  bound- 
aries of  city  lots  and  are  the  most  satisfactory  evidence  of  loca- 
tion of  boundary  lines,  controlling  field  notes  and  maps  of  survey 

as  well  as  distances,  courses  and  quantity. 

Kuglin  vs.  Bock,  181  111.  165;  City  of  Decatur  vs.  Niedermeyer,  168  111. 
68 ;  England  vs.  Vandermark,  147  111.  76 ;  People  vs.  Stahl,  101  111. 
346;  Bauer  vs.  Gottmanhausen,  65  111.  499. 


SURVIVORSHIP 

See  Death,  Descent  and  Distribution,   Heirship,   Presump- 
tions. 
Burden  of  Proof: 

Where  two  or  more  persons  perish  in  a  common  disaster,  there 

is  no  presumption  of  survivorship  and  if  survivorship  is  claimed 

it  must  be  proven,  and  the  party  having  the  burden  of  proof 

must  fail  if  the  proof  cannot  be  made. 

Middeke  vs.  Balder,  198  111.  590 ;  XII  111.  Notes  55,  §  13. 

The  effect  of  the  rule  is  that  the  parties  are  treated  as  having 
all  died  at  the  same  instant,  and  that  no  one  takes  anything  from 
any  of  the  others  by  reason  of  such  others'  death. 

Middeke  vs.  Balder,  198  111.  590;  Affirming,  92  App.  227. 


SUSTAINING  WITNESS 

See  Contradiction  and  Sustaining  Witness. 

SWORN  COPIES 

See  Copies,  Records. 

TAX  DEEDS 

See  Good  Faith,  Tax  Receipts,  Taxes,  Ejectment,  Adverse 
Possession. 


TAX  DEEDS  1217 

Color  of  Title : 

A  lax  deed  is  prima  facie  evidence  that  sale  was  conducted  in 
the  maimer  required  by  law,  and  affords  presumptive  proof  in  the 
first  instance  of  the  sufficiency  and  validity  of  the  process  upon 
which  the  sale  was  made,  which  is  the  basis  of  the  tax  deed,  and  the 
prima  facie  case  made  by  the  production  of  the  tax  deed  must  be 
overcome  by  proof. 

Tifft  vs.  Greene,  211  111.  389 ;  Glos  vs.  Mulcahy,  210  111.  639 :  Gage  vs. 
Gentzel,  144  111.  450;  XIV  111.  Notes  770,  §628. 

Paramount  Title : 

A  tax  deed  cannot  be  received  as  evidence  of  a  paramount  title 
unless  the  proceedings  anterior  to  the  execution  of  the  tax  deed 
required  by  statute, — that  is,  a  judgment,  precept,  notice,  etc., 
have  been  had. 

Glanz  vs.  Zlabek,  233  111.  22;  Met.  El.  Ry.  Co.  vs.  Eschner,  232  111. 
210;  Kepley  vs.  Scully,  185  111.  52;  Anderson  vs.  McCormick,  129 
111.  308. 

So  one  desiring  to  avail  himself  of  the  effect  of  a  tax  deed  as 
evidence  of  title,  and  not  color  of  title  merely,  should  introduce 
in  evidence  the  anterior  proceedings  on  which  same  is  founded. 
Kepley  vs.  Foulke,  187  111.  162. 

Burden  of  Proving  Validity: 

it  is  incumbent  upon  complaint,  in  bill  to  remove  a  tax  deed  as 
cloud  upon  title,  to  allege  and  prove  invalidity  of  tax  deed. 
Langlois  vs.  People,  212  111.  75 ;  Gage  vs.  Curtis,  122  111.  520. 
And  the  rule  is  the  same  where  proceedings  are  for  partition 
and  to  cancel  tax  deed. 

Glos  vs.  Carliu,  207  111.  192. 

A  defendant  in  a  burnt  record  proceeding  who  fdes  a  cross  bill 
claiming  title  in  himself  by  virtue  of  tax  deeds,  and  asking  to  have 
certain  petitioner's  deed  set  aside  as  clouds  upon  the  title,  has  the 
burden  of  proving  the  validity  of  his  deeds. 

Gage  vs.  Parker,  178  111.  455;  Kelle  vs.  Egan,  256  111.  45. 

Affidavit  of  Notice : 

The  fact  that  no  affidavit  of  notice  can  be  found  in  the  county 
clerk's  office  raises  a  presumption  that  the  notice  was  not  given, 
and  makes  it  the  duty  of  the  party  claiming  under  a  tax  deed  to 
prove  that  the  notice  was  actually  given, — otherwise  his  claim  lacks 
the  statutory  element  of  good  faith,  and  cannot  prevail  against  a 
paramount  title. 

Dalton  vs.  Lucas,  63  111.  337. 

In  proceeding  to  set  aside  a  tax  deed,  a  copy  of  the  affidavit  for 
notice  by  publication  is  properly  admitted,  wliether  sufficiently 
certified  by  the  county  clerk  or  not,  where  deputy  clerk  producing 
same  testified  that  he  has  examined  the  records  and  the  copy  offered 

in  evidence  and  compared  same,  and  that  such  copy  is  a  true  one. 

Gins  vs.  Boettcher,  193  111.  534. 

Parol  Evidence: 

Parol  evidence  cannot  be  introduced  to  supply  defects  or  omis- 
sions in  the  affidavit.  If  the  affidavit  does  not  contain  the  specified 
facts,  the  deed  is  unauthorized  and  nugatory  regardless  of  what 
the  real  facts  may  be  or  what  may  be  proven. 

Esker  vs.  Heffernian,  159  111.  38;  Perry  vs.  Bowman,  151  111.  25;  Gage 
vs.  Mayer,  117  111.  632. 
Ev.-^77 


1218  TAXES 

And  where  a  party,  on  application  for  tax  deed,  files  his  affidavit 
showing  that  a  certain  person  is  owner  of  the  land,  he  will  be 
estopped  from  denying  such  person  was  owner  of  the  land  at  time 
of  making  the  affidavit. 

Towle  vs.  Quante,  246  111.  568;  Hughes  vs.  Carnes,  135  111.  519. 
So  if  a  tax  deed  fails  to  show  land  was  sold  for  taxes  of  a  par- 
ticular year,  it  cannot  be  explained  by  parol  testimony. 
Maxcy  vs.  Clabaugh,  6  III.  26. 

TAXES 

See  Tax  Receipts,  Tax  Deeds. 
VALIDITY  AND  COLLECTION  OP  TAXES: 
Presumptions  and  Burden  of  Proof: 

—  Assessment:  Presumption  is  that  the  assessment  was  legally 
made. 

People  vs.  I.  C.  E.  R.  Co.,  252  111.  262;  Monticello  Sem.  vs.  Board  of 
Eeview,  242  111.  477;  In  re  Maplewood  Coal  Co.,  213  111.  283;  XIV 
111.  Notes  756,  §  489. 

Presumption  is  that  all  officers  who  have  had  any  connection 

with  it  have  properly  discharged  their  duties. 
People  vs.  A.  T.  &  S.  F'.  Ey.  Co.,  261  111.  33. 

—  Lawful  Purpose:     The  presumption  is  that  a  tax  was  levied 

for  a  lawful  purpose. 

People  vs.  Guzenhauser,  237  111.  262. 

—  Justness:  The  presumption  is  that  the  tax  is  just,  and  that 
all  officers  having  any  connection  with  it  have  properly  discharged 
their  duties.     These  presumptions  can  only  be  overcome  by  clear 

and  explicit  testimony. 

Tolman  vs.  Eaymond,  202  111.  197;  People  vs.  Keener,  194  111.  16;  P. 
D.  &  E.  Ey.  Co.  vs.  People,  116  111.  401 ;  People  vs.  A.  T.  &  S.  F. 
Ey.  Co.,  261  111.  33. 

—  Municipal  Organization:  In  proceeding  to  collect  tax  levied 
by  a  village  having  a  proper  certificate  of  organization,  proof  that 
such  village  included  within  its  limits  the  territory  of  a  prior 
municipal   corporation   is  incompetent,   as  constituting  collateral 

attack  upon  organization  of  such  village. 
People  vs.  Pederson,  220  111.  554. 

—  Municipal  Bonds:  Those  objecting  to  judgment  in  county 
court  against  lands,  for  tax  levied  to  pay  town  bonds,  are  re- 
quired to  prove  their  allegation  that  the  election  for  the  issuance 
of  the  bonds  was  held  without  sufficient  call  and  notice. 

Hutchinson  vs.  Self,  153  111.  542. 

—  Overvaluation  l)y  Assessor:  The  mere  fact  of  over-valuation 
of  property  in  assessing  it  for  taxation  will  not,  of  itself,  estab- 
lish fraud  on  part  of  assessor. 

People  vs.  Odin  Coal  Co.,  238  111.  279;  Barkley  vs.  Dale,  213  111.  614; 
Spring  Valley  Coal  Co.  vs.  People,  157  111.  543;  Burton  Stock  Car 
Co.  vs.  Traeger,  187  111.  9 ;  Keokuk  Bridge  Co.  vs.  People,  161  111. 
514 ;  Keokuk  Bridge  Co.  vs.  People,  145  111.  596. 

Where  valuation  is  so  grossly  unreasonable  as  to  show  assessor 
could  not  have  been  honest  in  his  valuation  it  is  accepted  as  evi- 
dence of  fraud. 

State  Board  vs.  People,  191  111.  528;  Sanitary  Dist.  vs.  Gifford,  257 
111.  424. 


TAXES  1219 

—  Undervaluation :  Mere  undervaluation,  unless  glaring  or 
gross,  is  not  in  itself  evidence  of  fraud. 

First   Nat.   Bank   vs.   Holmes,   246   111.   362;   Barkley  vs.   Dale,   213 
lU.  614. 

—  Exemptions:  The  burden  is  upon  one  who  asserts  that  prop- 
erty is  exempt. 

Monticello  Sem.  vs.  Board  of  Review,  242  111.  477;  I.  C.  R.  R.  Co.  vs. 
People,  119  111.  137. 

Proof  that  notes  and  mortgages  assessed  in  the  name  of  a  cer- 
tain person  as  trustee  are  the  property  of  an  institution  of  learn- 
ing, is  not  sufficient  to  show  that  they  are  exempt  from  taxation, 
but  it  must  also  be  shown  that  they  are  not  being  used  with  view  to 

profit. 

Monticello  Sem.  vs.  Board  of  Review,  242  111.  477. 

—  In  Action  of  Debt:  In  action  of  debt  to  recover  taxes,  costs 
and  penalties  due  on  property  which  has  been  forfeited  to  the 
state  for  want  of  bidders,  at  a  tax  sale,  a  prima  facie  case  is  made  by 
introducing  in  evidence  a  certified  copy  of  the  tax  judgment,  sale, 
redemption  and  forfeiture  record,  together  with  the  proof  that  the 
defendants  were  owners  of  the  property  in  the  years  for  which  the 
unpaid  taxes  were  levied. 

Carrinf^ton  vs.  People,  195  111.  484. 

In  action  of  debt  for  taxes,  the  collector's  warrant,  together  with 
the  tax  judgment,  sale,  forfeiture  and  redemption  record,  are 
prima  facie  evidence  of  the  assessment  and  levy  of  the  taxes,  the 
years  for  which  they  were  assessed  and  levied,  and  that  the  taxes 
were  due  and  unpaid,  and  the  lands  forfeited  to  the  state. 

If  it  is  established  that  the  lands  were  forfeited  to  the  state,  it 
will  be  presumed  that  there  was  an  offer  of  the  property  for  sale 

and  failure  to  sell  for  want  of  bidders. 

Elmwood  Cem.  Co.  vs.  People,  204  111.  468. 

It  is  indispensable  to  the  right  of  the  people  to  recover  in  action 

of  debt  for  general  taxes  on  lots  forfeited  to  the  state  for  taxes 

for  the  years  1895,  1896,  1897,  1898,  1899,  that  it  be  proven  that 

defendant  was  the  owner  of  such  lots  on  the  first  day  of  April, 

1899,  and  on  the  first  day  of  Mav  in  the  other  years. 
Coombs  vs.  People,  198  111.  586. 

In  action  for  debt  for  general  taxes  under  section  230  of  the 
Revenue  act,  certified  copies  of  the  collector's  warrants,  and  the 
tax  judgment,  sale,  redemption  and  forfeiture  record,  showing 
that  the  property  was  assessed  to  the  defendant  for  the  years  in 
question,  make  a  prima  facie  case  of  ownership  in  the  defendant. 
Harding  vs.  People,  202  111.  122. 

State  may  show,  in  action  of  debt  for  taxes,  that  defendant  is 
owner  of  real  estate  in  question,  although  assessed  in  name  of  an- 
other party. 

Coombs  vs.  People,  198  111.  586. 

In  action  for  personal  taxes,  if  the  county  collector's  return 
is  not  in  evidence,  the  liability  may  be  shown  by  proving  the 
assessment,  extension  of  the  taxes  and  their  non-payment ;  but  the 
return  of  the  town  collector  coupled  with  the  testimony  of  a  clerk 
in  the  county  treasurer's  office  that  books  showed  tlie  taxes  to  be 
unpaid,  is  not  sufficient  to  sustain  a  judgment. 
Carney  vs.  People,  210  111.  434. 


1220  TAXES 

—  Application  for  Judgment  and  Sale:  In  proceeding  for  judg- 
ment and  order  of  sale  for  delinquent  taxes,  proof  of  the  sworn  re- 
poi-t  of  the  list  of  delinquent  taxes,  together  with  proof  of  the  publi- 
cation thereof  and  notice  of  the  application,  makes  a  prima  facie 
case  authorizing  a  judgment  against  the  property  without  further 

proof. 

People  vs.  C.  I.  &  St.  L.  Ry.  Co.,  243  111.  221. 

Upon  application  for  judgment  against  delinquent  lands,  it  is 
not  error  to  admit  parol  evidence  of  facts  relating  to  the  publica- 
tiou  of  the  delinquent  list. 
•■'""'         McChesney  vs.  People,  178  111.  542. 

'"*^  On  application  for  judgment  of  sale  against  real  estate  for 
delinquent  personal  property  tax  for  the  preceding  year,  the  bur- 
den of  disproving  the  collector's  prima  facie  case,  by  showing  that 
the  objector  was  not  a  resident  within  the  jurisdiction  of  the  as- 
sessor and  had  no  personal  property  there  subject  to  taxation  at 
the  time  such  tax  was  assessed  is  upon  the  objector. 
King  vs.  People,  193  111.  530. 

The  burden  of  proving  an  appropriation  ordinance  invalid 
because  it  purports  to  be  for  the  fiscal  year  subsequent  to  the  one 
in  which  it  is  passed,  is  upon  objector,  and  if  he  fails  to  introduce 
such  ordinance  in  evidence,  relying  upoji  proofs  as  to  its  sub- 
stance, and  the  levy  ordinance,  which  was  in  evidence,  recites  that 
the  appropriation  was  for  the  "current"  fiscal  year,  the  objection 

is  not  sustained  by  the  proof. 

People  vs.  C."  B.  &  Q.  Ry.  Co.,  189  111.  397. 

PAYMENT  UNDER  COLOR  OF  TITLE: 

Burden  of  Proof: 

To  constitute  a  bar,  payment  of  taxes  by  or  on  behalf  of  party 
having  color  of  title  for  seven  successive  years,  is  indispensable. 
It  is  not  enough  that  the  taxes  have  actually  been  paid  for  that 
period.  The  proof  must  show  they  have  been  paid  by  or  on  be- 
half of  person  having  color  of  title  and  actual  possession,  and  bur- 
den is  on  party  claiming  under  such  title  to  prove  payment  by 

clear  and  satisfactory  evidence. 

Manternaeht  vs.  Studt,  230  111.  356;  White  vs.  Harris,  206  111.  584; 
Bell  vs.  Neiderer,  169  111.  54;  Timmons  vs.  Kidwell,  138  111.  13;  XI 
111.  Notes  80,  §  177. 

If  a  party  relies  upon  seven  years  Limitation  act,  and  the  pay- 
ment of  taxes  under  color  of  title,  he  must  show  affirmatively  that 
he  paid  the  taxes  for  the  ref[uisite  number  of  years.  The  law  will 
not  presume  payment  of  them  liy  him. 

Irwin  vs.  Miller,  23  111.  401;  Timmons  vs.  Kidwell,  138  111.  13;  Jayne 
vs.  Gregg,  42  111.  413. 

Degree  of  Proof: 

Where  payment  of  taxes  under  color  of  title  is  relied  upon  to 
sustain  adverse  possession,  proof  thereunder  must  be  clear  and 
convincing. 

Manternaeh  vs.  Studt,  230  111.  356;  Travers  vs.  MeElvain,  181  111.  382; 
Burns  vs.  Edwards,  163  111.  MeCauley  vs.  Malion,  174  111.  384; 
HuYlbut  vs.  Bradford,  109  111.  397;  Hardin  vs.  Gouveneur,  69  111. 
140. 


TAXES  1221 

Parol  Competent: 

Payment  of  taxes  may  be  proven  by  parol. 

Ellstou  vs.  Keuuicott,  52  111.  272;  Kawson  vs.  Fox,  65  111.  200;  Milliken 
vs.  Marlin,  66  111.  13;  Irwin  vs.  Miller,  23  111.  401;  Gage  vs.  Hamp- 
ton, 127  111.  87. 

Proof  of  payment  of  taxes  may  be  made  otherwise  than  by  pror 
duction  of  receipts.  The  payment  of  taxes,  like  the  payment  of 
money  in  discharge  of  a  debt,  may  be  proved  by  parol  evidence, 
although    receipts  may  be  given. 

Hinehman  vs.  Whetstone,  23  111.  108. 

Continuity: 

Payment  of  taxes  under  the  seven  years  statute  of  limitations  is 
not  shown  where  there  is  no  tax  receipt  in  evidence  for  one  of  the 
3^ears  during  the  period  relied  upon  where  such  payments  are 
sought  to  be  proven  solely  by  receipts. 

Miller  vs.  Eich,  204  111.  444. 

Color  of  Title  must  Concur : 

The  first  payment  of  taxes  is  the  payment  from  the  time  of 
which  limitation  begins  to  run,  and  must  be  made  after  the  acqui- 
sition of  the  claim  and  color  of  title,  and  the  taxes  must  be  paid  by 
the  claimant  for  a  period  of  seven  successive  years.  The  payment 
of  taxes  and  color  of  title  must  concur. 

White  vs.  Harris,  206  111.  584;  Blair  vs.  Johnson,  215  111.  552;  Mc- 
Caiiley  vs.  Mahon,  174  111.  384;  Stearns  vs.  Gittings,  23  111.  387. 

Without  Possession : 

If  the  holder  of  color  of  title  to  vacant  land  fails  to  unite  pos- 
session with  such  color,  the  fact  he  pays  the  taxes  before  the  true 
owner  takes  possession  is  of  no  avail. 

Stalford  vs.  Goldriiig,  197  111.  156. 

By  Mortgagor's  Grantee:  oO 

Establishes  no  right. 

Alsup  vs.  Stewart,  194  111.  595.  ' 

Act  of  Ownership: 

Proof  of  payment  of  taxes  under  color  of  title  must  be  clear  and 

convincing,  as  such  jDayment,  when  established,  operates  to  defeat 

the  paramount  title  or  any  other  title  relied  upon. 
MeCauley  vs.  Mahon,  174  111.  384. 

Not  Confined  to  Disputed  Tract : 

Where  a  person  has  gone  into  possession  of  land  under  color  of 

title,  proof  of  acts  of  ownership  need  not  be  confined  to  acts  on 

disputed  tract. 

Fislier  vs.  Benehof,  121  111.  426. 

Mesne  Conveyances: 

Plaintiff  in  ejectment  who  relies  upon  proof  of  payment  of  taxes 
while  in  possession  under  color  of  title  acquired  by  another  party, 
cannot  recover  without  proof  of  the  mesne  conveyances  through 
which  he  claims  connection  with  such  color. 
Scott  vs.  Bassett,  174  111.  390. 

Special  Assessments  Not  Presumed: 

Where  plaintiff  proved  he  had  paid  all  state,  county,  city,  town, 
school,  park  and  corporation  taxes,  it  will  be  presumed,  in  absence 
of  evidence  to  contrary,  that  no  other  tax  or  assessment  was  im- 
posed upon  the  property,  and  hence,  that  he  had  paid  all  taxes 
assessed  on  the  property.     It  will  not  be  presumed,  in  absence  of 


1222  TAXES 

evidence  to  contrary,  that  property  has  been  specially  assessed, — 
the  presumption  is  the  other  way.  It  devolves  upon  the  defendant 
to  show  that  such  is  the  case,  that  the  property  has  been  specially 

&SSGSSGQ 

City  of  Chicago  vs.  Middlebrook,  143  111.  265. 

Receipts : 

Payment  of  taxes  for  seven  successive  years  is  not  established 
where  part  of  the  tax  receipts  relied  upon  contain  descriptions  too 
uncertain  to  identify  the  payments  as  having  been  made  upon 
the  particular  property  in  dispute,  and  there  is  no  oral  evidence 
connecting  them  therewith.  r,.,,.  .    ...>  -i 

Bell  vs.  Neiderer,  169  111.  54;  XI  111.  Notes  80,  §  1§6. 

Tax  receipts  are  not  sufficient  to  establish  a  claim  of  ownership 
or  to  show  an  exercise  of  dominion  in  lands,  w^here  the  descrip- 
tion contained  therein  does  not  correspond  with  the  description 
of  the  land. 

Harms  vs.  Kranz,  167  111.  421. 

But  where  it  is  positively  sworn  by  a  person  that  he  paid  all 
the  taxes  on  a  tract  of  land  for  seven  successive  years,  and  that 
at  the  time  he  had  no  claim  to  any  other  land  in  the  locality,  it  can 
make  no  difference  that  some  of  the  tax  receipts  given  in  evidence 
do  not  accurately  describe  the  land. 

Park  Commissioners  vs.  Coleman,  108  111.  591. 

Where  the  evidence  shows  that  all  the  taxes  on  the  land  stand- 
ing in  the  name  of  a  party,  were  paid  by  him,  this  will  be  suffi- 
cient, even  though  the  description  in  some  of  the  tax  receipts  and 

in  the  assessment  may  not  be  strictly  accurate. 
Sholl  vs.  German  Coal  Co.,  139  111.  21. 

Collector's  Books: 

The  word  "paid"  on  a  collector's  book,  opposite  the  tract  of 

land,  affords  no  evidence  that  the  taxes  were  paid  by  the  person 

in  whose  name  it  was  listed. 

Irwin  vs.  Miller,  23  111.  401. 

To  prove  the  payment  of  taxes  on  a  tract  of  land  for  the  year 
1873,  a  book  in  the  custody  of  the  county  clerk,  entitled  "Collec- 
tor's book  for  the  town  for  the  year  of  1873,"  was  offered  in  evi- 
dence. This  book  showed  that  the  east  eighty  acres  of  the  quarter 
section  was  assessed  to  A.  J.  Merrin.  Under  the  head  ' '  when  and 
by  whom  paid,"  were  the  words,  "Dec.  6,  A.  J.  Merrin."  As  to 
the  other  eighty  acres,  the  book  showed  that  the  same  was  assessed 
to  Richard  Merrin,  and  paid  by  him  Dec.  13.  The  collector  failed 
to  make  a  return  in  the  book.  Held,  that  the  entries  in  the  col- 
lector's book  were  competent  evidence  to  prove  payment  of  taxes 
for  the  year  1873,  and  that  the  misspelling  of  the  tax  payer's  name 

did  not  affect  their  admissibilitv. 

Taylor  vs.  Lawrence,  148  111.  388. 

Proof  of  loss  of  tax  receipts  will  authorize  parol  evidence  of 

their  contents,  but  will  not  authorize  the  introduction  of  the  col-  ' 

lector's  book  to  prove  by  the  word  "paid,"  entered  on  them,  the 

contents  of  the  lost  recept. 

Irwin  vs.  Miller,  23  111.  401. 

Where  tax  receipts  relied  upon  are  defective,  in  not  showing  by 

exact  description  the  land  on  which  the  taxes  were  paid,  the  col- 


TAX  RECEIPTS  1223 

lector's  books  ai-e  properly  admitted  to  show  what  land  was  assessed 
against  the  chuniant  for  the  year  in  question.  Receipts  may  also 
be  supplemented  or  contradicted  by  parol. 

Stumpf  vs.  Osterha^e,  111  111.  82. 

An  entry  in  a  tax  collector's  book,  showing  who  had  paid  the 
taxes  on  a  certain  tract  of  land  in  a  certain  year,  is  admissible  to 
explain  a  discrepancy  in  the  tax  receipt  which  misstated  the  number 
of  the  township  in  describing  the  land. 

Catlin  Coal  Co.  vs.  Lloyd,  176  111.  275. 

TAX  RECEIPTS 

See  Payment. 
Judicial  Notice : 

The  courts  will  take  judicial  notice,  without  proof,  of  the  initials 
usually  used  in  description  of  land  in  tax  receipts. 

Paris  vs.  Lewis,  85  111.  597 ;  McChesney  vs.  City  of  Chicago,  173  111. 
75;  Hull  vs.  Croft,  132  App.  509. 

Before  their  admission  in  evidence,  proof  of  the  execution  of 
tax  receipts  by  the  officer  is  not  required.  Proof  of  execution  of 
an  official  instrument  is  not  always  necessary.  As  a  general  rule, 
courts  take  judicial  notice  of  the  public  officers,  and  in  some  cases 
of  their  signatures,  within  their  respective  jurisdictions. 
Wolcott  vs.  Gibbs,  97  111.  118. 

Receipts  are  admissible,  and  prima  facie  evidence  that  the  taxes 
were  paid  by  the  parties  therein  named. 
Bacon  vs.  P.  E.  E.  Co.,  162  App.  162. 

Parol  Evidence  to  Explain : 

—  To  Identifij  Land:  Parol  evidence  as  to  the  land  on  which 
taxes  were,  in  fact,  paid,  is  admissible  to  supplement  or  contra- 
dict the  evidence  of  written  receipts  for  taxes. 

Neiderer  vs.  Bell,  174  111.  325;  Stumpf  vs.  Osterhage,  111  111.  82; 
Sholl  vs.  German  Coal  Co.,  139  111.  21 ;  Winslow  vs.  Cooper,  104  111. 
235;  Hardin  vs.  Gouveneur,  69  111.  140;  Elston  vs.  Kennicott, 
52  111.  272;  XI  111.  Notes  80,  §  181. 

—  To  Identify  Payor:  Upon  the  question  on  whose  account  and 
for  whom  payment  of  taxes  has  been  made,  the  tax  receipts  there- 
for are  not  conclusive.  Like  other  receipts,  they  are  susceptible  of 
explanation. 

Band  vs.  Schofield,  43  111.  167 ;  Paris  vs.  Lewis,  85  111.  597 ;  Harding 
vs.  Gouveneur,  69  111.  140;  Elston  vs.  Kennicott,  46  111.  187. 
The  payment  of  taxes  may  be  proven  by  parol  evidence.     Tax 
receipts  may  be  explained,  and  if  a  mistake  has  been  made  in 
description  of  the  land  or  in  name  of  person  who  actually  made 
the  payment,  resort  may  be  had  to  parol  to  rectify  the  mistake. 
Gage  vs.  Hampton,  127  111.  87. 

If  an  agent  has  paid  in  his  own  name  instead  of  that  of  his  prin- 
cipal, such  fact  may  be  shown.  It  is  not  indispensable  that  express 
request  be  proven,  but  may  be  inferred  from  circumstances.  When 
the  proof  shows  the  payment  of  taxes  by  a  person  having  no 
interest  in  the  land,  and  a  subsequent  compensation  thereof  by 
the  owner,  the  presumption  is  that  payment  was  made  for  owner 
and  that  the  person  was  his  agent  in  making  it. 

Paris  vs.  Lewis,  85  111.  597;  Hardin  vs.  Gouveneur,  69  111.  140;  Har- 
ris vs.  DeWolf,  136  App.  338. 


1224  TAX    SCHEDULE 

—  Abhreviations :  Parol  evidence  is  admissible  to  explain  abbre- 
viations. 

McChesney  vs.  City  of  Chicago,  173  111.  75. 

Admissibility  of  Receipts: 

—  Ill  General:  A  tax  receipt  which  simply  shows  that  "dol- 
lars" were  received,  and  fails  to  state  that  whatever  amount  was 
received  was  in  full  of  the  taxes  assessed,  and  there  is  no  charac- 
ter opposite  the  figures  to  indicate  what  they  are  designed  to  rep- 
resent, is  fatally  defective. 

Cook  vs.  Norton,  43  111.  391. 

A  tax  receipt  which  erroneously  states  the  number  of  acres  in 
a  tract  of  land,  but  describes  the  legal  subdivision,  is  good,  and 

the  statement  of  the  quantity  is  immaterial. 

Morrison  vs.  Norman,  47  111.  477. 

Tax  receipts  which  omit  the  number  of  the  township  and  range 
are  not  sufficient  to  establish  payment  of  taxes  in  connection  with 
possession,  in  absence  of  extrinsic  evidence  supplying  the  omis- 
sion. 

■j,^   ,  San.  District  vs.  Allen,  178  111.  330. 

A  tax  receipt  may  be  admissible  that  simply  names  the  year  for 
which  taxes  are  paid,  without  giving  day  or  month. 
Cook  vs.  Norton,  43  111.  391, 

So  a  tax  receipt  dated  but  with  blank  left  to  be  tilled  in  to  indi- 
cate the  year  for  which  the  taxes  were  levied,  unfilled  by  collector, 
is  proof  that  the  taxes  were  for  the  year  of  its  date,  where  receipts 

are  produced  for  the  previous  and  succeeding  year. 
Elston  vs.  Keunk'ott,  52  111.  272. 

—  Objections:  A  general  objection  goes  only  to  their  compe- 
tency or  relevancy,  and  not  to  any  objection  that  might  be  obviated 
by  the  party  offering  them.    Under  such  objection  the  party  is  not 

bound  to  prove  the  signature  of  officers  signing  the  same. 
Wakott  vs.  Gibbs,  97  111.   118. 

A  party  desiring  to  avail  himself  of  an  objection  that  the  tax 
receipts  introduced  in  evidence  showed  upon  their  faces  that  cer- 
tain words  had  been  added  in  different  ink,  should  introduce  testi- 
mony showing  such  fact  or  incorporate  the  receipts  into  the  record 
for  inspection  of  reviewing  tribunal. 
Mickey  vs.  Barton,  194  111.  446. 


,,.  TAX  SCHEDULE 

See  Value. 


TECHNICAL  TERMS 

See  Abbreviations,  Expert  and  Opinion,  Parol. 


TELEaRAMS 

Judicial  Notice: 

Judicial  notice  will  be  taken  that  telegraph  messages  are  written. 
People  vs.  West.  Un.  Tel.  Co.,  166  111.  15. 


TELEGRAMS  1225 

Original  Defined. 

The  question  as  to  what  is  the  original  message  depends  upon 
Avhose  agent  the  telegraph  is.  Where  the  party  sending  the  mes- 
sage is  the  responsible  party,  and  sends  the  message  for  the  pur- 
pose of  giving  directions  to  be  acted  upon,  the  message  delivered  at 

the  end  of  the  line  is  the  original. 

Morgan  vs.  People,  59  111.  58;  XII  111.  Notes  491,  §  114,  ;' 

Where  the  person  to  whom  the  telegram  is  sent  takes  the  risk 
of  transmission,  or  is  the  employer  of  the  telegraph  company,  the 
message  delivered  to  the  operator  is  the  original  and  must  be  pro- 
duced as  the  best  evidence. 

Anlienser   Busch   Assn.   vs.    Hutmacher,    127    111.    652;    Chisholm   vs. 

Beaver  Lake  Lbr,  Co.,  18  App.  131. 

But  when  the  person  sending  the  message  takes  the  initiative 

so  that  the  telegraph  company  is  to  be  regarded  as  his  agent,  the 

original  is  the  message  actually  delivered  at  the  end  of  the  line. 

Auheuser  Busch  Assn.  vs.  Hutmacher,  127  111.  652. 

In  regard  to  the  particular  end  of  the  line  where  inquiry  is  to 
be  made  for  the  original,  it  depends  upon  which  party  is  responsi- 
ble for  the  transmission  across  the  line,  or  in  other  words,  whose 
agent  the  telegraph  is.  The  first  communication  in  a  transaction, 
if  it  is  all  negotiated  across  the  wires,  will  be  effective  in  the  form 
in  which  it  reaches  its  destination.     In  such  case,  inquiry  should 

first  be  made  for  the  very  dispatch  delivered. 

Chisholm  vs.  Beaver  Lake  Lbr.  Co.,  18  App.  131. 

Admissibility : 

—  Pidiminary  Proof:  It  is  indispensable  in  every  case  and 
under  all  circumstances  to  show  that  the  person  sought  to  be 
charged  with  the  consequences  of  a  telegraphic  message  either  sent 
or  caused  the  message  to  be  sent.  The  person  who  is  alleged  to  have 
sent  the  message  must  at  least  be  shown  to  have  authorized  the 
telegraph  company  to  make  some  communication.  t 

Chisholm  vs.  Beaver  Lake  Lumber  Co.,  18  App.  131. 

• — Best  and  Secondary:    In  the  absence  of  proof  of  loss  or  de- 
struction of  a  telegraphic  dispatch,  and  of  notice  to  produce  the 
same,  parol  evidence  is  not  admissible  to  prove  its  contents. 
C.  &  St.  L.  E.  Co.  vs.  Mahoney,  82  111.  73. 
Where  dispatch  is  sought  to  be  used  in  evidence,  the  original 
must  be  produced  and  its  execution  proven,  precisely  as  any  other 
instrument,  or  its  loss  or  destruction  shown,  and  then  a  copy  must 
be  proved  to  be  a  true  and  compared  copy  before  its  admission. 
Mattison  vs.  Noyes,  25  111.  481. 
The  original  telegram  filed  in  the  sending  of^ce  is  the  best  evi- 
dence of  its  contents,  and  the  copy  retained  for  the  files  of  the 
receiving  office  is  not  admissible,  where  it  is  not  sho^^^l  that  it 
was  a  copy  of  the  original,  or  that  the  original  was  lost  or  destroyed. 
Young  vs.  People,  221  111.  51. 

Fact  of  sending  telegram  and  existence  of  matter  to  which  it 
relates  may  be  proved  by  parol. 

C.  &  St.  L.  Ey.  Co.  vs.  Mahoney,  82  111.  73. 

But   parol    proof    of   contents,    without    producing   original    or 

identifving   sender,    is    improper. 

C.  &  I.  E.  E.  Co.  vs.  Eussell,  91  111.  299. 


1226  TELEPHONE  CONVERSATIONS 

—  Admissions:  Admissions  made  by  telegraph,  though  made 
to  one  not  a  party  to  suit,  may  be  shown. 

E.  &  P.  Dispatch  Co.  vs.  Cecil,  11:^  111.  180. 

—  Self -Serving :      Telegrams   merely    hearsay    and    self-serving 

in  character  are  incompetent. 

Woods  vs.  T.  St.  L.  &  W.  Ry.  Co.,  159  App.  1209. 

Explanation : 

What  was  m^^ant  by  language  of  telegram  is  not  a  question  to 

be  determined  by  opinions  of  witnesses. 
Penn.  Co.  vs.  Connell,  127  III.  419. 

Contract  of  Telegraph  Company: 

Knowledge  of  conditions  cannot  be  presumed.     Assent  must  be 

proven.     The  fact  that  sender  has  for  years  used  blanks  does  not 

justify  the  court  in  holding  that  sender,  as  matter  of  law,  had 

knowledge. 

Beggs  vs.  Postal  Tel.  Co.,  258  111.  238* 

In  action  against  telegraph  company  to  recover  damages  re- 
sulting from  alleged  incorrect  transmission  of  message,  if  plain- 
tiff prove  such  inaccuracy,  the  company,  to  exonerate  themselves, 
must  show  how  the  mistake  occurred.  In  absence  of  any  such 
proof  on  their  part,  jury  must  presume  want  of  ordinaiy  care  on 

part  of  company. 

Tyler  Co.'vs.  W.  U.  Tel.  Co.,  60  111.  421. 


TELEPHONE  CONVERSATIONS 

Admissibinty: 

—  Identity  of  Voice:  When  a  person  places  himself  in  con- 
nection with  a  telephone  system  through  an  instrument  in  his 
office,  he  thereby  invites  communications  in  relation  to  his  busi- 
ness through  that  channel.  Conversations  so  held  are  as  admis- 
sible as  personal  interviews  by  a  customer  with  an  unknown 
clerk  in  charge  of  an  ordinary  shop  in  relation  to  the  business 

there  carried  on. 

God-air  vs.  Ham  Nat 'I.  Bank,  225  111.  572;  E.  I,  &  P.  Ey.  Co.  vs.  Pot- 
ter, 36  App.  590;  Contra,  Obermann  Brew.  Co.  vs.  Adams,  35  App. 
540;  Kimbark  vs.  I.  C.  &  E.  Co.,  103  App,  632. 

Conversations  held  over  such  phone  by  him  or  by  any  authorized 

person  for  him,  or  by  one  professing  to  represent  him  in  relation 

to  his  business  carried  on  there,  are  admissible.     The  fact  that 

the  voice  at  the  telephone  was  not  identified  does  not  render  the 

conversation  inadmissible. 

Gallagher  vs.  Singer  Maeh.  Co.,  177  App.  198;  XII  111.  Notes  497, 
§173. 

The  converse  of  this  must  be  true,  that  if  a  person  use  a  tele- 
phone in  his  place  of  business,  and  express  a  desire  to  commu- 
nicate with  a  third  party  through  his  telephone,  and  a  conversation 
takes  place  over  the  telephone,  under  such  circumstances,  the 
fact  that  the  voice  was  not  identified  does  not  render  the  conver- 
sation inadmissible,  but  is  a  question  of  fact  for  the  jury  to  say 

whether  or  not  this  proof  identifies  the  speaker. 

Eogers  Grain  Co.  vs.  Taunton,  136  App.  533;  Wiekes  vs.  Wheeler, 
157  App.  578. 


TENDER  1227 

—  Preliminary  Proof:  In  order  that  a  telephone  eonver^tion 
may  be  competent,  the  party  testifying  must  be  able  to  identify 
the  voice  of  the  person  to  whom  he  was  speaking,  or  proof  that 
it  was  over  telephone  under  the  control  of  that  party  or  other 

proof  of  identity  mnst  be  made. 

Pumphrey  vs.  Giggey,  150  App.  473;  Rueckheim  Bros.  vs.  SerVis  Co., 
146  App.  607. 
— ■  Bystander:     A  bystander  in  a  telephone  office  is  competent 
witness  to  testify  to  a  part  heard  by  him  of  a  conversation  by 
telephone,    such   conversation   being   shown   aUitnde   to   have   be- 
tween parties  to  the  suit  and  upon  the  subject  matter  thereof. 
Miles   vs.   Andrews,    153   111.   262;    Gait   vs.   Woliver,    103   App.    71; 
Snively  vs.  Colburn,  78  App.  93. 

—  Res   Gesta£:     A   telephone   convereation    to   a   third   person 

may  be  admitted  as  part  of  the  res  gestae  though  defendant  was 

not  present. 

FitzGerald  vs.  Beuner,  219  111.  485. 

Burden  of  Proof: 

Is  upon  the  party  alleging  a  telephone  conversation,  to  estab- 
lish that  same  was  had. 

Straus  vs.  Natl.  Bank,  163  App.  310. 

TENDER 

See  Assumpsit. 

Burden  of  Proof  and  Presumptions : 

The  burden  of  proof  upon  a  plea  of  tender  devolves  upon  party 

alleging  it. 

Pulsifer  vs.  Shepard,  36  111.  513;  XIV  111.  Notes  793,  §  20. 

A  tender  is  of  a  strict  right  and  ought  to  be  made  out  clearly. 
Bucheneau  vs.  Horney,  12  111.  336;  Wynkoop  vs.  Cowing,  21  111.  569; 
Kerney  vs.  Gardiner,  27  111.  162. 
Where  it  is  established  that  a  tender  of  money  was  made,  it 
will  be  presumed  sufficient  in  amount,  if  not  objected  to. 
Conway  vs.  Case,  22  111.  127. 

Party  to  Whom  Made : 

A  tender  must  be  made  to  the  creditor  or  to  some  person  au- 
thorized to  receive  it. 

Steele  vs.  Biggs,  22  111.  643. 
Tender  to  servant  without  authority  to  receive  same  is  insuf- 
ficient. 

McGuire  vs.  Bradley,  118  App.  60. 

Sufficiency  of  Tender: 

—  Production  of  Money:  A  party  attempting  to  make  a  tender 
must  be  able  to  show  the  money  is  in  his  power  or  reach  to  per- 
fect it,  if  accepted.  A  refusal  to  accept  may  under  certain  cir- 
cumstances dispense  with  the  actual  count  of  the  money,  but 
never  can  be  received  as  an  excuse  for  not  having  the  money  at 

command. 

Steele  vs.  Biggs,  22  HI.  643. 

—  Count  of  Money:     Money  must  be  in  sight  and  capable  of 

immediate  delivery,  and  the  tender  must  be  absolute  unless  the 

production    of   the    money    be    dispensed    with    by    the    absolute 

refusal  of  creditor  to  receive  it. 

Wynkoop  vs.  Cowing,  21  111.  569. 


1228  TENDER 

Party  to  whom  tender  is  made  must  be  allowed  sufficient  op- 
portunity to  examine  and  determine  what  is  tendered, 
Newlin  vs.  Prevo,  90  App.  515. 

—  Medium:  The  tender  must  be  made  in  legal  tender  notes, 
or  in  gold  and  silver  coin  of  the  United  States,  or  in  such  other 
money  as  is  made  a  legal  tender  by  the  various  acts  of  Con- 
gress, or  in  such  articles  as  the  contract  requires. 

Hanna  vs.  Raetkin,  43  111.  462;  People  vs.  Dubois,  18  111.  334. 

—  Check :     A  tender  of  money  in  a  bank  check  is  sufficient  if 

not  objected  to  for  such  reason. 

Eankin  vs.  Eankin,  117  App.  636;  Cf.,  Harding  vs.  Com.  Loau  Co.,  &4 
111.  251;  Sloan  vs.  Petrie,  16  111.  262. 

—  More  than  Amount  Due:  it  is  not  a  good  ground  for  ob- 
jection to  a  tender  that  it  is  too  much  or  because  it  does  not  amount 
to  the  debt  due,  together  with  another  debt,  which  the  party  to 
whom  the  tender  is  made  insists  on  receiving  at  the  same  time. 

N.  Chi.  St.  Ky.  Co.  vs.  LeGrand  Co.,  95  App.  435. 

—  Specific  Amount:     A  tender,  to  be  available,  must  be  of  a 

specifie   amount   and  offered   to   be   paid   without   annexing   any 

terms  or  conditions. 

Leischner  vs.  Kaiser,  156  App.  123;  Pulsifer  vs.  Shepard,  36  111.  513. 

A  debtor  must  tender  the  full  amount  of  the  debt. 
Thayer  vs.  Meeker,  86  111.  470. 

If,  however,  he  owes  the  creditor  divers  distinct  sums  of  money, 

he  may  tender  any  of  them. 

Morgan  vs.  Herriek,  21  111.  481. 

^''■^1^ After  Suit   Brought:     To  make   a   good   tender  after   suit 

brought,  it  is  essential  that  there  should  be  brought  into  court 

not  only  the  sum  admitted  to  be  due,  but  also  the  plaintiff's  costs 

up  to  that  time. 

Eogers  Grain  Co.  vs.  Jansen,  117  App.  137. 

And  include   interest  and  costs. 
Sweetland  vs.  Tuthill,  54  111.  215. 

—  Eeasonable  Attorney's  Fees:  After  suit  is  begun  to  fore- 
close a  trust  deed  or  mortgage  which  provides  for  a  reasonable 
solicitor's  fee,  the  tender,  in  order  to  be  effective,  should  include 
the  amount  of  the  solicitor's  fee  earned  up  to  the  time  of  the 
tender,  and  must  be  kept  good. 

Healy  vs.  Mut.  Life  Ins.  Co.,  213  111.  99;  Fuller  vs.  Brown,  167  111. 
293;  Grain  vs.  McGoon,  86  111.  431. 

In  taxing  such  fees  the  chancellor  should  exercise  his  own  judg- 
ment, and  not  be  wholly  governed  by  the  opinion  of  attorneys  as 
to  the  value  of  the  services.  He  has  the  requisite  skill  and  knowl- 
edge to  form  some  idea  as  to  what  is  fair  and  reasonable  com- 
pensation, and  he  should  exercise  that  judgment.  He  should,  no 
doubt,  consider  the  opinions  of  witnesses  and  evidence  of  the  sum 
usually  charged  and  paid  for  such  services,  but  should  not  be 
wholly  controlled  by  opinions  of  attorneys  as  to  their  value. 

Healy  vs.   Mut.  Life  Ins.  Co.,  213  111.  99;   Goodwillie  vs.  Milliman, 
56  111.  523. 

—  Offer  Not  Sufficient:  Proof  of  a  mere  offer  to  pay  money 
without  showing  an  ability  to  make  the  payment  is  insufficient. 

Berger  vs.   Peterson,"  78   111.   633;    Liebrandt   vs.   Myron   Lodge,   61 
111.  81. 


TENDER  1229 

—  Must  Be  Unconditional:  A  tender,  to  be  good,  must  be 
offered  without  annexing  any  terms  or  eomlitions. 

Dunbar  vs.  Springer,  256  111.  53;  Conn.  Life  Ins.  Co.  vs.  Stinson,  86 
App.  668;  Pulsifer  vs.  Shepard,  36  111.  513. 

A  tender  whieli  is  made  conditional  upon  its  acceptance  as  a 
full  liquidation  is  not  a  legal  tender. 

Iless  vs.  Peck,  111  App.  111. 

— -Place  of  Tender:     As  provided  by  contract. 

Wood  vs.  Merchants  Savings  Co.,  41  111.  267;  Steele  vs.  Riggs,  22 
111.  6-13. 

— ■Time  of  Tender:  A  tender  of  amount  of  debt  and  inter- 
est according  to  contract,  at  any  time  before  commencement  of 
suit,  will  be  sufficient. 

:Monroe  vs.  Chaldeck,  78  111.  429. 

Objections: 

One  alleging  specific  reason  for  refusing  tender  waives  other 
grounds. 

Eankin  vs.  Eankin,  216  111.  132. 

Effect  of  Tender : 

_  Debtor  admits  every  fact  wdiicli  creditor  would  be  required  to 
prove  to  entitle  him  to  amount  tendered. 

Price  vs.  Jester,  137  App.  565;  Mason  vs.  Uodelhofer,  102  App.  116; 
Co.  of  LaSalle  vs.  Hathaway,  78  App.  95;  Ins.  Co.  vs.  Manchester, 
77  App.  673. 

Bringing  tender  into  court  is  an  admission  of  defendant's  lia- 
bility on  the  issue  of  facts  and  leaves  for  determination  only  the 
question  of  the  amount  of  damages. 

Goebel  vs.  C.  B.  &  Q.  Ev.  Co.,  149  App.  649 ;  T.  St.  L.  &  W.  Ey.  Co. 
vs.  Beals,  137  App.  430;  Monroe  vs.  Chaldeck,  78  111.  429. 

Where  tender  is  made  before  trial  and  not  relied  upon  in  plead- 
ings, explanation  of  reason  for  tender  is  admissible. 
Maekey  vs.  KerAvin,  222  111.  371. 

Where  tender  is  made  after  suit  brought,  under  plea  and  gen- 
eral issue  also  filed  and  plaintiff  accepts  same  as  parcel  of  amount 
claimed,  he  is  not  thereby  precluded  from  further  maintenance 
of  his  action.  Where  a  tender  is  made  and  accepted  after  the 
action  is  brought,  it  becomes  a  question  of  fact  in  what  sense 
plaintiff  received  the  money  tendered. 

FoAvlor  vs.  Thompson,  173  App.  333 ;  Alexander  vs.  Loeb,  230  111.  454. 

Keeping"  Tender  Good : 

A  tender  to  be  kept  good  must  be  kept  ready  to  be  paid  sub- 
ject to  the  order  of  the  party  to  whom  it  is  to  be  made,  at  any 

time  he  decides  to  accept  it. 

Healy  vs.  Prot.  Ins.  Co.,  213  111.  99;  Aulger  vs.  Clay,  109  111.  487; 
Mason  vs.  Stevens.  91  App.  623;  Brooks  vs.  Lawyer,  61  App.  366; 
XIV  111.  Notes  795,  §  12. 

A  tender,  to  avail,  must  be  kept  good  by  bringing  of  the  money 
into  court. 

Dunbar  vs.  DeBoer,  44  App.  615;  McDaniel  vs.  Upton,  45  App.  151, 

And  this  where  the  demand  is  of  unliquidated  damages,  under 
the  statute,  for  a  toi-t,  as  where  the  demand  is  of  a  debt. 
Dunbar  vs.  DeBoer,  44  App.  615. 

And  this  as  well  where  the  suit  is  begun  before  a  justice  of  the 
peace,  where  the  plea  of  tender  may  be  oral,  as  where  the  suit 


1230  THREATS 

is  begun  before  a  superior  court,  where  the  plea  must  be  in  writ- 


ing 


McDaniel  vs.  Uptou,  45  App.  151. 
Wliere  the  suit  is  brought  before  a  justice,  and  taken  up  on 
appeal  the  tender  will  not  avail  if  not  kept  good  before  a  jus- 
tice, upon  a  bringing  in  of  the  money  into  court  above  and  plead- 
ing it. 

McDaniel  vs.  Upton,  45  App.  151. 

It  will  make  no  difference  that  evidence  is  introduced  before 
the  justice,  the  party  appearing  and  moving  for  a  continuance. 
Mcbaniel  vs.  Upton,  45  App.  151. 
AVhere,  after  making  a  tender,  the  party  deposited  the  money 
to  his  own  use,  and  a  part  of  the  sum  was  drawn  out,  and  it  is 
not  shown  that  other  money  was  kept  ready  to  supply  its  place 
when  called  for,  it  was  held  that  the  tender  was  not  kept  good. 
Grain  vs.  McGoon,  86  111.  431. 
And  tender  should  be  kept  good  by  bringing  the  money  into 

court. 

O  'Kiley  vs.  Suver,  70  III.  85 ;  Webster  vs.  Pierce,  35  111.  158. 


THREATS 

See  Duress,  Extortion,  Wills,  Malicious  Prosecution,  As- 
sault xVND  Battery,  Homicide. 
CRIMINAL  PROSECUTIONS: 
Homicide : 

—  Of  Defendnnt:  Declarations  of  intention  and  threats  are 
admissible  in  evidence,  not  because  they  give  rise  to  a  presump- 
tion of  law  as  to  guilt,  which  they  do  not,  but  because  from  them, 
in  connection  with  other  circumstances  and  on  proof  of  the  cor- 

pus  delicti,  guilt  may  be  logically  inferred. 

Henry  vs.  People,  198  111.  162;  Painter  vs.  People,  147  111.  444;  XI 
111.  Notes  1243,  §  135. 
Threats   of   accused   to    do   violence   to   the   person   eventually 
slain,   and  all  declarations   and  demonstrations  of  personal  hos- 
tility are  admissible   as  evincing  malice  and  premeditation  and 
tending  to  prove  the  criminal  intent  charged. 

McCoy   vs.   People,   175   111.   224;    Painter   vs.   People,   147   111.   444; 
Westbrook  vs.  People,  126  111.  81 ;  Leach  vs.  People,  53  111.  31. 
And  although  accompanied  by  acts  amounting  to  another  offense. 

Henry  vs.  People,  198  111.  162. 
Threats  against  the  deceased  by  the  accused  shortly  before  the 
homicide  are  admissible  in  evidence  for  the  purpose  of  showing 
animus,  it  being  for  the  jury  to  determine  whether  they  were  the 
result  of  momentary  anger,  or  were  the  expression  of  a  deliber- 
ate intention. 

McCoy  vs.  People,  175  111.  224;  XII  111.  Notes  920,  §  44. 
Threats    of    accused    may    be    shown    whether    deceased    knew 

of  them  or  not. 

Palmer  vs.  People,  138  111.  356 ;  Eaflferty  vs.  People,  72  HI.  37. 

Threats  against  officers,  or  a  class  to  which  deceased  belonged, 
are  admissible,  though  name  not  mentioned  and  threats  not  com- 
municated to  deceased. 

Eafferty  vs.  People,  72  111.  37. 


THREATS  1231 

Where  a  person  makes  a  threat  that  he  will  use  a  revolver  upon 
one  whom  he  supposes  to  be  a  constable,  in  case  he  attempts  his 
arrest,  showing  a  purpose  to  resist  arrest  by  any  officer,  it  will 
be  competent  evidence  against  him  on  trial  for  the  subsequent 
killing  of  a  constable  while  attempting  to  arrest  him,  as  tending 
to  show  malice  and  evil  intention  on  his  part,  and  to  give  char- 
acter to  his  act  in  killing  deceased,  whether  the  latter  knew  of 

his  threats  or  not. 

Palmer  vs.  People,  138  111.  356. 

A  Statement  by  defendant,  talking  about  his  ti-ou])le  with  de- 
ceased prior  to  homicide,  that  he,  defendant,  "was  part  Indian, — 
bad  medicine,  and  that  something  serious  would  grow  out  of  this 
trouble,"  competent  as  tending  to  show  a  threat. 
Schoolcraft  vs.  People,  117  111.  271. 

It  may  be  shown  that  defendant  was  intoxicated.  That  recon- 
ciliation was  had.  That  plaintiff  and  deceased  were  in  the  habit 
of  quarreling  one  day  and  becoming  friends  the  next.  That 
threats  were  the  mere  ebullitions  of  passion,  and  not  the  expres- 
sions of  a  deliberate  intention.  Jury  should  take  into  considera- 
tion all  the  circumstances  under  which  threats  were  made,  with 
a  view  to  determining  whether  or  not  they  were  the  expression 
of  a  deliberate  purpose  or  design  to  kill. 
Bolzer  vs.  People,  129  111.  112. 

A  threat  to  defend  one's  self  in  event  of  being  attacked  does 
not  imply  the  same  malice  and  evil  intent  as  a  threat  to  kill, 
unaccompanied  by  qualifying  words. 
Bolzer  vs.  People,  129  111.  112. 

Threats  cannot  be  testified   to  by  witness  who  did  not  hear 
defendant   make  same,   but   gained   knowledge   of  same   through 
conversation  with  deceased  shortly  before  killing. 
Montag  vs.  People,  141  111.  75. 

—  Of  One  Defenda/nt:  Threats  made  by  one  before  conspiracy 
formed  are  inadmissible  against  the  other  co-defendants. 

Wilson  vs.  People,  94  111.  299. 
Where  a  number  of  persons  act  together  or  in  concert  to  chas- 
tise or  beat  certain  other  persons,  and  one  of  the  persons  is  killed, 
expressions  and  statements  made  by  some  of  the  assailants  are 
properly  admitted  in  evidence  on  the  trial  of  one  of  them  for  mur- 
der, as  characterizing  the  mission  on  which  he  was  engaged  at 

the  time  they  were  made. 

Lyons  vs.  People,  137  111.  602;  Schoolcraft  vs.  People,  117  111.  271. 

To  bind  all  the  defendants  by  an  incriminating  statement  of 
one  upon  the  theory  that  it  was  made  in  the  presence  of  all,  the 
evidence  must  show  specifically  who  of  the  defendants  were  pres- 
ent wiien  statement  was  made. 

People  vs.  Barkas,  255  111.  516.  '  '  ' 

—  Of  Deceased:  On  plea  of  self-defense,  proof  of  threats  bjr 
deceased  against  accused,  made  to  third  pereon  before  homicide, 
are  admissible,  even  though  not  shown  to  have  been  communi- 
cated  to   accused. 

Neathery  vs.  People,  227  111.  110;  Siebert  vs.  People,  143  111.  571; 
Price  vs.  People,  131  111.  223;  Campbell  vs.  People,  16  111.  17;  XII 
HI.  Notes  920,  §  44. 


1232  THREATS 

Previous  threats  are  admissible  for  purpose  of  giving  charac- 
ter to   any   attack   deceased  may   liave   subsequently   made    upon 

defendant. 

Leigh  vs.  People,  113  111.  372. 

Threats  are  admissible  on  question  of  justification. 
Walker  vs.  People,  133  111.  110. 

But  if  defendant  is  the  aggressor,  he  is  not  entitled  to  prove 
previous  threats. 

Adams  vs.  People,  47  111.  376. 

AVhere  threats  to  take  life  are  made,  before  a  party  may  attack 
or  inflict  harm  upon  the  person  making  the  threats,  there  must 
be  some  overt  act  from  which  an  intentio.i  may  be  reasonably 
inferred  to  carry  into  eifect  the  threats,  and  the  danger  must  be 
imminent. 

Wilson  vs.  People,  94  111.  299. 

Where  wife  and  her  paramour  are  charged  with  murder  of  her 
husband  by  administering  poison,  declarations  of  deceased,  made 
at  different  times  within  the  year  before  his  death,  and  prior  to 
his  last  sickness,  that  he  intended  to  take  his  own  life,  not 
accompanied  by  any  act  of  deceased  which  they  might  explain, 
being  mere  hearsay,  are  not  admissible  on  part  of  defense. 
Siebert  vs.  People,  143  111.  571. 

Wliere  death  charged  resulted  from  an  attempted  abortion, 
proof  that  deceased,  over  a  year  before  her  death,  exhibited  to 
witness  an  instrument  which  she  asserted  she  had  used  to  pro- 
cure an  abortion  upon  herself,  saying  she  would  do  it  again,  if 
necessary,  rather  than  have  children,  is  hearsay  and  incompetent. 
.,,y..r         Clark  vs.  People,  224  lU.  554;  Howard  vs.  People,  185  111.  552. 

—  Of   Third  Persons:     Antecedent  threats  do  not  justify  an 
assault  by  the  person  against  whom  they  are  made,  Imt  they  are 
proper    to   be    considered    in    connection    with    the    acts,    at   the 
time  of  the  assault,  of  the  person  who  made  such  threats. 

People  vs.  Williams,  240  111.  633. 

That  day  before  homicide  father  of  deceased  was  threatening 
to  kill  accused  on  sight  is  admissible  on  question  of  j^unishment. 
Nowacryk  vs.  People,  139  111.  336. 

Evidence  as  to  apprehension  of  danger  by  deceased  from 
others  than  accused  is  inadmissible. 

Schoolcraft  vs.  People,  117  111.  271. 

Arson : 

—  Threats  of  Third  Persons:  Threats  of  a  third  person  other 
than  prisoner  on  trial,  against  the  victim  of  the  crime  charged, 
are  mero  hearsay  and  inadmissible.  Such  threats  of  a  third 
person  are  inter  alios  acta;  they  are  too  remote  from  the  inquiry 
to  be  received  and  have  no  legal  tendency  to  establish  tlie  inno- 
cence of  accused.  Innocence  of  participation  cannot  be  shown 
by  the  admissions  or  confessions  of  a  third  person  not  under  oath, 
and  which  are  orily  hearsay.  The  proof  must  connect  such  third 
person  with  the  fact,  that  is,  the  perpetration  of  some  deed  enter- 
ing into  the  crime  itself.  There  must  be  proof  of  such  a  train  of 
facts  and  circumstances  as  tend  to  clearly  point  to  him  rather 
than  accused   as  the  guilty  party.     Extra-judicial  statements  of 


TIMBER  1233 

third  persons  cannot  be  proven  by  hearsay  imless  such  statements 

were  i)ai1.  oL'  res  gestae. 

Carlton  vs.  People,  150  111.  181. 

—  Of  Defendant:     Previous  threats  of  accused  that  he  would 
burn  out  ])roseeuting  witness  are  admissible. 
Cailtou  vs.  People,  150  111.  181. 

Assault: 

Previous  threats  of  accused  are  admissible. 
Sharj)  vs.  People,  29  111.  464. 

CIVIL  ACTIONS: 

Admissibility : 

Threats  must  have  been  communicated  to  defendant. 

ISorgenfrei  vs.  Schroeder,  75  111.  397;  Forbes  vs.  Snyder,  94  111.  374. 

Previous  threats  are  competent  only  to  give  character  or  col- 
oring to  some  act  of  party  making  same. 
Forbes  vs.  Snyder,  94  111.  374. 
Unless  threats  to  be  proven  are  so  recent  as  to  become  a  part 
of  the  transaction  in  question,  they  are  inadmissible. 

Cummins  vs.  Crawford,  88  111.  312;  Hulse  vs.  Tollman,  49  App.  490; 
Stucker  vs.  Thompson,  139  App.  145;  Doyle  vs.  Cavanaugh,  139  App. 
359. 
In  trespass  for  assault,  testimony  of  witnesses  that  they  heard 
plaintiff    make    threats   against   life   of   defendant    some   twenty 

days  before  is  inadmissible. 

Cummins  vs.  Crawford,  88  111.  312;  Hulse  vs.  Tollman,  49  App.  490; 

Stucker  vs.  Thompson,  139  App.  145;  Doyle  vs.  Cavanaugh,  139  App. 

359. 

Evidence  of  threats  made  by  one  party  to  an  altercation  against 

the  other  is  only  competent  when  the  party  alleged  to  have  made 

the    threats    makes   some   hostile    demonstration   prior   to    being 

attacked  by  the  other  party. 

Hefferman  vs.  Lloyd,  145  App.  583 ;  Forbes  vs.  Snyder,  94  111.  374. 

Threats  are  inadmissible  in  mitigation  of  damage. 

Cummins  vs.  Crawford,  88  111.  312. 

Weight  and  Sufficiency: 

In  action  on  case '  for  malicious  burning  of  a  house,  positive 
and  direct  evidence  that  defendant  did  the  act  is  not  indispensable 
to  a  recovery,  but  circumstantial  evidence  is  sufficient.  Proof 
of  threats  immediately  preceding  the  burning,  followed  by  the 
burning,  is  sufficient  to  justify  the  jury  in  finding  the  party  guilty. 
"  Smalley  vs.  Smalley,  81  111.  70. 

If  the  person  in  the  exercise  of  a  right,  is  approached  by  an- 
other in  a  menacing  manner,  and  is  told  if  he  does  the  act  his 
menace  indicated,  he  w^ould  kill  him,  such  a  declaration,  instead 
of  a  threat  to  kill,  should  rather  be  regarded  as  a  warning  to  the 

other  party  not  to  do  violence. 

Chapman  vs.  Cowry,  50  111.  512.  ; 

TIMBER 

See  Waste,  Trespass. 

Criminal  Action: 

Defendant  mav  testifv  as  to  intent. 

Mettler  vs."  People,  135  111.  410.  ..^^,_j^    .     ,.,_... 

Ev.— 78  ''        ■'"    " 


1234  TIMBER 

Consent  of  cemetery  association  in  defense  may  be  shown  by 

parol. 

Mettler  vs.  People,  135  111.  410;  Kev.,  36  App.  324. 

Trespass  in  Cutting-: 

— ■  Title:     Plaintiff  suing  as  owner  must  aver  and  prove  that 

he  holds  title  in  fee  simple  to  land. 

David  vs.  Correll,  68  App.   123;   Behymer  vs.  O'Deli,  31  App.  350; 

Whitesides  vs.  Divers,  5  111.  336;   Wright  vs.  Bennett,  4  111.  257; 

Jarrott  vs.  Vaughn,  7  111.  132;  Edwards  vs.  Hill,  11  111.  22;  XIV  111. 

Notes  1161,  §  7. 

Reversioner  or  remainderman,   though  not  in  possession,   may 

now  have  his  action  in  trespass  against  any  other  person,  whether 

in  possession  of  premises  or  not,  for  an  injury  to  his  right  or 

interest  in  the  land. 

White  vs.  Main,  149  App.  345! 
But  it  is  not  necessary  to  show  that  defendant  knew  that  the 
land  belonged  to  plaintiff. 

Watkins  vs.  Gale,  13  111.  152. 

. Intent:     Where  one  cuts  timber,  knowing  it  not  to  be  upon 

his  ow^n  land,  or  upon  land  which  he  had  a  license  to  cut  from, 

the  law  presumes  that  the  trespass  was  wilful. 
Watkins  vs.  Gale,  13  111.  152. 

It  nuist  appear  that  accused  committed  the  wrong  knowingly 

and   wilfully,   under  such  circumstances   as   show   him   guilty   of 

criminal  negligence.      It   does   not   apply   to   a   person   who   cuts 

timber  under  the  mistaken  belief  that  he  is  the  owner. 

David  vs.  Correll,  74  App.  47;  Watkins  vs.  Gale,  13  111.  152;  White- 
craft  vs.  Vandever,  12  111.  235. 

— ■  Want  of  License:    The  want  of  license  to  enter  and  cut  tim- 
ber must  be  averred  in  the  declaration  and  proven  by  plaintiff 

upon  the  trial. 

Abney  vs.  Austin,  6  App.  49;  Whitecraft  vs.  Vandever,  12  111.  235. 

—  How  Proof  of  Title  Made:     By  showing  a  connected  chain 

of  title  from  the  government  or  by  deed  conveying  to  plaintiff, 

and  actual  possession  of  land  by  plaintiff  or  prior  possession  by 

his  grantor. 

Behymer  vs.  O'Deli,  45  App.  616. 

Plaintiff  cannot  prove  his  title  by  defendant's  admission,  not 

made  for  purpose  of  suit.     Such  admission  is  not  best  evidence. 
Mason  vs.  Park,  4  111.  532. 

Proof  of  actual  possession  by  a  person   claiming  title   in   fee 

simple  is  presumptive  evidence  of  title  in  him.  and  sufficient  to 

cast  the  burden  of  contesting  title  upon  defendant. 

Abney  vs.  Austin,  6  App.  49. 

A  mortgage,  even  after  condition  broken,  is  not  such  an  out- 
standing title  as  that  a  stranger  can  use  it  to  defeat  an  action  of 

this  character. 

Abney  vs.  Austin,  6  App.  49. 

—  Punishment  of  blaster:     It  must  be  proven   that  the  serv- 
ant committed  the  act  under  express  or  implied  authority. 

Satterfield  vs.  W.  W.  Tel.  Co.,  23  App.  446. 

It  is  not  sufficient  to  show  that  the  trees  were  cut  by  persons 

employed  by  the  defendant  to  cut  timber  on  his  own  land  and 

appropriated  by  them  to  the  use  of  defendant. 
Gushing  vs.  Dill,  3  111.  460. 


See  Date,  Experiments. 


TITLE  1235 

TIME 


TIME  BOOKS 

See  Books  op  Account,  Memorandum. 

TITLE 

See  Patents,  Ejectment,  Adverse  Possession,  Taxes,  Limita- 
tions, Trespass,  Good  Faith,  Tax  Deeds,  Legal  Conclusions, 
Expert  and  Opinion,  Delivery,  Possession,  Forcible  Entry  and 
Detainer,  Trover  and  Conversion. 
Presumptions : 

—  Validity  of  Title  and  Possession:  Title  from  general  gov- 
ernment being  shown,  presumptions  in  favor  of  its  validity  and 
of  legal  possession  under  such  title  arise,  and  remain  until  over- 
come by  evidence  to  contrarv. 

Zirngibl  vs.  Calumet  Dock  Co.,  157  111.  430. 

—  From  Possession:  It  is  presumed  that  a  claimant  of  prop- 
erty who  is  in  possession,  holds  the  legal  title  thereto. 

Glos  vs.  Huey,  181  111.  149;  Harland  vs.  Eastman,  119  111.  22. 

—  Continuance  of  Possession:  On  proof  of  a  person's  pos- 
session of  land  at  a  particular  time,  there  may  be  a  presumption 
of  a  continuance  of  such  possession  thereafter,  but  not  of  a  prior 
possession. 

Glos  vs.  Kemp,  192  111,  72;  White  vs.  White,  105  111.  313;  XII  111. 
Notes  477,  §34. 

And  upon  conveyance,  it  will  be  presumed  that  grantee  con- 
tinued in  possession  of  same  as  the  grantor  had  done  before. 
Sholl  vs.  German  Coal  Co.,  139  111.  21. 

—  .^5  to  Continuance  of  Ownership:  Ownership  of  real  prop- 
erty, proven  as  of  a  specific  day,  is  presumed  to  continue  until 
some  change  or  alienation  is  shown. 

Eggers  vs.  Hardwiek,  155  App.  254. 

—  Good  Faith:  Color  of  title  will  be  presumed  to  have  been 
acquired  in  good  faith. 

Peabody    Coal    Co.   vs.    Burri,    255    111.    292;    Godfrey   vs.    Dickison 
Power  Co.,  228  111.  487. 

Bad  faith  must  be  proven. 

Godfrey  vs.  Dickison  Power  Co.,  228  111.  487, 

Good  faith  is  a  question  of  fact. 

Dawson  vs.  Edwards,  189  111.  60;  Sexson  vs.  Barker,  172  111.  361, 

Burden  of  Proof: 

—  To  Esfahtish  Title:  In  action  for  breach  of  covenant  of 
seizin  the  burden  of  proof  is  upon  the  defendant  to  show  title 
in  himself. 

Baker  vs.  Hunt,  40  111.  264. 
A  faction  of  a  religious  society  has  the  burden  of  establishing 
title  to  church  property  which  has  been  in  possession  of  trustees 


1236  TITLE 

representing  other  faction,  and  their  predecessors,  for  more  than 

twenty  years. 

Kims  vs.  Eobertson,  154  111.  394. 

—  In  Disputing  Right  of  Possession:  The  person  who  is  in  the 
actual  and  peaceable  possession  of  land  will  be  deemed  to  be 
rightfully  in  possession,  and  burden  of  proof  is  upon  him  who 
would  dispute  that  possessory  right. 

Hanimoud  vs.  Doty,  184  111.  246 ;  FitzGerald  vs.  Quinn,  165  111.  354. 

But  in  ejectment,  the  law  does  not  presume  that  person  is 
rightfully  in  possession  to  land  to  which  he  holds  no  legal  title. 

Sonnenianu  vs.   Mertz,   221   111.   362. 

Admissibility  of  Evidence  to  Show  Title : 

—  In  General:    Title  to  premises  should  be  shown  by  the  deeds, 

or  in  absence  of  such  deeds,  by  the  records  thereof;  abstracts  of 

title  made  by  an  abstract  company  are  not  competent  for  that 

purpose,  nor  are  inventories  filed  in   connection   with  an  estate, 

where  not  prepared  under  authority  of  defendant. 
Pumphrey  vs.  Giggey,  150  App.  473. 

—  Tax  Deeds:  A  tax  deed  cannot  be  received  as  evidence  of 
a  paramount  title  unless  the  proceedings  anterior  to  the  execu- 
tion of  the  tax  deed,  required  by  statute, — that  is,  a  judgment, 
precept,  notice,  etc.,  have  been  had. 

Glanz  vs.  Ziabek,  233  111.  22;  Met.  El.  Ry.  Co.  vs.  Eschner,  232  111. 
210;  Kepley  vs.  Scully,  185  111.  52;  Anderson  vs.  McCorraick,  129 
111.  308. 

So  one  desiring  to  avail  himself  of  the  effect  of  a  tax  deed  as 

evidence  of  title,  and  not  color  of  title  merely,  should  introduce 

in  evidence  the  anterior  proceedings  on  which  same  is  founded. 
Kepley  vs.  Fouke,  187  111.  162. 

A  tax  deed  as  color  of  title  is  prima  facie  evidence  that  sale  was 
conducted  in  manner  required  by  law,  and  affords  presumptive 
proof,  in  first  instance,  of  sufficiency  and  validity  of  process  upon 
which  the  sale  w^as  made,  which  is  the  basis  of  the  tax  deed,  and 
the  prima  facie  case  made  by  the  production  of  the  tax  deed  must 
be  overcome  by  proof. 

Tiflft  vs.  Greene,  211  111.  389;  Glos  vs.  Mulcahy,  210  111.  639;  Gage 
vs.  Gentzel,  144  111.  450. 

—  Sheriff's  Deed:  Judgment,  execution  and  levy  must  be  pro- 
duced before  deed  can  be  read  as  evidence  of  title. 

Stribling  vs.  Prettyman,  57  111.  371.     (See  Deeds.) 
Return  of  execution  need  not  be  proven. 

Holman  vs.  Gill,  107  111.  467;  Kinney  vs.  Kuoebel,  47  111.  417. 

—  Master's  Deed:  Where  a  decree  authorizes  the  making  of  a 
deed,  and  it  has  been  made,  it  is  legitimate  evidence  of  title. 
Order  confirming  sale  need  not  be  shown. 

Redmond  vs.  Cass,  226  111.  120;  Walker  vs.  Sehum,  42  111.  462. 

—  Guardian's  Deed:  Wliere  a  record  fails  to  show  that  the 
guardian  had  reported  the  sale,  or  that  it  was  confirmed  such 
deed  does  not  transfer  the  title  of  the  minor. 

Phelps  vs.  Nasworthy,  226  111.  254;  Musgrave  vs.  Conover,  85  111. 
374;  Young  vs.  Keough,  11  111.  642. 

—  Txecord  of  Unacknowledged  Deed:     Is  incompetent  to  prove 

title,  and  is  inadmissible  for  anv  purpose  except  to  show  notice. 
Winter  vs.  Dibble,  251  111.  200. 


TITLE  1237 

—  Deed  to  Corporation:  In  ejectment  by  a  corporation,  en- 
titled to  hold  real  estate,  under  which  it  claims  title,  deed  cannot 
be  doiied  admission  ni)on  alleged  ground  that  the  corporation 
exceeded  its  powers  in  taking  conveyance. 

Railway  Co.  vs.  Keegan,  185  111.  70. 

—  Entry  Book:  The  statute  makes  the  official  certificate  of 
the  register  or  receiver  of  any  land  oftice  evidence  of  an  entry  of 
any  tract  of  land  in  his  district,  and  such  entry  cannot  be  proven 
by  a  book  certified  by  state  auditor  to  county  clerk. 

Neiderer  vs.  Bell,  174  111.  325;  Huls  vs.  Buntin,  47  III.  396. 

—  Official  Certificates  of  General  Land  Office:  The  official  cer- 
tificate of  a  register  or  receiver  of  any  land  office  of  the  United 
States,  to  any  matter  of  fact  on  record  in  his  office,  is  competent 
to  prove  the  fact  so  certified  to. 

The  exemplification  of  books  and  records  of  general  land  office, 

certified  by  recorder,  is  competent  evidence  of  truth  of  its  recitals. 
Wyman  vs.  City  of  Chicago,  254  111.  202;  Black  vs.  C.  B.  &  Q.  Ry. 
Co.,  237  111.  500;  Wilcox  vs.  Jackson,  109  111.  201;  8eeley  vs.  Wells, 
53  lU.  120;  XII  111.  Notes  505,  §238. 

The  act  of  Congress  granting  lands  to  state  of  Illinois,  donat- 
ing lands  in  aid  of  construction  of  Central  Railroad,  and  the 
certified  schedules  issued  by  Secretary  of  Interior  and  the  Com- 
missioner of  General  Laud  Office,  are  evidence  of  title  in  the 
State. 

Sawyer  vs.  Cox,  63  111.  130. 
The  record,  or  a  transcript  thereof,  of  the  list  purporting  to 
contain  the  tracts  of  land  in  such  county,  selected  by  I.  C.  R.  R. 
Co.,  and  purporting  to  be  certified  by  Commissioner  of  General 
Land  Office,  is  prima  facie  evidence  of  title  by  the  company  to 
the  lands  to  be  selected. 

I.  C.  R.  R.  Co.  vs.  Union  County,  94  111.  70. 

—  Wills:  An  original  will,  without  proof  of  probate,  is  inad- 
missible to  show  title. 

Bartlow  vs.  C.  B.  &  Q.  Ry.  Co.,  243  111.  332;  Hicks  vs.  Deemer,  187 
111.  164. 
But  the  statute  making  a  copy  of  the  record  admissible  in  evi- 
dence does  not  preclude  the  admission  of  an  original  probated 
will.     AVhen  the  original  has  been  probated,  it  is  admissible  in 

evidence. 

Brack  vs.  Boyd,  202  111.  440;  Stevenson  vs.  Ernst,  80  111.  513. 

—  Foreign  Wills:  A  foreign  will,  duly  probated  in  another 
state  (a  duly  authenticated  copy  having  been  recorded  in  this 
state),  need  not  be  probated  in  Illinois  or  have  the  formalities 
entitling  it  to  probate  here  in  order  to  enable  it  to  pass  title  to 

real  estate  here. 

Amrine  vs.  Hamer,  240  111.  572. 
A  duly  authenticated  and  certified  copy  of  a  will,  admitted  to 
probate  in  a  foreign  state,  operates  as  constructive  notice  only 
from  the  date  of  the  filing  of  the  same  for  record. 
Catholic  Univ.  vs.  Boyd,  227  111.  281. 
But  the  probate  of  a  will  in  one  state,  though  conclusive  as  to 
personal  property,  if  made   at  testator's  domicile,  can  have  its 


1238  TITLE 

only  force  as  a  devise  of  land  in  another  state  by  virtue  of  some 
law  01  the  state  wherein  the  land  is  situated. 
Dibble  vs.  Winter,  247  111.  243. 

—  Parol:  The  want  of  title  in  a  person  cannot  be  proven 
by  parol  testimony.  To  prove  title  or  want  of  it,  the  best  evi- 
dence must  be  produced  or  its  absence  properly  accounted  for  to 

admit  secondary  evidence. 

Kirkpatrick  vs.  Clark,  132  111.  342;  Osborn  vs.  People,  103  111.  224; 
Mix  vs.  People,  92  111,  549;  Munford  vs.  Miller,  7  App.  62, 
So  an  admission  of  owner  is  incompetent  to  show  title. 

Lavery  vs.  Brooke,   37  App.  51;    Mason  vs.  Parks,  4  111,   532;   Cf., 
Heimam  vs.  Kinnare,  92  App.  232.  '  ^  — ' 

Parol  testimony  is  not  admissible  as  to  what  records  show  con- 
cerning the  ownership  of  land. 

Pumphrey  vs.  Giggey,   150  App.  473;   Cornwell  vs.  Cornwell,  91  111. 
414;  Hardin  vs.  Forsythe,  99  111.  312. 
The  opinions  of  witnesses  are  not  competent  to  prove  that  a 

person  is  not  a  land  owner. 

Osborn  vs.  People,  103  111.  224. 
Termination  or  expiration  of  plaintiff's  title  cannot  be  shown 
on  cross  examination  by  asking  witnesses  if  certain  persons  named 

did  not  own  the  premises. 

City  of  Chicago  vs.  Peck,  196  111.  260. 
The  title  to  or  ownership  of  land  cannot  be  established  in  a 
judicial  proceeding,  by  the  affidavit  of  a  person  who  has  exam- 
ined the  tract  index  book  of  the  public  records,  and  who  therein 
deposes  that  he  found  a  deed  or  deeds  on  record  to  the  party  in 

whom  the  title  is  alleged  to  be  vested. 

Shreve  vs.  Town  of  Cicero,  129  111.  226. 

—  Expert  and  Opinion:  Sufficiency  of  any  title  to  real  estate 
is  a  question  of  law  and  not  of  fact  to  be  proven  by  the  opinions 
of  witnesses.    That  a  title  is  defective  or  sufficient  cannot  be  shown 

by  the  opinions  of  examiners. 

Evans  vs.  Gerry,  174  111.  595;  Mead  vs.  Alt'geld,  136  111.  298, 

Admissions  and  Declarations: 

—  To  Impeach  Deed:  Where  a  person  has  executed  a  deed, 
he  cannot  invalidate  it  by  any  parol  declarations  he  may  make. 

Potter  vs.  Barringer,  236*111.   224;    Shea  vs.   Murphy,   164  111.   614; 
Nicewander  vs.  Nieewander,  151  111.  156;  XII  111.  Notes  499,  §  198, 
Even  though  he  may  not  have  yet  surrendered  the  actual  pos- 
session. 

Hart  vs.  Eandolph,  142  111.  521. 
The  declaratioiiis  of  a  grantor  after  he  has  made  a  conveyance 
of  land  are  not  admissible  to  affect  the  grantee  or  the  title  con- 
veyed. 

Biliott  vs.   Western   Coal   Co.,   243   111.   614;   Lang  vs.   Metzger,   206 
111.  475;  Hagan  vs.  Waldo,  168  111.  646;  Shea  vs.  Murphy,  164  111. 
614. 
Unless  grantee  is  present  and  assenting. 

Higgins  vs.  White,   118  111.   619;   Gridley  vs,  Bingham,  51  111.   153; 

Myers  vs.  Kinzie,  26  lU.  36. 

Admissions  and   declarations  made   prior  to   the   execution   of 

the  deed  are  not  admissil)le  for  sole  purpose  of  impeaching  same. 

Shields   vs.   Bush,    189    111.    534;    Hart   vs.    Eandolph,    142   111.    521; 

Guild  vs.  Hull,  127  111.  523. 

Declarations  of  ownership  by  one  in  actual  possession,  though 


TITLE  .  1239 

after  conveyance,  althonpjli  not  made  an  incident  to  any  particu- 
lar acts  of  dominion  are  part  of  r<s  gestae  of  possession  and  admis- 
sible as  explanatory  of  title  claimed. 

Knight  vs.  Knight,  178  111.  553;  Shaw  vs.  Smith,  167  111.  269;  Shaw 
vs.    Schoonover,    180    111.   448;    Grimm   vs.   Murphy,   110   111.   271; 
Cf.,  Hart  vs.  Kandolph,  142  111.  521;  Jones  vs.  King,  86  111.  225. 
Declarations  made  by  one  holding  exclusive  possession  of  land, 
to  the  effect  that  she  was  sole  devisee  under  her  husband's  will, 
and  got  everything,   are  admissible  in  subse(|uent  partition   pro- 
ceedings betAveen   her  heirs  and  those  of  her  deceased  husband, 
to  show  kind  and  extent  of  estate  claimed. 
Kotz  vs.  Belz,  178  111.  434. 

—  To  Susiaiii  Deed:  The  statements  of  grantor,  made  after 
execution  of  a  deed,  are  admissible  in  suit  to  enforce  title  there- 
under, when  such  statements  are  in  favor  of  the  deed. 

Shields  vs.  Bush,  189  111.  534;   Miller  vs.  Meers,   155  111.  284. 

—  Disparagement  of  Title:  Declarations  in  disparagement  of 
the  title  of  declarant,  made  during  continuance  of  title  in  him, 
or  while  the  property  was  in  his  control,  are  admissible  in  evi- 
dence against  his  subsequent  grantee  or  those  claiming  under 
Y^ix^^  io  miUi-yyj. 

Gage  vs.  Eddy,  179  111.  492;  Hunter  vs.  Sanitary  Dist.,  179  App.  172. 

Are   admissible   as   original   evidence. 

City  of  Elgin  vs.  Beckwith,  119  111.  367. 

Declarations  in  disparagement  of  title  of  declarant  are  ad- 
missible as  original  evidence,  but  they  must  be  made  during  the 
continuance  of  the  title  in  declarant  or  while  the  property  was  in 
his  control.  They  are  not  admissible  if  made  before  title  has 
been  acquired  by  him,  or  after  it  has  been  transferred,  and  when 
such  declarations  are  offered,  the  time  at  which  they  were  made 

must  be  shown. 

Gage  vs.  Eddy,  179  111.  492;  Strnnpf  vs.  Osterhage,  111  HI.  82. 

The  declarations  and  admissions  of  privies  in  estate,  made  be- 
fore parting  with  their  interest,  are  admissible  in  evidence  against 

the  parties  succeeding  to  their  estate. 

Mueller  vs.  Eebhan,  94  HI.  142;  Lang  vs.  Metzger,  101  App.  380. 

■Deelaront    Witness:     Admissibility   of    declarations   is   not 

affected  by  circumstance  whether  declarant  is  a  competent  wit- 
ness or  not,  or  whether  he,  in  fact,  is  a  witness.  Such  evidence 
is  admissible  on  the  broad  ground  that  the  declaration  was  against 
the  interest  of  the  party  making  it,  in  the  nature  of  a  confession, 
and  on  that  account,  so  probably  true  as  to  justify  its  reception. 
Sandifer  vs.  Hoard,  59  HI.   246;   Cf.,  Bragg  vs.  Geddes,  93  111.  39. 

Declarations   made   by   a   former   owner   of   land,    disclaiming 

ownership  of  an  accretion  to  it,  are  not  admissible  to  prejudice 

title  of  grantee. 

Bellfontaine  vs.   Niedringhaus,   181  HI.   426. 

To   Show   Fraud:      On    creditor's    bill,    the    statements   and 

declarations  of  grantor,  made  to  strangers  and  in  absence  of  gran- 
tee, are  inadmissible  to  impeach  conveyance. 
Hurand  vs.  Weightnian,  108  111.  489. 

But  where  grantor  is  offered  as  a  witness,  he  is  subject  to  the 
same  rules  as  any  other  witness,  and  whilst  his  declarations  may 


1240  TITLE 

not  be  received  to  impeach  the  transaction,  they  may  be  received 

to  impeach  the  witness. 

Phillips  vs.  Kesterson,  154  111.  572. 

And  are  admissible  against  grantees  of  unrecorded  convey- 
ance, where  grantor  remains  in  possession  and  obtains  credit 
upon  his  apparent  ownership, 

Blackman  vs.  Pi-eston  Bros.,  123  111.  381. 

So  where  a  grantor  in  a  deed  of  conveyance  remains  in  pos- 
session of  property  conveyed,  and  uses  and  treats  same  as  if  he 
were  the  owner,  his  declarations  whilst  so  in  possession,  to  the 
effect  that  he  owned  the  property,  are  competent  evidence  upon 
a  bill  to  set  aside  such  deed  by  creditors  as  fraudulent. 

Jones  vs.  King,  86  111.  225;  Sawyer  vs.  Bradshaw,  125  111.  440. 

The  declarations  of  a  father  in  his  lifetime  that  he  had,  at  a 
previous  period,  acquired  land  in  name  of  his  child,  with  the 
design  of  defeating  creditors,  cannot  be  admitted  to  divest  inter- 
est of  child. 

Cochran  vs.  McDowell,  15  111.  11. 

—  To  Show  Mental  Condition  of  Grantor:     Declarations  and 

statements  are  admissible  to  prove  mental  condition  of  grantor  at 

time  of  execution  of  instrument  sought  to  be  set  aside,  if  not 

made  at  too  remote  a  period  prior  to   or  subsequent  execution 

thereof. 

Dowie  vs.  Driscoll,  203  111.  480;  Cf.,  Guild  vs.  Hall,  127  111.  523. 

—  Admissions  and  Declarations  of  Decedents:  Evidence  of 
declarations  of  a  deceased  person,  while  in  possession,  regarding 
his  title  or  interest  in  real  estate,  are  competent  evidence  against 
claim  of  title  of  his  heirs  at  law  who  have  inherited  such  prop- 
erty. 

Rust  vs.  Mansfield,  25  111.  336. 

On  bill  to  reform  a  deed  against  heirs,  mistake  may  be  shown  by 
admissions  of  deceased  grantee. 

Purvines  vs.  Harrison,  151  111.  219. 

But   declarations   of   deceased   grantee,   in   his   favor,   are   not 

admissible. 

Helm  vs.  Boyd,  124  111.  370. 

Declarations   and   statements  of   a   deceased   person   regarding 

his  title  to  or  interest  in  real  estate  are  competent  evidence  in  favor 

of  his  heirs  at  law. 

Kotz  vs.  Belz,  178  111.  434;  Lancey  vs.  Brock,  110  111.  609;  Fyffe  vs. 
Fyffe,  106  111.  646. 

—  Estoppel:  An  admission  or  declaration  of  one  who  holds 
an  interest  in  real  estate,  that  he  has  an  estate  for  life  only,  can- 
not affect  the  rights  of  owners  claiming  an  interest  in  the  same 
property;  and  when  such  admission  is  based  upon  a  mistake  of 
the  extent  of  a  party's  rights,  and  no  one  has  acted  upon  same 
so  as  to  change  his  condition  in  consequence  thereof,  the  party 

making  it  will  not  be  concluded  thereby. 
Burgett  vs.  Taliaferro,  118  111.  503. 

Admissions  or  declarations  by  an  adverse  owner,  made  after 
the  bar  of  the  statute  has  become  complete,  do  not  work  estop- 
pel. 

Lyon  vs.  Stroud,  257  111.  350;  I.  C.  E.  E.  Co.  vs.  Wakefield,  173  111. 
564. 


TITLE  1241 

But  such  declarations  made  before  bar  is  complete  are  compe- 
tent but  not  conclusive. 

Carroll  vs.  Eabbcman,  240  111.  450. 

—  Weight  and  Sufficiency  as  Evidence:  Where  a  party  shows 
a  clear  title  of  record  to  a  tract  of  land,  it  cannot  be  overcome 
by  proof  of  his  casual  admissions,  made  over  twenty  years  before, 
to  the  effect  that  another  person  had  some  interest  in  the  prem- 
ises. 

Johnson  vs.  Filson,  118  111.  219. 
The  nature  of  one's  possession  may  be  as  well  characterized  by 
his  acts  as  by  oral  declarations.  It  is  not  essential  that  there 
should  be  proof  that  the  party  in  possession  made  oral  declara- 
tions of  claim  of  title,  but  it  is  sufficient  if  the  proof  shows  that 
he  has  so  acted  as  to  clearly  indicate  that  he  did  claim  title.  No 
mere  words  could  more  satisfactorily  assert  a  claim  of  title  than 
a  continued  exercise  of  acts  of  ownership  over  the  property. 
Using'  and  controlling  property  as  owner  is  the  ordinary  mode 
of  asserting  a  claim  of  title  and  it  is  the  only  proof  of  which  a 
claim  of  title  to  a  very  large  proportion  of  property  is  suscep- 

tible. 

Lyons  vs.  Stroud,  257  111.  350. 

Weight  and  Sufficiency: 

—  To  Show  Bad  Faith:    Knowledge  of  adverse  claims  or  liens 

is  not  evidence  of  bad  faith. 

Eddy  vs.  People,  187  111.  304;  McCagg  vs.  Heacock,  34  111.  476;  XI 
111.  Notes  75,  §  115. 

—  Possession:  Actual  possession  of  land  is  notice  equal  to 
record  of  a  deed,  under  which  the  party  in  possession  claims. 

Merchants  Bank  vs.  Dawdy,  230  111.  199;  Joiner  vs.  Duncan,  170  111. 
252 ;  ilcVey  vs.  McQuality,  97  111.  93 ;  Vinesskey  vs.  Lazovsky,  155 
App.  596. 
Prior  possession  alone  is  evidence  of  a  fee,  and  although  the 
lowest,  until  rebutted  by  higher,  must  prevail. 

Tucker  vs.  Duncan,  224  111.  453;   Casey  vs.  Kimmell,   181   111.   154; 
Coombs   vs.    Hertig,    162    111.    171;    Anderson   vs.    MeCormick,   129 
111.  308;  Keith  vs.  Keith,  104  111.  397. 
Possession  will  not  extend  and  be  evidence  of  title  beyond  ac- 
tual occupancy,  where  no  paper  title  is  shown. 
M.  &  N.  W.  Ey.  Co.  vs.  Hoage,  90  111.  339. 
Wliere  a  party  is  in  the  actual  possession  of  a  part  of  a  tract 
or  a  piece  of  land,  claiming  to  be  the  owner  of  it,  the  paper  title 
under  which  he  claims,  is  evidence  of  extent  of  his  possession. 
Poole  vs.  City  of  Lake  Forest,  238  111.  305. 
Proof  of  actual  possession  under  a  deed  or  other  claim  of  owner- 
ship, is  prima  facie^   evidence  of  title  and  is  sufficient  evidence 
upon  which  to  authorize  a  plaintiff  to  recover  in  ejectment,  un- 
less the  defendant  shows  a  better  title. 

Glanz  vs.  Ziabek,  233  111.  22;  Casey  vs.  Kimmell,  181  111.  154;  Fisk 
vs.  Hopping,  169  111.  105. 

In  action  to  quiet  title,  proof  of  possession  under  claim  of  owner- 
ship, is  prima  facie  evidence  of  such  ownership  in  the  claimant 

so  in  possession. 

Euppe  vs.  Glos,  248  111.  414;  Glos  vs.  Huey.  181  111.  149. 


1242  TRADE  MARKS 

Reputation  as  to  ownership  of  property  by  possessor  is  compe- 
tent to  show  character  of  possession. 

Knight  vs.  Knight,  178  111.  553. 

Transfer  of  possession  may  be  shown  by  parol. 

Elch  vs.  Naffziger,  255  111.  98 ;  Faloon  vs.  Simshauser,  130  111.  649. 

—  Deeds:     A  warranty   deed,   without  proof  of  possession  or 

title  in  grantor,  is  not  proof  of  title  in  grantee. 

Godfrey  vs.  Dixon  Power  Co.,  247  111.  124;  Met.  El.  Ey.  Co.  vs. 
Esehner,  232  111.  210;  Glos  vs.  Miller,  213  111.  22;  Hewes  vs.  Glos, 
170  111.  436;  Doty  vs.  Burdick,  83  111.  473. 

Where  the  record  fails  to  show  that  the  guardian  had  reported 

the  sale,   or  that  it  was  confirmed,   deed  does  not  transfer  the 

title  of  the  minor. 

Phelps  vs.  Nazworthy,  226  111.  254;  Musgrave  vs.  Conover,  85  111. 
374;  Young  vs.  Keogh,  11  111.  642. 

A  plaintiff  claiming  under  an  execution  sale  of  land  of  a  dece- 
dent, made  upon  notice  to  heirs  under  section  39  of  act  on  judg- 
ments, has  burden  of  showing  that  notice  was  given  as  required 
by  statute. 

Wilson  vs.  Lowmaster,  181  111.   170. 

—  Canal  Lands:     Title  to  need  not  be  shown  beyond  state. 

C.  &  A.  Ey,  Co.  vs.  Keegan,  185  111.  70. 


TOWN  RECORDS 


See   Records. 


TRADE  MARKS 

Establishing : 

AVhere  a  person  seeks  to  establish  a  trade-mark,  the  proof  must 
be  clear,  leaving  the  question  beyond  a  reasonable  doubt. 

Candee,  Swan  &  Co.  vs.  Deere  Co.,  54  111.  439;  XIV  111.  Notes  814, 
§12. 

Infringement : 

The  essence  of  the  wrong  of  invading  the  right  to  the  exclu- 
sive use  of  a  trade  mark  consists  in  the  sale  of  the  goods  of  one 
manufacturer  or  vendor  for  those  of  another  by  means  of  such 

trade  mark. 

Moxley  Co.  vs.  Brann  &  Fitts  Co.,  93  App.  183. 

Union  Labor  and  Label — Adoption: 

—  Certificate  of  Secretary  of  Staie :  In  a  prosecution  for  us- 
ing a  counterfeit  or  imitation  of  a  label,  trade  mark  or  form  of 
advertisement  of  any  person,  union  or  association,  knowing  the 
same  to  be  counterfeit,  the  certificate  of  the  Secretary  of  State, 
under  his  hand  and  seal,  issued  in  conformity  with  statute  is  suf- 
ficient proof  of  the  adoption  of  such  label,  trade  mark  or  adver- 
tisement, and  of  the  right  to  adopt  the  same. 

Cohn  vs.  People,  149  111.  486. 

—  Certificate  Not  Conclusive  of  Fight  to  Use:  The  only  method 
provided  for  establishing  the  fact  that  such  label  or  other  mark 
or  device  has  been  adopted  or  used  by  any  person,  association  or 
union,  is  by  the  certificate  of  the  Secretary  of  State.     Therefore, 


TRESPASS  1243 

no  conviction  should  be  had  unless  such  proof  could  be  made  of 
the  adoption  of  the  label  or  other  mark  or  device  by  some  per- 
son, association  or  union. 

Such  certificate  would  not  be  conclusive  evidence  that  the  de- 
fendant was  without  ri^ht  to  use  the  label,  mark  or  other  device 
in  question,  but  would  be  prima  facie  evidence  to  that  effect. 
Vincendeau  vs.  People,  219  111.  474. 

—  Gidlfy  Knowledge:  Guilty  knowledge  is  an  essential  ingre- 
dient of  the  offense.  One  indicted  for  selling  cases  of  counterfeit 
champagne  which  he  claims  he  took  from  another  person  in  sat- 
isfaction of  a  debt,  believing  the  labels  and  li(|Uor  to  be  genuine, 
is  entitled  to  show  by  the  expressman  who  delivered  the  cases 
that  the  expressman  had  at  an  earlier  date,  brought  such  cases  to 
the  accused  from  the  place  of  business  of  the  person  from  whom 

the  accused  claims  to  have  received  them. 
Vincendeau  vs.  People,   219  111.  474. 

Ownership : 

Legal  entity  of  owner  of  trademark  or  label  must  be  alleged 
and  proven.    If  a  corporation,  such  fact  must  be  proven. 
People  vs.  Strieker,  258  111.  618.  _ 

And  name  must  be  proved  as  laid. 

People  vs.  Dantuma,  252  111.  561. 


TRAIN  BULLETINS 

Admissibility: 

Bulletins  showing  the  time  of  the  arrival  of  freight  trains  at 
the  station  where  intestate  was  killed  are  admissible  without 
proof  that  deceased  knew  of  their  contents,  where  they  show 
that  a  certain  freight  train  carried  passengers  having  mileage 
tickets,  and  where  it  is  proven  that  deceased  had  such  a  ticket  in 
his  pocket  and  had  gone  to  the  station  to  become  a  passenger  on 

such  train. 

CoUison  vs.  I.  C.  K.  Co.,  239  111.  532. 


TRANSACTIONS  WITH  DECEASED  PERSONS 

See  Witnesses,  Husband  and  Wife,  Books  of  Account,  Ad- 
missions AND  Declarations. 


TRESPASS 

See  Assault  and  Battery,  Burden  of  Proof,  Release,  Parol, 
Timber,  Threats. 
THE  TRESPASS: 
Burden  of  Proof: 

Burden  is  upon  plaintiff  to  establish  acts  complained  of. 

Fort  Dearborn  Lodge  vs.  Klein,  115  111.   177;   Mead  vs.  Pollock,  99 
App.  151;  XIV  111.  Notes  828,  §47. 


1244  TRESPASS 

Presumption : 

Where  one  cuts  timber,  knowing  it  not  to  be  upon  his  own 
land,  or  upon  land  from  which  he  had  license  to  cut,  the  law  pre- 
sumes same  was  wilful. 

Watkins  vs.  Gale,  13  111.  152;  Whitecraft  vs.  Vandever,  12  111.  235. 

Subsequent  Acts: 

Where  several  defendants  are  sued  for  trespass,  evidence  of 
subsequent  trespass  committed   by  part,   only,   of  defendants,   is 

inadmissible. 

Gray  vs.  Waterman,  40  111.  522. 

PLEADING  AND  PROOF: 
Burden  of  Proof: 

Under  general  issue,  burden  of  proving  trespass  is  on  plaintiff. 

Mead  vs.  Pollock,  99  App.  151. 
A  trespass  is  not  admitted  by   plea   of  liberum   tenementum, 

where  a  plea  of  not  guilty  is  also  filed. 

Boyd  vs.  Kimmell,  161  App.  206;  West.  Chi.  St.  Ey.  Co.  vs.  Morri- 
son,  160  111.  288. 

Confession  and  Avoidance: 

Where  pleas  of  confessions  and  avoidance  alone  are  filed,  plain- 
tiff is  required  to  introduce  no  evidence  until  defendant,  prima 
facie,  sustains  his  defense.  In  such  case,  if  defendant  introduces 
no  evidence,  plaintiff  may  then  give  evidence  of  the  nature  and 
extent  of  the  injury,  precisely  as  in  the  case  of  a  default. 

C.  B.  &  Q.  Ey.  Co.  vs.  Bryan,  90  111.  126;  Carpenter  vs.  First  Natl. 
Bank,  19  App.  549. 

Justification : 

A  plea  of  not  guilty,  is  a  simple  denial  of  the  facts  stated  in 
the  declaration,  and  no  more,  and  if  the  acts  of  the  defendant, 
or  his  agent,  prima  facie  constitute  a  trespass,  matters  of  justi- 
fication or  excuse  cannot  be  proven  under  plea  of  not  guilty. 
Chi.  T.  &  T.  Co.  vs.  Core,  223  111.  58. 
Matters  in  discharge  or  justification  must  be  specially  pleaded. 

Olsen  vs.  Upsahl,  69  111.  263. 
And  burden  is  upon  defendant  to  prove  such  justification. 

Lindblom  vs.  Eamsey,   75  111.  246;   Hudson  vs.  Miller,  97  App.   74; 
Shanley  vs.  Wells,  71  111.  78 ;  Case  vs.  Hall,  21  111.  632. 

Leave  or  License: 

Under  a  plea  of  not  guilty,  evidence  tending  to  prove  leave  or 

license  by  plaintiff  to  do  acts  which  would  otherwise  be  trespass, 

is  admissible  on  question  of  damages,  but  not  as  a  defense  to  the 

action. 

Chi.  T.  &  T.  Co.  vs.  Core,  223  111.  58. 

Acquiescence : 

One  seeking  to  justify  on  the  ground  that  the  plaintiff  con- 
sented to  the  act  has  the  burden  of  proof. 

Northern  Trust  Co.  vs.  Palmer,  171  111.  383. 

Accord  and  Satisfaction: 

Must  be   specially   pleaded   and   cannot   be   given   in   evidence 

under  general  issue. 

Kenyon  vs.  Sutherland,  8  111.  99. 

Former  Recovery: 

Must  be  specially  pleaded  and  cannot  be  insisted  upon  under 

the  plea  of  not  guilty. 

Hahn  vs.  Eitter,  12  111.  80. 


TRESPASS  1245 

Title: 

In  an  action  of  trespass  quore  clausum  f regit,  the  plea  of  gen- 
eral issue  does  not  put  i)laintirt"  under  proof  of  title,  it  only  calls 
for  proof  of  possession. 

Prussner  vs.  Brady,  130  Ajip.  395. 

Joint  Liability: 

In  action  for  tort  against  several  defendants,  it  is  unnecessary 

to  prove  a  joint  liability  to  sustain  a  recovery  against  one. 

Linquist  vs.  Hodj,'es,  248  111.  491;  Pierson  vs.  Lyon  &  Healy,  243  III. 
370;   I.  &  St.  L.  E.  R,  Co.  vs.  Ilachethal,  72  111.  612;  Aygarn  vs. 

Plue,  118  App.  393. 

DEFENSES : 
Wrongful  Intent: 

The  fact  that  the  trespasser  may  have  believed  he  had  the  right 

to  do  the  act  complained  of  cannot  be  admitted  in  defense  of  action. 

Polar  Wave  Ice  Co.  vs.  1.  H.  Soc,  155  App.  310;  Jasper  vs.  Purnell, 

67  111.  358. 

But    such    evidence    is    admissible    in    mitigation    of    punitive 

damages. 

Farwell  vs.  "Warren,  51   111.  467;   Eoth  vs.   Smith,  41   111.   314;   Cf., 
Eyan  vs.  Donnelly,  71  111.  100. 

Illegal  Use  of  Premises: 

That  plaintilf  was  at  the  time  making  an  illegal  use  of  the 

premises  cannot  be  shown. 

Earp  vs.   Lee,   71   111.   193;   Darst   vs.  People,  51   111.   286;   Love  vs. 
Moynehan,  16  111.  277. 

Advice  of  Counsel: 

Cannot  be  admitted  in  case  of  wanton  and  wilful  trespass  as 
affecting   question   of   damages.      Such    principle   has   only   been 
applied  in  actions  for  malicious  prosecution. 
Jasper  vs.  Purnell,  67  111.  358. 

Defense  of  Property: 

]\lay  be  shown. 

Keatin  vs.  Hay  den,  30  App.  433. 

Acquiescence : 

Competent  to  be  shown. 

Cadwell  vs.  Farwell,  28  HI.  438. 

Leave  or  License: 

Admissible. 

Chi.  T.  &  T.  Co.  vs.  Core,  223  111.  58;  Northern  Trust  Co.  vs.  Palmer, 

171  111.  383;  Blake  vs.  Dow,  -18  111.  261. 

A  party  has  a  right,  in  action  of  trespass  quarc  clausum  frcgii, 

to  introduce  such  evidence  of  title  as  he  possesses,  so  as  to  obtain 

a  decision  upon  the  proper  construction  of  a  deed  under  which 

he  claims  right,  by  license  from  the  grantee,  to  enter  upon  the 

land  and  do  the  acts  complained  of. 

Louk  vs.  Woods,  15  111.  256. 

Title  or  Right  of  Possession  in  Defendant: 

A  trespasser  or  wrong-doer,  in  possession  of  premises,  can  not 
recover  against  the  owner  in  fee  with  right  of  possession. 

Ryan  vs.  Sun  Ching,  164  111.  259;  White  vs.  Naerup,  57  App.  114. 

Any  evidence  tending  to  show  the  character  of  defendant's 
possession  is  competent,  but  where  plaintiff  establishes  record 
title  to  the  land,  defendant  has  burden  of  proving  adverse  pos- 
session. 

Rich  vs.  Nafziger,  248  111.  455. 


1246  TRESPASS 

Title  or  Right  of  Possession  in  Third  Person : 

A  mere  intruder  upon  the  notorious  adverse  possession  of  an- 
other cannot  justify  his  trespass  and  intrusion  under  an  out- 
standing title  in  a  stranger,  in  absence  of  evidence  connecting  him 

with  such  outstanding  title. 

Sullivan  vs.  Eddy,  164  111.  391;  I.  &  St.  L.  By.  Co.  vs.  Cobb,  94  111. 

55. 

MEASURE  OF  DAMAGES: 
Exemplary  Damages: 

To  justify  the  recovery  of  exemplary  damages  for  a  trespass 
to  property  it  must  be  shown  that  the  defendant  was  actuated 
by  malice  or  a  reckless  disregard  for  plaintiff's  rights. 

Chi.   T.  &   T.   Co.  vs.   Core,   223  111.   58  j   Becker  vs.   Dupree,  75  111. 
167 ;  XIV  111.  Notes  832,  §  61. 
And  where  an  act  complained  of  is  not  done  maliciously,  wan- 
tonly or  wilfully,  vindictive  damages  are  not  to  be  allowed. 
Mead  vs.  'Pollock,  99  App.  151. 

Particular  Cases: 

—  Mining  Coal:  One  who  through  negligence  or  inadvertance 
mines  coal  belonging  to  another,  is  liable  for  the  value  of  the  coal 
so  mined  in  its  severed  condition,  and  is  not  entitled  to  any  allow- 
ance for  the  digging. 

Donovan  vs.  Con.  Coal  Co.,  187  111.  28;   Cf.,  I.  St.  L.  E.  R.  Co.  vs. 
Ogle,  92  111.  353;   McLean  Co.  Coal  Co.  vs.  Lennon,  91  111.  561. 
And  where  mined  knowingly  and  wilfully  on  land  of  another, 

jury  may  allow  punitive  damages. 

I.  &  St.  L.  R.  R.  Co.  vs.  Ogle,  92  111.  353. 

—  Mineral  Necessarily  Removed:  Where  a  defendant,  under 
a  grant  from  plaintiff,  has  removed  certain  coal,  and  in  remov- 
ing such  coal  necessarily,  likewise,  removed  what  is  known  as 
"iron  pyrites,"  the  measure  of  damages  in  an  action  for  the  con- 
version of  such  iron  pyrites  is  the  value  of  the  coal  at  the  mouth 
of  the  pit,  less  the  cost  of  the  digging  of  such  iron  pyrites  and  of 
separating  it  from  merchantable  coal. 

Smoot  vs.  Con.  Coal  Co.,  114  App.  512. 

—  Removing  Ice:     Where  a  person  takes  the  ice  in  a  stream 

over  the  land  of  another,  to  which  the  owner  of  the  land  has  an 

exclusive   right,    the   measure   of   damages   in   trespass    for   such 

wrongful  taking,  is  the  value  of  the  ice  as  soon  as  it  is  made  a 

chattel,— that  is,  when  scraped,  plowed,  sawed,  cut  and  severed, 

ready  for  removal. 

Washiiiixtnn  Ice  Co.  vs.  Shortall,  101  111.  46. 

TITLE  OR  POSSESSION: 
Real  Property: 

It  is  sufficient  that  plaintiff  was  in  possession  of  the  property 
trespassed  upon.     It  is  not  necessary  that  his  possession  should 

have  been  an  exclusive  one. 

Zalt  vs.  C.  &  N.  W.  Ry.  Co.,  157  111.  125;  Fort  Dearborn  Lodge  vs. 
Klien,  115  111.  177;  McCormick  vs.  Huse,  66  111.  315;  Anier.  T.  &  T. 
Co.  vs.  Jones,  78  App.  372. 
Where  no  efforts  are  made  by  defendant  to  show  title  in  any 
one,   plaintiff  need  not  show  title  other  than  possession. 
City  of  Chicago  vs.  McGraw,  75  111.  566. 
In  action  to  recover  damages  to  real  estate,  plaintiff  must  show 


TRIAL  1247 

paramount  title  in  himself,  or  actuial  possession  of  premises  at 
the  time  of  commission  of  the  injuries. 

Rockwell  vs.  Jones,  21  111.  279;  Faith  vs.  Yocum,  51  App.  620. 

Reversioner  or  remainder-man,  though  not  in  possession,  may 

now  have  his  action  in  trespass  against  any  other  person,  whether 

in  possession  of  the  premises  or  not,  for  an  injury  to  his  right  or 

interest  in  the  land. 

Wliite  vs.  Main,  149  App.  345. 

Personal  Property : 

Plaintiff  nnist  show  that  when  the  injury  was  committed  he 
had  actual  or  constructive  possession  of  the  goods,  and  also  a 
general  or  qualified  title  therein ;  actual  possession,  though  with- 
out consent  of  real  owner,  or  even  adverse  to  him,  will  be  suffi- 
cient as  against  a  wrong-doer  or  one  who  can  show  no  better  title. 
Miller  vs.  Kirby,  74  111.  242;  Ware  vs.  Hirsch,  19  App.  274. 

Mode  of- Proof : 

—  Deed:     Deed  is  admissible  to  prove  title  in  plaintiff. 

City  of  Chicago  vs.  McGraw,  75  111.  566. 

—  Admissions  and  Declarations:     Against  the  interest  of  the 

party  making  them,  or  his  predecessor,  in  title,  in  respect  to  his 

interest  or  title  to  property  in  question,  are  admissible. 
Eich  vs.  Naffziger,  248  111.  455. 

It  is  not  essential  to  adverse  possession  that  there  should  be 
proof  of  oral  declarations  of  claim  of  title  made  by  party  in  pos- 
session of  land,  but  it  is  sufficient  if  it  appear  that  he  so  acted 
as  to  clearly  indicate  that  he  did  claim  title. 
Faloon  vs.  Simhauser,  130  111.  649. 

—  Adverse  Possession :  A  deed  is  not  necessary  to  transfer  the 
possession  of  land  held  adversely  to  the  owner,  where  land  is  held 
adversely  by  different  occupants  and  one  succeeds  to  the  pos- 
session of  another;  the  identity  and  continuity  of  their  possession, 
in  order  to  make  the  period  required  to  bar  the  owner,  may  be 
shown  by  parol  evidence. 

Faloon  vs.  Simhauser,  130  111.   649;   Rich  vs.  Naffziger,  255  111.  98. 

—  Against  Trespasser:     Possession  is  prima  facie  evidence  of 

title  against  a  mere  trespasser  or  tort  feasor. 

Shoup  vs.  Shields,  116  111.  488;  I.  St.  L.  R.  R.  Co.  vs.  Cobb,  94  111. 
55;  Redden  vs.  Clark,  76  111.  338;  Amer.  S.  B.  Co.  vs.  C.  &  A. 
R.  R.  Co.,  75  App.  420;  Johnson  vs.  Stinger,  39  App.  180;  XIV  111. 
Notes  828,  §  47. 

Rule  applies  to  personal  property. 

Gilson  vs.  Wood,  20  111.  38 ;  Cannon  vs.  Kinney,  4  111.  9. 


TRIAL 

See  Assumpsit,  Cross  Examination,  Allegations  and  Proofs,' 
Default,  Demurrer  to  Evidence,  Depositions,  Denial  of  Exe- 
cution, Directing  Verdict,  Garnishment,  Leading  Questions, 
Order  op  Proof,  Offer  of  Evidence,  Objections,  New  Trial, 
Rebuttal,  Striking  Out  and  Withdrawal  of  Evidence,  Stipu- 
lations, Demonstrative  Evidence,  Physical  Examination,  View 
BY  Jury. 


1248  TROVER  AND  CONVERSION 

TROVER  AND  CONVERSION 

Title  and  Possession: 

—  Ill  General:  In  order  to  maintain  trover  the  plaintiff  must 
prove  a  right  of  property  in  the  chattels  converted,  at  time  of 
conversion,  and  the  actual  possession  or  right  to  possession  thereof. 

Stock  Yards  vs.  Mallory,  157  111.  354;  l-'riuk  vs.  Pratt,  130  111.  3:^7; 
Hayes  vs.  Mass.  Life  Ins.  Co.,  125  111.  (526;  Owens  vs.  Weedman,  82 
111.   409;    Forth  vs.   Pursley,   82   111.   152;   Banker  vs.   Miller,   153 
App.    115;    Alexander    vs.    Meyenberg,    112    App.    223;    Blain   vs. 
Foster,  33  App.  297 ;  XIV  111.  Notes  884,  §  37. 
The  right  to  possession  must  be  immediate,   absolute  and  un- 
conditional,  and  not   dependent  upon   some   act  to   be   done   by 
plaintiff. 

Freeman  vs.  Barnes,  162  App.  18;  Frink  vs.  Pratt,  130  111.  327; 
Newlin  vs.  Prevo,  90  App.  515;  Lapp  vs.  Pinover,  27  App.  169. 
In  trover,  plaintiff  must  recover  on  strength  of  his  own  title, 
without  regard  to  the  weakness  of  that  of  his  adversary.  It  is  a 
possessory  action,  and  in  order  to  maintain  it,  plaintiff'  must  show 
in  himself  either  a  general  or  a  special  property  in  the  thing 
alleged  to  have  been  converted.  It  is  essential  that  plaintiff',  at 
time  of  conversion,  should  have  not  only  the  right  of  property  in 
the  chattel,  but  also  the  right  to  the  immediate  possession. 

Nettleton   vs.    Kerr,    167    App.    74;    Frink   vs.    Pratt,    130    111.    327; 
Brass  vs.  Green,  113  App.  58 ;  Davidson  vs.  Waldron,  31  111.  120. 
Three  things  must  be  shown:  first,  title;  second,  right  to  im- 
mediate possession;  third,  wrongful  withholding  of  such  posses- 
sion.    Failure  to  prove  either  one  is  fatal. 
Man.  Mer.  Co.  vs.  M.  R.  Co.,  169  App.  562. 
Right  to  possession  must  be  absolute  and  unconditional,  and  not 
dependent  on  some   act   to  be  performed  by  him. 
Nettleton  vs.  Kerr,  167  App.  74. 
If  original  taking  was  rightful  and  detention   rightful,   there 
is  no  conversion  and  trover  does  not  lie. 
Vincent  vs.  Riling,  168  App.  445. 
Trover  lies  by  landlord  for  w^rongful  conversion  of  crops  agreed 

to  be  delivered  to  him  as  rent. 

Olson  vs.   Olson,  168  App.  358. 

—  Possession:     Is  prima  facie  evidence  of  ownership. 

Garvin  vs.  Wiswell,  83  111.  215;   Gilson  vs.  Wood,  20  111.  37. 
And  is  sufficient  as  against  a  wrong  doer  or  one  who  can  show- 
no  better  right.  ^,  ,      ^,   , 

Montgomery  vs.  Brush,  121  111.  513;  Burt  vs.  Blake,  14  App.  324. 

Defendant  may  disprove  possession  under  the  general  issue. 
Burt  vs.  Blake,  14  App.  326. 

Where  officer  reduces  property  to  possession  by  a  levy,  if  any- 
one should  dispossess  him,  he  may  recover  the  value  of  his  spe- 
cial interest  in  it  in  an  action  of  trover.     Until  after  seizin  he 

can  maintain  no  action. 

Mulkeisen  vs.  Lane,  82  111.  117. 
^Admissions:      The    admissions    of    a    person    in^  possession, 
claiming  property,  are  proper  testimony  as  against  his  own  title. 
Waggoner  vs.  Cooley,  17  111.  238. 
In  action  against  a  sheriff  to  recover  damages  for  selling  prop- 
erty of  plaintiff  under  attachment  against  another  person,   dec- 


TROVER  AND  CONVERSION  1249 

larations  of  defendant  in  attachment,  while  in  apparent  posses- 
sion of  the  property,  explanatory  of  his  possession  and  in  dispar- 
agement of  any  claim  in  himself,  are  admissible  in  evidence  in 
behalf  of  plaintiff;  and  he  may  also  prove  the  fact,  while  in  pos- 
session of  the  property,  he  claimed  it  as  his  own. 
Whitaker  vs.  Wheeler,  44  111.  440. 
An  agent,  having  his  principal's  cattle  in  possession  under  a 
contract  to  pasture  and  sell  them  and  to  pay  the  owner  a  cer- 
tain sum,  the  agent  to  have  all  proceeds  over  such  sum,  put  them 
in  the  pasture  of  another,  who  claimed  them  under  a  contract 
of  sale  with  the  agent.  It  was  held,  in  action  by  principal,  against 
claimant,  that  what  the  agent  said  was  his  object  in  putting  the 
cattle  in  the  pasture  at  the  time  he  did  so,  being  a  part  of  the 
res  gestae,-  would  be  admissible  in  evidence  on  part  of  defendant, 
but  that  it  was  not  competent  for  him  to  prove  the  statements  of 
the  agent  generally. 

Montgomery  vs.  Bush,  121  111.  513, 

—  Documentary  Evidence:  The  nature-  and  extent  of  title 
and   possession   must  be   ascertained   from   the   instrument  itself, 

and  parol  evidence  is  not  admissible  to  vary  or  contradict  it. 

Sturges  vs.  Keith,  57  111.  451. 

In  action  against  an  administrator,  copies  of  letters  of  admin- 
istration are  admissible  to  show  capacity  in  which 'he  claims  to 
have  received  the  property. 

Smith  vs.  James,   163  App.  501. 

But  files  and  records  of  county  court,  including  inventory,  ap- 
praisement, orders  and  decrees  directing  sale  of  property  are 
inadmissible. 

Smith  vs.  James,  163  App.  501. 

Conversion : 

—  In  General:     A  conversion  is  a  positive,  tortious  act  which 

deprives  a  person  of  his  property  permanently  or  for  an  indefinite 

time. 

Newlin  vs.  Prevo,  90  App.  515. 

Plaintiff  must  show  a  tortious  conversion. 

Hayes  vs.  Mass.  Life  Ins.  Co.,  125  111.  626;  Owens  vs.  Weedman,  82 
111.  409. 

And  as  against  plaintiff.     It  is  of  no  consequence  that  conver- 
sion was  wrongful  as  against  the  rights  of  beneficial  owner. 
Brass  vs.  Green,  113  App.  58. 

To  constitute  conversion,  the  refusal  to  deliver  must  be  abso- 
lute and  amount  to  denial  of  plaintiff's  title  to  the  possession. 
Marcus  vs.  C.  M.  &  St.  P.  Ey.  Co.,  167  App.  638. 

—  By  Partners:  Partners  may  be  sued,  although  there  was 
no  joint  conversion  in  fact.  A  joint  conversion  may  be  implied  in 
law  by  consent  of  a  partner  to  the  acts  of  his  co-partners. 

Bane  vs.  Detriek,  52  111.  19. 

—  Unlawful  Taking:  Evidence  that  defendant  took  from  plain- 
tiff's possession  the  property  in  controversy,  without  latter 's  con- 
sent, and  with  intent  to  deprive  him  of  his  rights  as  owner  is 
sufficient  to  establish  a  conversion. 

Bane  vs.  Detriek,  52  111.  19. 

—  Stolen  Property:     The  purchaser  of  stolen  property,  though 

Ev. — 79 


1250  TROVER  AND  CONVERSION 

sold  by  him  to  another  party,  is  liable  in  action  of  trover  for  its 

conversion. 

Cassidy  vs.  Elk  Grove  Co.,  58  App.  39. 

Demand  and  Refusal: 

—  In  General:  Are  evidence  of  a  conversion  when  defendant  is 
in  such  a  condition  that  he  can  deliver  the  property  if  lie  will. 

Stock  Yards  Co.  vs.  Mallory,  157  111.  554;  Newliu  vs.  Prevo,  90  App. 
515. 

Demand  is  unavailing  unless  at  time  thereof  plaintiff  had  right 
to  possession. 

Nettleton  vs.  Kerr,  167  111.  74. 
But  a  demand  and  refusal  are  not  evidence  of  a  conversion 
unless  the  thing  demanded  was,  at  the  time,  in  possession  of  de- 
fendant or  under  his  control. 

Hill  vs.  Belaseo,  17  App.  194. 

So  a  sale  under  power  of  attorney  would  rebut  the  prima  facie 
case  made  for  plaintiff  by  a  demand  and  refusal. 
Sturges  vs.  Keith,  57  111.  451. 

The  refusal  must  be  absolute,  amounting  to  a  denial  of  plain- 
tiff's title  to  possession,  and  not  a  mere  excuse  or  apology  for 
not  delivering  the  goods;  but  it  need  not  be  express, — it  may  be 
inferred  from  non-compliance  with  proper  demand.  So  any  infer- 
ence of  a  refusal  to  be  derived  from  defendant's  delay  in  compli- 
ance with  the  demand  may  be  fully  rebutted  by  circumstances. 
Eaee  vs.  Chandler,  15  App.  532. 

A  demand  and  refusal  of  an  agent  of  a  new  partnership  will 
not  afford  prima  facie  evidence  as  against  the  partners  of  original 
firm  who  had  withdrawn  since  the  accepting  of  the  bailment. 

Sturges  vs.  Keith,  57  111.  451. 

—  Necessity  of  Demand:  In  order  to  show  a  wrongful  conver- 
sion, demand  must  be  showai. 

Ogden  vs.  Lucas,  48  111.  492. 

And  proof  must  show  demand  made  while  right  of  possession 

was  in  plaintiff. 

Poppers  vs.  Peterson,  33  App.  384. 

The  fact  that  defendant  was  an  innocent  purchaser  of  the 
property  involved,  in  good  faith  and  for  value,  from  one  who 
had  the  physical  possession  of  it  with  every  indicia  of  actual  own- 
ership, requires  proof  of  a  demand  and  refusal,  there  being  no 
proof  of  an  actual  conversion,  in  order  to  maintain  the  action. 
Metcalfe  vs.  Dickman,  43  App.  284. 

Where  personal  property  is  taken  on  execution  by  a  constable, 
trover  cannot  be  maintained  against  plaintiff  in  execution,  when 
sued  with  officer,  without  proof  of  a  demand  and  refusal  to  sur- 
render the  property. 

Mulheisen  vs.  Lane,  82  111.  117. 

But  where  a  party  actually  converts  the  personal  property  of 
another  by  selling  the  same  and  appropriating  the  proceeds,  no 
demand  is  necessary  by  the  owner  before  suing  for  the  conver- 
sion. A  wrongful  taking  or  a  wrongful  sale  constitutes  an  actual 
conversion.     Where  a  party  comes  lawfully  into  possession  and 


TROVER  AND  CONVERSION  1251 

retains  the  property,  to  put  him  in  the  wrong,  a  demand  and 
refusal  are  necessary. 

Hayes  vs.  Mass.  Liio  lus.  Co.,  125  111.  026;   Howitt  vs.  Estclle,  92 

111.  218;  Hardy  vs.  Keeler,  56  HI.  152;  Camp  vs.  Unger,  54  App. 

653;   Greenberg  vs.  Stevens,  114  App.  483;   McConnell  vs.  Hamp, 

147  App.  56;  XIV  111.  Notes  884,  §  31. 

Or  where  the  possession  was  obtained  by  fraud,  no  demand  is 
necessary  to  be  proven. 

Bane  vs.  Uetrick,  52  111.  19. 

Demand  and  refusal,  of  themselves  do  not  constitute  conver- 
sion, but  are  evidence  of  that  fact,,  and  proof  thereof  makes  out 
a  prima  facie  case  for  the  plaintiff  and  it  is  sufficient  to  sus- 
tain recovery  unless  defendant  adduces  evidence  to  negative  the 
presumption.  But  it  is  competent  for  defendant  to  give  in  evi- 
dence everything  which  tends  to  prove  there  was  no  conversion. 
Race  vs.  Chandler,  15  Ajjp.  532. 

Damages : 

—  Measure  of  Damages:  Is  current  market  value  of  property 
at  time  of  conversion,  with  interest  from  that  time  until  the  trial. 

Eobiuson  vs.  Alexander,  141  App.  192;   Marley  vs.  Eoacb,  116  App. 
534;  Cassidy  vs.  Elk  Grove  Co.,  58  App.  39. 
But  evidence  need  not  be  of  such  a  character  that  the  jury 
may  determine  damages  with  mathematical  accuracy. 

Ogden  vs.  Lucas,  48  111.  492;  Meeker  vs.  Cast  Steel  Co.,  84  111.  276, 

Measure  of  damages  is  value  at  time  of  conversion. 
Bates  vs.  Nyberg  Auto  Works,  170  App.  301. 

Where  the  demand  and  refusal  either  constitute  the  conver- 
sion or  afford  presumptive  evidence  of  it,  it  is  no  infringement  of 

this  rule  to  regard  that  as  the  time  of  estimating  the  value. 
Sturges  vs.  Keith,  57  111.  451. 

Rule  is  same  in  stocks  and  bonds. 
Brewster  vs.  VanLiew,  119  111.  554. 

With  interest  from  time  of  conversion  until  trial. 

Burns  vs.  Shoemaker,  172  App.  290. 

Face  value  of  choses  in  action  is  prima  facie  test  of  cinantum  of 
damages. 

Garvin  vs.  Wiswell,  83  111.  215. 

— ■Mitigation  of  Damages:     The  rule  giving  plaintiff  in  trover 
the  benefit  of  value  of  the  property  does  not  apply  where  it  ap- 
pears that  subsequent  to  conversion  he  had  had  the  benefit  of  the 
-property,  and  defendant  may  so  show. 

Tripp  vs.  Grouner,  60  111.  474;  Bates  vs.  Courtright,  36  111.  51S. 

And  defendant  may  recoup  for  advances  or  unpaid  demands. 
Ludden  vs.  Buffalo  Batting  Co.,  22  App.  415;   Cunnea  vs.  Williams, 
11  App.  72. 

—  Exemplary  Damages:  Vindictive  or  exemplary  damages 
should  not  be  awarded  unless  injury  complained  of  was  done 
wantonly  or  wilfully. 

Miller  vs.  Kirby,   74  111.   242;   Mansur-Tebbetts  vs.   Smith,  65  App. 
319;   Tripp  vs.  Grouner,  60  111.  474. 

When  exemplary  or  punitive  damages  are  claimed,  all  the  facts 
and  circumstances  immediately  connected  with  the  transaction 
tending  to  exhibit  or  explain  the  motive  or  intention  of  the  de- 
fendant, or  tending  to  show  he  did  the  acts  complained  of  under 

an  honest  belief  of  his  right  to  do  so,  are  admissible  in  evidence. 
Allen  vs.  Cable,  180  App.  472 ;  Eoth  vs.  Smith,  41  111.  314. 


1252  TRUSTS 

Proof  of  current  market  value   of  goods   converted   is  neces- 
sary.    Proof  of  amount  paid  for  goods  is  not  proof  of  value. 

Span-   vs.    Slakis,,    180    App.    304;    Sturges   vs.    Keith,    57    111.    451; 
Eobinson  vs.  Alexander,  141  App.  192. 

Proof  of  purchase  price  may  afford  presumptive  evidence  of  value 

in  absence  of  other  evidence. 

Bates  vs.  Nyberg  Auto  Works,  170  App.  301. 


TRUSTS 

RESULTING  TRUSTS: 
In  General: 

Where  a  transfer  of  real  property  is  made  by  one  person  and 
the  consideration  thereof  is  paid  by  or  for  another,  a  trust  is  pre- 
sumed to  result  in  favor  of  person  by  or  for  whom  such  payment 
is  made.  The  exception  to  this  presumption  arises  where  the 
party  making  the  purchase  and  paying  the  consideration  money 
is  under  a  natural  or  moral  obligation  to  provide  for  the  person 
in  Avhose  name  the  conveyance  is  taken.  In  such  case,  no  pre- 
sumption of  resulting  trust  arises. 

Wright  vs.  Wright,  242  111.  71;  Brennaman  vs.  Schell,  212  HI.  356; 
Dornian  vs.  Dorman,  187  111.  154 ;  XIV  111.  Notes  927,  §  253. 

The  whole  foundation  of  resulting  trust  is  the  ownership  and 
payment  of  the  purchase  money  by  one  when  title  is  taken  in 
name  of  another,  and  on  the  presumption,  founded  on  such  trans- 
action,  of  the   intention   of  the  parties  that  such  trust   should 

rGSU.lt 

Pickler  vs.  Pickler,  180  111.  169. 

A  resulting  trust  does  not  arise  from  any  verbal   agreement 

between  the  parties  or  verbal  declarations  at  time  of  purchase. 
Plummer  vs.  Flesher,  246  111.  313;  Bruce  vs.  Roney,  18  111.  67. 

A  resulting  trust  is  not  created  by  contract  but  by  implication 

of  law  apart  from  the  contract,  and  must  arise  at  the  time  the 

conveyance   is   executed   and   when   the    legal   title   is   vested   in 

grantee. 

Metropolitan  Bank  vs.  Perry,  259  111.  183;  Wells  vs.  Messenger,  249 
111.  72;  Stephens  vs.  St.  Louis  Trust  Co.,  260  111.  364. 
A  trust  results  from  the  fact  that  one  man's  money  has  been 
invested  in  land  and  the  title  taken  in  the  name  of  another.  It 
is  immaterial  whether  the  purchase  was  made  by  the  one  or  the 
other,  and  it  may  have  been  made  by  either  without  the  knowledge 
of  the  other.  If  the  fact  exists  that  one  man's  money  paid  for 
the  land  and  the  title  was  taken  in  another,  a  trust  is  raised  in 

favor  of  the  person  whose  monev  was  used  to  purchase  the  land. 
Froemke  vs.  Marks,  259  111.  146. 

Not  Defeated  by  Parol  Agreement: 

A  resulting  trust  arising  by  operation  of  law  is  not  defeated 
because  the  grantee  verbally  agreed  to  convej^  the  title  to  the 
cestui  que  trust  upon  request. 

"The  fact  that  the  person  in  whose  name  the  title  is  taken  ver- 
bally agrees  at  time  of  conveyance  to  hold  property  in  trust  for 
person  by  whom  purchase  money  was  paid  upon  the  same  terms 


TRUSTS  1253 

which  the  law  wonkl  imply,  does  not  create  an  express  trust  which 
would  be  unenforceable  on  account  of  Statute  of  Frauds  and 
thereby  prevent  the  implied  trust  from  resulting  from  the  trans- 
action itself;  for  an  invalid  agreement  cannot  destroy  a  good 
cause  of  action,  and  this  is  no  less  true  of  resulting  trusts  than 
of  other  legal  rights." 

Brennaman  vs.  Schell,  212  111.  356;  Dorman  vs.  Dornian,  187  111.  154; 
Furber  vs.  Page,  143  III.  622;  McNamara  vs.  Garrity,  106  111.  384. 

Consideration : 

— ■  Dcjiiiitc  Part:  A  trust  will  not  result  in  favor  of  one  who 
contributes  a  part  of  purchase  money  for  land  conveyed  to  an- 
other unless  it  be  some  definite  amount  or  some  aliquot  part  of 
the  whole  consideration. 

Onasch  vs.  Zinkell,  213  111.  119;  Cline  vs.  Cline,  204  111.  130;  Devine 
vs.  Devine,  ISO  111.  447;  Eeed  vs.  Eeed,  135  111.  482;  Strong  v». 
Messinger,  148  111.  431. 

—  Time  of  Payment:  And  will  arise  only  from  the  original 
transaction  at  the  time  it  takes  place,  and  at  no  other  time,  and 
the  fimds  must  be  advanced  and  invested  at  the  time  the  pur- 
chase is  made. 

Lord  vs.  Eeed,  254  111.  350;  Brennaman  vs.  Schell,  212  111.  356; 
Skahen  vs.  Irving,  206  111.  597;  Kietli  vs.  Miller,  174  111.  64;  Dick 
vs.  Dick,  172  111.  578. 

Nor  is  it  possible  to  raise  such  a  trust  by  the  subsequent  appli- 
cation of  money  of  such  person  in  satisfaction  of  unpaid  purchase 

money. 

Devine  vs.  Devine,  180  111.  447;  Eeed  vs.  Eeed,  135  III.  482. 

—  Amount:  To  give  rise  to  a  resulting  trust,  the  party  for 
whose  benefit  it  is  claimed,  must  have  furnished  the  whole  or  some 
share  or  part  of  the  consideration. 

Plununer  vs.  Flesher,  246  111.  313;  Jackson  vs.  Kraft,  186  111.  623. 

Presumptions : 

— 1)1  General:  A  resulting  trust  arises  by  implication  of  law 
from  acts  of  the  parties. 

Lewis  vs.  McGratli,  191  111.  401;  Kingsbury  vs.  Burnsides,  58  111.  310. 

—  Benefit  of  Thirel  Persons:  Where  property  is  conveyed  to 
grantee  upon  his  parol  promise  to  grantor  to  convey  same  to  a 
third  person  upon  grantee's  death,  a  court  of  equity  will  raise  a 
constructive  trust  and  convert  grantee  into  a  trustee  for  benefit 

of  such  third  person. 

Ward  vs.  Conklin,  232  111.  553;  Hilt  vs.  Simpson,  230  111.  170;  Stahl 
vs.  Stahl,  214  111.  131. 
Where  consideration  for  an  estate  is  paid  by  one  person  and 
legal  title  is  conveyed  to  a  third  person,  such  third  person  being 
a  stranger  to  the  person  paying  the  consideration,  the  person 
taking  the  legal  title  holds  the  land  by  way  of  a  resulting  trust 
for  person  making  the  payments. 

Brennaman  vs.  Schell,  212  111.  356. 

—  Partnership:  Where  real  estate  is  purchased  mth  part- 
nership funds,  and  the  title  is  taken  in  the  name  of  one  of  the 
partners,   a  resulting  trust  arises  in  favor  of  other  partners  in 

proportion   to  their  interests  in  the  partnership. 

People  vs.  Sholem,  244  111.  502 ;   Crone  vs.  Crone,  180  111.  599. 

—  Eushand  in  Name  of  Wife:    If  the  legal  title  is  taken  in  the 


1254  TRUSTS 

name  of  the  wife,  the  implication  does  not  arise,  it  being  the  pre- 
sumption that  the  same  was  intended  as  a  gift  or  advancement. 
Stubbings   vs.   Stubbings,   248   111.   40(3;    Mace  jewska  vs.   Jarzomliek, 
243  111.  136;   Lewis  vs.   McGratb,   191   111.  401;   Smith  vs.   Smith, 
144  111.  299. 
Such  presumption  may  be  rebutted  by  parol,  and  the  burden  of 
proof  is  upon  the  one  asserting  a  trust. 

Strayer  vs.  Dickerson,  205  111.  257;  Lewis  vs.  McGrath,  191  111.  401; 
Dorman  vs.  Dorman,  187  111.  154. 

This  may  be  done  by  proof  of  such  facts   and  circumstances 
as  clearly  show  the  intention  M^as  not  to  make  advancement  but 
to  accomplish  some  other  lawful  purpose. 
Johnston  vs.  Johnston,  138  111.  385. 

A  resulting  trust  in  favor  of  the  husband  is  not  established  by 
evidence  that  property  was  purchased  with  the  earnings  of  both 
husband  and  wife,  without  showing  what  portion  was  furnished 
by  either,  and  that  title  was  taken  in  the  wife's  name  with  the 
husband's  knowledge  and  consent  and  not  through  fraud,  acci- 
dent or  mistake, 

Devine  vs.  Devine,  180  111.  447;  XIV  111.  Notes  926,  §  249, 

A  resulting  trust  in  favor  of  the  husl)and  is  not  established  by 
evidence  that  the  wife,  knowing  he  had  a  verbal  agreement  to 
buy  a  certain  lot  Avhen  he  "got  the  money,"  purcliased  the  prop- 
erty for  herself,  took  a  bond  for  a  deed  in  her  own  name,  and 
gave  her  notes  for  the  purchase  money,  and  later  took  a  deed  in 
her  name  upon  the  payment  of  the  notes,  one  of  which  was  paid 
by  the  husband  and  the  other  by  the  wife,  each  claiming  to  have 
furnislied  the  money  to  pay  both. 
Pickler  vs.  Pickler,  180  111.  168. 

The  presumption  that  where  title  to  land  purchased  with  the 
husband's  money  is  taken  in  the  wife's  name  the  conveyance  is 
a  gift  is  not  a  conclusive  one,  but  it  may  be  overcome  by  clear 
parol  proof  showing  that  it  was  not  the  intention  of  the  parties  that 
the  conveyance  was  to  be  so  considered,  and  if  such  proof  is  made 
the  wife  will  be  held  to  be  a  trustee. 

Baehseits  vs.  Leichtweis,  256  111.  357. 

—  Bij  Wife  in  Name  of  Hushand:  Where  the  wife  furnishes 
the  purchase  money,  and  deed  is  taken  in  name  of  husband,  no 
presumption  of  gift  or  advancement  arises. 

Wright  vs.  Wright,  242  111.  71;   Madison  vs.  Madison,  206  111.  534; 
Jackson  vs.  Kraft,  186  111.  623;  Francis  vs.  Ehoads,  146  111.  635. 

—  By  Parent  in  Name  of  Child:  Wliere  a  parent  pays  pur- 
chase price  of  real  estate  and  directs  the  legal  title  to  be  taken  in 
name  of  child,  the  implication  of  resulting  trust  does  not  arise, 
but  the  presumption  is  that  the  conveyance  to  the  child  was  an 
advancement. 

Bronnaman  vs.  Schell,  212  111.  356;  Euans  vs.  Curtis,  190  111.  197; 
Smith  vs.  Smith,  144  111.  299. 

If  there  is  any  circumstance  accompanying  the  purchase  which 
explains  why  it  was  taken  in  child's  name  and  shows  it  was  not  in- 
tended to  be  an  advancement,  but  was  intended  for  the  parent, 
the  presumption  of  an  advancement  will  be  rebutted  and  infer- 
ence of  trust  will  be  established. 

Skahcn  vs.  Irving,  206  111.  597. 


TRUSTS  1255 

The  presumption  may  be  rebutted  or  supported  by  evidence  of 
antecedent  or  contemporaneous  acts,  facts  or  circumstances  con- 
nected with  the  i)urcliase  or  so  soon  thereafter  as  to  be  fairly 
considered  a  part  of  tliu  transaction. 

Smith  vs.  Smith,  144  111,  299;  Dorman  vs.  Dorman,  187  111.  154.  '- 

The  presumption  that  a  conveyance  to  the  wife  or  child  at 
the  instance  of  the  husband  or  father  is  intended  as  a  gift,  is 
unreasonable  where  property  so  conveyed  consists  of  his  entire 

Pgf Q f p 

Skahen  vs.  Irving,  206  111.  597;  Pool  vs.  Phillips,  167  111.  432;  See 
also,  Konser  vs.  Kouser,  219  111.  466;  Bachseits  vs.  Leiehtweis, 
256  111.  357. 

Burden  of  Proof: 

—  In  General:  One  who  asserts  a  resulting  trust  has  the  bur- 
den of  proving  facts  from  which  the  law  will  raise  a  trust  and 
establish  title  contrary  to  record  legal  title. 

Metropolitan  Bauk  vs.   Perry,   259   111..  183;    Stephens  vs.   St.   Louis 
Trust  Co.,  260  111.  364. 
The  burden  of  proof  is  upon  party  who  asserts  existence  of  an 
implied  trust. 

Lord  vs.  Eeed,  254  111.  350;  Hogue  vs.  Steel,  207  111.  340;  VanBuskirk 

vs.  VanBuskirk,  148  111.  9 ;  Sturman  vs.  Streamer,  70  111.  188. 

Evidence  must  be  clear,  strong,  unequivocal,  unmistakable  and 

must  establish  the  fact  of  payment  by  alleged  beneficiary  beyond 

doubt.     Where  payment  of  a  part  only  is  claimed,  the  evidence 

must  show  in  the  same  clear  manner  the  exact  portion  of  the  whole 

price  which  was  paid. 

Lord  vs.  Eeed,  254  111.  350;  Wells  vs.  Messenger,  249  111.  72;  Van- 
Buskirk vs.  VanBuskirk,  148  111.  9. 
As  a  general  rule,  the  policy  of  the  law  requires  that  every- 
thing which  may  affect  the  title  to  real  estate  shall  be  in  writ- 
ing, that  nothing  shall  be  left  to  the  frailty  of  human  meniory,  or 
as  a  temptation  to  perjury;  and  whenever  this  policy  of  the  law- 
has  been  broken  in  upon  and  parol  evidence  admitted,  the  courts 
have  ever  been  careful  to  examine  into  every  circumstance  which 
may  affect  the  probability  of  the  alleged  claim,  as  the  lapse  of 
time,  the  means  of  knowledge  and  circumstances  of  the  witness, 
and  will  not  grant  the  relief  sought  where  the  claim  has  been 
allowed  to  lie  dormant  for  an  unreasonable  length  of  time,  or 
where  the  evidence  is  not  very  clear,  in  support  of  _  the  alleged 
right,  especially  where  no  claim  has  been  set  up  during  the  life- 
time of  the  trustee,  but  is  raked  up  and  charged  against  his  heirs, 
who  may  not  be  supposed  to  know  anything  about  it  or  be  able  to 
defend  it  as  their  ancestor  might  have  done. 

Kueper  vs.  Mette,  239  111.  586;  Cline  vs.  Cline,  204  111.  130;  Pickler 
vs.  Piekler,  180  111.  169;  Natl.  Bank  vs.  Beeslev,  159  111.  120;  Towle 
vs.  Wadsworth,  147  111.  SO ;  Smith  vs.  Smith,  144  111.  299. 

—  Behutfing  Presumption  of  Advancement:  The  burden  of 
proof  is  upon  the  party  claiming  a  resulting  trust  to  show  that 
a  gift,  advancement  or  settlement  was  not  intended,  but  that  a 

trust  was. 

Deuter  vs.  Deuter,  214  111.  308;   Dorman  vs.  Dorman,  187  111.  154; 
Johnson  vs.  Johnson,  138  111.  385. 
And  the  presumption  of  fact,  when  a  deed  is  made  to  the  wife, 


1256  TRUSTS 

that  it  was  a  gift  of  advancement,  must  prevail  until  overcome 

or  rebutted. 

Smith  vs.  Smith,  144  111.  299. 

—  Fiduciary  Relations:     See  Fiduciary  Relations. 
Admissibility  of  Evidence : 

—  Parol:     A   resulting   trust   arises  not   from   the   contract   or 

agreement  of  the  parties,  but  from  their  acts  and  such  a  trust  may 

be  established  by  parol  evidence. 

Lord  vs.  Eeed,  254  111.  350;  Kiiepper  vs.  Mette,  239  111.  586;  Hilt  vs. 
Simpson,  230  111.  170;  Springer  vs.  Kroeschell,  161  111.  358;  Mason 
vs.  Showalter,  85  111.  133. 

The  Statute  of  Frauds  was  no  application  to  a  resulting  trust. 
Froemke  vs.  Marks,  259  111.  146. 

—  Admissions  of  Grantee:     It  is  allowable  to  prove  by  parol 

that   party   holding   legal   title    admitted   that   another   person's 

money  was  paid  for  the  land. 

Dorman  vs.  Dorman,  187  111.  154;  Springer  vs.  Kroeschell,  161  111. 
358 ;  Corder  vs.  Corder,  124  111.  229 ;  XIV  111.  Notes  926,  §  250. 

And  the  death  of  the  nominal  purchaser  does  not  affect  admis- 
sibility of  such  parol  testimony,  whatever  effect  it  may  have  on 

its  weight. 

Van  Biiskirk  vs.  Van  Buskirk,  148  111.  9;  Eyder  vs.  Emrich,  104 
111.  470. 
There  is  a  clear  distinction  between  proof  of  the  declarations 
of  grantee  to  effect  that  he  holds  title  for  another  or  has  agreed 
to  convey  to  another,  and  his  declarations  or  admissions  to  the 
effect  that  another  person's  money  was  paid  for  the  land.  Dec- 
larations of  the  latter  class  are  entitled  to  more  weight  than  those 
of  former  class,  especially  when  they  are  corroborated  by  cir- 
cumstances and  attended  by  proof  of  some  previous  arrangement 

under  which  the  money  was  advanced. 

Wells  vs.   Messenger,   249   111.   72;   VanBuskirk  vs.   VanBuskirk,   148 
•   111.  9. 

—  Admissions  of  Grantor:     The  declarations  of  grantor  of  land, 

made  out  of  presence  of  grantee,  are  not  competent  evidence  to 

establish  a  resulting  trust  against  him. 
Francis  vs.  Eoades,  146  111.  635. 

But  the  evidence  of  the  grantors  in  a  deed,  purporting  to  con- 
vey a  joint  title  to  the  grantees  is  not  incompetent  on  the  ground 
of  impeaching  the  title  conveyed  where  such  evidence  tends  merely 

to  show  that  such  title  as  to  one-half  interest  was  held  in  trust. 
Boyd  vs.  Boyd,  163  111.  611. 

—  Declarations  of  Cestui  Que  Trust:    Are  not  admissible  in  his 

favor  or  that  of  his  privies,  unless  made  at  time  of  purchase  so 

as  to  form  part  of  res  gestae.     But  may  be  used  as:ainst  him. 
Lord  vs.  Reed.  254  111.  350;  Corder  vs.' Corder,  124  111.  229. 

Competency  of  Widow  to  Establish: 

See  Husband  and  Wife. 
EXPRESS  TRUSTS: 

Admissibility  of  Evidence: 

—  Parol  to  Create :  An  express  trust  in  land  cannot  be  estab- 
lished by  parol  evidence  where  Statute  of  Frauds  is  interposed 

as  a  defense. 

Eyder  vs.  Eyder,  244  111.  297;  Dick  vs.  Dick,  172  111.  578;  Kyle  vs. 
Wills,  166  111.  501;  Batcheller  vs.  Bateheller,  144  111.  471;  XIV 
111.  Notes  898,   §  19. 


TRUSTS  1257 

Though  there  be  an  agreement  or  understanding  between  the 

parties,    such    as    the    law    woukl    imply,    no    express    trust    is 

created, 

Brennaman  vs.  Schell,  212  111.  356;  Furber  vs.  Page,  143  111.  622. 

A  trust  need  not  be  created,  but  must  be  proven,  by  writing, 

Euans  vs.  Curtis,  190  111.  197. 

—  Parol  to  Aid:     If  the  writing  makes  clear  the  existence  of 

the  trust,  the  terms  may  be  supplied  aliunde. 

Fox  vs.  Fox,  250  111.  384;  Cagncy  vs.  O'Brien,  83  111.  72. 

So  parol  evidence  may  be  received  to  explain  and  complete  the 

trust,  if  it  is  imperfectly  expressed. 

Kiugsbury  vs.  Burnside,  58  111.  310. 

—  Parol  to  Vary  Writing:  Where  terms  are  sufficiently  clear 
to  enable  court  to  ascertain  terms,  parol  testimony  cannot  be  in- 
troduced. Proof  of  circumstances  surrounding  parties  and  prop- 
erty cannot  be  received  to  vary  terms,  conditions  and  limitations 

of  deed,  but  as  to  these,  instrument  must  speak  for  itself. 
Walton  vs.  Follansbee,  165  111.  480. 

—  Parol  to  Establish  Lost  Writing:  Where  the  writing  relied 
upon  by  complainant  in  bill  to  declare  a  trust  as  satisfying  the 
Statute  of  Frauds  has  been  lost  or  destroyed,  or  where  party  in 
whose  possession  the  writing  is  or  should  be  refuses  to  produce 
it  or  denies  its  existence,  contents  of  the  instrument  may  be  shown 
by  parol  proof  which  is  reasonably  clear  and  certain  in  character. 

Hiss  vs.  Hiss,  228  111.  414. 

—  Antecedent  or  Contemporaneous  Acts:  Antecedent  or  con- 
temporaneous acts  or  facts  fairly  to  be  considered  as  part  of  trans- 
action are  admissible. 

Pool  vs.  Phillips,  167  111.  432. 

—  Admissions  of  Grantee:    An  express  trust  in  land  cannot  be 

established  by  proof  of  oral  admissions  of  party  sought  to  be 

charged  as  trustee. 

W.   S.   Mining  Co.  vs.  Hnltberg,   220   111.   578;    Stepehenson  vs.   Mc- 
Clintock,  141  111.  604;  Champlin  vs.  Champlin,  136  111.  309. 

But  admissions  are  competent  to  show  whose  money  was  used. 
Stepehenson  vs.  McClintock,  141  111.  604. 

—  Declarations  of  Grantor:  Declarations  of  grantor,  out  of 
presence  of  grantee,  to  effect  that  deed,  although  absolute  in  form, 
was  in  fact  upon  trust  for  benefit  of  others  after  grantee's  death, 
are  not  admissible  to  impeach  grantee's  title. 

Ryder  vs.  Ryder,  244  111.  297. 

—  Admissions  in  Pleadings:  AYhere  a  grantee  in  deed  absolute 
in  form  waives  or  does  not  claim  benefit  of  Statute  of  Frauds,  and 
declares  in  his  answer  to  a  bill  of  chancery  that  he  holds  the  land 
under  an  express  trust  not  evidenced  by  writing,  but  that  he  is 
unable  to  recall  precise  terms  and  conditions,  such  terms  and 
conditions  may  be  proven  by  parol. 

Myers  vs.  jNIyers,  167  111.  52, 
After  the  holder  of  the  legal  title  to  land  has  divested  himself  of 
all  interest  and  title  in  same  by  absolute  deed,  any  subsequent  dec- 
larations by  him  whether  in  deposition  or  writing  or  otherwise,  can 
not  affect  the  title  and  charge  the  premises  with  a  trust. 

Stnl)bings  vs.  Stubbing?,  248  111.  406;  Myers  vs.  Myers,  167  111.  52; 
Phillips  vs.  South  Park  Comrs.,  119  111.  626. 


1258  TIIUSTS 

—  Admissions  in  Depositions:  A  parol  trust  is  not  taken  out  of 
Statute  of  Frauds  by  deposition  of  party  to  be  charged,  taken  under 
compulsion,  as  such  deposition  cannot  be  given  any  greater  force 
than  a  sworn  answer,  and  latter  will  not  be  used  as  a  declaration  of 
trust  where  defendant  sets  up  statute  of  frauds  in  bar. 

' '  It  Avill  be  conceded  that  the  deposition  cannot  be  given  greater 
force  than  a  sworn  answer ;  and  the  doctrine  is  that  even  if  defend- 
ant confesses  the  parol  trust  in  his  answer,  yet  if  he,  at  same  time, 
sets  up  Statute  of  Frauds  and  Perjuries  in  bar,  he  will  have  the 
benefit  of  the  statute,  and  court  will  not  use  the  answer  as  a  written 
declaration  and  proof  of  the  trust.  The  firmly  established  doctrine 
is  that  even  where  the  answer  confesses  the  parol  agreement,  if  it 
insists,  by  way  of  defense,  upon  the  protection  of  the  statute,  the 
defense  must  prevail  as  competent  bar.  A  party  who  insists  upon 
his  statutory  right  and  does  not  suljmit  or  waive  it  cannot  be  legally 
bound  by  a  declaration  or  creation  of  trust  which  statute  declares 

to  be  utterly  void  and  of  no  effect. " 

Davis  vs.  Stambaugh,  163  111.  557. 

Cf.  A  deposition  signed  and  sworn  to  by  a  grantee,  and  volun- 
tarily produced  and  filed  by  him  in  his  owai  behalf  in  proceeding 
to  set  aside  his  deed,  may  be  resorted  to  in  all  its  parts,  even 
though  it  is  partly  incompetent  to  be  received  in  evidence,  in 
order  to  establish  a  trust  in  the  property  covered  by  the  deed 
which  is  manifested  and  declared  by  him  in  such  deposition. 

Court  says:  "In  this  instance,  the  trust  is  sufficiently  mani- 
fested and  proved  by  deposition  voluntarily  signed  and  sworn  to 
by  appellant  and  produced  by  him  in  his  own  behalf,  and  caused 
by  him  to  be  filed  in  the  cause  as  being  competent  evidence  in  his 
behalf.  Though  not  competent,  in  some  of  its  parts,  to  be  received 
as  evidence,  the  deposition  is,  as  to  other  statements  therein  made, 
competent  testimony,  and  having  been  voluntarily  made  by  the 
appellant  and  produced  by  him  in  his  own  behalf,  it  may  be  re- 
sorted to  in  all  its  parts  to  establish  the  trust  therein  manifested 
and  declared." 

Kellogg  vs.  Pecldioord,  ISl  111.  22. 

Weight  and  Sufficiency  of  Writing's: 

—  In  General:  No  particular  form  of  words  is  necessary  to 
create  a  trust.  If  the  Meriting  states  a  definite  subject  and  object, 
it  is  not  necessary  that  every  element  required  to  constitute  it  be 
expressed  in  detail  as  parol  is  admissible  to  make  clear  the  details. 

Fox  vs.  Fox,  250  111.  384;  XIV  111.  Notes  893,  §  1. 

—  Letters  and  Informal  Writings:    Letters,  memoraiida  or  other 

informal  writings  may  manifest  an  express  trust,  provided  the 

object  and  nature  of  the  trust  appear  with  sufficient  certainty. 

Wlietsler  vs.  Sprague,  224  111.  461;  Union  Mnt.  Ins,  Co.  vs.  Campbell, 
95  111.  267;   Kingsbury  vs.  Burnsides.  58  111.  310. 

It  is  not  necessary,  in  order  that  a  writing  shall  be  deemed  suffi- 
cient to  manifest  a  trust,  that  it  shall  have  been  framed  for  the 
purpose  of  acknowledging  the  trust.  It  is  sufficient  if  the  recog- 
nition or  admission  of  it  is  even  incidentally  made  in  writing  as  in 
the  course  of  a  correspondence,  or  in  a  receipt  or  a  memorandum. 


USAGE  1259 

provided  the  object  and  nature  of  the  trust  appear  with  sufficient 
certainty  from  such  document. 

^I\rosher  vs.  Fimk,  194  111.  351;   Kellogg  vs.  Peddlcord,   ISl    111.  22; 
Moore  vs.  Pii-kett,  62  111.  158. 

—  Memorandum  Bool; :  Memoranda  in  a  book  kept  by  the  holder 
of  legal  title  to  a  lot,  showing  cost  of  house  built  thereon  and 
amount  contributed  by  other  persons,  do  not  manifest  a  trust  in 
favor  of  such  other  persons,  where  tliere  is  nothing  which  purports 
to  state  any  agreement  with  reference  to  the  property  or  liability 
or  understanding  in  that  regard.  (Court  says:  "There  is  no  sig- 
nature in  any  place  in  the  book.") 

Humphrey  vs.  Hiuluall,  233  111.  185. 

—  Will:  A  will  executed  by  grantee  stating  real  estate  conveyed 
by  deed  to  him  to  be  in  trust  for  payment  to  grantor  of  a  certain 
annuit}'  during  latter 's  lifetime,  sufficiently  manifests  existence  of 

trust,  within  meaning  of  Statute  of  Frauds. 
Hiss  vs.  Hiss,  228  111.  414. 

—  Signing  of  Writings:  An  unsigned  writing  may  be  sufficient 
to  prove  express  trust. 

Ward  vs.  Conkliu,  232  111.  553. 
But  memoranda  in  book  insufficient.    Court  says,  "No  signature 
any  place  in  book." 

Humphrey  vs.  Hudnall,  233  111.  185. 
(Note :  In  Whetsler  vs.  Sprague,  224  111.  461 ;  Union  Mut.  Ins. 
Co.  vs.  Campbell,  95  111.  267;  Kingsbury  vs.  l)urnside,  58  111. 
310;  Mosher  vs.  Funk,  194  111.  351;  Kellogg  vs.  Peddicord,  181  111. 
22;  Moore  vs.  Pickett,  62  111.  158,  it  appears  that  the  ^Tilings  in 
question  were  signed.  See  also,  Champlin  vs.  Champlin,  136  111. 
309.) 

TRUSTS  EX  MALEFIGIO: 
Presumptions: 

To  raise  a  trust  ex  maleficio,  there  must  be  an  element  of  positive 
fraud  in  the  transaction  as  distinguished  from  the  mere  refusal  of 
the  alleged  trustee  to  execute  an  express  trust  or  a  denial  of  its 

McHenry  vs.  MelTenry,  248  111.  506;  Eyder  vs.  Eyder,  244  HI.  297; 
Davis  vs.  Stambaugh,  163  111.  557. 
A  trust  is  not  established  by  proof  of  a  mere  parol  promise  of 
grantee  to  hold  title  to  property  in  trust,  unattended  by  any  fraud 

in  procuring  the  conveyance. 

Evans  vs.  Moore,  247  111.  60. 


UNDUE  INS'LUENCE 

See  Duress,  Fiduciary  Relations,  Parent  and  Child,  Sanity, 
AND  Insanity,  Wills. 


USAGE 

See  Custom  and  Usage. 


1260  USURY 

USE  AND  OCCUPATION 

See  Adverse  Possession,  Ejectment,  Title,  Possession,  Cloud 
ON  Title. 


USURY 

Defined: 

To  constitute  usury,  within  the  prohibition  of  law,  there  must 
be  an  intention  to  knowingly  contract  for  and  take  usurious  inter- 
est; for  if  neither  party  take  it,  but  act  bona  fide  and  innocently, 

the  law  will  not  infer  a  corrupt  agreement. 
Tiaiuor  vs.  Savings  Bank,  102  App.  604. 

Presumptions : 

—  In  General:    Usury  is  not  presumed,  it  must  be  shown. 

Wilson  vs.  Kirby,  88  111.  566;  Giddiugs  vs.  McCumber,  51  App.  373; 
XIV  111.  Notes  943,  §  54. 

—  Usury  Upon  Face  of  Instrument:     Where  the  contract  upon 

its  face  imports  usury,  there  is  no  room  for  presumption,  for  the 

intent  is  apparent;  res  ipsa  loquitur. 

Trainor  vs.  Savings  Bank,  102  App.  604. 

—  Foreign  Law:  If  a  note  or  contract  governed  by  the  laws  of 
another  state  provides  for  payment  of  interest,  and  recovery  is 
sought  for  such  interest,  in  order  to  make  the  defense  that  the 
agreement  is  usurious  and  invalid  under  such  law,  such  defense 
that  the  agreement  is  invalid  must  be  averred  and  proven  like  any 
other  fact,  for  the  reason  that  our  courts  cannot  judicially  notice 

what  such  foreign  law  may  be. 

Dearlove  vs.  Edwards,  166  111.  610. 
But  a  party  suing  on  a  note  made  and  to  be  paid  in  a  foreign 
state  need  not  plead  or  prove  the  interest  law  of  such  foreign  state 
even  though  the  note  bears  a  higher  rate  of  interest  than  is  allowed 
by  law  in  Illinois,  as  the  plaintiff  is  not  relying  on  foreign  law,  but 
upon  the  contract,  and  if  the  latter  is  usurious,  the  burden  is  upon 

the  defendant  to  prove  it  so. 

Walker  vs.  Lovitt,  250  111.  543. 

—  Principal  and  Agent:  Where  one  deposited  money  to  the  ac- 
count of  another  with  privilege  of  loaning  it,  stipulating  that  it 
should  net  the  owner  ten  per  cent,  such  person  becomes  the  gen- 
eral agent  of  the  owner ;  and  if  the  agent  exacts  usury  upon  his 
loans,  the  principal  is  presumed  to  have  known  and  authorized 
it.  Unless  such  presumption  of  knowledge  is  rebutted,  the  trans- 
action will  be  usurious. 

Stevens  vs.  Meers,  11  App.  138;  Affd.,  106  111.  549;  Matzenbaugh  vs. 
Tronp,  36  App.  261;  Payne  vs.  Newcomb,  100  111.  611. 

Burden  of  Proof: 

One  alleging  that  a  transaction  is  usurious  has  the  burden  of 

establishing  the  fact  by  a  preponderance  of  the  evidence. 

Garlick  vs.  Mutual  L.  &  B.  Assn.,  236  111.  232 ;  Hotehkiss  vs.  Norwood 
Park  Assn.  229  111.  248;  Gantzer  vs.  Schmeltz,  206  111.  560;  Al)1)ott 
vs.  Stone,  172  111.  634;  Telford  vs.  Garrels,  132  111.  550;  Kinholz 
vs.  Wolf.  103  111.  362;  Bovlston  vs.  Bain,  90  111.  283;  Cabe  vs. 
Guyer,  139  App.  592 ;  XIV  111.  Notes  943,  §  53. 


USURY  1261 

Or  that  a  provision  for  attorney's  fees  was  intended  as  a  cover 

for  usury. 

Mumford  vs.  Tolman,  157  111.  25S;  Farmer's  Bank  vs.  Barton,  21  App. 
403. 

Admissibility  of  Evidence : 

—  Contract  Xot  Conclusive:  The  form  of  the  contract  is  not 
conclusive  of  the  question  of  usury,  and  resort  to  extrinsic  evi- 
dence may  be  had  without  regard  to  whether  there  is  any  ambiguity 
in  the  contract,  for  the  reason  that  the  charge  of  usury  raises  a 
question  of  the  legality  of  the  transaction  to  the  extent  that  usury, 

under  the  statute,  renders  contracts  illegal  and  void. 

Clemens  vs.  Crane,  234  111.  215;  Brove  vs.  Strawn,  14  111.  94. 

—  Intent  May  Be  Considered:  In  determining  whether  the 
essential  elements  of  usury  are  present  in  a  particular  case,  the 
intention  of  the  parties,  as  the  same  appears  from  the  facts  and 
circumstances  of  the  case,  may  be  considered  in  connection  with 

other  evidence. 

Clemens  vs.  Crane,  234  111.  215. 
In  determining  whether  a  provision  for  interest  at  a  larger  rate 
after  maturity  is  penalty  or  usury,  intention  of  parties  governs. 

Cooper  vs.  Nock,  27' 111.  301. 

—  Correspondence  of  Parties:    Is  competent. 

Clemens  vs.  Crane,  234  111.  215. 
"Where  contract  is  on  its  face  not  usurious,  but  may  be  a  cover 
for  usury,  extrinsic  evidence  is  admissible  to  show  the  real  trans- 
action. 

Wolsey  vs.  Neeley,  46  App.  387;  Davis  vs.  Eider,  53  III.  416;   Earll 
vs.  Mitchell,  22  111.  530. 

—  Parol  Testimony:    Is  admissible  to  establish  fact  of  a  usurious 

contract. 

Kidder  vs.  Vandersloot,  114  111.  133;  Brand  vs.  Henderson,  107  111. 
141;  Hewitt  vs.  Dement,  57  111.  500;  McGuire  vs.  Campbell,  58  App. 
188 ;  McGill  vs.  Ware,  5  111.  21. 
Usury  may  be  proven  by  parol  and  as  a  consequence  the  writ- 
ten contracts  of  the  parties  may,  by  the  same  kind  of  evidence,  be 
varied  or  contradicted.     Such  evidence  is  competent  to  show  that 
a  contract  in  form  of  absolute  sale  was  in  truth  but  a  security  for 

an  usurious  loan. 

Ferguson  vs.  Sutphen,  8  111.  547. 
Parol  evidence  is  competent  to  show  that  a  written  contract  pro- 
viding for  usury  was  result  of  mistake  of  fact. 
Wollschlager  vs.  MeEldowney,  96  App.  34. 
After  death  of  creditor,  debtor  is  incompetent  to  prove  usury. 
Buck  vs.  Beekly,  45  lU.  100. 

Weight  and  Sufficiency: 

One  who  raises  a  defense  of  usury  to  a  foreclosure  proceeding 

by  a  loan  association  must  establish,  by  a  preponderance  of  the 

evidence,  that  the  particular  loan,  and  not  other  loans  to  other 

persons,  was  usurious. 

Hotchkiss  vs.  Norwood  Park  Assn.,  229  HI.  249. 

To  establish  a  charge  of  usury,  the  evidence  must  be  clear  and 

satisfactory. 

Bishopp  vs.  Blair,  90  App.  64. 
The  defense  of  usury  is  regarded  in  the  nature  of  a  penal  ac- 
tion, and  not  only  is  great  strictness  required  in  the  pleadings, 


1262  VALUE 

but  the  contract  must  be  proven  as  alleged,  by  a  clear  preponder- 
ance of  the  evidence. 

Hosier  vs.  Morton,  83  111.  519. 

The  taking  of  usurious  interest  is  prima  facie  evidence  of  a 

usurious  contract. 

Keinback  vs.  Crabtree,  77  111.  182. 

Pleading : 

—  Common  Laiu  Action:  Under  a  plea  of  set-off,  the  defendant 
cannot  establish  usury.  Such  a  defense  should  be  made  by  a  direct 
plea. 

Haddon  vs.  Innes,  24  111.  382;  Farmers  Bank  vs.  Barton,  21  App.  403. 
As  usury  renders  the  contract  void  at  common  law,  it  could  be 
proven  under  a  plea  of  non-assumpsit,  like  any  other  defense 
which  shows  contract  void,  released  or  discharged.  But  under 
our  statute  the  creditor  only  forfeits  the  entire  interest,  and  hence 
the  defense  does  not  render  the  contract  void  or  defeat  a  recovery 
of  the  principal,  and  the  reason  for  allowing  the  defense  under  a 
plea  of  non-assumpsit  does  not  apply,  and  the  defense  of  usury 
must  be  made  by  a  special  plea  under  our  statute. 

Frank  vs.  Morris,  57  ill.  138. 

To  make  the  defense  of  usury  to  a  note  made  in  another  state, 

the  defendant  should  plead  the  statute  of  such  state,  if  there  be 

one,  which  the  note  violated.     Without  such  statute,  there  could 

be  no  defense,  for  ' '  usury  is  illegal  only  as  it  is  made  so  by  statute. ' ' 

Gidding  vs.  McCumber,  51  App.  373. 

—  Chancery:    To  be  taken  advantage  of  usury  must  be  pleaded. 

Nat.  Life  Ins.  Co.  vs.  Donovan,  238  111.  283;  Alderton  vs.  Conger,  78 

App.  533;  Home  B.  &  L.  Assn.  vs.  McKay,  217  111.  551. 

If  a  defendant  in  suit  in  equity  desires  to  make   defense  of 

usury,  he  must,  in  his  pleadings,  allege  facts  showing  wherein  usury 

exists.     A  general  charge  of  usury  in  an  answer  is  not  sufficient. 

This  is  so,  although  the  answer  is  unsworn. 

Goodwin  vs.  Bishop,  145  111.  421;  Stanley  vs.  T,  &  S.  Bank,  1G5  111. 
295;  See  Farrand  vs.  Long,  184  111.  100. 
A  plea  or  answer  in  chancery  setting  up  usury  as  a  defense  must 
set  out  specifically  in  what  the  usury  consists,  and  the  proof  must 

sustain  the  specific  allegations. 

Hoskins  vs.  Cole,  34  App.  541. 

And  the  proof  must  be  restricted  to  the  allegations. 
Home  B.  &  L.  Assn.  vs.  McKay,  217  111.  551. 

On  foreclosure,  usury  was  interposed  as  defense.  At  a  subse- 
quent stage  of  the  cause,  by  amended  answer,  defendant  alleged 
that  the  clause  in  the  contract  in  respect  to  which  the  question  of 
usury  arose,  was  an  unauthorized  alteration  of  the  contract  after 
execution  and  delivery.  But  it  was  considered  that  the  defense  of 
usury  impliedly  admitted  the  execution  of  the  contract  with  that 

clause  in  it. 

McNail  vs.  Welch,  125  III.  6213. 


VALUE 

See  Market  Price,  Larceny,  Eminent  Domain,  Expert  and 
Opinion,  "Work  and   Services,   Dower,  Medical  and   Surgical 


VALUE  1263 

Services,   Life   Tables,   Physicians  and   Surgeons,  Attorneys. 
Admissibility  of  Evidence : 

—  In  General:    The  cost  of  a  thing  is  some  evidence  of  its  value, 

but  is  not  conclusive. 

T.  n.  &  1.  Co.  vs.  Smith,  65  A  pp.  101  ;  XII  111.  Notes  482,  §  63. 

Nor  evidence  of  value  on  any  certain  day  or  particular  time. 

C.  &  N.  W.  Ey.  Co.  vs.  Boone  Co.,  44  HI.  240;  Eobinson  vs.  Alexan- 
der, 141  App.  192;  Spaar  vs.  Slakis,  180  App.  304. 

In  the  absence  of  any  other  evidence  a  certain  presumption  or 

inference  as  to  value  might  be  drawn  from  purchase  price. 
Bates  vs.  Nylierg-  Aiito  Works,   170  App.  301. 

Where  a  corporation  agrees  with  its  employe  who  had  pur- 
chased materials  and  dies,  intending  to  go  into  business  for  him- 
self, to  pay  him  the  value  of  such  materials  as  it  wanted  and  could 
use  in  filling  orders,  the  question  of  what  the  employe  paid  for 
such  materials  is  immaterial  in   action  to  recover  the  value   of 

those  taken  and  used  by  it. 

Greenburg  vs.  ChUds  &  Co.,  242  111.  110. 

A  public  sale  may  furnish  satisfactory,  though  not  always  con- 
clusive, proof  of  the  value  of  the  thing  sold. 
Waldo  vs.  Gray,  14  111.  184. 

Price  paid  at  judicial  sale  is  some  evidence  of  value. 
Hodyshell  vs.  Gary,  21  App.  288. 

The  price  realized  for  property  at  a  sheriff's  sale  on  execution 

is  not  conclusive  of  its  value,  but  only  evidence  to  be  considered 

in  connection  with  other  testimony  on  the  question. 

Roberts  vs.  Dnnn,  71  111.  46. 

—  Offers:  In  order  to  prove  the  value  of  property,  it  is  not 
competent  to  prove  offers  for  the  property  itself  or  other  property 
similarly  situated  in  the  vicinity. 

Private  offers  could  be  multiplied  to  any  extent  and  the  bad 
faith  in  which  they  were  made,  if  so  made,  would  be  difficult  to 

prove. 

Crosby  vs.  Dorward,  248  111.  471;  C.  B.  &  D.  Ry.  Co.  vs.  Kelly,  221 
111.  498. 
The  fair  cash  market  value  of  property  is  not  to  be  in  any  wise 
determined  by  mere  offers  made  therefor  by  persons  not  bound 

to  execute  same. 

White  vs.  Kiggins,  130  App.  404. 

Where  no  market  value,  it  is  proper  to  show  what  others  would 

be  likely  to  give. 

Morrison  vs.  Smith,  130  111.  304. 
In  absence  of  evidence  of  actual  sales  offers  to  purchase  for  cash 
are  admissible.     The  haua  fides  of  an  offer  and  the  weight  to  be 
given  the  evidence  are  questions  for  the  jury. 

City  of  Chicago  vs.  Lehmann,  262  111.  468. 

—  Similar  Sales:  One  method  of  showing  value  is  to  prove 
sales  of  similar  property  in  the  immediate  vicinity,  but  such  sales 
must  have  been  in  the  open  market  and  not  compulsory. 

West  Skokie  Dr.  Dist.  vs.  Dawson,  243  111.  175 ;  C.  &  W.  I.  R.  R.  Co. 
vs.  Heidenreich,  254  111.  231;  I'eoria  Gas  Co.  vs.  Peoria  Rv.  Co., 
146  111.  372;  C.  &  S.  L.  Ey.  Co.  vs.  Mines,  221  111.  448;'Aledo 
Term.  Ry.  Co.  vs.  Butler,  246  111.  406;  St.  L.  &  I.  B.  Ry.  Co.  vs. 
Guswelle"  236  111.  214;  Elmore  vs.  Johnson,  143  111.  513;  O 'Hare 
vs.  C.  M.  &  N.  Ry.  Co.,  139  111.  151 ;  XII  111.  Notes  487,  §  93. 


1264  VALUE 

—  Tax  Schedules:    Tax  schedule  made  by  party  is  not  admis 

sible  as  against  him  to  show  vahiation. 

Knickerbocker  Ins.  Co.  vs.  McGinnis,  87  111.  70;  Burdick  vs.  Valerius, 
172  App.  2G7;  Kelly  vs.  People's  Nat.  Fire  Ins.  Co.,  262  111.  158. 
Nor  is  assessor's  book  of  assessed  value. 
County  of  Mercier  vs.  Wolff,  237  111.  74. 

—  Admissio)is:    While  an  offer  of  the  owner  of  property  to  sell 

at  a  certain  price  is  not  conclusive  evidence  of  its  value,  yet  such 

offer  is  competent  evidence  against  him  as  an  admission  in  fixing 

the  value  at  or  near  the  time  the  offer  was  made. 
Springer  vs.  City  of  Chicago,  135  111.  552. 

^0  admissions  of  deceased  ancestor,  made  while  owner  of  the 

land,  are  admissible  on  the  question  of  value,  as  against  the  heirs 

succeeding  to  his  title. 

Hunter  vs.  Sanitary  District,  179  App.   172. 

—  Expert  and  Opinion:    Opinion  evidence  is  admissible  on  the 

question  of  value. 

P.  B.  &  C.  Trac.  Co.  vs.  Vance,  251  111.  263 ;  C.  P.  &  M.  Ey.  Co.  vs. 

Mitchell,   159   111.   406;   C.   P.   &   St.  L.   Ky.   Co.   vs.   Nix,   137   111. 

141;   L.   S.   &  M.   S.   Ey.   Co.  vs.  B.   &  O.   Ey.   Co.,   149   111.   272; 

Sanitary  District  vs.  P.  F.  &  C.  Ey.  Co.,  216  111.  575;   C.  &  E.  I. 

Ey.  Co.  vs.  Blake,  116  111.  163 ;  XIV  111.  Notes  522,  §  372. 

Witnesses  may  give  opinions  as  to  value  of  property,  and  the 

weight  to  be  given  such  opinions  is  to  be  determined  from  thf; 

knowledge  and  experience  of  the  witnesses  and  their  capacity  to 

form  a  judgment,  but  such  opinions  are  in  no  proper  sense  expert 

testimony,  to  be  based  upon  hypothetical  statements  of  facts.    All 

persons  who  are  acquainted  with  property,  and  have  opinions  of 

its  value,  may  give  their  opinions  to  the  jury,  together  with  their 

knowledge  of  the  property  and  the  facts  upon  which  the  opinions 

are  based. 

C.  &  \7.  I.  Ey.  Co.  vs.  Heidenreich,  254  111.  231. 

Opinions  of  witnesses  as  to  values  may  be  based  upon  a  hypo- 
thetical statement  of  what  has  already  been  proven  in  the  case, 
— as  to  the  quality,  conditions  and  situation  of  the  property — as 
well  as  upon  their  own  actual  observation. 
C.  &  A.  E.  R.  Co.  vs.  Glenny,  175  111.  238. 

Evidence  of  value  of  goods  should  be  the  individual  opinions 

of  witnesses,  and  not  repetitions  of  valuation  contained  upon  a 

paper  which  they  have  examined. 

I.  C.  R.  E.  Co.  vs.  Seitz,  105  App.  89. 

The  value  of  articles  in  universal  use  need  not  be  proven  by  an 

expert. 

Hey  vs.  Hawkins,  120  App.  483. 

Every  one  is  supposed  to  have  some  idea  of  the  value  of  such 
property  as  is  in  general  use,  and  it  is  not  necessary  to  have  a 
butcher  or  drover  to  prove  the  value  of  a  cow. 

O.  &  M.  Ey.  Co.  vs.  Irvin,  27  111.  178;  O.  &  M.  Ey.  Co.  vs.  Taylor, 
27  111.  207. 
In  suit  for  damages  for  breach  of  contract  to  buy  lumber,  wit- 
nesses who  have  some  knowledge  of  the  value  of  lumber  are  com- 
petent on  the  question  of  damages,  as  the  extent  of  their  knowledge 

affects  only  the  weight  of  their  testimony. 
Franklin  vs.  Krum,  171  111.  378. 


VENUE  1265 

One  who  has  bought  buggies  and  who  is  familiar  with  their 

value  in  Chicago,  is  competent  to  give  opinion  as  to  such  value. 

Maiss  vs.  Met.  Amuse.  Assn.  146  App.  196. 

The  owner  of  household  goods  may  testify  as  to  their  value. 

Sinamacher  vs.  Kose,  62  App.   118. 
Testimony  compounded  of  fact  and  opinion  in  valuing  the  use ' 
of  property  by  those  acquainted  with  the  kind  and  its  uses,  is 
proper  for  consideration  in  establishing  damages  in  replevin. 
Butler  vs.  Mehrling,  15  111.  488. 

Evidence  of  the  value  of  an  amusement  park  "privileges,"  esti- 
mated by  guessing  at  or  stipulating  upon  future  uncertain  prof- 
its, is  incompetent.     Elements  or  facts  which  support  the  esti- 
mate must  be  given  in  order  to  render  it  competent. 
Favar  vs.  Eivervievv  Park,  144  App.  86. 

The  value  of  property  may  be  proven  in  a  variety  of  modes,  and 
a  party  is  not  limited  to  one  to  the  exclusion  of  the  others.  There 
is,  therefore,  no  error  in  allowing  a  witness  to  testify  as  to  the 
value  of  a  portion  of  the  property  in  controversy,  as  by  ascertaining 
the  value  of  a  portion,  the  jury  may  be  enabled  to  determine 
whether  the  estimated  value  of  the  whole  property  is  correct. 
Winslow  vs.  Newlan,  45  111.  145. 

In  action  of  trespass  to  recover  value  of  personal  property,  proof 

of  value  of  the  various  articles  may  be  made  in  gross. 
Keegan  vs.  Harlan,  134  App.  363. 

In  action  against  officer  for  negligence  in  failing  to  make  levy, 

or  for  making  insufficient  levy,  proof  of  market  value  by  opinions 

of  witnesses  is  improper;  amount  brought  or  what  it  would  have 

brought  at  forced  sale  is  best  evidence. 

French  vs.  Snyder,  30  111.  339;  Gilbert  vs.  Gallup,  76  App.  526. 

VENDOR  AND  PURCHASER 

See  Admissions  and  Declarations,  Consideration,  Description, 
Identity,  Parol,  Rescission,  Specific  Performance,  Statute  of 
Frauds. 

VENUE 

In  General: 

The  local  jurisdiction  of  all  offenses  not  otherwise  provided 
by  law  shall  be  in  the  county  where  offense  is  committed.  The 
crime  of  larceny  is  made  an  exception  and  the  offender  may  be 
tried  in  any  county  to  which  he  carries  the  stolen  property,  as 
well  as  in  the  county  in  which  the  property  was  first  taken.  This 
rule,  however,  has  no  application  to  any  other  crime  than  larceny. 
Graham  vs.  People,  181  111.  477. 

And  hence  does  not  apply  to  offense  of  receiving  stolen  prop- 
erty. 

Campbell  vs.  People,  109  111.  565. 

Circumstances  which  make  it  doubtful  or  difficult  to  determine 
in  which  of  two  counties  an  oft'ense  is  committed,  is  sufficient  proof 
of  the  allegation  that  it  was  committed  in  the  county  named. 
Watt  vs.  People,  126  111.  9 ;  XI  111.  Notes  1246,  §  168. 
Ev.— 80 


1266  VENUE 

The  burden  is  then,  by  well  settled  rules  of  pleading  and  evi- 
dence, upon  the  State,  in  default  of  specific  proof  of  the  venue  of 
the  alleged  ott'ense,  to  prove  ' '  that  it  cannot  readily  be  determined 
in  what  county  the  offense  was  committed,"  and  "that  which  the 
People  are  required  to  prove,  the  defendant  is  at  liberty  to  dis- 
prove. ' ' 

Watt  vs.  I'eople,  126  111.  9. 

Necessity  of  Proof: 

Where  an  offense  charged  in  the  indictment  is  not  proven  on 

the  trial  to  have  been  committed  in  the  county  and  the  defendant 

is  convicted,  judgment  will  be  set  aside  and  a  new  trial  awarded. 

Jackson  vs.   People,  40   111.   405;   Eice  vs.   People,   38   111.   435;    Sat- 

tler  vs.   People,   59   111.   68;    Dougherty  vs.   People,   118   111.    160; 

Moore  vs.  People,  150  111.  405. 

But  the  Jocks  quo  of  an  offense  need  not  be  proven  precisely  as 

laid,  where  the  place  of  the  commission  of  the  offense  is  not  material 

thereto. 

Bergstrasser  vs.  People,  134  App.  609. 

Weight  and  Sufficiency: 

—  Degree  of  Proof:     Venue  is  not  an  element  of  the  crime  to 

be  proven  beyond  a  reasonable  doubt. 
People  vs.  Mcintosh,  242  111.  603. 

It  is  proven  if  there  is  evidence  from  which  it  can  be  reasonably 

inferred  that  the  crime  was  committed  within  the  jurisdiction  where 

the  prosecution  takes  place. 

People  vs.  Mcintosh,  242  111.  603;  Langdon  vs.  People,  133  111.  382. 

It  is  sufficient  proof  of  venue  if  the  evidence,  as  a  whole,  leaves 

no  reasonable  doubt  as  to  the  act  having  been  committed  at  the 

place  laid  in  indictment,  even  though  no  one  testified  in  express 

words  where  offense  was  committed. 

Weinberg  vs.   People,   208  111.   15;    Porter  vs.   People,   158  111.   370; 
Sullivan   vs.    People,    114   111.    24. 

Venue  of  an  offense  may  be  proven  like  any  other  fact  in  a 

criminal  case.    It  need  not  be  established  by  positive  testimony  nor 

in  the  words  of  the  information,  but  if,  from  facts  appearing  in 

evidence,  the  only  rational  conclusion  which  can  be  drawn  is  that 

the  offense  was  committed  in  the  county  alleged,  it  is  sufficient. 
Weinberg  vs.  People,  208  111.   15. 

Failure  of  prosecution  to  prove  tlie  venue  of  the  offense  may 

be  aided  by   testimony  of  defendant  himself,   given  in   his  own 

behalf. 

Porter  vs.  People,  158  111.  370. 

—  Judicial  Notice:  "Court  will  take  judicial  notice  that  Chi- 
cago is  in  Cook  County.  It  is  proved  the  offense  was  committed 
on  'Emerson  Avenue,'  and  that  is  a  street  in  Chicago.  Proof 
that  a  crime  was  committed  in  Chicago  is  proof  that  it  was  com- 
mitted in  Cook  county.  This  evidence,  with  the  affirmative  fact 
that  it  appears  from  the  record  the  trial  was  had  in  Cook  county, 
is  sufficient  to  support  the  finding  of  the  jury  that  the  offense 
was  committed  in  county  of  Cook."  Opinion  does  not  note  that 
any  witness  testified  as  to  what  state. 

Sullivan  vs.  People,  122  111.  385. 
But  where  indictment  charged  commission  of  offense  in  Madi- 
son county,  proof  that  it  was  committed  in  Upper  Alton,  without 


VENUE  1267 

showing  ill  what  county  or  state   Upper  Alton  is  situated,   lield 

insufficient  to  warrant  a  conviction. 

Moore  vs.  People,  150  111.  405. 

Courts  take  judicial  notice  of  incorporated  cities  or  villages. 
Huston  vs.  People,  53  App.  501. 

On  trial  for  misdemeanor,  court  will  take  judicial  notice  that 
a  township  of  the  county  is  in  the  county  without  proof,  for  the 
purpose  of  proving  the  venue  laid  in  the  information. 
Corusboek  vs.  People,  56  App.  467. 

■ — -Attempt  to  Commit:     The  statutory  crime  of  doing  an  act 

in  attempting  to  commit  a  crime  is  punishable  in  the  county  where 

the  crime,  unless  prevented,  would  have  been  committed. 
Graliam  vs.  People,  181  111.  477. 

—  Ahandonment  of  Wife:  The  venue  in  a  prosecution  against 
a  husband  for  abandoning  his  wife  and  children  is  properly  laid 
in  the  county  where  the  wife  and  children  are  sent  by  him  and 
where  they  become  dependent,  no  matter  where  the  husband  may 
be  residing  at  the  time. 

Johnson  vs.  People,  QQ  App.  103. 

• — Emhczzlement:  "It  was  proven  that  Spaulding  had  his 
private  office  and  his  office  as  treasurer  of  the  university  at  the 
Monadnock  building  in  Chicago,  in  Cook  County,  Illinois,  where 
the  Globe  Savings  Bank,  of  which  he  was  president,  had  its  loca- 
tion, and  that  he  transacted  his  business  there  as  treasurer  and 
otherwise,  and  kept  the  bonds  which  he  held  as  treasurer  there, 
in  the  vaults  of  said  bank;  that  the  bonds  were  delivered  to  the 
First  National  Bank  of  Chicago  by  Spaulding  on  September  14, 
1895,  and  had  been  continuously  in  its  possession  from  that  time 
to  the  trial,  and  that  demand  had  been  made  upon  Spaulding  in 
said  city  of  Chicago  by  his  successor,  as  treasurer,  for  said  bonds, 
and  that  Spaulding  failed  to  deliver  them  to  him.  The  proof 
should  have  been  more  specific,  but  we  think  the  jury  were  au- 
thorized to  find  that  the  venue  was  proven." 
Spaulding  vs.  People,  172  111.  40. 

—  Extortion  as  an  Officer:  Where  a  person  was  indicted  for 
extortion  as  an  officer  in  county  named,  but  there  was  no  evi- 
dence in  the  record  that  the  offense,  if  any,  was  committed  in  such 
county,  it  was  held  that  same  was  a  material  averment  and  must 

be  shown. 

Ferkel  vs.  People,  16  App.  310. 

—  Confidence  Game :    Should  be  instituted  in  the  county  where 

most  of  the  acts  preparatory  to  crime  were  committed,  and  where 

money  was  obtained. 

Graham  vs.  People,  181  111.  477;  XIV  111.  Notes  1235,  §  51. 

—  Forgery:  The  delivery  of  a  forged  note  justifies  an  infer- 
ence that  it  was  forged  at  the  place  of  delivery,  if  there  is  no  evi- 
dence tending  to  show  it  was  forged  elsewhere. 

In  prosecution  for  forging  a  promissory  note,  proof  that  de- 
fendant had  an  office  in  county  where  prosecution  is  had,  where 
he  wrote  notes  and  mortgages  and  that  he  received  and  receipted 
for  his  client's  money  at  such  office,  tends  to  show  that  note, 
which  he  subsequently  delivered  to  his  client  at  latter 's  residence 
in  another  comity,  and  which  purported  to  be  signed  by  another 


1268  VIEW  BY  JURY 

person  residing  in  county  where  prosecution  is  had,  was  forged 
in  latter  county,  and  not  in  county  where  note  was  delivered. 

People  ys.  Mcintosh,  242  111.  602. 
Proof  that  a  note  was  forged  by  defendant  and  that  he  at- 
tempted to  pass  it  in   county  where  indicted,   is  evidence   that 
forgery  was  committed  in  that  county,  in  absence  of  other  proof 
of  where  it  was  forged. 

Bland  vs.  People,  4  111.  364. 

—  Intoxicating  Liquors:  Court  says:  ''There  is  no  incor- 
porated city  or  village  in  Henderson  county  called  Media.  We 
cannot  presume  that  a  collection  of  houses  called  by  that  name 
is  located  within  the  boundaries  of  Plenderson  County.  Proof 
of  sales  in  Media,  Illinois,  is  not  proof  of  venue." 

Huston  vs.  People,  53  App.  501. 

—  Homicide:  Alleged  to  have  been  committed  in  Cook  county, 
Illinois ;  witnesses  referred  to  streets  and  localities  by  name,  with- 
out indicating  what  county,  or  even  in  what  city  they  are,  and 
did  not  mention  any  fact  or  circumstance  showing  by  necessary 
inference,  that  such  streets  or  localities  must  be  in  city  of  Chi- 
cago, or  elsewhere  in  Cook  County,  Held,  that  as  the  record  failed 
to  show  any  proof  of  venu.e  of  the  crime,  a  conviction  therefor 
could  not  be  sustained. 

Dougherty  vs.  People,  118  111.  160. 

—  Receiving  Stolen  Property:  Jurisdiction  is  local.  Statute 
as  to  larceny  has  no  application. 

Campbell  vs.  People,  109  111.  565;  Weinberg  vs.  People,  208  111.  15. 

—  Rohhery:  Proof  that  offense  was  committed  on  Washington 
Street,  Peoria,  Illinois,  is  proof  that  it  happened  in  Peoria  county. 

Sullivan  vs.  People,  114  111.  24. 
— •  Rape :  In  prosecution  for  rape,  it  being  shown  where  prose- 
cuting witness  lived,  and  that  offense  was  committed  at  home  of 
defendant,  testimony  of  prosecuting  witness  that  defendant  lived 
"not  far  away"  or  "just  a  little  ways  over"  is  insufficient  to 
establish  place  of  commission  of  crime. 
Porter  vs.  People,  158  111.  370. 


VIEW  BY  JURY 

See  Eminent  Domain,  Age. 
General  Rule : 

—  Discretion  of  Court:  It  is  within  the  power  of  the  court  to 
permit  a  personal  view  by  jury,  if  the  court,  in  exercise  of  sound 
discretion,  considers  such  view  necessary  or  proper  to  enable  jury 
to  better  understand  and  apply  the  evidence.  But  such  view  or 
the  facts  ascertained  by  jury  upon  such  view  cannot  of  itself,  or 
themselves,  be  considered  as  evidence  in  arriving  at  verdict.  The 
only  purpose  of  permitting  jury  to  inspect  and  view  the  locus  in 
quo  is  to  better  enable  them  to  understand  the  matter  in  contro- 
versy between  the  parties,  and  to  clear  up  any  obscurity  that 
might  exist  in  the  application  of  the  evidence  introduced  in  the 


VIEW  BY  JURY  1269 

case.     The  jury  is  not  authorized  to  consider  any  fact  bearing 

upon  the  merits  of  the  controversy  derived  from  such  view. 

Geohegan  vs.  Union  El.  E.  R.  Co.,  258  111.  352;  Rich  vs.  City  of 
Chicago,  187  111.  396  j  Osgood  vs.  City  of  Chicago,  154  111.  194; 
Vane  vs.  City  of  Evanstou,  150  111.  616;  Springer  vs.  City  of 
Chicago,  135  111.  552;  Payson  vs.  Village  of  Milan,  144  App.  204; 
XIV  111.  Notes  843,  §  38. 

When  the  court,  in  exercise  of  its  descretion,  or  by  consent,  has 
permitted  a  view  of  premises  in  question,  it  is  en^or  to  instruct 
the  jury  that  the  verdict  may  be  predicated  upon  such  view  in 
disregard  of  what  the  evidence  might  otherwise  have  established. 
(Action  for  damage  to  real  estate.) 

Payson  vs.  Village  of  Milan,  144  App.  204;  City  of  Chicago  vs. 
McShane,  102  App.  239;  Petzel  vs.  C.  &  N.  W.  Ey.  Co.,  103  App. 
210. 

Qucarc:  May  view  by  mutual  consent  in  common  law  case 
become  evidence? 

Cf.,  Payson  vs.  Village  of  Milan,  144  App.  204;  Culbertson  Prov. 
Co.  vs.  Chicago,  111  111.  651. 

In  eminent  domain,  information  acquired  by  jury  from  per- 
sonal view  and  inspection  is  properly  considered  by  them  in  con- 
nection with  all  the  evidence  in  the  case. 

E.   St.   Louis  vs.   Trust   Co.,   248   111.   559;    C.   O.   &   P.   Ey.   Co.   vs. 
Eausch,  245  111.  477;  Martin  vs.  C.  &  M.  Ry.  Co.,  220  111.  97;  I.  & 
M.  Ry.  Co.  vs.  Humiston,  208  111.  100;  C.  &  S.  R.  R.  Co.,  vs.  Her- 
man, 206  111.  34;  Vane  vs.  City  of  Evanston,  150  111.  616. 
But  cannot  disregard  entirely  the  evidence  heard  in  open  court 
and  fix  the  damages  upon  view  of  premises  alone. 

H.  &  S.  R.  R.  Co.  vs.  Nolte,  243  111.  594;  Sou.  Park  Comrs.  vs.  Ayer, 
237  111.  211;  C.  &  S.  L.  Ry.  Co.  vs.  Miner,  221  111.  449. 

But  should  base  verdict  upon  own  judgment  derived  from  per- 
sonal inspection,  together  with  opinions  of  witnesses,  and  not 
upon  opinions  alone. 

City  of  Springfield  vs.  Dalby,  139  111.  34;  E.  &  W.  I.  Ry.  Co.  vs. 
Miller,  201  111.  413. 

When  Allowed: 

Is  not  confined  to  real  actions,  but  is  allowed  in  personal  actions 
for  injury  to  real  estate,  as  trespass  quare  clausem  f regit,  tres- 
pass on  the  case  and  nuisance. 

Vane  vs.  City  of  Evanston,  150  111.  616;  Springer  vs.  City  of  Chicago, 
135  111.  552. 

A  view  of  the  premises  is  authorized  in  cases  where  property 
is  alleged  to  have  been  taken  or  damaged,  and  while  the  infor- 
mation is  not  evidence,  yet  it  better  enables  the  jury  to  under- 
stand and  apply  the  evidence. 

Petzel  vs.  C.  &  N.  W.  Ry.  Co.,  103  App.  210. 

Injury  to  real  property. 

Osgood  vs.  City  of  Chicago,  154  111.  194;  Springer  vs.  City  of  Chicago, 
i35  111.  552  ■;  C.  P.  &  St.  L.  Ry.  Co.  vs.  Leah,  41  App.  585 ;  Payson 
vs.  Village  of  Milan,  144  App.  204;  Cf.,  Doud  vs.  Guthrie,  13  App. 
653;  St.  L.  A.  &  T.  H.  Ry.  Co.  vs.  Claunch,  41  App.  592. 

Jury's  view  of  premises  in  action  for  damages  to  real  estate 
is  not  evidence. 

Geohegan  vs.  Un.  El.  Ry.  Co.,  258  111.  352. 
Special  assessments. 

Rich  vs.  Citv  of  Chicago.  187  111.  396;  Vane  vs.  City  of  Evanston, 
150  111.  616;  Pike  vs.  City  of  Chicago,  155  111.  656, 


1270  VIEW  BY  JURY 

In  Snell  vs.  Evans  &  Son,  55  App.  670,  Assumpsit  on  build- 
ing coutraet,  question  as  to  whether  same  had  been  done  accord- 
ing to  contract  being  involved,  trial  court  refused  personal  view 
and  it  is  said  by  court  that  in  such  case,  practice  does  not  obtain 
in  this  state. 

In  City  of  Springfield  vs.  McCarty,  75  App.  388,  action  for 
injury  to  person,  held  not  error  in  trial  court  denying  motion  to 
permit  personal  view. 
Practice : 

—  Time  of  View :  After  jury  was  impaneled  and  before  trial 
commenced,  court  on  motion  of  defendant  permitted  jury,  in 
charge  of  officer,  to  go  upon  and  view  the  premises. 

Springer  vs.  City  of  Chicago,  135  111.  552. 

"With  permission  of  court  and   by  agreement  of  counsel,   dur- 
ing progress  of  trial,  jury  made  personal  view  of  premises. 
L.  E.  &  W.  Ey.  Co.  vs.  Purcell,  75  App.  573. 

—  Distance:     Jury  allow^ed  to  travel  twelve  miles. 

Vane  vs.  City  of  Evanston,  150  111.  616. 

—  Territorial  Jurisdiction:  Jury  cannot  be  sent  on  view  out- 
side territorial  jurisdiction  of  court,  even  though  change  of  venue 
was  had. 

T.  M.  &  N.  Ey.  Co.  vs.  Haws,  194  111.  92 ;  E.  E.  &  St.  L.  Ey.  Co.  vs. 
Coppinger,  66  111.  510. 

Misconduct  of  Jury: 

The  parties,  during  the  separation  of  jury,  are  not  permitted 
to  show  them  unusual  civilities,  and  attention,  and  such  atten- 
tion practiced  by  the  successful  party,  his  counsel  or  partisans, 
and  which  excite  the  suspicion  as  to  the  motives  of  the  parties  or 
the  effect  upon  the  jury,  will  ordinarily  afford  sufficient  ground 
for  the  granting  of  a  new  trial.  And  furnishing  jurors  with  re- 
freshments and  the  like,  the  extension  to  and  acceptance  by  them 
of  gratuities,  or,  indeed,  any  other  approach  to  the  jury,  cast- 
ing suspicion  that  they  have  been  tampered  with  or  that  their 
verdict  has  been  improperly  influenced,  not  satisfactorily  explained, 
will  ordinarily  avoid  the  verdict,  whether  there  was  any  actual 
intent  or  design  to  influence  them  or  not. 

It  does  not,  however,  follow,  that  customary  offers  of  civilities, 
or  ordinary  hospitality  or  courtesy  extended  by  the  successful 
litigants,  when  not  designed  and  calculated  to  influence  the  juror 
or  jurors  in  their  consideration  of  the  case,  and  which  are  devoid 
of  suspicion,  will  afford  sufficient  ground  for  setting  verdict 
aside. 

Vane  vs.  City  of  Evanston,  150  111.  616 ;  XIII  HI.  Notes  973,  §  30. 

In  proceeding  to  confirm  a  special  assessment  by  a  city,  while 
jury  were  out  of  court,  viewing  the  property  assessed,  they  were 
furnished  a  free  lunch  by  the  attorney  for  the  city.  It  appeared 
that  the  lunch  was  given  on  the  suggestion  of  the  court  before  the 
jury  went.  It  was  not  shown  that  the  jury,  or  any  of  them,  knew, 
before  they  were  finally  discharged,  that  the  lunch  had  been  pro- 
vided at  the  expense  of  the  city:  Held,  not  cause  such  as  to  viti- 
ate the  verdict  in  favor  of  the  city. 

Vane  vs.  City  of  Evanston,  150 'ill.  616. 


I 


VISION  1271 

In  action  for  damages  to  plaintiff's  land  by  erection  by  de- 
fendants of  dikes  in  the  river,  the  court  announced  that  the  jury 
would  be  sent  out  to  make  a  view,  if  either  or  both  parties  would 
pay  the  expenses.  Plaintiff  refused  to  pay  any  portion  of  such 
expenses  and  protested  against  the  proposed  view.  Thereupon 
counsel  for  defendants,  in  presence  and  hearing  of  jury,  announced 
they  Avould  pay  all  the  expenses  of  the  trip.  The  jury  proceeded 
to  the  place,  twelve  miles  by  rail,  were  then  taken  in  defendant's 
conveyances  to  the  river,  but  wholly  avoided  visiting  plaintiff's 
premises.  Held,  that  it  would  be  a  reproach  on  the  administra- 
tion of  the  law  to  suffer  a  verdict  obtained  under  such  circum- 
stances to  stand. 

Doud  vs.  Guthrie,  13  App.  653. 

Unauthorized  View: 

In  suit  where  one  of  the  questions  before  the  jury  was  whether 
certain  furniture  was  made  in  a  workmanlike  manner,  one  of 
the  jurors,  while  the  trial  was  in  progress,  without  permission, 
visited  the  place  where  the  furniture  was  stored,  and  made  an 
examination  of  it.  This  was  done  without  the  knowledge  or  con- 
sent of  plaintiff'.  Before  the  case  was  finally  submitted  to  the 
jury,  defendant  was  informed  of  this  conduct  of  juror,  but  he 
failed  to  notify  the  court  of  it  or  interpose  any  objection  to  the 
trial  proceeding,  but  remained  silent.  Held,  the  conduct  of  the 
juror  M^as  irregular  and  unlawful,  but  that  the  defendant,  by 
remaining  silent  after  he  became  aware  of  it,  waived  his  right 
to  object  after  the  verdict  was  rendered.  r-' 

Stampofski  vs.  Steffens,  79  111.  303. 

Locus  in  quo  of  accident  in  action  for  injury  to  person. 

City  of  Slielb\-i-ille  vs.  Brant,  61  App.  153. 
Injury  to  real  property. 

Schlitz  Brew.  Co.  vs.  Compton,  46  App.  34. 

View  by  Judge: 

On  information  in  equity  to  enjoin,  parties  agreed  to  inspec- 
tion by  judge,  and  he  did  so,  and  same  was  approved. 
People  vs.  Gen.  Elec.  Ey.  Co.,  172  111.  129. 


VILLAGE 

See  Judicial  Notice,  Ordinances,  Records. 

VOICE 

See  Identity,  Telephone  Conversations. 

VISION 

See  Expert  and  Opinion,  Experiments. 


1272  VOIR  DIRE 

VOIR  DIRE 

COMPETENCY  OP  WITNESSES: 
Interest : 

Presumption:     One  offered  as  a  witness  is  presumed  to  be 

competent. 

Boyd  vs.  McConnell,  209  111.  396;  XIV  111.  Notes  1117,  §  47. 

—  Burden  of  Proof:    Burden  of  proof  is  upon  party  asserting 

incompetency. 

Standley  vs.  Moss,  114  Api).  612. 

—  Time  of  Objection:  In  regard  to  the  time  of  taking  objec- 
tions to  the  competency  of  a  witness  on  the  ground  of  interest, 
it  is  obvious,  from  the  preliminary  nature  of  the  objection,  it 
ought  in  general  to  be  taken  before  the  witness  is  examined  in 

chief. 

Standley  vs.  Moss,  114  App.  612;  Campbell  vs.  Campbell,  130  111.  466.^ 

—  Mode  of  Determining  Interest:  There  are  two  modes  of 
determining  the  interest  of  the  witness:  first,  by  exannnation  on 

his  voir  dire,  and  second,  by  extrinsic  evidence. 

Campbell  vs.  Campbell,  130  111.  466;  White  Mem.  Home  vs.  Haeg,  204 
111.  422. 
A  witness  who  is  objected  to  because  of  interest  in  the  event 
of  the  suit  may  be  examined  on  his  voir  dire  or  his  interest  may 
be  shown  by  other  witnesses,  but  resort  cannot  be  had  to  both 
sources  nor  can  the  witness  objected  to  be  called  to  contradict 
those  who  have  testified  as  to  his  qualification. 

Diversy  vs.  Will,  28  111.  216;  Walker  vs.  Collier,  37  111.  363. 

Mental  Capacity: 

—  Infants:     Preliminary  inquiry  should  be  made. 

Sokel  vs.  People,  212  111.  238;  Featherstone  vs.  People,  194  111.  325. 
A  child  fourteen  years  of  age  is  j^^inia  facie   competent.     If 

below  that  age  inquiry  should  be  made. 

Bullock  Motor  Co.  vs.  James,   174  App.  201. 
Competency  to  testify  is  determined  by  an  inquiry  as  to  the 
strength  of  his  mental  faculties  and  his  power  to  understand  and 
appreciate  the  moral  duty  to  speak  the  truth.     This  inquiry  is 

to  advise  the  trial  judge. 

Shannon  vs.  Swanson,  208  111.  52 ;  Draper  vs.  Draper,  68  111.  17. 

The  decision  of  this  matter  may  be  reviewed  but  the  intelli- 
gence of  the  witness  is  to  be  ascertained  to  some  extent  by  his 
appearance  and  conduct  while  in  the  presence  of  the  court,  and 
as  the  judge  is  vested  with  a  degree  of  discretion,  it  is  only  when 
there  has  been  an  abuse  of  discretion  or  a  manifest  abuse  of  some 

legal  principle  that  the  decision  will  be  reviewed. 
Shannon  vs.  Swanson,  208  111.  52. 
—  Weak  Minded  Person:     Competency  of,   as  a  witness,  is  a 

question  of  law  for  the  court. 

Kelly  vs.  People,  29  111.  287;  People  vs.  Enright,  256  111.  221. 
What  weight  shall  be  given  to  the  testimony  of  a  weak-minded 

person  is  a  question  for  the  jury. 

Sokel  vs.  People,  212  111.  238;  Featherstone  vs.  People,  194  111.  325; 
Moffitt  vs.  Sou.  Park  Comrs.,  138  111.  620;   Epstein  vs.  Berkowsky, 
64  App.  498. 
If  a  party  knows  before  the  trial  that  the  witness  is  incom- 
petent on  account  of  mental  condition  the  objection  must  be  made 


WAGES,  EARNING  CAPACITY,  ETC.  1273 

before  lie  has  given  any  testimony,  and  if  the  objection  appears 
upon  the  trial,  it  must  be  interposed  as  soon  as  it  becomes  apparent. 

People  vs.  Enright,  256  HI.  221. 


VOLUMINOUS  ACCOUNTS 

See  Book  Keeper,  Books  of  Account, 

VOLUNTARY  CONVEYANCES 

See  Acknowledgments,  Advancements,  Consideration,  De- 
livery, Husband  and  Wife,  Infants,  Parent  and  Child,  Pre- 
sumptions, Reformation  of  Intruments,  Trusts. 

VOTER 

See  Contested  Elections,  Immunity. 


WAGES,  EARNING  CAPACITY  AND  DOMESTIC 

RELATIONS 

See  Pecuniary  Circumstances,  Dram  Shops,  Homicide 
INJURY  TO  PERSON : 
Action  by  Injured: 

—  Domestic  Relations:  The  domestic  relations  or  the  depend- 
ency of  others  upon  plaintiff  is  wholly  irrelevant  and  admission 
is  error. 

McCarthy  vs.  Spring  Valley  Coal  Co.,  232  111.  473;   Jones  &  Adams 

Co.  vs.  George,  227  111.  64;  City  of  Joliet  vs.  Conway,  119  111.  489; 

City  of  Chicago  vs.  O'Brennan,  65  111.  160;  Cowen  vs.  E.  St.  L.  Ry. 

Co.,  169  App.  236;  Merrill  vs.  Mich.  Cent.  Ey.  Co.,  158  App.  38. 
Plaintiff  should  not  be  permitted  to  testify  as  to  his  family. 

Frick  vs.  A.  E.  &  C.  Ey.  Co.,  154  App.  277;  I.  C.  E.  E.  Co.  vs.  Eoths- 

child,  134  App.  504;  C.  E.  I.  &  P.  Ey.  Co.  vs.  Steckman,  125  App. 

299. 

Family  may  be  excluded  from  court  room. 

Barnett  vs.  Noble,  155  App.  129. 
Where  impotency  is  alleged  as  a  result  of  injury,  proof  of  fact 
that  plaintiff'  had  one  child  is  proper,  where  the  specific  purpose 
at  time  of  ott'er  is  stated  to  be  to  show  that  plaintiff  had  virility 
prior  to  injury. 

Postal  Tel.  Co.  vs.  Likes,  225  111.  250. 

—  Pecuniary  Circumstances:  Proof  of  the  financial  standing 
or  the  circumstances  of  the  parties  is  inadmissible. 

Jones  &  Adams  Co.  vs.  George,  227  111.  64;  Merrill  vs.  Mich.  Cent. 
E.  Co.,  158  App.  38;  Cowen  vs.  E.  St.  L.  Ey.  Co.,  169  App.  236; 
Penn.  Co.  vs.  Keane,  143  111.  172;  City  of  Joliet  vs.  Conway,  119 
111.  489;  City  of  Chicago  vs.  O'Brennan,  65  111.  160:  XII  111. 
Notes  40,  §  175. 


1274  WAGES,  EARNING  CAPACITY,  ETC. 

Proof  of  benefits  received  under  policy  of  accident  insurance  is 

incompetent. 

Con.  Coal  Co.  vs.  Shepard,  112  App.  458;   Cox  vs.  City  of  Chicago, 

83  App.  450. 

It  is  not  proper  for  an  attorney  to  directly  inform  jury  that  a 

defendant  is  insured  against  liability,  and  he  cannot  be  permitted  to 

accomplish  the  same  result  indirectly  in  examination  of  jurors, 

and  must  not  ask  questions  tending  to  inform  jury  that  defendant 

is  so  insured. 

Mithen  vs.  Jeffery,  259  111.  372. 

—  Inquiry   as   to   Earning    Capacity:    Proper   inquiry   is   the 

comparative  capacity  of  plaintiff  to  earn  money  at  time  of  and 

after  injury, 

Kuox  vs.  Amer.  EoU.  Mill.  Co.,  236  111.  437;  C.  &  J.  Ey.  Co.  vs.  Spence, 
213  111.  220. 

All  evidence  tending  to  show  the  character  of  plaintiff's  ordi- 
nary pursuits,  and  the  extent  to  which  the  injury  has  or  will  prevent 

him  from  following  such  pursuits  is  admissible. 

Graham  vs.  Mattoon  City  Ey.  Co.,  234  111.  483;  C.  &  J.  E.  Ey.  Co. 
vs.  Spence,  213  111.  220;  W.  Chi.  St.  Ey.  Co.  vs.  Daugherty,  209 
III.  241. 

Salary  earned  prior  must  not  be  too  remote  in  point  of  time,  nor 

concerning  occupation  abandoned  or  one  in  which  plaintiff  had  been 

supplanted. 

C.  &  J.  E.  Ey.  Co.  vs.  Spence,  213  111.  220;  W.  Chi.  St.  Ey.  vs.  Maday, 
188  111.  308. 

Proof  that  plaintiff,  a  coal  miner,  had  not  earned  as  much  since 

his  injury  as  before,  is  competent  on  question  of  damages,  and 

when  defendant,  to  meet  such  proof,  shows  by  the  book-keeper  at 

the  mine  that  the  wages  paid  to  plaintiff  since  his  injury  were 

about  the  same  as  before,  plaintiff  may  testify  in  rebuttal  that  he 

was  obliged  to  pay  part  of  his  wages  to  his  "buddy"  because  he 

could  not  do  heavy  work  since  his  injury, 

Pronskevitch  vs.  C.  &  A.  Ey.  Co.,  232   111.   136. 

Opinion  of  witness  as  to  the  pecuniary  value  of  his  services 

by  the  day  while  engaged  in  his  own  business  is  competent. 

C.  &  E.  I.  E.  E.  Co.  vs.  Bevans,  142  111.  401;  Schlumbrecht  vs.  Chi. 
City  Ey.   Co.,   153   App.   254. 

—  Income  of  Plaintiff:  Where  a  declaration  alleges  that  the 
injury  had  hindered  plaintiff  in  transacting  his  business,  where- 
fore he  is  damaged,  etc.,  plaintiff  may  show  what  his  business  was, 

what  he  was  earning  and  what  his  labor  was  worth. 

Village  of  Chatsworth  vs.  Eowe,  166  111.  114. 

Evidence  of  income   of   plaintiff',   before   and  after  injury,   is 

admissible  under  declaration  averring  he  had  been  prevented  from 

attending  to  his  usual  business,  and  from  earning  and  receiving 

large  gains  and  profits. 

C.  &  E.  I.  E.  E.  Co.  vs.  Meeoh,  163  111.  305. 

Where  it  appears  plaintiff  had  retired  from  business  and  was 
not,  at  time  of  accident,  engaged  in  any  business  whatever,  it  is 
incompetent  to  prove  what  he  had  made  in  business  prior  to 
injury,  since  that  was  result  of  circumstances  that  might  never  be 
repeated. 

Fisher  vs.  Jansen,  128  111.  549. 


WAGES,  EARNING  CAPACITY,  ETC.  1275 

—  Earnings  Prior  to  Injury:   Proof  of  wages  or  earnings  prior 

to  injury  is  admissible  where  general  damages,  only,  are  claimed, 

and  there  is  nothing  to  show  that  plaintiff  is  seeking  to  recover  for 

loss  of  profits  or  earnings  depending  upon  performance  of  special 

contract  or  engagement. 

Barnes   vs.    Danville   St.   Ey.   Co.,   235   111.   566. 

Proof  of  salary  received  by  plaintiff  ten  years  before  injury, 
when  he  was  younger  and  more  capable,  and  in  different  employ- 
ment, and  proof  of  salary  at  later  employment,  dependent  upon 
many   collateral  circumstances,   to   show  his  earning  capacity   at 

time  of  injury,  is  incompetent. 

C.  &  J.  E.  Ey.  Co.  vs.  Spence,  213  111.  220. 
Plaintiff  may  show  earnings  for  the  year  previous  to  injury,  in 

his  regular  occupation. 

Chi.  U.  Trac.  Co.  vs.  May,  221  111.  530. 
And  also  as  to  what  his  time  was  worth  per  day,  under  allega- 
tions that  he  had  been  prevented  from  attending  to  his  affairs  and 
business,  and  thereby  lost  great  gains  and  profits. 

Schlumbreeht   vs.   Chi.   City.   Ey.  Co.,   153  App.   254. 
A  question,  "what  were  your  services,  just  prior  to  this  time, 

fairly  and  reasonably  worth,"  is  proper. 

Barnes  vs.  Danville   St.  Ey.  Co.,   143   App.  259. 

—  Wages  from  Former  Employment:  Evidence  as  to  amount 
of  wages  earned  in  a  former  employment  is  competent  even  though 
he  had  quit  such  employment  at  time  of  accident,  and  was  earn- 
ing much  less,  if  such  employment  is  not  too  remote  from  time  of 

injury. 

W.  Chi.  St.  Ey.  Co.  vs.  Daugherty,  209  111.  241. 

Proof  that  plaintiff  earned  a  certain  wage  is  admissible  without 

proof  of  his  qualification  for  the  work,  or  that  his  services  were 

worth  what  he  received,  where  he  testifies  that  he  i)erformed  his 

work  satisfactorily  to  his  employer. 

Auiann  vs.  Chi.  Trac.  Co.,  243  111.  263. 

—  Inability  of  Pleiintiff  to  Work:  The  fact  that  plaintiff  was 
unable  to  find  work  is  not  an  element  of  damage.  But  if  incapac- 
itated on  account  of  injury,  same  may  be  shown. 

Weber  Wagon  Co.  vs.  Kehl,   139  111.  644. 

Where    evidence    shows   injury   largely   incapacitated   plaintiff 

from  performing  duties  involving  a  tax  upon  physical  strength, 

evidence  that  plaintiff  could  neither  read  nor  write  well  and  did 

not  have  sufficient  education  to  fill  a  clerical  position  is  admissible 

on  question  of  damages. 

Graham   vs.    Mattoon   City   Ey.   Co.,    234   111.   483. 

—  Special  Contracts  or  Engagements:  In  order  to  recover  com- 
pensation for  inability  to  work  at  plaintiff's  ordinary  and  usual 
employment  or  business,  all  that  is  necessary  in  the  declaration  is 
the  general  averment  of  such  inability,  caused  by  the  injury,  and 
consequent  loss  'and  damage,  and  proof  of  his  particular  employ- 
ment or  business,  and  of  his  ordinary  wages  or  earnings  therein,  is 
admissible  in  evidence  under  such  general  averment,  but  when  it 
is  sought  to  recover  for  loss  of  profits  or  earnings  that  depend  upon 
the  performance  of  a  special  contract  or  engagement,  then  these 


1276  WAGES,  EARNING  CAPACITY,  ETC. 

special  and  particular  damages,  and  the  facts  on  which  they  are 
based,  must  be  set  out  in  the  declaration. 

Chi    U.  Trac.   Co.  vs.  Bretbauer,  223   111.  521;   Chi.  City  Ey.  Co.  vs. 
Carroll,  206  111.  318;   C.  &  E.  K.  E.  Co.  vs.  Meech,  163   111.  305; 
XII  111.  Notes  40,  §  174. 
Testimony  that  plaintiff  had  worked  for  sixteen  years  in  rolling 
mill,  and  received  one  hundred  dollars  per  month,  but  that  about 
two  months  before  accident,  he  had  quit  the  mill,  and  at  time  of 
receiving  injury  was  working  as  a  laborer,  is  competent. 
W.    Chi.   St.   Ey.   Co.   vs.   Daugherty,   209   111.    241. 
When  declaration  contains  no  allegation  of  any  special  contract 
or  engagement  of  plaintiff,  by  which  he  might  earn  money  for  his 

services,  evidence  of  same  is  inadmissible. 

Wabash  Ey.  Co.  vs.  Friedman,   146  111.  583;    Chi.  City  Ey.  Co.  vs. 
Carroll,   206   111.  318. 

—  When  No  Special  Damages  Alleged:  Plaintiff  may  testify  as 
to  wages  received  at  time  of  injury,  although  there  is  no  allegation 
of  special  damages  in  the  declaration. 

111.  Steel  Co.  vs.  Eyska,  200  111.  208;  N.  Chi.  St.  Ey.  Co.  vs.  Brown, 
178  111.  187. 

—  Proiits:  Where  plaintiff's  business  at  time  of  injury  was 
that  of  a  jewelry  jobber,  the  income  from  which  was  dependent 
upon  his  personal  labor  and  supervision,  it  is  proper,  under  suitable 
allegations,  to  prove  how  much  money  he  made  per  month  for  the 
year  prior  to  his  injury,  even  though  he  styles  such  income  as 
"profits"  in  answering  a  question  of  the  court  as  to  whether  he 
meant  how  much  he  took  in  or  how  much  he  cleared, 

Chi.  U.  Trac.  Co.  vs.  Brethauer,   223   111.  521. 

Evidence  of  income  of  plaintiff  from  business,  based  in  part, 

in  addition  to  his  own  labor,  on  the  results  of  labor  of  employees 

or  investment  of  capital,  is  incompetent. 
C.  C.  Ey.  Co.  vs.  Flynn,  131  App.  502. 

Action  by  Personal  Representative: 

—  Measure  of  Earning  Capacity:  Proof  of  rate  of  earnings  of 
deceased,  in  a  business  where  he  had  been  two  years  continuously 
employed  by  the  same  company,  sufficiently  shows  the  fair  measure 
of  his  earning  capacity,  though  it  might  be  different  if  the  employ- 
ment had  been  shown  to  have  been  of  short  duration. 

111.  Steel  Co.  vs.  Ostrowski,  194  111.  376. 

—  Domestic  Relations:  Proof,  over  objection,  by  administra- 
trix, of  number  and  ages  of  children  left  by  deceased,  is  not  revers- 
ible error,  where  not  coupled  with  proof  that  such  children  were 
dependent  upon  deceased,  or  that  he  did,  in  fact,  support  them, 
and  where  the  court,  by  instruction,  explicitly  states  the  correct 

measure  of  damages. 

111.    Steel   Co.   vs.    Ostrowski,   194   111.   376. 

WRONGFUL  DEATH: 

Action  by  Personal  Representative: 

—  Domestic  Relations:  The  fact  that  deceased,  left  a  widow  or 
next  of  kin  is  a  matter  which  must  be  alleged  and  proven. 

Chi.  Term.  Trans.  Co.  vs.  Helbreg,  99  App.  563;   L.  S.  &  M.  S.  Ey. 
Co.  vs.  Hessions,  150  111.  546;   Conant  vs.  Griffin,  48  111.  410. 
But  proof  of  such  fact  on  part  of  defendant  relieves  plaintiff  of 
burden  of  proving  same,  and  is  sufficient  to  sustain  action. 
Conant  vs.  Griffin,  48  111.  410. 


WAGES,  EARNING  CAPACITY,  ETC.  1277 

And  it  is  only  necessary  to  allege  and  prove  the  existence  of 
widow  or  next  of  kin,  it  being  immaterial  who  they  are. 

Conant  vs.  Griffin,  48  111.   410. 

It  is  necessary  to  aver  and  prove  who  are  the  next  of  kin. 
Hughes   vs.   Danville   Brick   Co.,   180   App.    603. 

Question  of  variance  or  surprise  cannot  be  raised  on  trial  where 
declaration  contains  allegation  that  deceased  left  a  widow  or  next 
of  kin,  without  specifying  or  naming  the  person,  or  alleging  any 

more  specific  relationship. 

Quincy  Coal  Co.  vs.  Hood,  77  111.  68. 
But  where  declaration  limits  next  of  kin  to  the  father,  it  is  error 
to  admit  proof  of  others,  viz.,  a  mother  and  five  brothers  and  a 

Quincy  Coal  Co.  vs.  Hood,   77   111.   68. 
Number  and  ages  of  members  of  family  not  material  where  rela- 
tion is  lineal. 

C.  P.  &  St.  L.  Ry.  Co.  vs.  Woolridge,  174  111.  330. 

Details  as  to  number,  ages  and  sex  of  dependent  children  of 
widowed   daughter  of  deceased  held  incompetent  as   tending  to 

arouse  svmpathies  of  jury. 

Cook  vs.  C.  C.  C.  &  St.  L.  Ey.   Co.,  143  App.   109. 
Same  rule  applies  to  evidence  as  to  ages  and  sex  of  children  of 

deceased  at  time  of  his  death. 

St.  Louis  Ey.   Co.   vs.   Eawley,   90   App.    653. 
Admission   of  evidence  as  to   ages  of  surviving  children  held 

harmless  error. 

Hughes  vs.   Danville  Brick   Co..   180  App.   603. 
In  action  by  administratrix  for  wrongful  killing  of  her  intestate, 
it  is  material  error  to  admit  in  evidence  fact  that  adult  son  of 
deceased  was  a  cripple,  unable  to  do  hard  work  and  dependent 

upon  deceased  for  support. 

C.  P.  &  St.  L.  Ey.  Co.  vs.  Woolridge,   174  111.   333. 
In  suit  by  administratrix,  proof  that  tAvo  of  children  of  deceased 
had  died  in  infancy,  should  not  be  permitted  to  be  made,  under 
pretense  of  showing  who  are  next  of  kin. 

Zetsche  vs.  C.  P.   &  St.  L.   Ey.   Co.,   238  111.   240. 
Where  declaration  states  facts  truthfully  as  to  next  of  kin  of 
deceased,  it  is  not  error  to  pennit  proof  of  fact  that  a  child  was 

born  and  died  subsequent  to  death  of  deceased. 

Preble  vs.  Wabash  Ey.  Co.,  243  111.  340 ;  Contra,  S.  C,  149  App.  584. 

An  instruction  to  jury  that  in  estimating  pecuniary  injury  they 
might  take  into  consideration  the  instruction,  the  physical,  moral 
and  intellectual  training  of  minor  children  of  deceased  is  proper, 
where  there  is  evidence  tending  to  show  deceased  was  fitted  to  fur- 
nish such  instruction  and  training. 

Goddard  vs.  Enzler,  222  111.  462 ;  I.  C.  E.  E.  Co.  vs.  Weldon,  52  111. 
290;  Hughes  vs.  Danville  Brick  Co.,  180  App.  603  j  XII  111.  Notes 
62,   §58. 
—  Pecuniary  Circumstances:     Pecuniary  circumstances  of  those 

dependent  upon  deceased  can  not  be  shown. 

Penn.  Co.   vs.   Keane,   143   111.   172;    Hughes  vs.   Danville   Brick  Co., 
180  App.   603. 
Proof  as  to  pecuniary  circumstances  of  widow  is  incompetent. 
Preble   vs.    Wabash   Ey.    Co.,    243    111.    340. 


1278  WAGES,  EARNING  CAPACITY,  ETC. 

Proof  of  poverty,  wealth,  helplessness  or  dependency  of  lineal 

next  of  kin  is  improper. 

C.  p.  &  iSt.  L.  By.  Co.  vs.  Woolridge,  174  111.  330. 

And  this  is  not  affected  by  the  fact  that  deceased  supported  his 

family. 

St.  Louis  By.  Co.  vs.  Eawley,  90  App.  635. 

It  is  not  competent  to  show  what  the  pecuniary  circumstances 
of  the  widow,  family  or  next  of  kin  are  or  have  been  since  the 
decease  of  the  intestate,  but  it  is  competent  to  show  that  the  wife, 
chiklren  or  next  of  kin  were  dependent  upon  him   for  sujiport 

before  and  at  time  of  his  death. 

Swift  &  Co.  vs.  Foster,  163  111.  50. 
Evidence  as  to  whether  widow  or  next  of  kin  had  or  had  not 
other  pecuniary  resources  after  death  of  deceased  is  wholly  imma- 
terial on  question  of  damages. 

C.  &  N.   W.  By.   Co.   vs.   Moranda,   93  111.  302;   I.   C.  K.  E.  Co.  vs. 
Atwell,  198  111.  200;  Morris  Co.  vs.  Burgess,  44  App.  27. 

—  Wages  and  Earning  Capacity:     Evidence  of  amount  of  wages 

earned  by  deceased  is  competent. 

Preble  vs.  Wabash  Ey.  Co.,  149  App.  584;  Chi.  Term.  Trans,  Co.  vs. 
Helbreg,  99  App.  563. 

Such  proof  should  be  made. 

I.  C.  E.  E.  Co.  vs.  Weldon,  52  111.  290. 
Evidence  of  ability  to  work,  character  of  work  and  reasonable 
value  thereof  is  admissible.  The  fact  that  deceased  was  working 
for  estate  of  his  deceased  father  and  his  management  thereof  was 
not  valuable  to  estate,  does  not  render  same  inadmissible,  plaintiff 
receiving  support  therefrom. 

Foster  vs.  Shepard,  164  App.   199. 
Proof  of  earning  capacity  of  deceased,  based  on  opinion,  is  admis- 
sible. 

I.  C.  E.  E.  Co.  vs.  Andrews,   116   App.   8. 

—  Deceased  Support  or  Sole  Support:  Whether  the  wife  and 
children  were  supported  by  deceased  is  proper. 

Preble  vs.  Wabash  Ey.  Co.,  149  App.  584;  Chi.  Term.  Trans.  Co.  vs. 
111.  50;  P.  C.  C.  &  St.  L.  Ey  Co.  vs.  Kinnare,  203  111.  388;  Penn. 
Co.   vs.  Keane,   143   111.   172;    Hughes  vs.  Danville  Brick  Co.,   180 
App.  603. 
Widow  may  testify   that  she  was  supported  by  deceased,  her 
husband,  there  being  no  attempt  to  show  the  poverty  or  helpless- 
ness of  the  widow  but  merely  to  show  that  she  was  supported  by 

the  deceased. 

St.  L.  P.  &  N.  Ey.  Co.  vs.  Dorsey,  189  111.  251;  C.  &  A.  Ey  Co.  vs. 
May,  108  111.  288;   McMahon  vs.  Sankey,  133  111.  637;   Mayers  vs. 
Smith,   121  111.  442 ;   XII   HI.   Notes  60,   §  48. 
Question,  "Were  you  dependent  upon  your  husband  for  sup- 
port," is  proper. 

Preble  vs.  Wabash  Ey.  Co.,  243  111.   340. 

Question,  "Did  you  have  any  other  means  of  support,"  proper. 

Penn.   Co.   vs.   Keane,   143   111.   172. 
Where  evidence  shows  deceased  did  contribute  to  support  of  next 

of  kin,  it  is  not  necessary  to  prove  amount  contributed. 
O.  &  M.  Ey.  Co.  vs.  Wangelin,  43  App.  324. 
Where  deceased  left  a  mother  in  a  foreign  country,  and  there 
is  evidence  that  he  contributed  to  her  support,  the  money  being 


WAIVER  1279 

transmitted  by  money  orders,  it  is  proper  to  admit  in  evidence 

application  for  money  orders. 

Nordhaus   vs.   Vandalia   Ey.   Co.,   242   111.    166.  i 

Opinions  of  witnesses  as  to  expense  of  supporting  family  of  de- 
ceased, are  improper. 

O.   &  M.  Ey.   Co.  vs.  Sinis,  43  App.  262. 

Action  by  Widow: 

—  Domestic  Relations:  The  Mines  and  Miners  Act  contemplates 
recovery  of  the  entire  loss  by  the  widow,  if  there  is  one, — and  if 
there  is  no  widow,  the  right  of  action  is  conferred  upon  lineal  heirs 
or  adopted  children.  If  the  suit  is  by  the  widow,  proof  may  be 
made  as  to  whether  deceased  left  any  children. 

Cook  vs.  Big  Muddy  Mining  Company,  249  111.  41;   Kiilvie  vs.  Brun- 

sen  Coal  Col.,  253  111.  386;   Con.  Coal  Co.  vs.  MaeW,  130  111.  551; 

Beard   vs.   Slieldon,   113   111.   584;    Kellyville   Coal   Co.   vs.   Bruzas, 

125  App.  464. 

In  suit  by  widow  under  act  providing  for  protection  and  safety 

of  persons  in  and  about  construction  of  buildings,  proof  showing 

that  deceased  left  children  surviving,  and  the  number  and  ages 

thereof  is  competent. 

Claffy  vs.  Chi.  Dock  Co.,  253  111.  210. 

—  Pecuniary  Circumstances:  Proof  as  to  poverty  and  help- 
lessness of  family  is  incompetent. 

Kiilvie  vs."  Brunsen  Coal  Co.,  253  111.  386. 

In  action  under  Mines  and  Miners  Act,  proof  of  resources  of 

widow  or  next  of  kin  or  their  financial  condition  at  time  of  or  since 

death  of  deceased  is  not  competent. 

Brennan  vs.  Carterville  Coal  Co.,  241  111.  610. 

—  Wages  and  Earning  Capacity:  Under  Mines  and  Miners  Act, 
questions  concerning  earnings  of  deceased  are  proper. 

Brennan  vs.   Carterville  Coal   Co.,   241   111.   610. 

—  Deceased  Support  or  Sole  Support:  In  action  for  wrongful 
death,  it  is  competent  to  prove  that  widow  was  supported  by  her 

husband. 

Knlvie  vs.  Brunsen  Coal  Co.,  253  111.  386. 
Under  ]\Iines  and  Miners  Act,  question  as  to  whether  or  not  the 
wife  and  children  were  supported  by  deceased  is  proper. 
Brennan  vs.   Carterville  Coal  Co.,  241   111.   610. 
Question,  "Did  you  have  any  other  means  of  support,"  proper. 
Kulvie  vs.   iirunseii  Coal  Co.,   253   111.   386. 


WAIVER 

See  Abandonment,  Rescission  of  Contract,  Release,  Warranty. 
Defined : 

A  waiver  is  the  intentional  relinquishment  of  a  known  right,  and 
there  must  be  both  knowledge  of  the  existence  of  the  right  and  an 

intention  to  relinquish  it. 

Globe  Brew.  Co.  vs.  Amer.  Malting  Co.,  152  App,  194. 

Burden  of  Proof: 

Is  upon  party  relying  upon  waiver  of  condition  or  terms  of  con- 
tract. 

North   Ins.    Co.   vs.    Stfeiger,    124   111.    81. 


1280  WARRANTY 

Written  Instruments: 

—  Parol:  Waiver  of  rights  arising  by  contract  under  seal  may 
be  by  parol.  The  terms  of  a  contract  under  seal  cannot  be  varied 
except  by  an  instrument  of  same  dignity.  And  this  is  so  even  if 
the  contract  would  have  been  valid  without  a  seal.  But  a  mere 
waiver  of  a  term  or  condition  may  be  shown  where  it  is  in  the 
nature  of  a  release  or  discharge  and  leaves  the  contract  otherwise 
unchanged  and  introduced  no  new  element.  Any  party  to  a  con- 
tract has  a  right  to  waive  its  strict  compliance,  and  rights  arising 

under  a  sealed  instrument  may  be  waived  by  parol. 

Becker  vs.  Becker,  250  111.  117;  Zempel  vs.  Hughes,  235  111.  424; 
Palmer  vs.  Meridian  B.  Co.,  188  111.  508;  Starin  vs.  Kraft,  174 
111.  120 ;  Moses  vs.  Loomis,  156  111.  392 ;  Eiclimond  vs.  Eadke, 
132  App.  473;  Morehouse  vs.  Terrell,  111  App.  460;  Pierce  vs. 
Powers,  180  App.  687. 
An  executory  contract  under  seal  cannot  be  modified,  varied, 

discharged  or  released  by  an  executory  verbal  contract. 

Eyan  vs.   Cook,   172   111.   302;    Brettmann   vs.   Fischer.   216   111.   142; 
XII  111.  Notes  518,   §  348. 
So  a  verbal  agreement  to  cancel  an  executory  demise  not  followed 
by  surrender  is  ineffectual  to  establish  a  termination. 
Pelouze  vs.   Gibbons,   157  App.   186. 
Or  a  written  memorandum  signed  but  not  under  seal,  indorsed 
on  a  sealed  lease,  agreeing  to  reduce  the  rent,  cannot  be  introduced 
in  action  for  rent,  named  in  original  lease,  to  show  reduction, 
though  less  sum  was  accepted  for  a  part  of  the  term. 

Loach    vs.    Farnuni,    90    111.    368. 

But  evidence  is  admissible  to  show  abrogation,  cancellation  and 

surrender  of  a  lease  by  an  executed  parol  agreement. 

Alschuler   vs.   Schiff,    164   111.   298;    White   vs.   Walker,   31   111.   422; 
Baker  vs.   Pratt,   15   111.   568. 
Or  where  a  lease  has  been  fully  executed  as  modified  by  parol 

agreement,  evidence  of  parol  agreement  is  admissible. 

Snow  vs.  Griesheimer,  220  111.   106;   Harms  vs.  MeCormick,  30  App. 
125. 
In  the  application  of  the  rule,  it  makes  no  difference  that  the 
contract  may  be  one  which  would  have  been  valid  without  any  seal. 
Eyan  vs.  Cook,  172  111.  302;  Hume  Bros.  vs.  Taylor,  63  111.  43. 

—  Acts  and  Declarations:  A  w^aiver  need  not  be  shown  by  an 
express  agreement  between  the  parties;  it  may  be  established  by 
their  acts  and  conduct  with  respect  thereto.  It  may  be  inferred 
from  facts  and  circumstances  sufficiently  indicating  an  intention 
to  waive,  and  a  new  consideration  is  not  essential. 

Globe  Brew.  Co.  vs.  Amer.  Malt.  Co.,  152  App.  194;  Stow  vs.  Eussell, 
36  111.   19;    Frost  vs.  Thompson,   18  App.  410. 

Any  party  has  a  right  to  waive  a  strict  compliance  with  the 

terms  of  a  contract,  and  proof  of  such  waiver  may  consist  of  acts 

in  pais. 

Zempel  vs.  Hughes,   235  111.  424;    Marshall  vs.   Keach,  227   111.   35; 
Kissack  vs.  Bourke,  224  111.  352;  Vroman  vs.  Darrow,  40  111.  171. 


WARRANTY 

See  Assumpsit. 


WARRANTY  1281 

IMPLIED  WARRANTIES  CONTRACTS  OF  SALE: 

In  General: 

—  Purchase  at  Sight:  An  implied  warranty  does  not  result 
from  purchase  of  automobile  at  siglit. 

Ford  Motor  Co.  vs.  Ashburn,  140  App.  633;  XII  111.  Notes  478,  §  243 
et.  seq. 

—  Second  Hand  Goods:  No  implication  arises  that  a  warranty 
exists  as  to  article  sold  as  second-hand  goods,  that  it  will  answer 
the  purpose  for  which  made. 

Eamming  vs.  Caldwell,  43  App.  175. 

—  Premises  Tenantahle:  There  is  no  implied  warranty  by  les- 
sor that  premises  will  remain  tenantable  to  end  of  term,  and  if 
they  are  rendered  untenantable,  but  not  destroyed,  the  tenant  is 
not  relieved  from  his  covenant  to  pay  rent,  but  may  repair  the 

premises  and  enjoy  them  until  the  end  of  the  term. 

Keeling  &  Co.  vs.  Wheeler,  175  111.  514;  Smith  vs.  McLean,  123  111. 
210;    Contratto  vs.   Star  Brewery  Co..   165  App.  507. 

—  Corporate  Stock:  The  vendor  of  stock  in  a  corporation  im- 
pliedly warrants  the  stock  is  genuine,  and  that  he  is  the  owner 
thereof  and  authorized  to  transfer  title,  but  if  the  purchaser  desires 
further  protection,  he  must  exact  special  warranties. 

Burwash   vs.    Ballou,    230    111.    34. 

—  Municipal  Orders:  The  seller  of  orders  issued  to  him  by 
drainage  commissioners,  for  his  services,  impliedly  warrants  the 
instruments  to  be  genuine,  and  that  he  is  the  owner  thereof  and 
authorized  to  transfer  title,  but  there  is  no  implied  warranty  that 
they  were  issued  by  authority  of  law  or  that  they  are  worth  what 
they  represent. 

Bank  of  Sterling  vs.  Drew,  191  111.   1S6. 

—  Book  Accounts:  The  mere  transfer  of  book  accounts  as  un- 
paid, amounts  to  a  warranty  that  they  are  unpaid,  and  a  party 
would  be  guilty  of  fraud  in  selling  as  unpaid  a  debt  that  had  been 
discharged.  But  such  sale  and  transfer  would  not  impliedly  war- 
rant that  such  accounts  were  collectible. 

Robin^^on  vs.  McNeill,  51  111.   225. 

Manufacturer  as  Vendor: 

—  7/1  General:  The  general  rule  is  that  preliminary  negotia- 
tions for  purchase  of  existing  merchandise  are  merged  in  the  writ- 
ten contract  of  sale,  and  if  no  warranty  of  quality  is  provided  for 
in  the  written  contract,  the  purchaser  is  precluded  from  claiming 

one. 

Chi.   Cement   Co.   vs.   Hofman,   168   App.   71. 

Where  a  manufacturer  vends  his  own  articles,  there  is  an  implied 
warranty  that  they  are  manufactured  in  a  workmanlike  maimer. 
Archdale  vs.  Moore,  19  111.  565. 
And  that  they  are  reasonably  fit  for  the  use  for  which  they 

were  intended. 

Hallock  vs.  Cutler,  71  App.  471;   Filter  Co.  vs.  Hartman,  141  App. 

239. 

Where  a  manufacturer  contracts  to  supply  an  article  which  he 

manufactures  for  a  particular  purpose  designed  by  the  buyer  and 

known  to  the  vendor,  so  that  the  buyer  necessarily  trusts  to  the 

judgment  or  skill  of  the  manufacturer,  there  is  an  implied  warranty 

that  the  article  shall  be  reasonably  fit  for  the  purpose  to  wliich  it 

Ev.— 81. 


1282  WARRANTY 

is  to  be  applied.  This  rule  is  limited  to  cases  where  an  article  is 
ordered  for  a  special  purpose,  and  does  not  apply  to  cases  where 
a  special  thing  is  ordered  though  it  is  intended  for  a  special  pur- 
pose. Where  a  known,  described  and  definite  article  is  ordered  of 
a  manufacturer,  although  it  is  stated  to  be  required  by  the  pur- 
chaser for  a  particular  purpose,  still,  if  the  known,  described  and 
definite  article  be  actually  supplied,  there  is  no  warranty  that  it 
shall  answer  the  particular  purpose  intended  by  the  buyer.  In  a 
contract  for  the  sale  of  an  article  under  its  patent  or  other  trade 
name,  there  is  an  undertaking  that  the  article  delivered  shall  be 
of  the  kind  ordered,  but  not  that  it  shall  be  fit  for  any  particular 
purpose.     If  the  buyer  gets  what  he  bargained  for,  there  is  no 

implied  warranty  though  it  does  not  answer  his  purpose. 
Fuc'hs  &  Laug  Co.  vs.  Kittredge  Co.,   242   111.   88. 
But   a  manufacturer  of   goods  for  sale,   who   also   sells   goods 
bought  by  him  of  others,  is,  as  to  the  goods  so  bought  and  sold  by 

him,  liable  only  as  a  dealer  and  not  as  manufacturer. 

Con.  F.  W.  Co.  vs.   Koehl,  92   App.   8. 

—  Sale  by  Sample :  Where  goods  are  sold  by  sample,  it  is  a 
condition  precedent  that  the  goods,  when  delivered,  shall  correspond 
to  the  sample  by  which  the  sale  is  made,  in  kind,  character  and 
quality,  and  is  equivalent  to  a  warranty  that  the  sample  is  a  true 

representation  of  the  goods. 

Spring  vs.  Woolen  Mills,   106  App.   579;   Hanson   vs.  Busse,   45   111. 
496;   Everingham  vs.  Lord,   19  App.   565. 
When  a  manufacturer  sells  goods  by  sample,  there  is  an  implied 
warranty  by  him  that  such  goods  contain  no  latent  defect  not 
distinguishable  by  ordinary  examination. 
Price  vs.  Kohn,  99  App.  115. 

—  Article  Supplied  to  Order:  If  an  article  is  to  be  made  or  sup- 
plied to  the  order  of  a  purchaser,  there  is  an  implied  warranty  of 
the  fitness  of  the  articles  for  the  special  purpose  designed  by  the 
buyer,  if  that  purpose  be  known  to  the  vendor ;  but  in  the  bargain 
and  sale  of  an  existing  chattel,  there  is  not,  in  the  absence  of 
fraud,  an  implied  warranty  of  good  quality  or  condition  of  the 

thing  sold. 

Telluride   Power   Co.   vs.    Crane   Co.,   208    111.    218;    Iron   Works   vs. 
Moore,  78  HI.  65. 

—  For  Particular  Purpose:  One  who  manufactures  an  imple- 
ment, names  it  a  potato  digger,  and  sells  it  to  another,  impliedly 
warrants  that  it  will  dig  potatoes  and  place  them  on  top  of  the 

ground  ready  to  be  picked  up. 

Halloek  vs.  Cutler,  71  App.  471. 

—  Executory  Contract:  In  action  for  breach  of  warranty,  where 

contract  is  executory,  the  law  implies  the  parties  contemplated  the 

appliance  should  be  a  good  merchantable  article  of  its  kind,  and 

raises  a  warranty  to  that  effect. 

Lanz  vs.   Wachs,   50  App.  262;    Kohl  vs.   Lindley,  39   111.   195. 

Vendor  Not  Manufacturer: 

—  In  General:  There  is  no  implied  warranty  of  quality  by  ven- 
dor who  is  not  manufacturer. 

Borden  Co.  vs.  Frazer  Co.,   118  App.  655;   Martin  &  Co.  vs.  Eoehm, 
92  App.  87;   Kohl  vs.  Lindley,  39  111.   195. 


WARRANTY  1283 

And  evidence  of  a  custom  that  article,  proving  defective,  should 
be  returned  to  seller  and  made  good  to  purchaser  by  credit  or 
replacement,  is  inadmissible. 

Healy  Ice  Much.  Co.  vs.  Clow  &  Sons,  148  App.  421. 
Usage  or  custom  is  not  admissible  when,  upon  admitted  facts, 
the  law  precludes  inference  of  warranty. 
C.  p.  &  p.  Co.  vs.  Tilton,  87  111.  547. 

—  Specific  Use:  Where  manufacturer  furnishes  machinery  or 
appliances  designed  for  specific  use,  he  impliedly  warrants  the 
quality  of  the  material,  the  goodness  of  workmanship,  and  that 
the  machinery  or  appliance  is  reasonably  suited  for  purpose  for 
which  it  was  designed  and  sold. 

Murray  Iron  Works  vs.  Elec.  Co.,  103  App.  78;  White  vs.  Gresham  & 
Mann,  52  App.  399. 

But  this  implied  warranty  cannot  be  availed  of  if  the  article  is 
sold  upon  an  express  warranty  as  to  such  quality,  workmanship 
and  fitness. 

White  vs.  Gresham  &  Mann,  52  App.  399;  Nave  vs.  Gross,  146  App. 
104. 

—  Trade  Name:  A  contract  calling  for  the  delivery  of  a  cer- 
tain kind  of  article  by  its  trade  name  carries  no  implied  warranty 
of  its  fitness  for  any  pui^jose  or  its  quality. 

Peoria  Grape   Sugar  Co.   vs.   Turney,   175   111.  631;    Elevator  Co.  vs. 
Brown  Iron  Works,  153  App.  313. 

BURDEN  OF  PROOF  AND  PRESUMPTIONS: 

Breach  of  warranty  is  never  presumed,  it  must  be  proven. 
Burt  vs.  Sand  Co.,  141  App.  603 ;  XIV  111.  Notes  496,  §  399. 

Burden  of  proof  is  upon  plaintiff  to  show  warranty  of  animals. 
Burns  vs.  Nichols,  89  111.  480;   Nickle  vs.  Williamson,  44  111.  48. 

In  action  to  recover  balance  due  on  article  delivered  to  defend- 
ant under  contract  warranting  same  to  be  of  a  certain  cpiality, 
if  defendant  claims  set-off  by  reason  of  breach  of  warranty,  burden 
is  upon  defendant  to  prove  same,  and  that  damages  have  resulted 
to  him  from  such  breach. 

Burt  vs.  Garden  City  Sand  Co.,  237  111.  473. 

If  defendant  sets  up  that  he  was  acting  as  agent  in  making 
warranty,  to  avoid  personal  liability,  burden  is  upon  him  to  show 

he  had  authority  to  bind  his  principal. 

Wheeler  vs.   Eeed,  36   111.   81. 

ADMISSIBILITY  OF  EVIDENCE: 

Circumstantial : 

AVarranty  may  be  proven  from  acts  and  conversations  and  sub- 
ject matter. 

Forester  vs.   Peer,   120  App.   199;    White   vs.  Gresham  &   Mann,   52 
App.  399. 

Although  no  particular  form  of  words  is  necessary  to  constitute 

a  warranty,  yet  a  simple  recommendation  of  the  goods  sold,  or  a 

representation  that  they  are  of  a  certain  quality,  does  not  make  a 

warranty,  unless  the  language  of  the  vendor,  taken  in  connection 

wuth  the  circumstances  of  the  sale,  fairly  implies  an  intention,  on 

his  part,  to  be  understood  as  warranting. 

Hanson  vs.  Busse,  45  111.  496 ;  Roberts  vs.  Applegate,  153  111.  210. 

No  custom  or  usage  can  be  set  up  in  contravention  of  the  ex- 
press terms  of  a  contract,  but  may  add  new  terms  not  expressed  in 


1284  WARRANTY 

or  covered  by  the  contract,  which  are  incidental  and  not  repug- 
nant to  it. 

AVhere  the  usage  sought  to  be  proven  had  reference  to  the 
method  of  dealing  on  the  board  of  trade,  with  regard  to  the  time 
within  which  inspection  and  objection  to  corn  sold  by  sample, 
with  an  express  warranty  that  the  bulk  was  equal  to  the  sample, 
should  be  made,  such  evidence  is  admissible,  as  not  being  covered 
by  the  express  contract,  and  as  the  parties,  being  members  of  the 

board  of  trade,  were  presumed  to  have  dealt  with  reference  to  it, 

Everingham  vs.   Lord,   19  App.   565. 

Catalogue  is  admissible. 

Eoberts  vs.   Applegate,    153    111.    210. 

Circulars  sent  out  by  the  sellers  may  constitute  evidence  of  war- 
ranties. 

Hicks  vs.  Stevens,  121  111.  186. 

Where  one  party  agrees  to  do  a  thing  to  the  satisfaction  of  an- 
other, and  the  excellence  of  the  thing  is  a  matter  of  taste,  pur- 
chaser may  refuse  to  accept  without  assigning  any  reason,  but 
where  matter  involved  is  not  one  of  taste,  fancy  or  judgment,  but 
of  common  experience,  the  law  will  say  what  in  reason  ought  to 
satisfy  a  reasonable  man,  and  in  action  for  purchase  price  vendor 
may  prove  that  article  fulfilled  written  warranties,  although  con- 
tract provided  article  should  be  satisfactory. 

Union  L.   Club   vs.   Ice   JMach.   Co.,   204  ill.   117. 

Evidence  that  lamps  manufactured  under  a  contract  were  de- 
fective, is  inadmissible  where  the  question  in  issue  is  whether  they 

conformed  to  a  sample  furnished  the  manufacturer  to  be  followed. 
Katl.  Tim.  Eec.  Co.  vs.  Mantel   Co.,   108  App.  95. 

In  action  for  failure  to  deliver  quality  of  pipe  ordered,  evidence 

that  plaintiff,  receiving  report  of  defects  in  pipe,  read  same  to 

defendant's  salesman  with  whom  he  had  dealt,  is  admissible. 
Ilcaly   :Maehine   Co.   vs.   Clow   &  Sons,   148   App.   421. 

Time  of  Warranty: 

When  existence  and  character  of  warranty  are  sought  to  be  estab- 
lished, the  proof  relating  thereto  must  be  confined  to  time  of 
sale. 

Luthy  vs.  Waterbury  &  Co.,  140  111.  644. 

If  warranty  was  made  after  contract  of  sale,  there  must  be  proof 

of  a  consideration  to  support  it. 

Towel  vs.   Gatewood,   3   111.   22. 

Parol  to  Vary  Written  Contract: 

Where  a  written  contract  contains  no  warranty,  the  law  will 
imply  none,  but  that  a  given  purchase  was  made  at  the  risk  of 
the  purchaser  and  upon  his  own  judgment. 
Bamming  vs.   Caldwell,  43   App.    175. 

Where  there  is  a  written  contract  and  same  contains  no  war- 
ranty, parol  is  inadmissible  to  establish  warranty. 

Chi.  Port.  Cement  Co.  vs.  Hofman,  168  App.  71  j  Fuchs  vs.  Kittredge, 
146   App.   350;    Ranmring   vs.    Caldwell,   43    App.    175. 

Where,  at  the  time  of  the  sale  of  book  accounts,  a  written  con- 
tract was  executed,  specifying  the  terms  of  the  assignment,  and 
the  instrument  contained  no  warranty  that  such  accounts  were  col- 


WARRANTY  1285 

lectiWe,  parol  evidence  cannot  be  received  to  add  to  its  terms,  by 
proving  that  there  was  such  warranty. 

Robinson   vs.   McNeill,   51    111.   225, 

Writings  showing,  upon  inspection,  a  complete  legal  obligation, 
without  uncertainty  or  ambiguity  as  to  the  object  and  extent  of 
the  agreement,  are  conclusively  presumed  to  include  the  entire 
agreement  of  the  parties,  and  the  omission  of  any  point  which  might 
have  been  embodied  does  not  justify  the  admission  of  parol  evi- 
dence. 

Telluride  Power  Co.  vs.  Crane  Co.,  208  III.  218;  International  Filter 
Co.    vs.    Crystal    Ice    Co.,    157    App.    96. 

Where  a  bill  of  sale  does  not  show  to  whom  the  same  was  made, 
quantity  sold  nor  price,  but  simply  describes  location  of  article, 
and  date  of  removal,  it  will  not  constitute  an  agreement  between 
the  parties  without  aid  of  extrinsic  evidence,  and  parol  is  admissible 
to  show  that  the  sale  was  made  with  a  warranty,  on  plea  of  failure 
of  consideration  to  action  on  note  given  for  the  price. 
Euff  vs.  Jarrett,   94  111.  475. 

Where  a  letter  containing  the  contract  is  understood  by  both 
parties  to  refer  to  a  certain  make  of  the  article,  all  prior  negotia- 
tions are  merged  in  the  written  contract,  and  evidence  is  inad- 
missible to  modify  or  contradict  same  or  show  oral  warranty. 
Fuchs  &   Lange  vs.   Kittredge   Co.,   242   111.   88. 

Vendee  offered  to  show  that  he  was  assured  by  vendor's  agent 
that  quality  of  pipe  was  very  best.  Also  that  the  pipe  was  installed 
and  burst  repeatedly  under  pressure,  causing  great  damage;  that 
the  pipe  was  apparently  burnt  in  welding,  and  had  not  the  requi- 
site textile  strength  nor  safety  factor:  Held,  suck  evidence  was 
inadmissible. 

Telluride  Power  Co.  vs.  Crane  Co.,  208  111.  218. 

Recoupment : 

—  Standard  Fixed:  In  action  to  recover  contract  price  of  fur- 
nace, which  defendant  claimed  did  not  comply  with  warranty  that 
such  furnace  was  to  be  sufficiently  smokeless  to  comply  with  ex- 
isting ordinance,  such  ordinance  admissible. 

Dorrance   vs.   Dearborn   Power    Co.,   233   111.   354. 

—  Qualify:  Where  material  is  to  be  of  a  certain  quality,  wit- 
nesses who  have  seen  the  material  when  being  shipped,  may  testify 
as  to  such  quality  to  show  the  quality  when  delivered. 

Miilliuer    vs.    Bronson,    114   111.    sio. 

It  is  competent  for  purchaser  of  engines,  although  he  has  re- 
ceived and  used  them,  to  show  that  they  were  not  constructed  ac- 
cording to  contract,  or  are  unsuitable  for  the  purpose  intended. 

Iroquois  Furjiace  Co.  vs.  Wilkin   Mfg.  Co.,  181  111.  582. 

—  Characteristic  of  Article:  Where  defense  is  that  stone  of 
certain  kind  contained  iron  spots,  admissible  to  show  that  all 
stone  of  same  kind  contains  iron  spots. 

Thomilson  vs.   Ernshaw,    112    111.   311. 

But  where  defense  is  that  stone  was  worthless,  vendor  cannot  show 
that  reliable  dealers  would  not  warrant  same  kind  of  material  as 
proof  of  no  guaranty. 

Cary  vs.  Niblo,  155  App.  338. 

—  Similar  Appliances  Satisfactory:  In  action  to  recover  amount 
paid  for  filters,  upon  ground  of  breach  of  warranty  that  the  til- 


1286  WASTE 

tered  water  would  be  suitable  for  boilers,  evidence  that  other  fil- 
ters of  same  make  used  for  filtering  same  kind  of  water  at  other 

places  were  satisfactory  to  owners  is  inadmissible. 
Jewell  Pilter  Co.   vs.  Kirk,   200  111.   382. 

—  OtJher  Goods  of  Same  Lot:  It  is  admissible  in  suit  for  price 
of  sausages  alleged  to  have  been  spoiled,  for  plaintiff'  to  prove  that 
other  sausages  made  at  the  same  time  were  in  good  condition 
after  the  sale,  as  tending  to  show  that  those  sued  for  were  also  good. 

But  evidence  that  sausages  purchased  of  plaintiff'  by  another 
party  were  bad  is  inadmissible  unless  proven  to  be  of  same  lot  as 
those  purchased  by  defendant. 

Leutgert  vs.  Volker,  153  111.  385. 

—  Waiver:  Acceptance  of  merchandise  which  has  been  war- 
ranted does  not  waive  right  to  interpose  defense  of  a  breach  of 
warranty  in  action  brought  for  purchase  price. 

bailey  vs.  Smith  Co.,  Ill  App.  319;  Underwood  vs.  Wolf,  131  111. 
425;  Doane  vs.  Dunham,  65  111.  512;  Babcock  vs.  Trice,  18  111.  420. 
Gary  vs.  Niblo,  155  App.  338. 


WASTE 


See  Timber.  Trespass. 


> 


Defined : 

—  Common  Law:    An  act  or  omission  diminishing  the  value  of 

the  estate  or  its  income. 

Bond  vs.   Lockwood,  33   111.   212;   XIV  III.   Notes   1003,    §2. 

Whatever  does  lasting  damages  to  the  freehold  to  the  injury  of 

the  inheritance  is  waste. 

Stewart  vs.  Wood,  48  App.  378. 

Anything  is  waste  which  changes  the  character  of  the  inherit- 
ance ;  hence  even  acts  which  increase  the  pecuniary  value  of  an 

estate  may  amount  to  waste. 

Palmer    vs.    Young,    108    App.    252. 

—  Permissible:  Consists  in  the  mere  neglect  or  omission  to  do 
what  will  prevent  injury ;  as  to  suffer  a  house  to  go  to  decay  for 

want  of  repairs. 

Con.  Coal  Co.  vs.  Savitz,  57  App.  659. 

—  Voluntary:  Consists  in  the  commission  of  some  destructive 
act,  as  pulling  down  a  house. 

Con.  Coal  Co.  vs.  Savitz,  57  App.  659. 

Who  May  Commit: 

Waste  can  only  be  committed  by  one  in  the  rightful  possession 

of  land. 

Palmer  vs.  Young,  108  App.   252. 

Remedy : 

—  licatraimng:  The  remedy  by  injunction  is  fully  established 
and  has  not  only  virtually  superseded  the  old  common  law  action 
of  waste,  but  has  to  a  great  extent  taken  the  place  of  an  action  on 
the  case  for  damages.  An  injunction  will  be  granted  in  all  cases 
where  a  legal  action  would  lie  to  recover  possession  of  the  land 
wasted  or  to  recover  damages. 

Davis  vs.  Carsley  Mfg.   Co.,   112  App.   112;   Palmer  vs.   Young,   108 
App.  252;  Dorr  vs.  Dudderar,  88  111.  107;  Smith  vs.  Price,  39  111.  28. 


WASTE  1287 

Who  May  Maintain : 

—  'TrespaJis :   By  a  reversioner  in  fee. 

Page   vs.   Davidson,   2li    111.    111. 

But  not  by  an  executor  who  has  but  power  to  lease  for  a  term 

and  afterwards  to  divide  and  sell. 
Page   vs.   Davidson,   22   111.    111. 

Nor  by  a  mortgagee.  His  common  law  remedy  is  by  an  action  on 
the  case. 

Williams  vs.  Chi.  Ex.  Co.,  8G  App.  167;  Min.  Trust  Co.  vs.  Verhulst, 
74  App.  350. 

—  Rephrin:  Mortgagee  may  maintain  for  buildings  severed 
before  attached  to  other,  realty. 

Dorr  vs.  Dudtlerar,  88  111.  107. 

—  Remainderman:  At  common  law  an  action  for  waste  w^ould 
not  lie  by  a  remainderman  against  the  tenant  for  life,  if  there  were 
a  mesne  remainderman ;  but  in  equity  the  ultimate  remainderman 
is  allowed  to  maintain  bill  for  injunction. 

Palmer  vs.  Young,   108  App.   252;    Ohio  Oil  Co.  vs.  Daughetee,  240 
111.  361. 

—  Base  or  Determinable  Fee:  A  court  of  equity  will  interfere 
to  enjoin  "equitable  waste"  by  the  owner  of  a  base  or  determinable 
fee  only  when  the  contingency  which  is  to  determine  the  estate  is 
reasonably  certain  to  happen. 

Flfer  vs.  Allen,  228  111.  507;   Gannon  vs.  Peterson,  193  111.  372. 

—  Opening  Coal  Mine:    Is  not  "equitable  waste"  w^hich  may 

be  enjoined  by  executory  devisee  whose  interest  is  mere  expectancy. 

Gannon  vs.  Peterson,  193  111.  372. 

Is  not  waste  by  widow  to  work  mines  opened  by  the  husband. 

Lenfers   vs.    Henke,    73    111.   405. 
And  after  assignment  of  dower,  she  is  entitled  to  royalties  where 

contract  entered  into  by  husband  in  his  lifetime  for  working  mine. 
Priddy  vs.  Griffith,   150  111.   560. 

—  Opening  New  Oil  Wells:  Bv  life  tenant  is  waste. 

Ohio  Oil  Co.  vs.  Daughetee,  240  111.  361.  •' 

Weight  and  Sufficiency: 

Waste  must  be  of  such  a  character  as  to  charge  the  owner  with 

a  wanton  and  unconscientious  abuse  of  his  rights. 

Fifer  vs.   Allen,   228  111.   507;   Gannon  vs.   Peterson,   193  111.  372. 
Or  if  bill  by  mortgagee,  that  the  loss  of  security  may  endanger  his 
debt.     He  need  not  affirmatively  show  a  prosecution  of  his  debtor 

to  insolvency  or  that  debtor  is  wholly  insolvent. 

Miller  vs.  Cook,  135  111.  190. 
Inasmuch  as  the  removal  of  a  building  or  other  improvement 
permanently  attached  to  the  freehold  is  per  se  an  injury  to  the  free- 
hold, the  removal  thereof  will  be  regarded  as  w^aste,  and  a  court 
of  equity  will  restrain  same  whether  mortgagee  is  solvent  or  in- 
solvent. 

Palmer  vs.    Young,    108   App.   252. 

Justification : 

Cutting  timber  in  excess  of  what  is  allowed  to  the  holder  of 
the  particular  estate,  can  be  permitted,  under  modification  in  this 
country  of  the  common  law  rule,  only  where  the  estate  is  benefited 
rather  than  injured  by  the  act,  as  where  the  land  is  wild  land 
and  the  cutting  is  for  the  purpose  of  clearing  for  cultivation. 


1288  WATERS  AND  WATERCOURSES 

Cutting  timber  may  or  may  not  be  waste,  it  depends  upon  cir- 
cumstances. 

Stewart  vs.  Wood,  48  App.  378. 
(In  case  cited,  right  of  holder  of  life  estate  by  deed  was  re- 
stricted to  three  purposes,  (1)  such  as  was  necessary  for  improve- 
ments on  the  premises  in  ordinary  repairs,  (2)  a  sufficient  amount 
for  ordinary  firewood  for  the  grantor  and  his  wife  and  tenants 
thereon,  (3)  such  timber  as  was  going  to  decay.) 

Testimony  of  witnesses  stating  amount  of  wood  actually  cut 
and  sold,  from  personal  knowledge,  outweighs  that  of  witnesses 
estimating  value  of  the  wood  per  acre. 

McDole  vs.  McDole,  39  App.  274. 


WATERS  AND  WATERCOURSES 

See  Expert  and  Opinion, 
Burden  of  Proof: 

The  navigable  capacity  of  an  artificial  slip  or  ditch  connected 
at  one  end  with  a  navigable  stream  is  a  question  of  fact,  and  bur- 
den of  proving  such  capacity  is  on  him  who  asserts  it. 

Ligare  vs.  C.  M.  &  N.  Ey.  Co.,  166  111.  249;  People  vs.  Economy  Light 
Co.,  241  111.  290;  XIII  111.  Notes  928,  §  3. 

Judicial  Notice: 

Courts  will  take  judicial  notice  of  a  navigable  river  and  its  tribu- 
taries and  feeders,  and  of  the  fact,  notwithstanding  such  river  is 
a  natural  outlet  for  drainage  from  surrounding  territory,  and  re- 
ceived large  quantities  of  sediment  and  debris  from  its  tributaries; 

its  navigability  is  not  necessarily  destroyed  thereby. 

Canal  Conirs.  vs.  E.  Peoria,  179  111.  214;  Wice  vs.  C.  &  N.  W.  Ry.  Co., 
93   App.   266. 

But  when  question  arises  as  to  small  bodies  of  water,  the  loca- 
tion and  size  of  which  are  not  generally  known,  the  court  may  not 

take  judicial  notice  of  their  navigability. 

People  vs.  Board  of  Supervisors,   122  App.  40;  Wilcox  vs.  Jackson, 
109  111.  261. 

Court  will  take  judicial  notice  that  the  north  branch  of  the 

Chicago  River,  across  which  extends  the  bridge  at  or  near  Kinzie 

street,  is  a  navigable  stream. 

Wice  vs.  C.  &  N.  W.   Ry.   Co.,  93  App.   266. 

Court  will  take  judicial  notice  that  the  Chicago  river  is  situ- 
ated in  the  midst  of  the  city  where  a  dense  population  exists,  and 

near  which  much  of  the  business  of  the  city  is  transacted. 
Harmon  vs.  City  of  Chicago,  110  111.  400. 

Court  will  take  judicial  notice  that  a  particular  creek,  in  its 

natural  channels,  flows  into  a  particular  river  in  the  state  at  a 

particular  place. 

Canal  Comrs.  vs.   E.  Peoria,  75  App.  450. 

And  that  it  empties  its  waters  and  the  waters  of  its  tributaries 

with  all  the  accompanying  sand  and  other  alluvial  deposits,  in 

the  river  near  proposed  improvements. 

Canal  Comrs.  vs.   E.  Peoria,  75  App.  450. 


WEATHER  1289 

Admissibility  of  Evidence: 

—  Statutory  Declaration:  Competent  to  show  stream  is  navi- 
gable. 

People  vs.  City  of  St.  Louis,  10  111.  351. 

—  Ebb  and  Flow  of  Tide:  Is  not  the  test  of  navigable  waters, 
and  waters  which  are  navigable  in  fact  are  navigable  in  law. 

Wohulte   vs.    Warren,   218    111.    108. 

—  Use  for  Trade:  Where  shown  that  a  stream  or  other  body  of 
water  is  of  use  to  the  public  at  large  for  the  purpose  of  trade  or 
connnerce,  this  is  sufficient  to  prove  the  navigability  of  the  water. 

Schulte  vs.  Warreu,  218  111.  108;  J.  C.  R.  K.  Co.  vs.  Healy,  9-4  111.  416. 

—  FlotabUity:  Merely  because  a  watercourse  may,  in  times  of 
periodical  freshets,  for  a  few  days  or  weeks,  be  capable  of  floating 
mill  logs,  but  in  its  natural  state  and  during  a  greater  portion  of 
the  year,  is  incapable  of  such  floatage,  the  stream  cannot  be  re- 
garded as  a  highway  for  that  purpose  at  any  time.  The  bed  and 
banks  of  such  stream,  it  not  being  navigable,  belong  to  the  riparian 
proprietors,  and  are  wholly  and  absolutely  private,  and  there 
being  no  claim  of  prescription  or  user,  not  subject  to  the  servitude 
of  the  public  interest  in  that  regard,  nor  to  be  considered  as  a 
public  highway  by  water. 

Hubbard  vs.   Bell,  54  111.  110. 

—  Practical  Utility:  A  stream  to  be  navigable,  must,  in  its  ordi- 
nary natural  condition,  furnish  a  highway  over  which  commerce 
is  or  may  be  carried  on  in  the  customary  modes  in  which  such  com- 
merce is  by  water. 

A  stream  is  navigable  in  fact  only  where  it  affords  a  channel  for 
useful  commerce  and  of  practical  utility  to  the  public  as  such. 
The  fact  that  there  is  water  enough  in  places  for  row  boats  or 
small  launches  answering  practically  the  same  purpose,  or  that 
hunters  and  fishermen  pass  over  the  water  with  boats  ordinarily 
used  for  that  purpose  does  not  render  the  waters  navigable. 
People  vs.  Economy  Power  Co.,  241  HI.  290. 


WEALTH 

See  Pecuniary  Circumstances. 


WEATHER 

Admissibility  of  Evidence: 

--Official  Records:  The  meteorological  observations  of  the 
United  States  signal  service  come  within  the  rule  which  admits  in 
evidence  official  registers  or  records  kept  by  persons  in  public  office, 
in  which  they  are  required  by  statute  or  by  the  nature  of  their 
office  to  write  down  particular  transactions  occurring  in  the  course 
of  their  public  duties,  or  under  their  personal  observation. 

C.  &  N.  W.  Ry.  Co.  vs.  Trayes,  17  App.  136;  XII  111.  Notes  505,  §  234. 

The  letter-press  book  in  which  the  custodian  of  the  records  of 
a  local  weather  bureau  takes  copies  of  the  blanks  on  which  weather 


1290  WEIGHT  AND  SUFFICIENCY 

conditions  were  made  up  each  month,  constitutes  the  record  of 
the  local  bureau,  where  the  original  blanks  were  sent  to  the  gen- 
eral department  after  copying. 

C.  &.  E.  I.  R.  Co.  vs.  Zapp,  209  111.  339;  S.  0.,  110  App.  553. 

Competency  of  Witnesses: 

Evidence  of  officials  of  weather  bureau  is  competent  to  fix  the 

time  of  "day-break." 

Sullivan  vs.  City  of  Chicago,  167  App.  152. 


WEIGHT  AND  SUFFICIENCY 

See  Particular  Actions. 
Civil  Action: 

—  In  General:  In  civil  cases,  neither  party  is  required  to  pro- 
duce more  than  a  preponderant  weight  of  the  evidence.  To  require 
that  jury  be  satisfied,  imposes  a  higher  degree  of  proof  than  the 

law  requires. 

Sonneman   vs.    Mertz,    221    111.    362;    Eolfe    vs.   Eich,    149    111.    436;. 
Scholton  vs.  Cent.  City  Ry.  Co.,  95  111.  25;  Elam  vs.  Majestic  Coal 
Co.,  155  App.  375;  Freedman  vs.  Shuflitowski,  182  App.  5;  XII  111. 
Notes  535,  §  471. 
— 'Criminal  Charge  in  Civil  Suit:    Where  a  criminal  offense  is 
charged  in  pleadings  of  a  civil  suit,  such  offense  must  be  proven 
beyond  a  reasonable  doubt.     As  to  other  issues  presented  in  the 
pleadings,  only  a  preponderance  of  evidence  is  required  to  estab- 
lish same. 

Mclnturff  vs.    Ins.   Co.   of   N.   A.,   248   111.   92;    Franklin   Union   vs. 
People,  220  111.  355;   People  vs.  Sullivan,  218  111.  419;   Germania 
Ins.  Co.  vs.  Klewer,   129   111.   599;    McConnel  vs.  Del.  Ins.  Co.,   18 
111.  228;  Harbinson  vs.  Shook,  41  111.   141;   Smith  vs.  Lawley,  149 
App.    480;    Contra,    Oliver   vs.    Oliver,    110    111.    119;    Roberts   vs. 
Woods,  82  App.  630. 
But  the  rule  applies  only  where  the  charge  of  criminality  is 
made  in  the  pleadings,  and  not  where  criminality  appears  but  inci- 
dentally. 

Grimes  vs.  Hilliary,  150  111.  141;  Sprague  vs.  Dodge,  48  111.  141; 
Pley  vs.  Lavette,  167  App.  494. 

—  Quaere:    Rule  not  applicable  to  other  than  infamous  offenses? 

Crane  vs.  Schafer,  140  App.  647;  Soloman  vs.  Buechle,  119  App.  595. 

Even  though  the  declaration  charge  a  criminal  act,  proof  beyond 
a  reasonable  doubt  is  not  required  if  such  declaration  sets  up 
facts  which  constitute  unlawful  confederation  at  common  law. 

Sutton    vs.    Workmeister,    164    App.    105. 

In  actions  for  slander  and  libel,  it  is  sufficient  for  defendant  to 
establish  truth  of  matter  charged  by  a  preponderance  of  the  evi- 
dence. 

Hawver  vs.   Hawver,    78    111.    412. 

A  preponderance  of  evidence,  only,  is  sufficient  to  establish  a 

charge  of  adultery. 

Heyman  vs.  Heynian,  210  111.  524;  Lenning  vs.  Lenning,  176  111. 
180;  Stiles  vs.  Stiles,  167  111.  576;  Chestnut  vs.  Cliestnut,  88  111. 
548. 

The  guilt  of  defendant  need  not  be  established  beyond  a  reason- 


WEIGHT  AND  SUFFICIENCY  1291 

able  doubt,  on  charge  of  bastardy.    A  preponderance  of  evidence  is 
sufficient. 

Lewis   vs.    People,    82    111.    104;    People   vs.   Chrisman,   66   111.    162; 

Allison  vs.  People,  45  111.  37;  Mauu  vs.  People,  35  111.  467;  Gehin 

vs.   People,   87   App.   158. 

—  Reformation'  of  Instrument:  Relief  is  forbidden  whenever 
the  evidence  is  loose,  equivocal  or  contradictory,  or  in  its  texture 
open  to  doubt  or  opposing  presumptions.  'Parol  evidence  of  mis- 
take must  be  established  beyond  a  reasonable  doubt.  Courts  of 
equity  do  not  grant  the  high  remedy  of  reformation  upon  a  prob- 
ability nor  upon  a  mere  preponderance  of  evidence,  but  only  upon 
certainty  of  the  error. 

Lines  vs.  Willey,  253  111.  440;  Cf.  Perry  vs.  Elliott,  261  111.  553. 

—  Notice  of  Unrf corded  Deed:  The  title  of  a  subsequent  pur- 
chaser whose  deed  is  first  recorded  will  not  be  defeated  on  the 
ground  of  notice  of  a  prior  unrecorded  deed,  unless  the  proof  of 
such  notice  is  so  clear  and  positive  as  to  leave  no  reasonable  doubt 
that  the  taking  of  the  second  conveyance  was  an  act  of  bad  faith 
towards  the  purchaser. 

The  fact  of  notice  must  be  proven  by  direct  evidence  or  by  other 
facts  from  which  it  may  be  clearly  inferred,  and  the  inference 
must  not  be  probable,  but  necessary  and  unquestionable. 

Lowden  vs.  Wilson,  233  111.  340;  Eobertson  vs.  Wheeler,  162  111.  566. 

—  Due  Care:  Due  care  is  not  established  from  mere  occurrence 
of  an  accident  and  a  consideration  of  the  human  instinct  of  self 
preservation.  And  in  the  absence  of  any  direct  testimony  tending 
to  show  due  care,  there  can  be  no  recovery. 

Newell  vs.  C.  C.  C.  &  St.  L.  Ey.  Co.,  261  111.  505. 

Penal  Action: 

In  action  of  debt  to  recover  a  penalty,  more  than  a  mere  pre- 
ponderance of  the  evidence  is  necessary  in  order  to  authorize  a 
recovery. 

A.  T.  &  S.  F.  F.  Ey.  Co.  vs.  People,  227  111.  270;  Gilbert  vs.  Bone,  79 
111.  341;  T.  P.  &  W.  Ey.  Co.  vs.  Foster,  43  111.  480:  Gunkel  vs. 
Bachs,  103  App.  494. 

Proof  need  not  be  beyond  reasonable  doubt. 
I.  M.  Mut.  Ins.  Co.  vs.  People,  65  App.  355. 

Criminal  Prosecution: 

—  Evidence  as  a  WJiolc:   It  is  sufficient  if  evidence,  as  a  whole, 

satisfies  the  jury,  beyond  a  reasonable  doubt.    Proof  of  each  link 

in  the  chain  is  not  necessary. 

People  vs.  See,  258  111.  152;  People  vs.  Scarbak,  245  111.  435;  Keat- 
ing vs.  People,  160  111.  480. 

'■  The  reasonable  doubt  which  a  jury  may  entertain  must  be  in 
regard  to  the  guilt  of  the  accused  considering  the  whole  evidence, 
and  not  in  regard  to  the  sufficiency  of  proof  of  any  particular  fact 
in  the  case. 

_  Henry  vs.  People,  198  111.  162 ;   Williams  vs.  People,  166  111.  132. 

—  Circumstantial  Evidence:  Before  conviction  can  properly  be 
had  upon  purely  circumstantial  evidence,  guilt  of  accused  must  be 
so  thoroughly  established  as  to  exclude  every  reasonable  hypothesis 
of  his  innocence. 

Purdy  vs.  People,  140  111.  46;  Parsons  vs.  People,  218  111.  386;  Dunn 
vs.  People,  158  111.  586;  Marzen  vs.  People,  173  111.  43;  Dunn  vs. 
People,  172  111.  582;  People  vs.  York,  262  111.  620;  People  vs. 
Rischo,  262  111.  596. 

Proof  that  accused  attempted  suicide  while  in  jail  is  admissible 


1292  WEIGHT  AND  SUFFICIENCY 

as  a  circumstance  to  be  taken  into  consideration  by  the  jury,  and  its 
weight  is  to  be  determined  by  them. 
People  vs.  Duncan,  261  111.  339. 

Or  flight  before  or  after  indictment  found. 

People  vs.  Duncan,  261  III.  339  j  Barron  vs.  People,  73  111.  256;  Fox 
vs.  People,  95  111.  71. 

Eesisting  arrest  may  be  shown. 

McKeavitt  vs.  People,  208  111.  460. 

Finger  print  evidence  is  admissible  with  other  evidence   as  a 

means  of  identification. 

People  vs.  Jennings,  252  111.  534. 

Or  foot  prints. 

People  vs.  Hannibal,  259  111.  512;  People  vs.  Carleton,  150  111.  181; 
People  vs.  Dunn,  158  111.  586. 
Silence  of  a  person  when  accused  of  crime,  when  occasion  afforded 
opportunity  to  speak,  may  be  shown  as  a  circumstance  or  implied 

confession. 

People  vs.   Tielke,   259   111.   88;    Ackerson  vs.  People,  124  111.   563; 
Watt  vs.  People,  126  111.  9;  Gannon  vs.  People,  127  111.  507. 

But  this  only  when  accused  remains  silent.    Accusation  may  not 

be  shown  when  accused  at  once  denies  guilt,  even  though  what  he 

said  and  the  whole  of  the  conversation  is  admitted. 
People  vs.  Harrison,  261  111.  517. 
A  confession  is  not  equivalent  to  statements  or  admission  of  fact 
criminating  in  their  nature. 

McCann  vs.  People,  226  111.  562;  Michaels  vs.  People,  208  111.  603; 
Johnson  vs.  People,  197  111.  48. 

It  is  for  the  jury  to  say  what  weight  a  confession  is  entitled  to. 

People  vs.  Gukowski,  250   111.   231;    People  vs.  Tielke,  259  111.  88; 

May  vs.  People,  92  111.  343. 

—  Justification  or  Excuse:    Burden  is  upon  defendant,  but  it 

is  erroneous  to  instruct  the  jury  that  it  is  incumbent  upon  him  to 

establish  satisfactorily  such  defense. 

Appleton  vs.  People,   171   111.   473;   Smith  vs.   People,   142  111.   117; 
Wacaser  vs.  People,  134  111.  438;  People  vs.  Casey,  231  111.  261. 

Expert  and  Opinion: 

The  opinions  of  professional  men  and  of  experts  are  not  always 
of  a  conclusive  character.  Such  opinions  are  not  to  be  lightly 
esteemed.  They  are  proper  and  legitimate  evidence  to  be  consid- 
ered in  connection  with  other  evidence,  and  they  may,  and  often 

do,  tend  to  elucidate  the  true  meaning  of  the  case. 

C.  B.  &  Q.  Ry.  Co.  vs.  Gregory,  58  111.  272 ;  C.  &  A.  Ey.  Co.  V8.  Shan- 
non, 43  111.  338;  XII  111.  Notes  533,  §  454. 
Weight  to  be  accorded  to  an  opinion  of  expert  witness  depends 
largely  upon  his  means  of  information  and  knowledge  as  well  as 

his  bias  and  inclination  or  relation  to  the  parties. 

McMahon  vs.  Chi.  City  Ey.  Co.,  239  111.  334;   Kerfoot  vs.  City  of 
Chicago,  195  111.  229;  Franklin  vs.  Krum,  171  111.  378. 
The  weight  and  value  of  the  testimony  of  expert  witnesses  large- 
ly depends  upon  the  foundations  of  fact  and  of  reason  upon  which 

their  opinions  stand. 

Cram  vs.  City  of  Chicago,  94  App.  199;  C.  &.  N.  W.  Ey.   Co.  vs. 
Town  of  Cicero,  154  111.  656. 

And  such  basis  is  proper  to  be  shown,  either  in  chief  or  on  cross 
examination. 

C.   &  N.  W.   Ey.   Co.  vs.   Town  of  Cicero,   154   111.   656. 

Opinions  of  physicians  on  question  of  mental  capacity  are  en- 


WHOLE  OF  UTTERANCE  1293 

titled  to  no  greater  weight  than  opinions  of  laymen  who  are  men 
of  good  common  sense  and  judgment. 

Austin   vs.  Austin,  2G0  111.  299;   Carpenter  vs.  Calvert,  83  111.  62. 

Judicial  Notice: 

Facts  of  which  courts  take  judicial  notice  need  not  be  proved. 

Vahle  vs.  Brackenseik,  145  111.  231;  Sechrist  vs.  Petty,  109  111.  188. 
Judicial  notice  is  a  term  used  to  express  the  duty  or  power  of 
the  court  to  accept,  for  purposes  of  trial,  the  truth  of  certain 
Avell  known  facts  without  recpiiring  proof.  It  is  that  judicial 
knowledge  of  a  fact  as  a  rule  of  evidence  which  dispenses  with 
the  necessity  of  offering  proof  as  to  such  fact. 
City  of  Chicago  vs.  Williams,  254  111.  360. 

WHOLE  OF  UTTERANCE 

See  Cross  Examination. 
Admissibility : 

—  Admissions  and  Conversations:  If  a  party  prove  an  admis- 
sion by  his  adversary,  as  tending  to  support  his  cause  of  action  or 
defense,  the  adversary  is  entitled  to  prove  such  other  parts  of  the- 
conversation  as  tend  to  explain  or  even  destroy  the  admission. 

Foster  vs.  Shepard,  258  111.  164;  Chi.  City  Ey.  Co.  vs.  Bundv,  210 
111.  39;  C.  E.  I.  &  P.  Ey.  Co.  vs.  Eininger,  114  111.  79;  Johnson 
vs.  Moulton,  2  111.  532;  Corning  vs.  DoUmeyer,  123  App.  188; 
XII    111.    Notes    488,    §  102. 

Although  the  remainder  w'ould,  if  offered  independently,  be  in- 
competent on  the  ground  that  the  statements  were  self-serving. 
Olson  vs.  Brundage,  139  App.  559. 

The  conversations  of  a  party  to  the  suit  relative  to  the  subject 
matter  of  the  suit  are,  in  themselves,  evidence  against  him  in  the 
suit,  and  if  a  counsel  chooses  to  ask  a  witness  as  to  anything  which 
may  have  been  said  by  an  adverse  party,  the  counsel  for  that  party 
has  a  right  to  lay  before  the  court  the  whole  which  was  said  by 
his  client  in  the  same  conversation, — not  only  so  much  as  may  ex- 
plain or  qualify  the  matter  introduced  by  the  previous  examina- 
tion, but  even  matter  not  properly  connected  with  the  part  intro- 
duced on  the  previous  examination,  provided,  only,  that  it  relate 
to  the  subject  matter  of  the  suit,  because  it  would  not  be  just  to 
take  part  of  a  conversation  as  evidence  against  a  party,  without 
giving  the  party,  at  the  same  time,  the  benefit  of  the  entire  residue 
of  what  he  said  on  the  same  occasion. 

Morris   vs.    Jamieson,    205    111.    87. 

The  whole  of  an  admission  is  to  be  taken  together,  and  when 
part  of  a  conversation  or  statement  is  put  in  evidence  by  one  party, 
the  other  is  entitled  to  put  in  the  whole,  so  far  as  it  is  relevant; 
and  it  makes  no  difference  whether  the  whole  statement  comes  out 
on  direct  examination,  or  part  of  it  is  drawn  out  on  cross  exam- 
ination. 

Morris  vs.  Jamieson,  205  111.  87;  Barnes  vs.  Northern  Trust  Co., 
169  111.  112;  Mclntyre  vs.  Thomson,  14  App.  554. 

Ordinarily  an  admission  is  to  be  taken  as  an  entirety,  and  when 

part  of  a  statement  is  introduced  as  an  admission  against  a  party, 

he  is  entitled  to  introduce  any  other  part  relevant  to  the  matter 

in  issue  which  will  explain,  qualify,  limit  or  modify  the  effect  of 

the  admission. 

Merchants  L.  &  T.  Co.  vs.  Egan,  222  111.  494. 


1294  WHOLE  OF  UTTERANCE 

The  general  rule  is  that  where  confessions  or  admissions  are 
introduced  by  one  party,  the  opposite  party  is  entitled  to  the 
whole  conversation,  and  where  the  answer  of  a  party  to  a  ques- 
tion is  sought  to  be  introduced  and  such  answer  could  not  be  under- 
stood or  would  be  unintelligible  without  stating  the  question  also, 
the  question  is  admissible;  but  this  rule  does  not  include  what 
the  witness  may  have  said  further  than  his  language  may  be  neces- 
sary to  understand  what  was  said  by  defendant. 

Young  vs.  Bennett,  5  111.   43;   Hatch  vs.  Potter,  7  111.  725. 

Statements  made  by  a  party  against  his  interest  may  be  ac- 
cepted and  acted  upon  by  the  jury  as  true,  and  they  may  reject 
other  statements  made  in  his  favor,  though  made  at  the  same  time 
and  as  part  of  the  same  conversation. 
Schmidt   vs.    Pfau,    114    111.    494. 

Where  one  party  to  a  suit  proves  part  of  a  conversation,  the 
other  party  has  a  right  to  all  that  was  said  at  the  time,  limited 
to  the  same  subject,  since  it  may  qualify  or  explain  what  has  been 

testified  to. 

Norton  vs.  Clark,   253  111.  557;   Black  vs.  W.   St.  L.  &  P.  By.   Co., 
Ill   111.   351;    Scott  vs.   People,   141   111.   195. 
Party  who  seeks  to  introduce  part  of  a  conversation  can  not 
complain  if   opposite   party  puts  whole  conversation  before  the 

jury. 

Lockport  vs.  Licht,  123  App.  426. 

Where  a  conversation  is  detailed  by  a  witness,  the  party  against 

whom  the  evidence  is  offered  is  entitled  to  the  whole  conversation 

which  occurred  at  the  time. 

Phares  vs.  Barber,  61  111.  271 ;  Hatch  vs.  Potter,  7  111.  725. 

—  Confessions:  Where  prosecution  proves  statement  or  admis- 
sions of  a  defendant,  the  whole  must  be  received  in  evidence,  but 
the  jury  are  not  bound,  as  a  matter  of  law,  to  believe  the  entire 
statement.  If  a  part  of  such  statement  is  disproved  or  contra- 
dicted by  other  evidence,  the  jury  have  the  right  to  give  effect  to 
such  contradictory  evidence,  and  reject  such  part  of  defendant's 
statements  as  are  not  entitled  to  credence  and  accept  the  rest. 

Hanrahan  vs.   People,   91   111.   142. 

If  a  defendant  is  charged  with  a  crime  and  unequivocally  denies 
it  and  this  is  the  whole  conversation,  it  cannot  be  introduced  m 
evidence  against  him  as  a  confession.  If  he  makes  a  reply  admit- 
ting the  truth  of  the  statement  wholly  or  in  part  both  the  state- 
ment and  reply  are  competent. 

People  vs.  Harrison,  261  111.  517. 

Those  portions  of  a  confession  introduced  in  evidence  which  are 
in  favor  of  the  accused  are  entitled  to  as  much  consideration  by 
the  jury  as  those  which  are  against  him,  where  they  are  not  dis- 
proved by  other  testimony,  and  are  not  improbable  or  untrue,  when 

considered  with  all  the  other  evidence. 
Burnett  vs.   People,   204   111.   208. 

—  Former  Testimony:  If  a  party,  on  cross  examination,  is  in- 
terrogated with  reference  to  certain  testimony  given  by  him  on  a 
former  trial,  it  is  proper  to  permit  him  on  re-direct  examination  to 
repeat  the  whole  of  his  testimony  on  the  former  trial  covering  the 
points  as  to  which  he  was  cross  examined. 

111.  steel  Co.  vs.  Wierzbicky,  206  111.  201. 
Where,  on  a  second  trial  in  prosecution  for  murder,  the  testi- 


WHOLE  OF  UTTERANCE  1295 

mony  of  defendant  on  former  trial  is  admitted  in  evidence,  the 
entire  testimony  is  admissible,  and  it  is  error  to  limit  a  cross  ex- 
amination as  to  only  that  part  of  the  testimony  which  the  other 
party  introduced.  Other  questions  and  answers  propounded  to  the 
defendant,  which  tend  to  explain,  qualify,  correct  or  in  any  way 
throw  light  upon  the  matters  touched  upon  in  the  questions  and 
answers  proven  by  the  People,  are  proper,  being  necessary  to  a 
full  and  accurate  understanding  of  the  statements  or  admissions 
sought  to  be  proven.  That  the  witness  who  was  called  to  detail  the 
statements  made  by  accused,  when  testifying  as  a  witness  on  the 
former  trial,  was  the  official  court  reporter,  has  no  effect  to  change 
or  modify  this  rule.  No  special  weight  is,  by  statute,  given  to 
stenographic  notes,  and  the  former  evidence  of  a  witness  may  be 
established  by  any  person  who  heard  the  testimony  and  can  swear 

to  it  from  memory. 

Miller  vs.  I^eople,  216  111.  309. 

When  complainants,  to  prove  allegations  of  bill,  offer  portions 
of  defendants'  testimony  in  another  case  showing  they  had  taken 
securities  from  a  safety-deposit  box,  defendants  are  not  entitled 
to  prove  other  portions  of  their  testimony  where,  under  the  plead- 
ings in  that  case,  such  testimony  was  not  admissible. 
Millard  vs.  Millard,  221  111.  86. 

If  upon  a  former  trial  a  party  called  a  witness,  upon  a  subse- 
quent trial  such  party  may  offer  not  only  the  direct  but  also  the 

cross-examination  of  such  witness. 

Doggett  vs.  Greene,  163  App.  369. 
Where,  for  purpose  of  impeaching  a  witness,  a  witness  is  asked 
concerning  certain  former  testimony,  and  denies  making  the  state- 
ments in  substance,  he  may  not,  during  such  cross  examination, 
explain  or  state  his  version  of  the  former  testimony,  but  may  do  so 
on  re-direct. 

Bressler  vs.  People,  117  111.  422. 

—  Accounts-:  Where  party  calls  for  and  introduces  books  of  ac- 
count, he  is  bound  to  admit  those  items  which  make  against  him 
as  well  as  those  which  operate  in  his  favor,  unless  he  can  show 
that  the  items  to  his  prejudice  have  been  improperly  inserted. 

Howell  vs.  Moore,   127  111.  67;   Moore  vs.  Wright,  90  111.  470;  Mark 
vs.    Miles,    59   App.    102. 
If  a  party  put  in  evidence  an  account  for  any  purpose,  he  makes 

the  whole  of  it  evidence. 

Moore  vs.  Wright,  90  111.  470;  Carey  Lumber  Co.  vs.  Hunt,  54  App. 
314. 
Where  party  in  bill  of  particulars  admits  a  credit,  in  action  of 
account,  the  debits  .as  well  as  the  credits  must  be  considered. 
Thompson  vs.   Hovey,   43   111.   197. 

—  Depositions:  Plaintiff,  in  taking  deposition,  examined  wit- 
nesses as  to  certain  conversation  of  one  of  defendants,  but  on  the 
trial  concluded  not  to  introduce  this  proof,  and  read  the  remain- 
ing part  of  the  deposition.  Defendants  claimed  the  right  to  read 
the  whole  of  the  omitted  part  and  thereby  prove  their  own  declara- 
tions. It  was  not  competent  for  defendants  to  prove  their  own 
declarations,  and  court  properly  refused  to  allow  them  to  read 

the  whole  of  the  deposition. 

Forbes    vs.    Snyder,    94    111.    374. 


1296  WHOLE  OF  UTTERANCE 

Depositions  taken  by  one  party  and  not  withdrawn  by  him,  he 
failing  or  refusing  to  read  same,  adverse  party  may  introduce  ques- 
tions and  answers  from  same  in  both  direct  and  cross  examination, 
and  he  is  not  precluded  from  reading  the  cross  examination  on  the 
theory  that  by  introducing  the  direct  examination  he  makes  the 
witness  his  own  and  cannot  cross  examine  him. 

Doggett  vs.  Greene,  254  111.  134;  Adams  vs.  Eussell,  85  111.  284. 
A  party  taking  a  deposition  may  abandon  same  on  the  trial,  and 
in  this  condition  opposite  party  may  use  it. 

Ey.  Co.  vs.  Anda  Co.,  131   App.  426. 

Cross  examination  cannot  be  read  by  adverse  party,  where 
proper  objection  is  made  to  the  competency  of  the  witness  at  time 
of  taking  deposition. 

Achilles  vs.  Achilles,  137  lU.  589. 

—  Letters:  Where  a  letter  is  offered  in  evidence,  particular 
parts  of  which  are  desired  by  the  party  offering  them  to  go  before 
the  jury,  he  may  read  that  part  of  the  letter  to  the  jury  and  is 
not  required  to  read  the  whole  letter.  The  other  party  has  the 
right  to  read  the  whole  letter  if  he  so  desires. 

Slingloff  vs.  Brimer,  174  111.  561. 

Where  a  part  of  a  letter  is  offered  by  one  party,  and  the  other 
party  desires  the  whole  letter  in  evidence,  he  may,  when  he  comes 
to  the  defense,  introduce  the  same,  but  he  cannot  compel  the  ad- 
verse party  to  introduce  the  entire  letter.  . 

Raphael  vs.  Hartman,  87  App.  634;   Imperial  Hotel  Co.  vs.  daflin 
Co.,   55  App.   337. 

Where  part  of  a  letter  is  competent,  the  whole  may  be  received. 

Page  Fence  Co.  vs.  I.  S.  B.  Co.,  162  App.  492. 
Where  passages  in  a  letter  are  read  by  one  party,  the  other  party 
has  the  right  to  introduce  the  whole  of  such  letter  in  evidence. 

Beasley  vs.  People,  89  111.  571. 

A  party  who  calls  upon  his  adversary  for  the  production  of 
documentary  evidence  cannot,  when  it  is  produced,  claim  the  bene- 
fit of  such  portion  thereof  as  may  be  to  his  advantage  and  at  the 
same  time  reject  that  tending  against  him  and  also  deprive  his 
opponent  of  the  right  to  its  use. 

Boudinot   vs.   Winter,   190   111.   394. 

—  Libelous  Publication:  Where  part  of  libelous  article  is  in- 
troduced, defendant  may  introduce  whole  article. 

Lodge   vs.    Hampton,    116    App.    414. 
Where  part  is  detailed,  party  against  whom  it  is  used  is  entitled 
to  whole. 

Hatch  vs.  Potter,  7  111.  725. 

—  Written  Statement  of  Party:  Counsel  may  read  to  the  jury 
parts  of  a  written  statement  made  by  party  to  suit,  without  otter- 
ing the  the  whole  statement  in  evidence.  If  adversary  desires  to 
put  the  whole  statement  in  evidence,  he  may  do  so. 

Vischer  vs.  N.  E.  R.  Co.,  171  App.  544. 

Effect  of  Accompanying"  Explanation: 

Where  accompanying  statements  are  not  in  themselves  unreason- 
able or  improbable,  nor  is  there  anything  in  the  nature  of  the  tran- 
saction or  the  evidence  tending  to  impeach  them,  the  admission, 
with  the  accompanying  declaration,  which  serves  as  an  answer  to 


WILLS  1297 

the  admission,  is  to  be  received  in  evidence  and  the  answer  is  con- 
clusive. 

Morris  vs.  Janiieson,  205  111.  87;  Bailey  vs.  Pardridge,  35  App.  121; 
Schmidt  vs.  Pfau,  114  111.  494. 
If  a  party  calls  for  the  admission  he  is  bound  to  take  all  that 
was   said   upon   the   occasion,    concerning   the   matter   in   dispute, 
whether  it  makes  for  or  against  him. 

Moore  vs.  Wright,  90  111.  470. 

Where  a  party  relies  upon  the  admissions  of  the  other  party,  the 
whole  of  the  admissions  must  be  taken  together. 
Arnold   vs.   Johnson,   2   111.    196. 
Where  part  of  evidence  of  incompetent  witness  is  excluded,  con- 
nected statement  as  to  same  transaction  must  be  excluded.    Admis- 
sion against  interest  cannot  be  retained  and  explanation  rejected, 
Hawley  vs.  Hawley,  187  111.  351. 

WIDOW 

See  Husband  and  Wife,  Trusts,  Witnesses. 

WILLS 

See  Admissions  and  Declarations,  Affidavits,  Ambiguity,  Best. 
AND  Secondary,  Burden  of  Proof,  Coroner's  Inquest,  De- 
scription, Expert  and  Opinion,  Fiduciary  Relations,  Hus- 
band and  Wife,  Impeachment,  Intestacy,  Knowledge,  Legal 
Conclusions,  Letters,  Lost  Instruments,  Presumptions,  Priv- 
ileged Communications,  Sanity  and  Insanity,  Subscribing 
Witnesses,  Title,  Witnesses. 
CONSTRUCTION: 
In  General: 

In  construing  wills,  the  paramount  rule  is  to  ascertain  the  inten- 
tion of  the  testator  and  give  it  effect  if  not  prohibited  by  law. 
Coon  vs.  McNelly,  254  111.  39 ;  XIV  111.  Notes  1055,  §  226. 
The  object  of  construction  is  to  ascertain  the  intention  which 
the  testator  has  expressed  in  the  language  of  the  will  and  not  one 
which  he  may  be  supposed  to  have  had  in  his  mind  but  has  not 

expressed. 

Crabtree  vs.  Dwyer,  257  111.   101. 
In  construing  ambiguous  provisions  of  a  will  or  codicil,  rela- 
tions of  the  parties,  nature  and  situation  of  the  subject  matter, 
purpose  of  the  instrument  and  motives  which  may  be  reasonably 
supposed  to  have  influenced  testator  in  disposition  of  his  property 

may  be  considered. 

Wardner  vs.  Baptist  Mem.  Board,  232  111.  606. 
Whole  will  should  be  taken  together  in  ascertaining  intention 
of  testator. 

Wimbush  vs.  Wimbush,  253  111.  407;  Heisen  vs.  Ellis,  247  111.  418; 
Terhune   vs.   Com.    S.   D.   Co.,   245   111.   622. 
Such  a  construction  should  be  adopted,  if  it  can  be  reasonably 
done,  as  will  give  force  and  effect  to  every  word  and  clause  of 

the  will. 

Bergman   vs.    Arnhold,    242    111.    218;    Orr   vs.    Yates,    209   111.    222; 
Morrison  vs.  Schorr,  197  111.  554;  Eyer  vs.  Williamson,  256  111.  540. 
None  can  be  arbitrarily  rejected  as  meaningless  or  surplusage. 
Winter  vs.  Dibble,  251  111.  200. 
Ev.— 82 


1298  WILLS 

Language  of  Will: 

liiteiilion  of  the  testator  to  be  ascertained  is  not  one  which 
may  be  inferred  existed  in  the  mind  of  the  testator  but  is  the  one 
expressed  in  the  language  of  the  will,  and  surrounding  circum- 
stances cannot  be  received  to  import  into  the  will  an  intention  not 

therein  expressed. 

Karsten  vs.  Karsten,  254  111.  480;  Williams  vs.  Williams,  189  111.  500. 

Extrinsic  evidence  is  not  admissible  to  make  a  will  for  testator, 

even  though  it  establishes  fact  that  he  intended  to  make  a  will. 
Karsten  vs.   Karsten,   254  111.   480. 

The  rules  for  admission  and  exclusion  of  evidence  in  regard  to 

wills  are  substantially  same  as  those  relating  .to   contracts,   and 

evidence  is  not  admissible  to  show  testator's  intention  except  to 

enable  the  court  to  interpret  the  language  used  and  circumstances 

under  which  testator  used  it. 

Noble  vs.  Fiekes,  230  111.  594. 

Where  will  contains  no  latent  ambiguity,  the  testator's  inten- 
tion must  be  determined  from  language  of  will  itself,  and  extrinsic 
evidence  cannot  be  resorted  to.  In  construing  a  will,  evidence  of 
condition  of  the  testator's  mind  at  the  time  he  executed  will, 
whether  he  lived  with  his  family,  how  much  of  a  family  he  had, 
etc.,  is  admissible  to  give  the  court  the  testator's  situation  so  that 

the  will  may  be  read  in  the  light  in  which  it  was  written. 
Hawhe  vs.  C.  &  W.  I.  Ey.  Co.,  165  111.  5(51. 

As  to  Intestacy : 

It  is  presumed  that  a  testator,  when  he  makes  and  publishes  his 

will,  intends  to  dispose  of  his  entire  estate,  unless  the  presumption 

is  rebutted  by  provisions  or  evidence  to  the  contrary. 

Northern  Trust  Co.  vs.  Wbeaton,  249  111.  606;  Taubenham  vs.  Dunz, 
125   111.   524. 

When  a  party  makes  a  will,  it  will  be  presumed  he  intends  to 
dispose  of  his  entire  estate,  unless  the  presumption  is  clearly  re- 
butted by  its  provisions  or  evidence  to  the  contrary.  The  courts 
will  so  construe  a  will  as  not  to  make  the  testator  die  intestate  as 
to  any  part  of  his  estate,  unless  it  is  impossible  to  so  construe  it 
as  to  give  effect  to  what  may  fairly  be  collected  to  have  been  his 
intention. 

Eyer   vs.   Williamson,    256    111.    540;    Lewis   vs.    Sedgewick,    223    111. 

213;    Hayward   vs.   Loper,   147   111.  41;    Biggerstatf  vs.   Van  Pelt, 

207  111.  611;    Hoffner  vs.   Custer,  237   111.   64. 

And  such  presumption  is  strengthened  by  absence  of  any  residu- 
ary clause. 

Felkel  vs.  O'Brien,  231  111.  329. 

This  presumption  is  so  strong  that  the  court  will  adopt  any 

reasonable  construction  of  a  will  rather  than  hold  that  the  testator 

intended  to  die  intestate  as  to  any  of  his  property. 

Eyer  vs.  Williamson,  256  111.  540;   Lewis  vs.  Harrower,  197  111.  315. 

If  a  will  actually  fails  to  dispose  of  all  the  testator's  property, 

leaving  a  part  thereof  intestate,  the  presumption  against  intestacy 

does  not  authorize  the  court  to  place  a  construction  upon  the  will 

itself  not  .iustified  by  the  language  used,  for  purpose  of  making  it 

dispose  of  all  the  property. 

Jacobs  vs.  Ditz,  260*  111.  98;  Wixson  vs.  Watson,  214  111.   158;  Bond 
vs.  Moore,  236  111.  576. 

In  a  will,  cancelled  clauses  making  provision  for  unborn  child 


WILLS  1299 

cannot  be  considered  as  tending  to  prove  the  testator's  intention  to 

disinherit  the  cliihl. 

Luiio  vs.  K;i(lnitzcr,   166  111.  609. 

Surrounding-  Facts  and  Circumstances: 

Court  will  consider  will  in  light  of  facts  surrounding  testator. 
Wallace  vs.  Foxwell,  liSO  111.  616;  XIV  111.  Notes  1056,   §232. 

While  extrinsic  evidence  is  not  admissible  to  import  into  a  will 
an  intention  not  expressed  in  it,  it  is  competent  to  show  that  fact 
or  circumstance  referred  to  by  the  testator,  when  necessary  to 
identify  the  subject  of  disposition  or  object  of  the  testator's  bounty. 
In  construing  a  will,  the  court  should  always  endeavor  to  read  its 
expression  in  the  sense  in  which  employed  by  the  testator,  and  for 
this  purpose  may  consider  it  in  the  light  of  the  facts  and  circum- 
stances surrounding  the  testator  at  the  time  the  will  w^as  made. 
Perry  vs.   Bowman,  151   111.  25. 

In  seeking  intention,  relation  of  parties,  nature  and  situation  of 
the  subject  matter,  purpose  of  instrument  and  motives  which  might 
reasonably  be  supposed  to  intluence  the  testator  in  disposition  of 
his  property  may  be  considered.  Rule  as  to  exclusion  of  evidence 
offered  to  explain  written  instruments  does  not  exclude  the  cir- 
cumstances in  which  the  testator  was  placed  or  the  collateral  facts 
surrounding  him  at  time  the  will  was  executed.  The  law  is  not  so 
unreasonable  as  to  deny  the  reader  of  any  instrument  same  light 
which  the  writer  enjoyed. 

Coon  vs.   McNelly,  254  111.   39. 

But  evidence  of  the  surrounding  circumstances  will  not  be  per- 
mitted to  change  expressed  intentions. 

Crabtree   vs.   Dwyer,   257   111.    101;    HoUenbeck   vs.   Smith,   231   484; 
Stisser  vs.  Stisser,  235  111.  207;  Collins  vs.  Capps,  235  111.  560. 

Although  a  will  speaks  only  from  the  time  of  the  testator 's  death, 

if  his  intention,  as  communicated  in  his  will,  is  not  clear,  evidence 

of  condition  of  his  estate  at  time  of  making  the  will  is  admissible. 
Dearlove  vs.  Otis,  99  App.  99. 

But  evidence  is  inadmissible  to  prove  surrounding  circumstances 

for  purpose  of  importing  into  the  will  an  intention  not  there  in 

some  way  expressed. 

Bingel  vs.  Voltz,  142  111.  214. 

To  enable  court  to  arrive  at  intention  of  a  testator  in  making 

disposition   of    his   property,    extrinsic    evidence    or   testimony   is 

proper  to  show  the  circumstances  under  which  will  was  made,  as 

to  state  and  condition  of  his  property,  of  his  familv,  and  the  like. 
Kaufman  vs.  Brekenridge,  117  111.  305;   Felkel  vs.' O'Brien,  231  111. 
329;  Gano  vs.  Gano,  239  111.  539;  Richards  vs.  Miller,  62  111.  417; 
Missionary    Society   vs.    Mead,    131    111.    338. 

Declarations  of  Testator: 

As  with  deeds,  so  with  walls,  parties  making  them  cannot  invali- 
date them  by  their  own  parol  declarations,  made  either  previously 
or  subsequently,  and  evidence  of  such  declarations  is  properly 
excluded  when  the  validity  of  the  will  is  on  trial. 

Dickie  vs.  Carter,  42  111.  376;  Taylor  vs.  Pegram,  151  111.  106. 

Declarations  of  testator  as  to  disposition  of  his  property,  con- 
flicting with  the  will,  are  not  admissible. 
Martin   vs.   Beatty,    2.54   111.   615. 

Declarations  of  testator  as  to  extent  of  interest  he  intended  to 
give  devisee  by  his  wall  are  clearly  incompetent  evidence.     The 


1300  WILLS 

testator's  intention  must  be  determined  from  the  language  of  the 
will. 

Kirkland  vs.  Conway,  116  111.  438. 
Proof  of  declarations  of  the  testatrix  to  a  witness  with  refer- 
ence to  an  intended  disposition  of  her  property,  inconsistent  with 
the  disposition  made  thereof  by  the  will,  is  not  admissible,  there 
being  no  question  as  to  fact  that  the  testatrix  was  of  sound  mind 
and  memory. 

Conipher  vs.  Browning,  219   III.  429. 

Testator 's  declarations  are  not  admissible  to  vary  meaning  of  will. 
HoUeiibeck  vs.  Smith,  231   111.  484. 

In  construing  wills,  courts  cannot  resort  to  the  declarations  of 
testator,  either  before  or  after  execution  of  will,  to  control  its 
provisions. 

Brownfield  vs.   Wilson,   78   111.   467. 

Parol  declarations  of  testator,  made  prior  to  execution  of  will, 

and  inconsistent  with  its  provisions,  are  inadmissible. 
Bevelot  vs.   Lestrade,   153  111.   625. 

Prior  declarations  of  testator,  or  prior  wills  cannot  be  received 

in  evidence  for  purpose  of  varying  or  controlling  operation  of  the 

contested  will. 

Floto   vs.   Floto,   233   111.   605. 

Where  question  is  whether  the  words  of  description  employed  in 
devise  of  land  were  used  with  reference  to  an  old  plat  or  a  new 
one,  evidence  of  declarations  of  testator  showing  that  he  was  in 
the  habit  of  using  the  words  of  description  with  reference  to  new 
plat  is  competent;  but  such  declarations,  in  so  far  as  they  indi- 
cate an  intention  to  provide  for  the  devisee,  are  incompetent,  and 
will  be  presumed  not  to  have  been  considered  by  court  where  the 

result  would  be  the  same  without  them. 
Hoffner  vs.  Custer,  237  111.  64. 

Testator  cannot  destroy  will  by  what  he  may  have  said  before 
or  after  execution. 

Crumbaugh  vs.  Owen,  23S   111.  497. 

Statements  of  testator,  whether  made  before  or  after  will  was 
executed,  cannot  be  received  to  prove  what  was  intended  by  the 

written  words  of  the  will. 

Peet  vs.  Peet,  229  111.  341. 
Testimony  by  the  person  who  wrote  the  will,  as  to  what  was  his 
understanding  of  testator's  conversation  at  the  time  will  was  made 
cannot  be  received  in  evidence  to  vary  the  meaning  of  the  will 

as  evidenced  by  the  language  used  therein. 
Hollenbeck  vs.  Smith,  231  111.  484. 

Declarations  of  testator,  made  at  time  of  erasing  clause  in  his 
will  which  made  provision  for  an  unborn  child,  are  not  admissible 
to  prove  intention  to  disinherit  such  child. 
Lurie  vs.   Eadnitzer,   166   111.   609. 

Whether  conversations  of  testator  in  relation  to  disposition  of 

property,  prior  to  making  will,  are  too  remote  to  be  admissible, 

rests  with  the  court. 

Hiififman  vs.   Graves,   245  111.  440. 

Declarations  of  testator,  made  after  execution  of  will,  are  ad- 
missible after  its  loss,  to  prove  not  only  that  it  had  not  been  can- 
celled, but  also  to  prove  its  contents. 

In  the   Matter   of   Page,    118   111.   576. 


WILLS  1301 

"Where  a  bequest  is  made  to  executors,  of  a  sum  of  money  to  be 
used  and  disposed  of  by  them  according  to  verbal  directions  given 
them,  parol  is  admissible  to  show  what  those  instructions  were, 
and  to  show  performance. 

Oagney    vs.    O'Brien,    83    111.    72. 

Ambiguity : 

Where  there  is  no  ambiguity  in  the  terms  used,  or  where  the 
language  of  the  instrument  has  a  settled  legal  meaning,  the  instru- 
ment itself  is  the  only  criterion  of  the  intention  of  the  parties 

and  its  construction  is  not  open  to  oral  evidence. 

Crabtree  vs.  Dwyer,  257  111.  101 ;  Deemer  vs.  Kessinger,  206  111.  57. 

Parol  evidence  is  inadmissible  in  absence  of  latent  ambiguity. 

Hawhe  vs.  C.  &  W.  I.  E.  Co.,  165  111.  561;  Hayward  vs.  Loper,  147 
111.  41;  Taubenham  vs.  Dunze,  125  111.  524;  Heslop  vs.  Gatton, 
71  111.  528;  Peet  vs.  Peet,  229  111.  341 ;  XIV  111.  Notes  1055,  §  227. 

Extrinsic  evidence  is  admissible  to  determine  existence  of  latent 
ambiguity. 

Whitcomb  vs.  Rodman,  156  111.  116. 
A  latent  ambiguity  raised  by  extrinsic  evidence  is  explainable 

by  extrinsic  evidence. 

Graves  vs.  Eose,  246  111.  76. 

While  surrounding  facts  and  circumstances  may  be  proven  to 

explain  a  latent  ambiguity,  such  evidence  cannot  be  admitted  to 

explain  an  ambiguity  which  appears  on  the  face  of  the  will,  or  to 

supply  omissions  or  deficiencies  in  the  will. 

Karsten  vs.  Karsten,  254  111.  480;  Engelthaler  vs.  Engelthaler,  196 
111.  230;   Penn.  Ins.  Co.  vs.  Bauerle,  143  111.  459. 

A  mere  verbal  omission  may  be  supplied. 
Eyer  vs.  Williamson,  256  111.  540. 

But  evidence  that  testator  did  not  own  certain  lands  devised 
does  not  show  a  latent  ambiguity,  but  a  mistake  of  testator  in  mak- 
ing will,  and  is  not  such  as  may  be  corrected  by  extrinsic  evidence. 
Graves  vs.  Eose,  246  111.  76. 

Extrinsic  evidence  cannot  be  heard  to  alter,  detract  from  or  add 
to  the  provisions  of  a  will.  But  in  case  of  a  latent  ambiguity,  parol 
evidence  is  admissible  for  purpose  of  identifying  the  property  in- 
tended to  be  devised. 

Bowen  vs.  Allen,  113  111.  53. 

Extrinsic  evidence  is  not  admissible  to  alter,  detract  from  or 
add  to  the  terms  of  a  will,  and  a  will  cannot  be  reformed  to  con- 
form to  any  intention  of  the  testator  not  expressed  in  the  will 
itself,  however  clear  that  intention  may  appear  from  proof  of  ex- 
trinsic facts. 

Eodiseh  vs.  Moore,  257  111.  615;   Graves  vs.  Eose,  246  111.  76. 

Extrinsic  evidence  is  not  admissible  to  show  that  land  devised 

as  being  in  a  certain  section  was  intended  to  be  described  as  in  a 

certain  other  section. 

Lomax  vs.  Lomax,  218  111.  629;  Williams  vs.  Williams,  189  111.  500; 
Bingel  vs.  Yolz,  142  111.  214. 

The  law  requires  that  all  wills  of  land  shall  be  in  writing  and 

extrinsic  evidence  is  never  admissible  to  alter,  detract  from  or  add 

to  the  terms  of  a  will.    Parol  evidence  is  not  admissible  for  purpose 

of  showing  testator  intended  to  devise  lands  situate  in  different  sec- 


1302  WILLS 

tions  from  those  mentioned  in  tlie  will,  and  that  the  draughtsman 
of  the  will,  by  mistake,  inserted  the  wrong  numbers. 
Kurtz  vs.  Hibiier,  55  111.  514. 
But  where  a  testator  devised  lands  by  a  certain  description,  there 
being  two  conflicting  plats,  the  later  one  being  a  re-survey  of  the 
original  block,  extrinsic  evidence  is  admissible  to  show  whether  the 
description  employed  by  testator  was  used  with  reference  to  old 

plat  or  new  one. 

Hoffner  vs.  Custer,  237  111.  64. 

In  absence  of  a  latent  ambiguity,  extrinsic  evidence  is  not  ad- 
missible to  show  an  intention  on  the  part  of  the  testator  to  make 

legacies  a  charge  upon  his  real  estate. 

Hayues  vs.  McDonald,  252  111.  236;  Wentworth  vs.  Eeed,  166  111.  139. 
If  the  words  of  the  testator  as  to  the  donee  and  the  subject  of 
the  gift  are  unambiguous,  such,  words  cannot  be  varied  by  evi- 
dence of  extraneous  facts,  however  clearly  a  different  intention 

may  appear. 

Vestal  vs.  Garrett,  397  111.  398. 
For  purpose  of  determining  the  object  of  the  testator's  bounty, 
a  court  may  inquire  into  every  material  fact  relating  to  the  per- 
son who  claims  to  be  interested  in  the  will,  in  order  to  identify  the 
person  intended  by  the  testator  as  legatee.  Parol  evidence  is  ad- 
missible of  any  extrinsic  circumstances  tending  to  show  what  per- 
son or  persons  or  what  things  were  intended  by  the  party,  or  to 
ascertain  his  meaning  in  any  other  respect.     A  nickname  may  be 

shown,  as  may  also  a  name  gained  by  reputation. 
Coon  vs.  McNelly,  254  111.  39. 
The  rule  is  that  while  surrounding  facts  and  circumstances  may 
be  proven  to  explain  a  latent  ambiguity  which  is  not  found  upon 
the  face  of  the  instrument  itself,  extrinsic  evidence  cannot  be  ad- 
mitted to  explain  an  ambiguity  which  appears  upon  the  face  of 
the  will,  or  supply  its  omission  and  deficiencies,  since  that  would 

be  to  make  a  will  for  testator. 

Carston  vs.  Carston,  254  111.  480. 

Where  an  ambiguity  in  a  w'ill  is  not  latent,  extrinsic  evidence 
is  inadmissible  to  explain  will  or  show  intention  of  testator. 
Haywood  vs.  Loper,  147  111.  41. 

Parol  evidence  is  admissible  in  explanation  of  a  latent  ambiguity 
that  arises  where  writing,  on  its  face,  appears  clear  and  unam- 
biguous, but  the  meaning  is  rendered  uncertain  by  extrinsic  evi- 
dence, or  from  matters  of  which  the  court  will  take  judicial  notice, 
and  where  uncertainty  is  so  created,  it  may  be  removed  by  extrin- 
sic evidence. 

Graves  vs.  Eose,  246  111.  76. 

Where  the  devise  of  "the  homestead"  is  followed  by  a  descrip- 
tion  which   is  incomplete   but   not   incorrect,    parol   testimony   is 
competent  to  prove  the  legal  description  of  the  homestead  premises. 
Morall  vs.  Morall,  236  111.  640. 

Where  the  description  of  land  devised  in  a  will  is  apparently 
unambiguous,  but  the  township,  range,  county  and  state  are  not 
specified,  the  court  will  take  judicial  notice,  from  its  knowledge 
of  governmental   surveys,  that  the   apparently   unambiguous  de- 


WILLS  1303 

scription   is,   in   fact,   uncertain,   and  may  permit  the   township, 
county,  range  and  state  to  be  supplied  by  extrinsic  evidence. 
Graves  vs.  Ivose,  24G  111.  7G. 
Reference  to  number  of  acres  cannot  control  plain  words  of  a 

will. 

Graves  vs.   Eose,   246   111.   Tfi;    Williams  vs.  Williams,   189   111.   500,-, 
Bingel  vs.   Volz,  142  111.  214;   Bishop  vs.  Morgan,  82  111.  351. 
When  there  is  a  latent  ambiguity  in  description  of  object  or  sub- 
ject of  the  gift,  and  such  ambiguity  can  be  removed  by  rejecting 
false  words,  leaving  a  complete  intelligible  description,  it  is  the 
duty  of  the  courts  to  so  do,  as  where  there  are  two  descriptions,  one 

good  and  the  other  ])ad,  the  latter  may  be  rejected. 

Vestal  vs.  Garrett,  197  111.  398;  Collins  vs.  Capps,  235  111.  560;  Gano 
vs.  Gano,  239  111.  539 ;  Emmert  vs.  Hays,  89  111.  11. 
Where  a  will  reveals,  when  applied  to  the  property,  a  latent  am- 
biguity in  the  description,  the  extrinsic  evidence  which  may  be 
resorted  to  to  remove  ambiguity  does  not  include  declarations  of 
testator  at  time  he  wrote  the  will,  as  to  what  he  intended  to  give 
plaintiff.  The  language  used  must  be  construed  according  to  its 
terms,  aided  by  such  light  as  may  be  shed  on  testator's  surround- 
ings and  environment,  by  parol  testimony.  The  court  may  use 
parol  testimony  to  put  itself  in  the  testator's  place,  but  not  to 

frame  a  new  will. 

Mason   vs.   Ely,  38  111.   138. 

In  construing  wills,  parol  testimony  is  competent  to  prove  the 
circumstances  surrounding  the  testator,  the  condition  of  his  prop- 
erty, his  relations  to  his  family,  etc.,  but  not  to  prove  his  declara- 
tions before  or  after  executing  the  will. 
Eansdell  vs.  Boston,   172  111.  439. 

When  there  is  a  gift  to  a  society  for  charity,  without  clearly- 
describing  the  particular  society,  and  there  are  two  or  more  soci- 
eties carrying  on  the  same  charity,  a  latent  ambiguity  exists,  and 
extrinsic  evidence  is  admissible  for  the  purpose  of  determining  the 
society  or  institutions  intended  by  the  donor  at  the  time  of  the 

execution  of  his  will. 

Hitchcock  vs.  Board  of  Home  Missions,  259  111.  288. 

Opinion  Evidence: 

Witnesses  cannot  be  permitted  to  answer  questions  which  indi- 
rectly call  for  their  opinions  as  to  the  proper  construction  of  par- 
ticular provisions. 

McFarland  vs.   McFarland,  177  111.  208. 

Foreign  Laws : 

In  construing  a  foreign  will  affecting  land  in  Illinois,  proof  of 
laws  or  usages  of  the  foreign  state,  with  w^hieh  testator  is  shown 
or  presumed  to  be  familiar,  may  be  received,  not  to  establish  a 
rule  of  law  binding  upon  the  court  of  the  forum,  but  to  enable  it 
to  correctly  construe  the  language  of  the  will  in  the  sense  in  which 

it  was  used. 

Peet  vs.  Peet,  229  111.  341. 

Memoranda : 

A  memorandum  in  the  handwriting  of  testator,  found  among  his 

papers,  but  unsigned  and  unattested,  cannot  be  received  in  aid  of 

construction.  '*'    "* 

Penn  Co.  vs.  Bauerlee,  143  111.  459. 


1304  WILLS 

Judicial  Notice: 

It  is  a  matter  of  common  knowledge  that  most  all  religious  de- 
nominations maintain  missions  or  missionary  societies  for  the  ad- 
vancement of  the  cause  of  religion. 

Hitchcock  vs.  Board  of  Home  Missions,  259  111.  288. 

Presumptions : 

It  will  be  presumed,  in  absence  of  anything  in  the  will  to  the 
contrary,  that  will  was  made  in  view  of  the  statutes  then  existing, 
and  that  the  same  were  intended  by  the  intestate  to  prevail  in 
ease  of  a  contingency  not  provided  for  in  the  will. 
Kudolpli  vs.  Eudolph,  207  111.  266. 
That  qualifying  words  were  intended  to  have  some  meaning. 

Tea  vs.  Millen,  257  111.  624. 
In  construing  a  will,  it  must  be  presumed  that  the  testator  knew 

the  law. 

Greenwood  vs.   Greenwood,   178   111.   387;    Nangle   vs.    Midlany,   113 

App.    457. 
That  he  had  knowledge  of  the  fact  that  his  marriage  would  in- 
validate his  will,  and  if  his  desire  and  intention  remained  the  same, 

he  must  execute  another. 

Sloniger  vs.   Sloniger,  161  111.  270. 
Words  presumed  to  be  used  in  strict  and  primary  sense,  unless 
a  contrary  intention  appears  from  context. 

Eiehards  vs.  Miller,  62  111.  417 ;  XIV  111.  Notes  1057,  §  239. 
Language  must  be  presumed  to  have  been  intended  to  have  legal 

effect  which  law  assigns  it. 

Summers   vs.   Smith,   127   111.   645. 
Person  is  presumed  to  know  and  intend  the  effect  of  words  he 

uses. 

Jones  vs.  Jones,  124  111.  254. 
It  is  not  to  be  presumed  that  a  testator  intended  by  his  will  to 
accomplish  that  which  the  law  would  do  without  any  will. 
Anderson   vs.   Anderson,   191   111.   100. 
Testator  is  presumed  to  know  that  unborn  child  not  provided  for 
in  will  would  receive  its  share  under  statute,  where  not  disin- 
herited. 

Lurie  vs.  Eadnitzer,  166  111.  609. 
Bequest  of  "all  my  property,  wherever  same  may  be,"   etc., 
raises  presumption  that  testator  intended  to  dispose  of  after  ac- 
quired realty. 

Missionary  Soc.  vs.  Mead,  131  111.  338. 
Upon  devise  of  quarter  section,  except  so  many  acres,  presimip- 
tion  is  that  devise  embraces  all  land  included  in  government  sur- 
vey, but  presumption  may  be  rebutted  by  proof  that  testator  had 
adopted  a  boundary  by  which  number  of  acres  would  be  limited. 
Smith  vs.  Denison,   112  111.   367. 
The  presumption  in  favor  of  a  per  capita  distribution  yields 
readily  in  favor  of  a  faint  indication  of  the  testator  that  the  dis- 
tribution shall  be  per  stirpes.     Similarly,  the  presumption  in  favor 
of  a  per  stirpes  distribution,  arising  from  the  use  of  the  words 
"heirs,  heirs  at  law,"  etc.,  without  the  use  of  the  words  "to  be 
equally  divided,"  etc.,  will  yield  to  a  contrary  intention  on  the 

part  of  testator,  either  expressed  or  implied. 
Baker   vs.    Baker,    152    App.    620. 


WILLS  1305 

The  law  favors  the  vesting  of  estate  rather  than  that  the  title 

shall  be  in  abeyance. 

Alettler  vs.  Warner,  243   111.  GOO;  Flanner  vs.  Fellows,  206  111.  136; 
Jacobs   vs.   Ditz,   260   111.   98. 

Whether  legal  or  equitable, 

Annstroiig   vs.   Barber,    239   111.   389. 

Where  death  of  the  first  taker  is  coupled  with  a  condition  which 

may  or  may  not  happen,  devise  over  will  be  presumed  to  refer 

to  the  death  of  the  first  taker  at  any  time ;  but  this  presumption 

yields  to  a  contrary  intention  shown  by  the  will. 

Winter  vs.    Dibble,   251   111.   200, 

TESTAMENTARY  CAPACITY: 

What  Constitutes: 

—  In  General:    The  mental  capacity  required  in  making  deeds, 

contracts  or  transacting  ordinary  business  is  not  essential  to  the 

making  of  a  will,  but  it  is  sufficient  if  the  testator  understands  the 

business  in  which  he  is  engaged,  his  property,  the  natural  objects 

of  his  bounty,  and  the  disposition  which  he  desires  to  make  of  his 

property. 

In  re  Estate  of  Weedman,  254  111.  504;    Greene  vs.  Maxwell,  251 
111.  335;  XIV  111.  Notes  1026,  §  12. 

General  rule  is  that  a  person  who  is  capable  of  transacting  ordi- 
nary business  is  also  capable  of  making  a  valid  will.  If  he  is  cap- 
able of  buying  and  selling  property,  settling  accounts,  collecting 
and  paying  money  or  borrowing  or  loaning  money,  he  must  usually 
be  regarded  as  capable  of  making  a  valid  disposition  of  his  prop- 
erty by  will. 

Drum  vs.  Caps,  240  111.  524;  Freeman  vs.  Easly,  117  111.  317;  Meeker 
vs.    Meeker,    75   111.    260. 

To  constitute  a  sound  and  disposing  mind,  it  is  not  necessary 
that  the  mind  should  be  unbroken,  unimpaired,  unshattered  by  dis- 
ease, or  otherwise,  or  that  testator  should  be  in  full  possession  of 
his  reasoning  powers.  So  if  testator  be  in  a  dying  state,  he  has 
capacity  if,  when  his  attention  is  aroused,  his  mind  acts  clearly  and 
with  discriminating  judgment  in  the  act  to  be  done  and  its  rela- 
tions. 

McCoy   vs.    Sheehy,    252   111.    509;    Campbell   vs.    Campbell,    130   111. 
466;   Bevelot  vs.  Lestrade,  153  111.  625. 

The  test  of  testamentary  capacity  is,  did  testator  at  time  of  exe- 
cuting the  instrument  purporting  to  be  his  will,  have  sufficient 
mind  and  memory  to  enable  him  to  understand  the  particular  busi- 
ness in  which  he  was  then  engaged?  If  he  was  able  to  remember 
who  were  the  natural  objects  of  his  bounty,  recall  to  mind  his 
property  and  make  disposition  of  it  understandingly,  according  to 
some  purpose  or  plan  formed  in  his  mind,  he  was  possessed  of  testa- 
mentary capacity. 

Austin  vs.  Austin,  260  111.  299. 

The  true  inquiry  in  every  case  is,  did  the  person  whose  testa- 
mentary capacity  is  questioned,  have,  at  time  of  making  his  will, 
such  mind  and  memory  as  enabled  him  to  understand  the  busi- 
ness in  which  he  was  then  engaged,  and  the  effect  of  the  disposition 
made  by  him  of  his  property  ?  If  he  did,  he  was  possessed  of  the 
sound  mind  and  memory  required  by  the  statute. 

Owen  vs.  Crumbaugh,  228  111.  380;  Johnson  vs.  Farrell,  215  111.  542, 


1306  WILLS 

Testamentary  capacity  means  capacity  to  understand  effect  of 
particular  instrument  in  controversy. 
Uillman  vs.  McDanel,  222  111.  276. 
Capacity  may  be  dependent  to  some  extent  on.  amount  of  estate 

and  complication  of  devise. 

Taylor  vs.  Pegram,  151  111.  106;   Trish  vs.  Newell,  62  111.  196. 
—  Insane  Delusion:     An  insane  delusion  may  be  said  to  be  a 
belief  in  a  state  or  condition  of  things  in  the  existence  of  which 

no  rational  person  would  believe. 

Louby  vs.  Key,  258  111.  558;  Snell  vs.  Weldon,  243  111.  496;  Schnei- 
der vs.  Manning,  121  111.  376. 
An  insane  delusion  is  a  belief  in  something  impossible  in  the  na- 
ture of  things,  or  impossible  under  the  circumstances  surrounding 
the  afflicted  individual  and  which  refuses  to  yield  either  to  evi- 
dence or  reason.  Such  a  delusion  does  not  exist  unless  it  is  one 
whose  fallacy  can  be  certainly  demonstrated,  for,  unless  such 
demonstration  can  be  made,  it  can  not  be  said  no  rational  person 

would  entertain  the  belief. 

Drum  vs.   Capps,  240  111.  524. 
A  belief  which  a  rational  person  may  entertain,  however  erro- 
neous, does  not  constitute  an  insane  delusion. 
Hutchinson   vs.   Hutchinson,  250   111.   170. 
If,  without  evidence  of  any  kind,  a  testator  imagines  or  con- 
ceives something  to  exist  which  does  not,  in  fact,  exist,  and  which 
no  rational  person  would,  in  the  absence  of  evidence,  believe  to 
exist,  he  is  afflicted  with  an  insane  delusion. 
Owen  vs.  Crumbaugh,  228  111.  380. 

Admissibility  of  Evidence: 

—  In  General:  It  is  the  duty  of  the  court  to  see  whether  par- 
ticular evidence  is  relevant  or  tends  to  prove  the  point  at  issue, 
and  if  the  question  involved  is  the  testamentary  capacity  of  the 
testator,  all  evidence  not  tending  to  throw  any  light  upon  that 
question,  and  which  can  only  mislead  the  jury,  should  be  rejected. 
Floto  vs.  Floto,  233  111.  605. 

It  is  improper  to  exclude  all  evidence  as  to  capacity  to  transact 

ordinary  business. 

Trubey  vs.  Eichardson,  224  111.  136. 
Where  fraud,  undue  influence  or  want  of  testamentary  capacity 
is  charged,  all  the  surrounding  facts,  including  the  bequest  itself, 
its  propriety  or  impropriety,  its  reasonableness  or  unreasonable- 
ness, in  view  of  the  situation,  relations  and  circumstances  of  the 
testator,  may  be  considered  as  bearing  upon  the  issues  thus  raised. 

MeCommon  vs.  McCommon,  151  111.  428;  Dowie  vs.  Sutton,  227  111.  183. 
Evidence  as  to  testator's  feelings  towards  children  and  cause 
therefor  is  admissible  to  show  condition  of  his  mind  at  time  will 
was  executed. 

Wilkinson  vs.  Service,  249  111.  146. 
Where  probate  of  a  will  is  resisted,  on  ground  of  mental  in- 
capacity of  testator  and  undue  influence  exercised  by  his  wife,  to 
whom  the  bulk  of  his  property  is  given,  any  evidence  is  proper 
which  tends  to  show  testator's  mental  condition,  the  annoyance  to 
which  he  was  subjected  by  the  continual  importunities  of  his  wife, 
his  susceptibility  to  those  in  whose  care  he  was,  and  his  helpless- 
ness in  their  hands,  from  want  of  mental  vigor  induced  by  long 


WILLS  1307 

illness,  to  resist  any  influenoo  tliat  might  be  brought  to  bear  upon 
him. 

Eeynolds    vs.    Adams,    90    111.    i;U. 
Financial  condition  of  those  having  claim  upon  testator's  bounty 
may  be  taken  into  consideration  in  connection  with  the  will  itself, 
in  determining  question  of  testamentary  capacity. 
Healea   vs.    Keenan,   244   111.    484. 
Evidence  that  testator  knew  of  financial  condition  of  relative 
admissible  to  determine  reasonal)leness  of  will. 
Dillman  vs.  McDanel,  222  111.   27(3. 
Oral  evidence  in  reference  to  testator's  not  liolding  an  equitable 
title  to  all  the  lands  which  he  was  devising  is  admissible.     On  the 
question  of  mental  capacity,  it  tends  to  show  that  his  memory  was 
good,  his  sense  of  justice  unimpaired,  that  his  judgment  as  to  the 
best  means  of  preventing  subsequent  litigation  with  those  holding 

the  eciuitable  title  was  sound. 

Brownfield   vs.   Brownficld,   43   III.   147. 
So  fact  that  testatrix  misstated  value  of  her  property  to  scrivener 
is  admissible  on  question  of  mental  capacity. 
Waugh  vs.  Moan,  200  111.   298. 
—  Declarations  of  Testator:  Declarations  are  admissible  to  show 

testator's  state  of  mind. 

Wilkinson  vs.   Service,  249  111.  146;   XIY  111.  Notes  1061,  §259.  _ 

Declarations  of  testator,  while  not  admissible  to  modify  will 
or  to  show  it  was  executed  under  duress  or  undue  influence,  may 
be  proven  to  show  mental  condition  of  testator. 

Norton  vs.  Clark,  253  111.  557 ;  England  vs.  Fawbush,  204  111.  384. 
Admissible  whether  made  before  or  after  execution  of  will,  so 
far  as  they  tend  to  show  mental  capacity  at  time  will  was  executed. 
Nieman  vs.  Sehnitker,  ISl  111.  400;   Hill  vs.  Bahrns,  158  111.  314. 
Declarations  of  testator  with  reference  to  a  disposition  of  his 
property,  contrary  to  the  provisions  of  the  will,  are  admissible  up- 
on subject  of  his  testamentary  capacity,  provided  there  is  other 
proof  of  lack  of  testamentary  capacity,  otherwise  they  are  not  ad- 
missible. 

Hurley  vs.   Caldwell,   244  111.   448. 
Declaration  that  he  had  treated  all  his  children  alike  are  inad- 
missible to  show  incapacity  to  make  later  will. 
Hill  vs.  Barhus,  158  111.  314. 
While  declarations  of  a  testator  are  not  admissible  to  show  an 
express  revocation  of  his  will,  or  the  fact  that  it  was  executed  under 
duress  or  to  prove  undue  influence,  they  may,   nevertheless,  be 
proven  to  show  his  mental  condition  at  time  of  the  execution  of 
the  will,  or  so  near  the  time  that  same  state  of  affairs  must  have 

still  existed. 

Eeynolds   vs.   Adams,   90   111.    134. 

Declarations  by  testator,  at  different  periods  of  his  life,  with 
reference  to  his  intended  disposal  of  his  property,  are  admissible 
in  evidence  if  consistent  with  the  provisions  of  the  will,  but  not  if 
inconsistent  therewith,  except  in  so  far  as  they  may  have  a  ten- 
dency to  show  mental  condition  of  the  testator. 
Cheney  vs.   Goldy,   225  111.   394. 

Verbal  declarations  of  testator  to  the  effect  that  his  son  man- 
aged his  business  in  the  country,  and  another  person  managed  it 


1308  WILLS 

in  town,  are  admissible  as  bearing  upon  testator's  mental  condi- 
tion ;  though  such  declarations  are  not  evidence  of  their  truth. 
Healea  vs.  Keenan,  244  111.  484. 
Contestant  has  a  right  to  prove  declarations  of  testatrix  in  so 
far  as  they  are  relevant  to  the  question  of  her  mental  capacity, 
although  they  have  occurred  in  conversations,  and,  necessarily, 
may  prove  so  much  of  the  conversations  as  will  enable  the  jury  to 

understand  the  declaration. 

Norton  vs.  Clark,  253  111.  557. 
On  bill  by  daughter  to  contest  her  mother's  will  for  undue 
influence  and  want  of  mental  capacity,  a  conversation  between  the 
mother  and  daughter,  in  presence  of  a  third  person,  before  the 
will  was  executed,  which  concerns  persons  who  are  defendants  to 
the  bill,  is  admissible  upon  the  question  of  mental  capacity,  with- 
out a  special  showing,  in  the  first  instance,  that  what  was  said  by 
the  daughter  was  necessary  to  an  understanding  of  what  was  said 
by  the  mother. 

Garrus  vs.  Davis,  234  111.  326. 

A  will  executed  in  accordance  with  the  provisions  of  statute 
cannot  be  destroyed  by  proof  of  the  declarations  of  testator  be- 
fore or  after  making  the  will,  except  in  so  far  as  such  declarations 
bear  upon  the  question  of  testamentary  capacity. 
Owen  vs.   Crumbaugh,   238  111.  497. 

Where  the  alleged  fact  of  the  testator's  belief  in  the  infidelity 
of  his  wife  is  first  brought  out  by  contestants'  evidence  and  is 
made  one  of  the  main  premises  of  hypothetical  question  on  the 
subject  of  testator's  sanity,  it  is  proper  to  permit,  in  rebuttal, 
proof  of  fact  that  testator  had  stated  to  witnesses,  after  investiga- 
tion of  reports  of  his  wife's  infidelity,  he  believed  them  to  be 

untrue. 

Floto  vs.  Floto,  233  111.  605. 
Declarations  of  testator  are  competent  in  contest  involving  valid- 
ity of  will,  to  show  state  of  testator's  mind,  but  not  to  prove  facts 

Wilkinson  vs.  Service,  249  111.   146;   Baker  vs.  Baker,  202  111.  595; 
Eeynolds  vs.  Adams,  90  111,   134. 
—  Inequality  of  Distribution:   Inequality  of  distribution  is  not, 
of  itself  alone,  a  circumstance  tending  to  show  unsoundness  of 

mind. 

Abrahams  vs.  Wooley,  243  111.  365;  Nicewander  vs.  Nicewander,  151 

111.  156;   Meeker  vs.  Meeker,  75  111.  260;   XIV  111.  Notes   1029, 

§27. 

But  if  Other  facts  and  circumstances  are  proven  _  tending  to 

show  unsoundness  of  mind,  then  the  inequality  of  distribution  may 

be  considered  in  connection  with  other  evidence. 

Donnan  vs.   Donnan,   236   111.   341;   Graham  vs.   Deuterman,   206   111. 
378;   Kaenders  vs.  Montague,  180  111.  300;   Snell  vs.  Weldon,  243 
111.  496. 
Former  Wills:   Former  similar  wills  are  admissible  on  ques- 
tion of  mental  capacity,  and  proof  of  sanity  when  executing  such 

former  wills  is  also  competent. 

Nieman  vs.  Schnitker,  181  111.  400. 
Proof  of  other  wills  and  declarations  of  testator,   conforming 
substantially  with  the  disposition  of  the  property  made  by  the 


WILLS  1309 

will  in  question  slionld  he  confined  to  wills  and  declarations  made 
at  a  time  when  the  testator  was  conceded  to  be  sane. 
Dillman  vs.  McDanel,  222  111.  276. 

—  Letters  of  Testator:  Letters  from  testator  tending  to  show 
a  rational  businesslike  purpose  to  make  a  will  substantially  like 
the  one  in  contest  are  competent  as  tending  to  show  the  mental 

condition  of  the  testator. 

Baker   vs.    Baker,    202    111.   595. 
And  although  too  remote  in  point  of  time,  if  standing  alone, 
they  are,  nevertheless,  admissible  if  the  subject  matter  is  repeated 

in  other  letters  which  are  competent  in  point  of  time. 
Baker   vs.   Baker,    202    111.   595. 

Where  alleged  that  testator  was  suffering  from  an  insane  delu- 
sion, a  letter  written  by  him  to  his  sister  a  few  months  before 
the  will  was  made,  showing  that  he  believed  all  women  were  at- 
tempting to  poison  him,  and  that  his  sister  was  one  of  his  "mur- 
derers," is  admissible  in  evidence  without  extrinsic  proof  as  to 
where  it  was  written  or  of  its  having  been  sent  to  the  party  ad- 
dressed. 

Dowie  vs.   Sutton,   227   111.    183. 

—  Letters  of  Third  Persons:  Letters  to  a  testator  are  not  com- 
petent to  prove  his  mental  condition,  unless  there  is  proof  of 
some  act  by  him  with  reference  to  them,  which  the  contents  of  the 

letters  are  admissible  to  explain. 

Snell  vs.  Weldoii,  239  111.  279. 
Letters  found  in  an  envelope  which  had  "spirit  communica- 
tions" marked  upon  it  in  handwriting  claimed  to  be  the  testator's, 
are  not  admissible  where  there  is  no  evidence  that  testator  ever 
acted  upon  their  contents  in  any  way,  or  approved  thereof,  and 
there  is  nothing  in  them  having  any  reference  to  the  will. 

Cnimbaugh  vs.  Owen,  238  111.  497. 

—  Appointment  of  Conservator:  The  records  of  the  county  court 
showing  the  appointment  of  a  conservator  for  the  testator  some 
years  after  the  execution  of  the  will  in  contest  are  properly  denied 

admission. 

Entwistle  vs.  Meikle,   180   111.   9. 
Evidence  that  a  conservator  was  appointed  for  testatrix  two 
years  or  more  after  the  wull  was  made  is  inadmissible. 
Wetzel  vs.  Firebaugh,  251  111.  190. 
Record  showing  appointment  of  conservator  before  making  of 
will  is  not  admissible  to  prove  inability  to  make  a  will. 

In  re  Estate  of  Weednian,  254  111.  504;   Fittard  vs.  Foster,  12  App 
132;  Heirs  of  Critz  vs.  Pierce,  106  111.  167. 

—  As  to  Mental  Condition  of  Blood  Relatives:  If  there  is  other 
evidence  tending  to  show  mental  unsoundness  of  testator,  it  is  com- 
petent to  show  insanity  of  collateral  blood  relatives,  not  further 
removed  than  uncles  and  aunts,  without  making  proof  that  their 
insanity  was  hereditary  in  character. 

Dillman  vs.  McDanel,  222  111.  276.  _      - 

And  it  is  error  to  refuse  the  admission  of  such  testimony. 

Martin  vs.  Beatty,  254  111.  615. 
Where  it  was  shown  that  testator  had  three  strokes  of  paraly- 
sis, one  before  making  his  will,  from  effects  of  which  he  partially 
recovered,  and  the  second  shortly  after  making  his  will,  and  that 


1310  WILLS 

the  last  resulted  in  his  death,  there  was  no  error  in  excluding  proof 
that  disease  had  affected  testator's  ancestors  and  blood  relatives, 
as  that  could  not  show  the  effect  of  the  malady  on  the  mind. 
Meeker   vs.   Meeker,   75   111.   260. 
Moral  Character:  Not  an  element  to  be  considered  on  question 

of  testamentary  capacity. 

Wickes  vs.   Walden,   228  111.   56. 
Evidence  which  tends  only  to  blacken  reputation  of  testator  is 

not  admissible. 

Snell  vs.  Weldon,  239  111.  279;  Carpenter  vs.  Calvert,  83  111.  62. 

Evidence  which  tends  to  show  that  many  years  before  the  will 
was  executed  the  testator  had  been  guilty  of  the  theft  of  small 
articles  from  his  neighbors  is  not  admissible. 
Graham    vs.    Deutermau,    217    III.    235. 
Proof  of  dissolute  or  profligate  character  or  that  conduct  was 
disgraceful  and  reprehensible  is  not  admissible. 
Snell   vs.   Weldon,    239   111.   279. 
—  Opinion  and  Expert  Evidence:     Opinion  of  witness  as  to 
whether   testator   had   capacity   to   execute   will    is   inadmissible, 

whether  such  witness  is  an  expert  or  not. 

Wetzel  vs.   Firebaugh,  251  111.   190;   Garrus  vs.  Davis,   234  111.  326; 
Keithly  vs.  Strafford,  126  111.  507;  Carpenter  vs.  Calvert,  83  111.  62. 
Witness  cannot  be  asked  "whether  or  not  testator  was  able  to 
carry  in  his  mind  and  memory  the  nature  and  extent  of  his  prop- 
erty," nor  "whether  or  not  he  was  able  to  understandingly  exe- 
cute a  will. "  _    , 

Baily  vs.  Beall,  251  111.  577;   Baker  vs.  Baker,  202  111.  59o;   Taylor 
vs.   Pegram,   151  111.   106. 
Nor  whether  "testatrix  was  able  to  understand  the  business  in 

which  she  was  engaged." 

Wetzel  vs.  Firebaugh,  251  111.   190. 
But  witness  may  be  asked  "whether  or  not  testatrix  had  mind 
enough  to  know  what  property  she  had  or  who  were  her  relatives." 
Voodry  vs.  Univ.  of  111., '251  111.  48. 
And  whether  or  not  at  time  of  making  the  will  testator  wa3 
capable  of  transacting  ordinary  business. 
Keithley  vs.  Stafford,   126  111.  507. 
And  witnesses  may  be  cross-examined  as  to  what  they  mean  by 

' '  ordinary  business. ' ' 

Kowcliffe  vs.  Belson,  261  111.  566. 
But  not  "whether  the  witness  did  not  transact  ordinary  busi- 
ness with  testator." 

Healea   vs.   Keenan,    244   111.   484. 
Opinion  as  to  mental  capacity  may  be  given  by  non-expert  wit- 

Mayville  vs.  French,  246  111.  434;   Craig  vs.  Southard,  148  111.   37; 
XIV  111.  Notes  1032,  §  50. 
But  he  must  first  detail  facts  and  circumstances  upon  which 
opinion  is  based. 

Brainard  vs.  Brainard,  259  111.  613. 

Testimony  of  a  witness  that  testator  "acted  foolish"  when  he 
went  about  the  house  should  be  stricken  out  on  motion,  where 
witness  states  no  facts  upon  which  her  conclusions  are  based.  And 
a  statement  by  testator's  sister,  when  asked  what  she  thought  of 
the  testator's  mental  condition  from  her  talks  with  him,  that  "me 


WILLS  1311 

and  my  sister  just  talked  and  had  a  good  cry  over  it,  we  seen  his 
mind  was  gone"  should  he  stricken  out  on  motion. 
Wallace   vs.   Whitman,   120J    ill.    59. 

Whether  a  non-expert  witness  has  sufficient  knowledge  of  another 
to  express  an  opinion  on  his  mental  condition  is  to  be  determined 
by  the  court. 

Martin  vs.  Beatty,  254  111.  615;  Graham  vs.  Deuterman,  244  111.  124. 

May  detail  facts  and  circumstances  from  which  the  jury  may 

form  an  opinion  and  then  give  his  own  conclusion  in  the  form  of 

an  opinion. 

Graham  vs.  Deuterman,  244  111.  124;  Wallace  vs.  Whitman,  201  111. 
59 ;  Snell  vs.  Weldon,  239  111.  279. 

A  witness  may  state  any  fact  known  to  him  in  relation  to  testa- 
tor's capacity  to  transact  ordinary  business,  and  all  he  knows 
in  regard  to  the  vigor  and  strength  of  his  mental  powers.  Neigh- 
bors and  acquaintances,  if  men  of  good  common  sense,  are  com- 
petent to  give  their  opinions  as  to  his  mental  capacity. 
Taylor  vs.  Pegram,  151  111.  106. 

Opinions  of  witnesses  that  a  testator  was  not  competent  to  tran- 
sact ordinary  business  affairs  are  properly  admitted  though  they 
had  never  seen  him  transact  any  business,  where  they  testify  they 
had  observed  that  he  never  transacted  any  business,  but  that  his 
wife  or  some  other  member  of  the  family  always  acted  in  such 
affairs,  even  though  the  testator  was  present  and  was  the  party 

directly  interested. 

Ring   vs.    Lawless,    190   111.    520. 

The  fact  that  testatrix  did  not  discuss  business  affairs  or  rela- 
tives does  not  disqualify  witness  from  giving  opinion  as  to  mental 

capacity. 

Wetzel  vs.  Firebaugh,  251  111.  190. 

—  As  to  Time  of  Mental  Capacity:  Proper  to  show  mental  ca- 
pacity of  testator  both  before  and  after  the  execution  of  pur- 
ported will. 

A^oodry  vs.   Univ.    of   111.,   251   111.   48. 

Mental  condition  of  the  testator  after  will  had  been  executed 

can  be  shown  only  where  evidence  will  tend  to  show  his  condition 

at  that  time,  and  not  if  subsequent  condition  appears  to  have 

arisen  from  a  new  cause  which  was  not  in  operation  when  will 

was  executed. 

Todd  vs.  Todd,  221  111.  410. 

Testimony  which  had  reference  to  condition  of  the  mind  of  the 
testatrix  long  after  she  made  a  will,  and  which  did  not  tend  to 
show  unsoundness  of  mind  as  would  invalidate  the  writing  of  her 
will,  is  properly  rejected. 

Dickie  vs.  Carter,  42  111.  377. 

Facts  shown,  whether  anterior  or  subsequent,  depend  for  their 
force  upon  the  clearness  and  certainty  with  which  they  tend  to 
demonstrate  the  condition  of  mind  and  memory  at  the  very  time 

of  execution  of  will. 

Trubey  vs.  Richardson,  224  111.  136. 
A   party  seeking  to  establish  a   will  must  prove   testator  was 
of  disposing  mind  and  memory  at  time  he  made  it,  and  this  can- 
not be  shown  merely  by  proof  that  he  was  so  at  some  anterior 
period. 


1312  WILLS 

Defendants  having  put  in  evidence  testimony  of  subscribing 
witnesses,  given  when  will  was  admitted  to  probate,  it  then  devolves 
upon  plaintiff  to  show  incompetency  of  testator,  by  proof  suffi- 
cient to  overcome  prima  facie  case  made  by  testimony  of  sub- 
scribing witnesses. 

Holloway  vs.  Galloway,  51   111.   159. 

Introduction  of  evidence  of  testator's  mental  capacity  two  years 
anterior  to  execution  of  will  may  be  made. 
Yoodry  vs.   Univ.  of  111.,  251  111.  48. 
But  testator's  actions  eighteen  years  before  supposed  will  was 

made  are  too  remote. 

Healea  vs.  Keenan,  244  111.  482. 

Proponents  having  testified  as  to  testator's  mental  capacity  to 
business  transactions  during  the  period  of  several  years  before  and 
after  execution  of  the  will,  contestants  cannot,  on  cross  examina- 
tion, extend  their  inquiry  to  cover  the  full  period  up  to  time  of 

testator's  death. 

Eutwistle  vs.  Meikle,   180  111.  9. 
Proponents  having  been  permitted  to  introduce  evidence  as  to 
testator's  mental  condition  covering  a  period  prior  to  and  long 
subsequent   to   execution  of  the  will,   contestants  may  introduce 

evidence  covering  same  period. 

Petefish   vs.   Becker,    170   111.   448. 
And  may  call  for  any  particular  act  or  conduct  of  testator  ob- 
served by  witness. 

Petefish   vs.   Becker,   176   111.   448. 

Burden  of  Proof: 

The  proponents  have  the  burden  of  proof  in  the  first  instance, 
of  establishing  prima  facie  the  capacity  of  the  testator. 

Hollenbeck  vs.  Cook,   180   111.   65;    Wilbur  vs.  Wilbur,   129  111.  392; 
XIV  111.  Notes  1029,  §  30. 
Testimony  of  subscribing  witnesses  as  to  sanity  of  testator  is 
sufficient  to  make  out  a  prima  facie  case  in  support  of  validity  of 
the  will ;  the  burden  is  then  upon  the  contestants  to  show  the  con- 
trary. 

Wilkinson  vs.  Service,  249  111.  146;   Waters  vs.  Waters,  222  111.  26; 
Baker  vs.  Baker,  202  111.  595;  Pendlay  vs.  Eaton,  130  111.  69. 

Contestants  must  show  incapacity  by  preponderance  of  the  evi- 
dence. 

Adams  vs.  M.  E.  Church,  251  111.   260. 

It  is  not  sufficient  that  evidence  raises  a  doubt  as  to  the  testator's 

sanity. 

Entwistle  vs.  Meikle,  180  111.  9;  Taylor  vs.  Pegram,  151  111.  106. 

The  evidence  of  incapacity  must  clearly  preponderate  to  author- 
ize setting  aside  of  a  will. 

Norton  vs.  Clark,  253  111.  557. 

And  contestants  have  burden  of  overcoming  added  presumption 

of  sanity  by  a  preponderance  of  evidence. 
Egbers  vs.  Egbers,  177  111.  82. 
An  instruction  should  give  proponents  benefit  of  presumption. 

Todd  vs.   Todd,  221   111.   410. 

Burden  is  upon  party  asserting  validity  of  will  to  make  proof 

of  testamentary  capacity;  but  when  such  proof  is  made,  the  law 

adds  the  presumption  of  sound  mind,  which  applies  to  all  men, 

and  evidence  of  want  of  testamentary  capacity  must  be  sufficient 


WILLS  1313 

to  neutralize  both  the  testimony  in  favor  of  testamentary  capacity 
and  the  presuini)lion  ot"  law. 

Johnson  vs.  Johnson,  1M7  111.  86;  Entwistle  vs.  Meikle,  180  111.  9; 
Carpenter  vs.  Calvert,  83  111.  62;  Trish  vs.  Newell,  62  111.  196. 
While  proponents  may  make  a  prima  facie  case  by  testimony 
of  subscribing  witnesses  or  certificate  of  oath  of  the  attesting 
witnesses  at  time  of  probate,  yet  they  are  not  limited  to  either 
of  such  methods,  but  may  prove  mental  capacity  of  testatrix  and 
execution  of  will  by  an}'  legitimate  evidence. 

Voodry  vs.  Univ.  of  111.,  251  111.  48;  Kaul  vs.  Lyman,  259  111.  31. 

Weight  and  Sufficiency: 

—  Ability  to  Transact  Business:    Person  incapable  of  transact- 
ing any  business  whatever  is  lacking  in  testamentary  capacity,  but 
iiaability  to  transact  ordinary  business  does  not  necessarily  de- 
prive one  of  testamentary  capacity. 
Hurley  vs.  Caldwell,  244  111.  448. 

The  inability  of  a  testator  to  perform  or  transact  ordinary  busi- 
ness is  not  a  correct  or  reliable  test  of  testamentary  capacity. 

Sinnet  vs.  Bowman,  151  111.  146;   Eowclift'e  vs.  Belson,  261  111.  566. 

Ability  to  transact  ordinary  business  is  too  stringent  a  test  of 
testamentary  capacity. 

Waugh  vs.  Moau.  200  111.  298;  Ring  vs.  Lawless,  190  111.  520. 

The  disposal  for  little  or  no  consideration,  and  without  appar- 
ent reason,  of  much  valuable  property  by  testator,  after  a  severe 
illness  which  left  him  partly  paralyzed,  to  a  person  to  whom  he  was 
under  no  obligation,  whereas  prior  to  his  illness  he  had  been 
very  close  in  his  dealings  and  penurious  in  his  habits,  indicates  a 
marked  change  of  mentality  and  tends  to  show  unsoundness  of* 

mind. 

Dillman  vs.  MeDanel,  222  111.   276. 

'' — Old  Age   and  Physical  Suffering:    To  sustain  a  charge   of 

want  of  sufficient  mental  capacity  to  make  a  will,  something  more 

than  physical  suffering,  disease  and  old  age  must  be  shown. 

Beemer  vs.   Beemer,   252   111.   452;    Waters  vs.   Waters,   222   111.   26; 
i  Woodmen  vs.  111.  Bank,  211  111.  578. 

Advanced  age  and  loss  of  memory  do  not,  of  themselves,  con- 
stitute incapacity. 

Johnson  vs.  Farrell,  215  111.  542;  Schmidt  vs.  Schmidt,  201  111.  191. 

Sickness,  even  to  extent  of  being  in  a  dying  condition,  does  not 

prove  want  of  capacity  to  make  a  will,  if,  when  aroused,  the  mind 

of  testator  acts  clearly  in  respect  to  the  thing  being  done. 

McCoy  vs.  Sheehy,  252  111.  509;  Bevelot  vs.  Lestrade,  153  111.  625. 

Evidence  that  testator's  physical  and  mental  faculties  had  failed 
to  some  extent ;  that  he  sometimes  failed  to  recognize  slight  ac- 
quaintances at  first  sight ;  that  he  entertained  religious  views  some- 
what peculiar  though  common  to  many  other  people ;  that  he 
preferred  fasting  to  medicine  for  indigestion ;  does  not  show  want 
of  testamentary  capacity,  where  there  is  no  evidence  of  any  actual 
occurrence  showing  such  want  of  capacity. 

Wallace  vs.   Whitman,  201   111.  59. 

Proof  that  testator  and  grantor  was  of  advanced  age,  that  his 
eye-sight,  sense  of  hearing  and  general  health  w^ere  much  impaired, 
and  that  his  mind,  sjmipathizing  with  his  bodily  infirmities,  was 
Ev.— 83 


1314  WILLS 

weaker  than  it  had  formerly  been,  will  not  alone  justify  setting 
aside  his  will  and  deeds  for  mental  incapacity. 
Kelley  vs.  Kelley,   168  111.  501. 
Hardening  of  arteries  is  not  in  itself  sufficient  to  destroy  testa- 
mentary capacity. 

Drum  vs.   Capps,   240   111.   524. 

—  Belief  in  Christian  Science:   Belief  in  Christian  Science  does 

not  destroy  capacity. 

Trubey  vs.  Eichardson,  224  111.  136. 

—  Belief  in  Swedenhorgianism:  Belief  in  Swedenborgianism 
and  enthusiasm  in  promulgating  its  faith,  furnish  no  evidence  of 
monomania,  insane  delusion  or  insanity. 

Scott  vs.  Scott,  212  111.  597. 

—  Belief  in  Spiritualism:    Is  not  insanity,  and  no  evidence  of 

want  of  testamentary  capacity. 

Cnimbaugh  vs.  Owen,  228  111.  380. 

But  where  through  that  belief,  one  is  led  into  the  delusion  that 

another  is  a  divinity  or  gifted  with  supernatural  powers  and  a 

will  is  prompted  by  that  delusion,  it  cannot  be  sustained. 
Orchardson  vs.  Cofield,  171  111.   14. 

Before  a  will  can  be  set  aside  upon  the  ground  that  it  was 

made  by  alleged  spirit  directions,  it  must  be  shown  not  only  that 

testator  believed  the  alleged  directions,  but  that  he  so  yielded  to 

them  that  the  will  was  not  the  result  of  his  deliberate  judgment. 
Crumbaugh  vs.  Oven,  238  111.  497. 

—  Prejudice  and  Antipathies:  Prejudice  against  natural  ob- 
jects of  person's  bounty  is  not  necessarily  an  insane  delusion. 

Drum   vs.   Capps,    240   111.    524;    Bauchens   vs.    Davis,   229   111.    557; 
Schmidt  vs.  Schmidt,  201  111.  191;  Huggins  vs.  Drury,  192  111.  528. 

While  injustice,  unfairness,  prejudice  and  anger  without  reason- 
able cause  do  not  disqualify  a  person  from  making  a  valid  will, 
still  where  such  manifestations  appear  habitually  in  respect  to 
same  subject  without  any  reason,  and  are  adhered  to  after  their 
falsity  is  demonstrated,  they  become  strong  evidence  of  mental  de- 
rangements, and  evidence  of  their  existence  without  cause,  in 
respect  to  an  only  son,  is  of  more  weight  than  if  parties  were  not 

closely  related. 

Snell  vs.  Weldon,  243  111.  496;  XIV  111.  Notes  1028,  §24. 

Proof  of  declarations  of  the  testatrix  to  the  effect  that  she  was 
afraid  of  being  poisoned  is  not  evidence'  of  an  insane  delusion, 
without  proof  of  such  facts  and  circumstances  as  not  only  would 
show  she  had  no  grounds  for  her  fear,  but  also  that  it  would  not, 
under  the  circumstances,  have  arisen  in  a  rational  mind. 

And  it  is  not  necessarily  evidence  of  an  insane  delusion  that 
the  testatrix  was  afraid  of  a  drunken  man,  even  though  he  be 
her  own  son,  nor  that  she  should  fear  that  in  his  drunken  mad- 
ness he  might  break  any  law,  human  or  divine. 
Bradley  vs.   Palmer,   193  111.   15. 

—  Senile  Dementia:  Does  not  necessarily  establish  want  of 
testamentary  capacity. 

Graham  vs.  Deuterman,  244  111.  124. 

"''^'''^^Snicide:  The  act  of  self  destruction  cannot  judicially  be 
regarded  as  proof,  per  se,  of  insanity.  It  is  but  a  fact  to  be  con- 
sidered, with  all  the  other  facts  in  the  case. 

Wilkinson  vs.  Service,  249  111.  146;   Crum  vs.  Thornley,  47  111.  192. 


WILLS  1315 

—  Expert  and  Opinion:  Opinion  of  non-expert  witness  that 
testator  is  not  of  sound  mind  and  memory  is  entitled  to  no  weight 
where  he  states  no  facts  or  circumstances  which  would  induce  a 
reasonable  belief  of  unsoundness  of  mind.  Omission  of  facts  and 
circumstances  renders  such  testimony  practically  worthless. 

Brainard  vs.  Brainard,  259  111.  613. 
Opinions  of  witnesses  that  testator  was  mentally  incompetent 
to  transact  business  or  make  a  will,  based  largely  upon  the  fact 
that  testator  was  near-sighted  and  feeble,  are  entitled  to  little 
weight,  where  the  evidence  shows  that  at  time  covered  by  testis 
mony  of  the  witnesses  testator  did  transact  business  and  fully 
understood  the  business  in  which  he  was  engaged  when  making 
the  will, 

Graham  vs.  Deiiterman,  217  111.  235. 
The  value  of  non-expert  opinion  as  to  testator's  testamentary 
capacity  depends  upon  means  of  knowledge  of  the  witnesses,  the 
facts  upon  which  their  opinions  are  based  and  their  capacity  to 
correctly  interpret  such  facts. 

Baker  vs.  Baker,  202  111.  595. 
Opinions  of  witnesses  that  a  testator  was  forgetful  and  weak- 
minded  are  entitled  to  but  little  weight  in  the  face  of  positive  evi- 
dence of  many  intimate  business  acquaintances  that  during  such 
time  such  conditions  were  claimed  to  exist,  the  testator  successfully 
pursued  his  occupation,  and  was  a  sober,  industrious,  capable  busi- 
ness man. 

Schmidt  vs.  Schmidt,  201  111.  191. 
Opinions  of  physicians  on  question  of  mental  capacity  are  en- 
titled to  no  greater  weight  than  opinions  of  laymen  who  are  men 
of  good  common  sense  and  judgment. 

Austin  vs.  Austin,  260  111.  299;   Carpenter  vs.  Calvert,  83  111.  62. 

All  persons  having  means  of  observation  are  permitted  to  testify 
concerning  the  capacity  of  a  testator  so  far  as  it  may  tend  to  shed 
light  upon  the  issue,  and  may  give  their  opinions  as  to  his  men- 
tal capacity,  based  upon  such  observation.  The  weight  or  effect 
of  such  opinions  depends  upon  the  means  of  knowledge  of  the 
witness  and  the  facts  upon  which  they  are  based,  possible  of  delinea- 
tion, and  the  capacity  of  witness  to  correctly  interpret  what  he 
has  observed.  Therefore,  the  facts  upon  which  the  opinion  is 
based  may  be  gone  into,  either  to  sustain  and  give  force  to  the 
opinion,  or  to  discredit  it,  and  the  inquiry  as  to  the  testator's 
mental  condition  should  not  be  limited  to  the  mere  question  as  to 
whether  he  was  able  to  transact  ordinary  business,  but  witness 
should  be  allowed  to  state  and  describe  his  mental  condition,  his 
memory,  judgment  and  facts  observed  by  the  witness. 
Craig  vs.   Southard,   148   111.   37. 

Where  a  preponderance  of  the  evidence  shows  that  a  testator, 
at  time  of  making  his  will,  was  in  full  possession  and  proper 
exercise  of  all  his  mental  faculties,  an  opinion  of  a  medical  ex- 
pert, based  upon  an  hypothesis  or  state  of  facts  not  inconsistent 
with  legal  sanity,  that  the  testator  was  insane  is  of  little  weight, 
and  does  not,  of  itself,  justify  the  court  in  refusing  to  direct  a 
verdict  for  the  proponents. 

Owen  vs.  Crumbaugh,  228  111.  380. 


1316  WILLS 

—  Omission  to  Name  Child :  The  omission  to  name  a  child  in  a 
last  will  does  not,  of  itself,  prove  that  the  testator  was  incapaci- 
tated, nor  will  such  omission  destroy  its  validity. 

Snow  vs.  Benton,  28  111.  306;   Giaybeal  vs.  Gardner,  146  111.  337. 

—  Holographic  Will:  An  holographic  will  which  is  rational 
upon  its  face,  and  in  accord  with  the  existing  facts  which  sur- 
rounded the  testator  at  time  of  its  execution,  establishes,  within 

itself,  testamentary  capacity. 

Hannaut  vs.  Penstone,  255  111.  274. 

UNDUE  INFLUENCE: 
What  Constitutes: 

'■-ui^In  General:    Undue  influence  is  wrongful  influence. 

Hurd  vs.  Eeed,  260  111.   154;   Waters  vs.   Waters,  222  111.   26;   XIV 
111.  Notes   1037,   §96. 
Undue  influence  is  any  improper  or  wrongful  constraint,  machi- 
nation or  urgency  of  persuasion  whereby  the  will  of  a  person  is 
overpowered  and  he  is  induced  to  do  or  forbear  an  act  which  he 
would  not  or  would  do  if  left  to  act  freely. 
Smith  vs.  Henline,  174  111.  184. 
Must  be  directly  connected  with  the  execution  of  the  instrument 
and  be  operative  when  Avill  was  made.     It  must  be  influence  espe- 
cially directed  toward  procuring  the  will  in  favor  of  a  particular 
beneficiary,  and  be  such  as  to  destroy  the  freedom  of  the  testator's 
will  and  render  instrument  obviously  more  the  offspring  of  the 

will  of  others  than  his  own. 

Bowles  vs.  Bryan,  254  111.  148;  Snell  vs.  Weldon,  239  111.  79. 

—  Free  Agency:    Undue  influence  must  be  such  as  to  deprive 

the  testator  of  free  agency. 

Compher  vs.  Browning,  219  111.  429;  Johnson  vs.  Farrell,  215  111. 
542;  Woodmen  vs.  111.  T.  &  S.  Savings  Bank,  211  111.  578;  Taylor 
vs.  Pegram,   151   111.   106. 

—  By  Whom  Exercised:  Undue  influence  is  a  species  of  con- 
structive fraud.  It  is  immaterial  by  whom  the  undue  influence 
is  exercised,  whether  by  a  beneficiary  or  an  outsider. 

■     Smith  vs.  Henline,  174  111.  184;   Cheney  vs.  Goldy,  225  111.  394. 

—  When  Operative:  Must  be  directly  connected  with  the  execu- 
tion of  the  instrument  and  be  operative  when  the  will  was  made. 

Hurd  vs.  Eeed,  260  111.  154;  Bowles  vs.  Bryan,  254  111.  148;  Snell 
vs.  Weldon,  239  111.  279;  Larabee  vs.  Larabee,  240  111.  576;  Floto 
vs.  Floto,  233  111.  605;  Wickes  vs.  Walden,  228  111.  56. 

—  Affection  and  Persuasion:  Influence  secured  through  affec- 
tion is  not  undue  influence. 

Waters  vs.  Waters,  222  111.  26;  Nieewander  vs.  Nicewander,  151  111, 
156;    Bevelot    vs.    Lestrade,    153    111.    625. 

Mere  persuasion  or  advice,  however  importunate,  is  not  undue 

influence. 

Thompson  vs.  Bennett,  194  111.  57;  Wileoxon  vs.  Wileoxon,  165  lU, 
454;   Yorty  vs.  Webster,  205  111.  630. 

But  it  would  be  if  it  went  to  the  extent  of  depriving  the  testa- 
tor of  his  free  agency. 

Dowie  vs.   Sutton,  227  111.  183.  i 

So  evidence  showing  only  that  in  ordinary  business  affairs  testa- 
tor acted  under  advice  of  devisee  is  inadmissible  since  that  alone 
would  not  tend  to  show  undue  influence  in  executing  will, 
Brownfield  vs.   Brownfield,  43   111.   147. 


WILLS  1317 

Admissibility  of  Evidence: 

—  Inequality  of  Distribution:  AVhile  inequality  of  a  distribu- 
tion is  not  in  itself  evidence  of  undue  influence,  it  may  be  con- 
sidered as  a  circumstance  in  connection  with  other  evidence. 

Donnan  vs.  Donnaii,  25(3  III.  L>44;  Si-hniidt  vs.  Schmidt,  201  111.  191; 
Francis  vs.  Wilkinson,  147  111.  370:  Nicewander  vs.  Nicewander 
151   111.   156. 

But  not  if  standing  alone. 

Abrahams  vs.  Wooley,  243  111.  3(55. 
It  is  not  shown  by  fact  that  will  leaves  all  to  certain  children, 
disinheriting  others. 

Waters  vs.   Waters,   222   111.   26. 
All    the   surrounding   facts,   including   bequest  itself,   its  pro- 
priety, or  impropriety,  its  reasonableness  or  unreasonableness,  in 
view  of  the  situation  and  circumstances  of  testator,  may  be  con-; 
sidered. 

MeCommon  vs.  McCommon,  151  111.  428. 

Whether  will  is  just,  wise  and  proper  is  immaterial. 
Carpenter  vs.  Calvert,  83  111.  62. 

—  Conduct  of  Beneficiaries:  As  bearing  on  the  subject  of  undue, 
influence,  proof  of  previous  similar  conduct  of  the  party  claimed 
to  have  exercised  such  undue  influence  is  admissible,  as  tending 
to  show  his  influence  over  the  testator. 

England  vs.  Fawbush,  204  111.  384;  Wilbur  vs.  Wilbur,  ]38  111.  446. 
Evidence  that  chief  beneficiary  in  a  will  had  made  arrangements 
in  advance  for  having  it  drawn,  sent  for  the  scrivener  and  the 
witnesses,  talked  with,  testator  in  his  sick  room  about  the  will,  wrote 
it  himself  and  read  it  to  testator,  corrected  the  testator  as  to 
amount  of  a  certain  legacy,  and  held  testator  up  in  bed  while  he 
signed  the  will,  is  sufficient  to  go  to  the  jury  upon  question  of 
undue  influence. 

England  vs.  Fawbush,  204  111.  384. 
Where  a  will  is  written  or  procured  to  be  written  by  a  person 
largely  benefited  by  it,  such  circumstances  excite  stricter  scrutiny 
and  require  stricter  proof  of  volition  and  capacity.  The  proof  re- 
quired in  such  cases  must  be  such  as  to  fully  satisfy  the  court  or 
jury  that  the  testator  knew  what  he  was  doing  and  what  disposi- 
tion he  was  making  of  his  property  when  he  made  the  will.  The 
active  agency  of  beneficiary  of  a  will  in  procuring  it  to  be  drawn, 
especially  in  the  absence  of  those  who  have  at  least  equal  claims 
upon  the  justice  of  the  testator,  and  where  testator  is  enfeebled  by 
old  age  and  disease,  is  a  circumstance  which  indicates  probable 
exercise  of  undue  influence.  Where  the  mind  is  wearied  and  debili- 
tated by  long  continued  and  serious  and  painful  sickness,  it  is 
susceptible  to  undue  influence  and  is  liable  to  be  imposed  upon  by 
fraud  and  misrepresentations. 

Donnan    vs.    Donnan,    256    111.    244. 

Fact  that  proponents,  at  time  of  preparation  of  wiU,  requested 
those  who  witnessed  it  to  examine  the  testator,  with  the  view  of 
determining  whether,  in  their  opinions,  he  was  of  sound  min(L 
does  not,  of  itself,  cast  doubt  upon  his  capacity. 

Brainard  vs.  Brainard,  259  111.  613. 

—  Declarations  of  Testator:  The  declarations  of  a  testator  are 
not  admissible  as  proof  of  facts  stated,  a,nd  he  cannot  invalidate  his 


1318  WILLS 

will  by  declarations  made  either  before  or  after  its  execution. 
They  are  not  admissible  to  show  that  a  will  was  executed  under 
duress  or  undue  intluenre,  or  to  show  fraud. 

Norton  vs.  Clark,  253  111.  557;   England  vs.  Pawbush,  204  111.  384;' 

Bevelot  vs.  Lestrade,  153  111.  C25;  Dickey  vs.  Carter,  42  111.  376; 

XIV  111.  Notes  1039,  §  112. 

But  declarations  at  different  periods  of  life,  as  to  the  views  and 

intentions  of  the  testator  in  the  disposition  of  his  property  may 

be  introduced,  if  consistent  with  the  provisions  of  the  will,  but  are 

not  competent  to  be  considered  to  invalidate  a  will  as  having  been 

made  under  undue  influence. 

Cheney  vs.  Goldy,  225  111.  394;  Compher  vs.  Browning.  219  111.  429. 

Made  before  the  execution  of  the  will,  are  admissible  to  show 
he  had   disposed  of  his  property  in  conformity  with  expressed 

intentions,  on  contest  of  will  for  undue  influence. 

Wombacher  vs.  Barthehne,  194  111.  425;  Harp  vs.  Parr,  168  111.  459; 

Taylor  vs.  Pegram,  151  111.  106. 

Declarations  of  testator  are  not  admissible  to   show  will  was 

executed  under  duress  or  undue  influence,  or  to  show  fraud,  but 

may  be  proven  where  they  tend  to  show  mental  condition  at  time 

of  execution  of  will,  or  so  near  the  time  that  the  same  state  of 

affairs  must  have  existed. 

Norton  vs.  Clark,  253  111.  557;  England  vs.  Fawbush,  204  111.  384. 

Declarations  of  testator,  made  either  before  or  after  the  will 
was  executed,  which  are  in  conflict  with  its  terms,  are  not  admissible 
even  on  question  of  undue  influence. 
Waters  vs.  Waters,  222  111.  26. 

—  Admissions  of  Devisees:  Admissions  and  declarations  of 
devisees  and  legatees  are  inadmissible  to  affect  the  rights  of  those 

claiming  under  the  will. 

Kellan   vs.    Kellan,    258    111.    256;    Cimiff   vs.    Cuniff,    255    111.    407; 
Campbell  vs.  Campbell,  138  111.  612. 
Are  inadmissible  to  show  undue  influence. 

Campbell  vs.  Campbell,  138  111.  612;  Cuniff  vs.  Cuniff,  255  111.  407. 

Or  mental  incapacity  or  insanity. 
McMillan  vs.  McDill,  110  111.   47. 
Except  where  legatee  is  sole  beneficiary  interested  in  sustaining 

will. 

Egbers  vs.  Egbers,   177   111.   82;    McMillan  vs.   McDill,   110   111.   47; 
Mueller  vs.  Eebham,  94  111.  142 ;  Brainard  vs.  Brainard,  259  111.  613, 

Or  except  where  admissions  are  of  sole  complainants. 

Eowcliffe  vs.  Belson,  261  111.  566. 
And  if  deceased,  admissible  against  one  who  had  succeeded  by 
devise  on  the  ground  of  privity  of  estate. 

Mueller  vs.  Eebham,  94  111.  142. 

Such  evidence  is  incompetent  as  against  the  party  making  them 
as  it  could  not  affect  the  issue  without  affecting  the  other  defend- 
ants. 

McMillan  vs.  McDill,  110  111.  47. 

—  Prior  Wills:  Prior  wills  and  other  declarations  of  the  testa- 
tor in  substantial  harmony  with  the  provisions  of  the  will  in  con- 
test are  admissible,  as  tending  to  rebut  charge  of  undue  influence. 

Freund  vs.  Becker,  235  111.  513;  Kaendors  vs.  Montague.  180  111.  300; 
Taylor  vs.  Pegram,  151  111.  106 ;  Harp  vs.  Parr,  168  111.  459. 
But  a  previous  will,  the  provisions  of  which  are  entirely  variant 
from  those  of  the  one  in  controversy,  is  inadmissible.     Should  such 


WILLS  1319 

a  will  show  an  approximation  in  its  provisions  to  those  of  the  will 
in  contest,  it  would  be  admissible. 
Rowe  vs.  Taylor,  45  111.   485. 

—  Letters:     Letters  of  testator  tending  to  sliow  a  rational  and 

business-like  purpose  to  make  a  will  in  sul)staiitial  compliance  with 

one  in  contest  are  admissible  to  disprove  charge  of  undue  influence 
Baker   vs.    IJaker,   202    111.    595. 

Letters  by  testator  to  his  devisee  are  admissible  as  tending  to 
show  affection  of  former  for  latter. 
Slingloff  vs.   Bruiier,   174  111.   561. 

When  complainant  charges  that  defendant  devisee  made  false 
statements  to  testatrix  in  regard  to  his  habits,  to  poison  her  mind 
against  him,  letters  of  complainant  to  testatrix  are  admissible  to 
show  her  independent  knowledge  of  the  facts. 
Donnan  vs.  Doniiaii,  250  111.  244. 

—  Contracts  of  Testator:  Where  undue  influence  by  wife  is 
alleged,  a  contract  between  testator  and  his  wife,  made  several 
months  before  their  marriage,  concerning  the  terms  of  her  em- 
ployment by  him  as  a  housekeeper,  and  containing  nothing  to 
show  the  wife  exercised  undue  influence  in  procuring  the  subse- 
quent execution  of  the  will  is  not  admissible. 

Smith   vs.    Smith,    168    111.    488. 

A  contract  between  testatrix  and  a  niece,  relative  to  taking  care 
of  testatrix  in  case  she  became  incapacitated,  is  competent  on  ques- 
tion of  undue  influence  only,  and  not  as  to  capacity  to  make  a  will. 

Wetzel  vs.  Firebaugh,   251  111.  190. 

_ — Illicit  Relations:     Existence  of  illicit  relations  may  be  con- 
sidered to  determine  Avhether  influence  was  undue. 
Snell   vs.   Weldon,   239   111.   279. 

May  be  considered  in  connection  with  proof  tending  to  show 
constraint  and  interference. 

Smith   vs.    Heuline,    174   111.    184. 

—  Friendly  Relations:  Evidence  of  friendly  relations  between 
testator  and  daughter  whom  he  practically  disinherited,  and  the 
care  bestowed  upon  him  by  her,  is  admissible  in  connection  with 
the  intrinsic  evidence  of  the  will  itself. 

Piper   vs.    Andricks,   209    111.    564. 

So  declarations  showing  such  kindly  relations  are  admissible  but 
not  to  invalidate  the  will. 

Bevelot  vs.  Lestrade,  153   111.   625. 

—  Opinions:  Whether  a  certain  person  could  use  any  unusual 
influence  over  the  testator  and  whether  witness  had  ever  seen  any 
such  person  use  influence  over  him  are  not  proper  questions,  as 
such  conclusions  should  be  drawn,  if  at  all,  by  the  jury,  from  facts 
shoAvn  and  not  by  the  opinions  of  witnesses. 

Larabee  vs.  Larabee,  240  111.  576;   Michael  vs.  Marshall,  201   111.  70. 
Proof  that  testatrix  was  a  woman  who  was  easily  influenced 
and  susceptible  to  flattery  is  not  admissible,  that  matter  being  one 
of  mere  opinion  or  conclusion  on  the  part  of  the  witness. 

Compher  vs.   Browning,   219   111.   429. 

Witnesses  should  not  be  asked  whether  there  was  any  fraud, 
duress  or  undue  influence. 

Adams  vs.  M.   E.  Church,  251  111.  268. 
It  is  not  proper  to  allow  witnesses  to  express  opinions  as  to 


1320  WILLS 

whether  supposed  influence  of  one  of  the  devisees  over  the  testator 

sprang  from  affection  or  fear.     Witness  should  state  the  facts, 

leaving  the  jury  to  draw  inferences  therefrom, 
j.  :  .  CarpeDter  vs.  Calvert,  83  111.  62. 

.;^i.^ — Knowledge   of   Contents:     Knowledge   of   contents   may   he 

shown  by  proof  that  testatrix  told  subscribing  witnesses  that  she 

had  read  it  and  that  it  was  as  she  M^anted  it. 
Swearingen  vs.  Inman,   198   111.   255. 

—  Circumstantial  Evidence:     Undue  influence  may  be  proven 

by  circumstantial  evidence. 

Lord  vs.  Eeed,   254  111.   350. 
Direct  or  positive  evidence  of  undue  influence  in  procuring  the 
execution  of  a  will  is  not  required,  but  in  absence  of  such  proof, 
there  must  be  evidence  of  facts  from  which  inference  of  existence 
of  undue  influence  may  be  naturally  and  reasonably  drawn. 
^i    ./i,        Beemer  vs.   Beemer,  256   111.   312;    Bowles   vs.   Bryan,   254  111.   148; 
Dowie  vs.  Sutton,  227  111.  183;   XIV  111.  Notes  1040,  §114. 

—  Allegations  and  Proofs:    A  will  can  be  impeached  only  upon 

the  particular  grounds  alleged  in  the  bill. 

Huffman   vs.   Graves,   245   111.   440;    Swearingen  vs.   Inman,   198   111. 
255;    Flinn  vs.   Owen,   58   111.   111. 

Complainant  in  bill  is  confined  to  charges  made  by  bill. 

Waters  vs.   Waters,  222   111.   26;    Purdy  vs.   Hall,   134   111.   298. 

Presumptions : 

Proof  of  testator's  signature  is  prima  facie  evidence  that  he 

understood  the  contents. 

Todd   vs.   Todd,   221   111.   410. 
A  testator  is  presumed  to  have  understood  the  nature  and  con- 
'fpTii's  of  Viis  will 

Jones  vs.  Abbott,  235  111.  220;   Compher  vs.  Browning,  219  111.  429. 

Irrespective  of  his  ability  to  read  or  write.    ■ 

Doran  vs.  Mullen,  78  111.  342 ;  Wombaeher  vs.  Barthelme,  194  111.  425. 

Presumption  is  in  favor  of  a  will  when  person  who  is  provided 

for  therein  is  one  with  whom  testator  had  maintained  intimate 

and  affectionate  relations  during  his  life. 

A'lU  iih  Waters  vs.  Waters,  222  111.  26;  Harp  vs.  Parr,  168  111.  459. 

Illicit  relation,  of  itself,  does  not  raise  presumption  of  undue 

influence. 
■^'■-  Norton  vs.  Clark,  253  111.  557;   Smith  vs.  Henline,  174  111.  184. 

No  presumption  that  a  will  made  by  a  parent  in  favor  of  a  child 
was  procured  by  the  child's  undue  influence  arises  from  the  rela- 
tion, in  absence  of  evidence  that  a  confidence  was  in  fact  reposed  in 

the  child. 

;  ■  ^  Huffman  vs.  Graves,  245  111.  440;  Bisliop  vs.  Hilliard,  227  111.  382. 

Confidential  relation  of  beneficiary   to  testator  does  not  raise 

inference  of  undue  influence. 

f  Michael  vs.  Marshall,  201  111.  70;   Brownfield  vs.  Brownfield,  43  111, 

147. 
Proof  of  a  fiduciary  relation  between  testator  and  principal  dev- 
isee, who  was  dominant  party  to  the  relation,  casts  upon  devisee 
burden  of  overcoming  presumption  of  undue  influence,  but  does 
not  change  the  rule  that,  upon  the  whole  case,  burden  is  on  con- 
testant to  establish  undue  influence  by  a  preponderance  of  evidence. 
Weston  vs.  Teufel,  213  111.  291. 


WILLS  1321 

Burden  of  Proof: 

Burden  of  proving  undue  influence  is  upon  party  alleging, 

Kellan  vs.  Kellan,  25S  111.  256;  Lord  vs.  Eeed,  254  111.  350;   Swear-j 
ingen  vs.   Inman,    198   111.   255. 

It  is  tantamount  to  fraud,  and  like  it,  must  be  proven  by 
party  alleging  it. 

Eowe  vs.  Taylor,  45  111.  485. 

General  rule  as  to  gifts  or  conveyances  to  one  standing  in  a 
fiduciary  relation  is  not  applicable  to  wills. 

Michael  vs.  Marshall,  201  111.  70;  Cf.  Weston  vs.  Teufel,  213  111.  291. 

In  order  to  cast  upon  one  standing  in  confidential  relation- 
ship with  testator  burden  of  proving  absence  of  fraud  or  undue 
influence  in  making  a  will,  such  person  must  be  shown  to  have  been 
directly  connected  with  making  of  the  will,  in  some  way,  and  it  is 
not  enough  to  show  he  was  present  in  the  house  when  will  was 
executed. 

In  re  Will  of  Barry,  219  111.  391;   English  vs.  Porter,  109  III.  285. 

Weight  and  Sufficiency: 

Where  will  is  j^roeured  by  person  to  be  benefited  by  it,  strict 
proof  of  volition  is  required. 

Donnan   vs.   Dounan.   256   111.   244;   Cheney  vs.  Goldy,   225   111.   394; 
England  vs.  Fawbush,  204  111.  384.  i 

Facts  shown  must  be  inconsistent  with  hypothesis  of  innocence^ 

Compher  vs.  Browning,  219  111.  429. 

Failure  of  complainants,  in  contesting  will  for  undue  influence, 
to  connect  beneficiary  with  making  of  will  either  by  agency,  pro- 
curement, suggestion  or  knowledge,  is  a  strong  circumstance  indi-t 

eating  absence  of  undue  influence. 
Harp  vs.  Parr.  168  111.  459. 

The  fact  that  a  man  may  have  married  a  woman  for  the  selfish 
object  of  acquiring  an  interest  in  her  property  is  not,  of  itself,  any 
proof  of  subsequent  exercise  of  undue  influence  by  him  in  pro- 
curing his  wife  to  draw  a  will  in  his  favor. 
Thompson  vs.  Bennett,   194  111.  57. 

Dependence  of  testator  upon  his  wife,  caused  by  his  enfeebled 
physical  condition,  and  her  kindness  to  him,  would  naturally 
lead  to  belief  that  she  would  possess  great  influence  over  him ;  but 
that,  in  connection  with  unequal  distribution  of  his  property,  will 
not  be  sufficient  to  overcome  the  presumption  that  her  influence 
was  not  improperly  used. 

Meeker  vs.  Meeker,  75  111.  260. 

Proof  that  testatrix,  who  was  old  and  feeble,  reposed  great  con- 
fidence in  her  son,  who  acted  as  her  agent  and  procured  his 
attorney  to  draw  the  will ;  that  the  son  and  attorney  were  alone 
with  testatrix  at  that  time,  and  will  made  the  son  practically  the 
only  beneficiary  of  a  large  estate,  whereas  other  children  and 
grandchildren  were  given  but  small  amounts,  establishes  prima 
facie  the  charge  of  undue  influence  by  the  son. 
Leonard  vs.  Burtle,  226  111.  422. 

EXECUTION: 
Form: 

The  law  does  not  prescribe  any  particular  form  for  a  will. 

Gnmp  vs.  Gowans,  226  111.   6.35. 

It  is  not  necessarily  an  objection  to  a  will  that  it  is  written  on 


1322  WILLS 

several  pieces  of  paper.  Such  fact  is  not  fatal  to  the  validity  of 
the  will.  All  that  is  required  is  that  all  the  separate  sheets  of 
paper  should  be  in  the  room  and  in  the  presence  of  attesting  wit- 

hgssgs 

Harp  vs.  Parr,  168  111.  459;  Palmer  vs.  Owen,  229  111.  115;  XIV  111. 
Notes   1034,    §  73. 
The  law  indulges  no  presumption  as  to  the  condition  of  an  in- 
strument when  it  was  executed,  or  whether  there  has  been  a  subse- 
quent change. 

Webster  vs.  Yorty,  194  111.  408. 

Declaration: 

The  law  does  not  require  that  a  party  executing  a  will  make  a 

declaration  that  it  is  his  will. 

Robinson  vs.  Brewster,   140  111.   649;  Dickie  vs.  Carter,  42  111.  376, 

Signature:  ^     h  > 

The  signature  of  the  testator  is  just  as  effective  when  he  makes 
his  mark  as  when  he  signs  his  name. 

Bevelot   vs.  Lestrade,   153   111.   625;   Eobinson  vs.  Brewster,   140  111. 
649. 
The  law  makes  no  requirement  in  order  to  make  a  valid  will 
that  it  be  signed  by  testator  in  his  own  hand.     The  name  may 
be  signed  by  some  one  else  by  his  or  her  direction,  if  it  is  acknowl- 
edged in  presence  of  two  witnesses. 

Elston  vs.  Montgomery,  242  111.  348. 

Proof  of  physical  condition  of  testator  showing  he  could  not  have 
signed  it,  is  competent  on  appeal  from  order  of  probate,  to  con- 
tradict subscribing  witnesses. 

Craig  vs.   Trotter,   252   111.   228. 

The  presumption  is  that  a  person  able  to  write,  and  under  no 

physical  disability,  would  personally  sign  his  will. 

Elston  vs.  Montgomery,  242  111.  348. 

The  fact  that  a  will  contains  the  clause,  "1  have  hereunto  set 
my  hand  and  seal,"  does  not  necessarily  import  testatrix  signed 
will  with  her  own  hand ;  nor  require  the  signature  to  be  proven  to 
be  her  own  handwriting,  even  though  attesting  witnesses  are  dead 

when  will  is  offered  for  probate. 

Elston  vs.  Montgomery,  242  111.  348. 

Proof  tending  to  show  that  signature  to  the  will  Mas  not  in 
the  handwriting  of  the  testatrix  does  not  tend  to  overcome  the 
prima  facie  case  made  by  attestation  clause,  and  proof  that  the 
signatures  of  the  witnesses  were  genuine. 
Elston  vs.  Montgomery,  242  111.  348. 

Acknowledgment : 

It  is  not  necessary  that  attesting  watnesses  see  signature  of 
testator  upon  face  of  the  will,  nor  that  an  acknowledgment  of  sig- 
nature be  made  to  them  by  testator.  The  statutory  requirement 
is  satisfied  if  testator  acknowledged  execution  of  will,  and  such 
acknowledgment  need  not  be  in  language.  Any  act,  sign  or  ges- 
ture of  testator  will  suffice,  which  indicates  an  acknowledgment  of 
the  will  with  unmistakable  certainty.  ' 

Elston  vs.  Montgomery,  242  111.  348;   In  re  Will  of  Barry,  219  111. 
391;  Gould  vs.  Theo.  Seminary,  189  111.  282. 
Proof  of  either  signing  or  acknowledging  in  presence  of  wit- 
nesses is  sufficient,  and  proof  of  both  is  not  required. 
Webster  vs.  Yorty,   194  111.  408. 


WILLS  1323 

Where  testator  requests  witnesses  to  attest  his  will,  this  is  suffi- 
cient to  authorize  inference  that  he  had  executed  the  paper  as  a 
will  and  is  equivalent  to  an  acknowledgment  that  he  had  signed 
paper  as  a  will. 

Harp  vs.  Parr,   168   111.  459. 

Where  person  who  drew  the  will,  and  who  superintended  its 
execution,  spoke  of  it  as  testator's  will  in  his  presence,  and  re- 
quested witnesses  in  the  testator's  presence  to  sign  it  as  his  will, 
it  is  sufficient.  The  silence  and  presence  of  the  testator  give  con- 
sent to  these  declarations  on  the  part  of  the  person  and  amount 
to  an  acknowledgment  by  testator  of  the  will  as  his  act  and  deed. 
Harp  vs.  Parr,  168  111.  459. 

Where  attestation  clause  is  read  in  presence  of  testator  and 
attesting  witnesses,  and  thereupon  testator  handed  witnesses  the 
pen  and  saw  them  sign  as  such,  the  acknowledgement  is  sufficient 
though  testator  uttered  not  a  word. 

Allison  vs.   Allison,   46   111.   61. 

Necessity  of  Witnesses: 

Attesting  witnesses  are  regarded,  in  law,  as  persons  placed 
around  the  testator  in  order  that  no  fraud  may  be  practiced  upon 

him  in  the  execution  of  his  will,  and  to  judge  of  his  capacity. 
Smith  vs.  Goodell,  258  111.  145. 
It  is  necessary  that  there  be  two  witnesses  to  make  an  instru- 
ment a  valid  will. 

Highland  vs.  Highland,  109  HI.  366;  Gump  vs.  Gowans,  226  HI.  635. 

The  law  requires  two. 

Sloan  vs.  Sloan,  184  111.  579. 

Requirement  is  the  same  to  nuncupative  will. 
Arnett  vs.  Arnett,  27  111.   247. 

And  it  is  necessary  that  such  witnesses  sign  the  instrument. 
An  attesting  witness  must  be  a  subscribing  witness,  and  it  is  not 
competent  to  prove  a  will  by  a  person  who  was  present  and  wit- 
nessed its  execution  but  did  not  sign  as  an  attesting  witness. 
Calkins  vs.  Calkins,  216  111.  458;   Sloan  vs.  Sloan,  184  lU.  579. 

So  on  appeal  to  circuit  court  from  order  denying  probate,  a 

third  party  who  was  present  at  the  execution  and  attestation  of 

the  will,  cannot  testifv  as  to  such  facts. 

Sloan  vs.  Sloan, 'lS4  111.  579;  See  Voodry  vs.  Univ.  of  111.,  251  HI.  48; 
Kaul  vs.  Lyman,  259  111.  30.' 

>  In  probate  court,  proof  of  due  execution  is  confined  to  sub- 
scribing witnesses,  but  on  appeal  to  circuit  court,  after  probate 
is  refused,  proponent  may  resort  to  any  legitimate  evidence  as 
in  chancery. 

Gould  vs.  Theo.  Seminary,  189  111.  282. 

Presence  of  Witnesses  when  Testator  Signs: 

It  is  not  required  that  a  will  should  be  signed  in  presence  of 
two  or  more  credible  witnesses.  It  is  sufficient  if  two  attesting  wit- 
nesses heard  testator  acknowledge  he  signed  it. 

Yoe  vs.  McCord,  74  111.  33;  Hohart  vs.  Hobart,  154  HI.  610;  Gould 
vs.  Theo.  Seminary,  189  111.  282;  Holloway  vs.  Galloway,  51  111. 
159. 

Presence  of  Testator's  Signature: 

A  will  is  not  invalid  because  the  signatures  of  attesting  wit- 


1324  WILLS 

riesses  were  attached  before  that  of  testator,  who  signed  the  instru- 
ment directly  afterward  and  as  part  of  same  transaction. 
Gibson   vs.    Nelson,    181    111.    122. 
It  is  not  necessary  that  attesting  witnesses  see  signature  of  the 

testator  upon  face  of  the  will. 

Gould  vs.  Theo.  Seminary,  189  111.  282. 

Presence  of  Testator: 

;  A  will  must  be  signed  by  subscribing  witnesses  in  presence  of 
'testator.  It  is  not  sufdcient  that  they  acknowledge  their  signa- 
tures in  his  presence.         O  til 

Calkins  vs.  Calkins,  216  111.  458. 
Attestation  to  be  in  presence  of  testator  must  take  place  within 
the  uninterrupted  range  of  his  vision;  the  presence  of  testator 
means  contiguity,  with  such  an  uninterrupted  view  between  testator 
and  subscribing  witnesses  that  he  could,  if  so  disposed,  see  the 
act  of  attestation,  whether  in  the  same  room  or  in  an  adjoining 

room. 

Sehofield  vs.  Thomas,  236  111.  417;   Dniry  vs.  Corawell,  177  111.  43; 
Witt  vs.  Gardiner,   158   111.   176;    XIV   111.   Notes   1036,   §82. 
It  is  wholly  immaterial  whether  the  attestation  be  in  the  same 

room  or  in  a  different  room. 

Witt  vs.  Gardiner,  158  111.  176;  Ambre  vs.  Weishaar,  74  111.  109, 
If  attesting  witnesses  sign  the  will  at  a  place  within  scope  of 
vision  of  testatrix,  and  where,  considering  her  position  and  state 
of  health  at  the  time,  she  might  have  seen  the  signing  if  she  so  de- 
sired, the  will  is  sufficiently  attested  in  her  presence  even  though 
she  may  not  have  actually  seen  witnesses  sign. 

Ellis  vs.  Flannigan,  253  111.  397;   In  re  Tobin,  196  111.  484. 

As  to  Presence  of  Other  Witness: 

It  is  not  required  that  attesting  witnesses  be  in  the  presence  of 

each  other  when  they  sign  the  will. 

riinn  vs.  Owen,  58  111.  Ill;  Mead  vs.  Presbyterian  Church,  229  111. 
526. 

Witnesses'  Knowledge  of  Instrument: 

Witnesses  need  not  know  instrument  is  will. 

Elston  vs.  Montgomery,  242  111.  348;  In  re  Will,  of  Barry,  219  111. 
391;  Webster  vs.  Yorty,  194  111.  408;  Gould  vs.  Theo.  Seminary, 
189  111.  282. 

Attestation : 

Attestation  is  act  of  witnessing  actual  execution  of  an  instru- 
ment and  subscribing  the  name  of  witness  in  testimony  of  the  fact. 

Calkins  vs.  Calkins,  216  111.  458. 
I    The  act  of  attestation  consists  in  the  subscription  of  the  names 
of  the  witnesses  to  attestation  clause. 
Sloan  vs.  Sloan,   184  111.  579. 

A  will  is  not  entitled  to  probate  where  one  witness  does  not 
testify  that  he  saw  testatrix  sign  the  will,  or  that  she  acknowledged 
it  to  be  her  act  and  deed,  his  only  competent  testimony  being  that 
he  could  not  remember  whether  testatrix  or  any  one  else  was  pres- 
ent when  he  signed  his  name,  or  whether  he  signed  at  request  of 
testatrix,  although  it  was  his  impression  that  he  did,  and  that  the 
will  and  signature  thereto  were  in  handwriting  of  the  testatrix. 
Greene  vs.   Hitchcock,  222  111.  216. 

A  will  is  not  sufficiently  attested  if  subscribing  witnesses  signed 


WILLS  1325 

their  names  where  it  was  impossible  for  testator  to  have  personal 

knowledge  of  their  act,  even  tlioiigh  he  had  requested  them  to  sign, 

saw  them  take  the  will  into  an  adjoining  room  and  saw  signatures 

on  the  will  when  it  was  brought  back. 
Calkins    vs.    Calkins,    21(j   ill.   458. 

All  the  statute  requires  in  the  execution  of  the  will  is  that 
testator  shall  either  sign  the  will  in  presence  of  the  witnesses,  or 
acknowledge  his  signature  to  them;  and,  therefore,  the  testimony 
of  one  of  the  subscribing  witnesses  that  testator  signed  the  will 
in  his  presence,  or  acknowledged  his  signature  to  him,  but  he  could 
not  remember  which,  was  allowed  to  go  to  the  jury.  .  ^on 
Browufield    vs.    Brownfield,    43    111.    147. 

Formal  clause  of  attestation  is  not  indispensable.  The  attesta- 
tion clause  may  consist  of  a  simple  word,  such  as  witness,  attest, 

or  there  may  be  no  words  of  attestation.  >■ 

Mead  vs.  Presbyterian  Church,  229  111.  526;  Calkins  vs.  Calkins,  216 
111.  458. 

Presumptions : 

If  a  will,  including  attestation  clause,  which  recites  that  will  had 

been  signed,  is  in  the  testator's  handwriting,  is  properly  attested 

and  bears  the  testator's  genuine  signature,  it  will  be  presumed 

that  it  was  signed  at  the  time  of  attestation. 
Gould  vs.  Theo.  Seminary,  189  111.  282. 

Where  attestation  clause  does  not  show  that  testator  was  present, 
there  is  no  presumption  that  he  was  present,  and  proof  must  so 

show. 

Schofield  vs.  Thomas,  236  111.  417. 

A  testator  is  presumed  to  have  understood  the  nature  and  con- 
tents of  the  will  which  he  signed,  and  proof  of  his  signature  to  the 
will  is  as  a  general  rule,  'prima  facie  that  he  understandingly  exe- 
cuted the  same. 

Todd  vs.  Todd,  221  111.  410;  Sheer  vs.  Sheer,  159  111.  591. 

So  declarations  made  after  execution  are  admissible   to  show 

such  knowledge. 

Eobinson   vs.   Brewster,   140   111.   649. 
The  law  presumes  that  a  will  properly  executed  is  valid. 

Brownfield  vs.  Brownfield,  43  111.   147. 

Proof  of  signature  raises  presumption  that  testator  knew  and 

approved  contents, 

McCommon  vs.  McCoinmon,  151  111.  470;  Purdy  vs.  Hall,  134  111. 
298;  Keithley  vs.  Stafford,  126  111.  507;  Eobinson  vs.  Brewster, 
140    111.    649;    XIV   111.    Notes    1049,    §186. 

Proof  that  testatrix,  in  presence  of  attesting  witnesses,  acknowl- 
edged the  instrument  to  be  her  act  and  deed  is  prima  facie  suffi- 
cient to  establish  the  will,  even  though  attestation  clause  may  con- 
tain a  recital  which  is  shown  to  be  untrue,  that  she  signed  in  the 

presence  of  such  witnesses. 

Elston   vs.    Montgomery,   242   111.    348. 

And  proof  that  the  signature  was  not  in  the  hand  of  testator 

does  not  tend  to  overcome  this  presumption. 

Elston    vs.    Montgomery,    242   Jll.    348. 

Proof  of  signatures  of  deceased  witnesses  to  the  attestation 
clause  is  sufficient  prima  facie  to  establish  due  execution  of  will. 

Elston  vs.  Montgomery,  242  111.  348. 


1326  WILLS 

Proof  of  handwriting  of  a  deceased  witness  to  a  will  is  prima 
facie  sufacient  as  to  him,  especially  where  signature  of  the  wit- 
nesses are  attached  to  an  attesting  clause  that  the  will  or  codicil 
was  signed  and  sealed  in  their  presence. 

Under  the  statute  on  wills,  upon  trial  in  circuit  court  de  novo, 
on  appeal  from  county  court,  proof  of  testator's  signature  to  a 
will  may  be  made  by  testimony  other  than  that  of  a  surviving  sub- 
scribing witness,  where  one  witness  is  dead.  The  fact  that  the  sole 
surviving  subscribing  witness  to  a  will  failed  to  notice  whether  or 
not  it  was  signed,  and  cannot  remember  whether  he  saw  the  signa- 
ture or  not,  does  not  overcome  the  prima  facie  case  made  in  favor 
of  its  due  execution  by  the  testimony  of  the  witness  that  he  signed 
it  at  the  request  of  the  testator  and  in  his  presence. 
Hobart  vs.  Hobart,  154  111.  610. 

Competency  of  Subscribing  Witnesses: 

The  term  "credible,"  as  applied  to  subscribing  witnesses  to  a 

will,  means  competent. 

Smith  vs.  Goodell,  258  111.  145;  Fearn  vs.  Postlewaite,  240  111.  626; 
Gump  vs.   Gowans,  226   111.  635. 
A  credible  witness  means  one  who  would  be  legally  competent 
to  testify,  in  a  court  of  justice,  to  the  facts  which  he  attests  by  sub- 
scribing his  name  to  the  will. 

O'Brien  vs.  Bonfield,  213  111.  428. 
■^  A  witness  who,  for  any  legal  reason,  is  disqualified  from  giv- 
ing testimony  generally,  or  by  reason  of  interest  or  other  disquali- 
fying cause  is  incompetent  to  testify  in  respect  to  the  particular 
subject  under  investigation,  is  not  a  credible  witness. 
Jones   vs.   Grieser,   238  111.   183. 
The  competency  of  a  witness  is  to  be  determined  by  the  state  of 
facts  existing  at  the  time  of  the  attestation,  and  not  that  existing 
at  the  time  the  will  is  offered  for  probate. 

Judy  vs.  Judy,  261  111.  470;  Smith  vs.  Goodell,  258  111.  145;  Johnson 
vs.  Johnson,  187  111.  86. 
They  must  be  competent  witnesses  at  the  time  pf  the  attestation, 
otherwise  the  will  is  not  well  executed. 
Fearn   vs.   Postlewaite,   240   111.   626. 
The  interest  which   disqualifies   a  witness  must  be   a  present, 
certain,  legal  interest  of  a  pecuniary  nature.     The  test  is  whether 
he  will  either  gain  or  lose  financially  as  the  direct  result  of  the  suit, 
or  whether  the  judgment  or  decree  will  be  evidence  for  or  against 

him  in  another  action. 

Smith  vs.  Goodell,  258  111.   145;   O'Brien  vs.  Bonfield,  213  111.  428; 

Boyd  vs.  McConnell  209  111.  396;   Jones  vs.  Grieser,  238  111.   183. 

The  interest,  to  be  disqualifying,  must  be  a  present,  certain  and 

vested  financial  interest  in  the  subscribing  witness  or  in  his  or  her 

husband  or  wife. 

Pyle  vs.  Pyle,  158  111.  289. 
It  is  the  real  and  actual  interest  that  disqualifies  a  witness  and 
not  the  belief,  understanding  or  feeling  in  regard  to  such  interest. 
Pyle  vs.  Pyle,  158  111.  289. 
A  devisee  is  not  a  competent  Mdtness. 

Crowley  vs.  Crowley,  80  111.  469;  Fearn  vs.  Postlewaite,  240  111.  626. 

The  fact  that  a  subscribing  witness  is  a  beneficial  devisee  renders 
devise  to  him  null  and  void  unless  there  are  sufficient  subscrib- 


WILLS  1327 

ing  witnesses  without  him,  but  such  person  is  a  competent  sub- 
scribing witness  to  the  residue  of  the  will. 

Harp  vs.  I'arr,  168  111.  459.  : 

Wife  or  husband  of  devisee  or  legatee  is  incompetent. 

Chi.  T.  &  T.  Co.  vs.  Brown,  183  111.  42;   Fisher  vs.  Spence,  150  111. 
253. 
And   this   notwithstanding   the   will,    if   established,    would   be 

against  the  interest  of  spouse  of  witness  as  heir  at  law. 
Sloan  vs.  Sloan,  184  111.  579. 
An  executor  is  an  incompetent  witness. 

Fearn  vs.  Postlewaite,  240  111.  626;   Jones  vs.  Greiser,  238  111.  183. 
But  he  may  be  compelled  to  abandon  his  executorship,  if  his 
testimony  be  needed,  and  testify  to  execution  of  the  will. 

Smith  vs.  Goodell,  258  111.  145;   Fearn  vs.  Postlewaite,  240  111.  626; 
Jones  vs.  Greiser,  238  111.  183. 
Wife  of  an  executor  is  an  incompetent  witness  and  will  cannot 
be  probated  though  person  named  as  executor  makes  written  re- 
lease. 

Eowlett  vs.  Moore,  252  111.  436;  Fearn  vs.  Postlewaite,  240  111,  626; 
XIV   111.   Notes   1035,   §  78. 
A  partner  of  an  executor  named  in  a^  will  is  not  a  competent 
witness  where  the  partnership  articles  provide  that  he  shall  share 
in  the  fees  earned  by  the  other  partner  while  acting  as  an  execu- 
tor or  administrator.  a 
Smith  vs.  Goodell,  258  111.  145. 
Trustees,  acting  without  compensation  for  educational  institu- 
tion wdiich  is  beneticiary,  are  not  disqualified, 
Boyd  vs.   McConnell,   209   111.   396. 
Trustees,  pastor  and  members  of  beneficiary  church  are  cprp.- 

petent  witnesses,  '~:f  "n 

Adams  vs.  M.  E.  Church,  251  111.  268. 
But  parties  to  the  proceedings  for  probate  of  will  and  trustees 
to  carry  into  effect  its  provisions  are  incompetent  to  testify  to 
execution  and  attestation,  when  contestants  are  heirs  at  law  of  the 
testator. 

In  re   Tobin,   196   111.   484. 
A  person  is  not  incompetent  to  testify  as  a  subscribing  witness 

because  his  grandson  is  a  legatee.  ■/ 

O'Brien  vs.  Bonfield,  213   111.  428. 
Wife  or  husband  incompetent  under  section  of  Wills  act,  are 
not  rendered  competent  by   Section  Five  of  the  act  relating  to 

Evidence  and  Depositions. 

Gump    vs.    Gowans,    226    111.    635. 
The  rule  of  law  prohibiting  a  husband  or  wife  testifying  either 
for  or  against  the  other's  interest  is  based  on  public  policy,  inde- 
pendent of  interest. 

Fearn  vs.  Postlewaite,  240  111.  626. 
Amendment  to  Wills  Act,  making  husband  or  wife  of  any  devisee 
or  beneficiary   competent  to  witness  will,   is  not  retroactive  and 
cannot  affect  the  validity  of  wills  executed  by  testators  who  have 

died  before  statute  took  effect. 

Eowlett  vs.  Moore,   252   111.   436. 
Subsefiuent  release  of  benefits  will  not  render  witness  competent. 

Smith  vs.  Goodell,  258  111.  145;   Fisher  vs.  Spenee,  150  111.  253.     .p. 
The  competency  of  an  attesting  Avitness  is  to  be  tested  by  the 


1328  WILLS 

facts  existing  at  the  time  of  attestation.  If  then  competent,  any 
subsequent  incompetency  will  not  prevent  probate  of  the  will,  and 
if  then  incompetent,  subsequently  acquired  competency  will  not 
validate  the  will.  Competent  attesting  witness  is  not  rendered 
incompetent  by  purchasing  interest  of  devisee. 
In  re  Will  of  Delaveigne,  259  111.  589. 
After  acquired  interest  may  be  shown  for  purpose  of  affecting 

credibility. 

In  re  will  of  Delvergne,  259  111.  589. 

As  may  conviction  of  felony  after  attestation. 
In  matter  of  Noble,  124  111.  266. 

REVOCATION : 

Where  a  joint  and  mutual  will  shows  on  its  face  that  the  provi- 
sions of  one  were  consideration  for  the  provisions  of  the  other,  no 
evidence  other  than  the  will  itself  and  the  acts  of  the  parties  is 
necessary  to  prove  a  compact  which  will  prevent  revocation  by  the 
survivor,  who  has  taken  advantage  of  the  provisions  made  by  the 
other. 

Frazier  vs.  Patterson,  243  111.  80;  XIV  111.  Notes  1040,  §  115. 

As  with  deeds,  so  with  wills,  parties  making  them  cannot  in- 
validate them  by  their  own  parol  declarations,  made  either  pre- 
viously or  subsequently,  and  evidence  of  such  declarations  is  prop- 
erly excluded. 

Dickie  vs.   Carter,  42   111.  377. 

As  a  general  rule,  if  a  will  is  traced  to  the  testator's  possession, 
and  at  his  death  cannot  be  found,  the  presumption  is,  in  the 
absence  of  anything  to  contrary,  that  he  destroyed  it  ammo 
revocandi.  ^„  „^,    „^ 

Taylor  vs.  Pegram,  151  111.  106;  Stetson  vs.  Stetson,  200  111.  601;  St. 
Mary's  Home  vs.  Dodge,  257  111.  518. 

Declaration    of    testator    not    admissible    in    direct    proof    of 

revocation. 

Eeynolds  vs.  Adams,  90  111.  134. 
Where  testator  has  wholly  or  partially  destroyed  or  mutilated, 
torn  or  cancelled  his  will,  declarations  made  by  him  at  the  time 
of  doing  such  act  are  admissible  as  part  of  the  res  gestce  to  show 
with  what  intent  he  mutilated  or  destroyed  the  instrument.  Sab- 
sequent  declarations  of  testator  are  admissible  to  show  intent,  and 
also  admissible  to  show  partial  mutilation,  cancellation  or  tearing 

of  the  will. 

Burton  vs.  Wylde,  261  111.  397. 
And  are  admissible  to  show  total  destruction  of  the  will. 

Boyle  vs.  Boyle,  158  111.  228 ;  Burton  vs.  Wylde,  261  111.  397. 
Declaration  of  disinherited  heir  at  law  that  she  destroyed  will 

is  inadmissible. 

Boyle  vs.  Boyle,  158  111.  229. 
The  declaration,  written  or  oral,  made  by  testator  after  the  exe- 
cution of  the  will,  are,  in  event  of  its  loss,  admissible,  not  only  to 
prove  that  it  had  not  been  cancelled,  but  also  to  show  contents. 
In  re  Page,  118  111.  576. 
Where  a  will  is  found  in  a  mutilated  condition,  in  possession  of 
testator  after  latter 's  death  and  there  is  no  evidence  to  fix  the 
spoliation  on  any  other  person  the  court  will  presume  that  it  was 
done  by  the  testator  with  the  intention  of  cancelling  the  will. 
Marshall    vs.    Coleman,    187    111.    556. 


WILLS  1329 

''  But  all  presumptions  of  this  sort  weigh  lightly  and  may  be 
rebutted  by  proof  of  actual  facts. 

Burton  vs.  Wyldo  261  111.  397. 
Where  will  is  in  possession  of  testator   up  to  the  time  of  his 
decease,  it  is  presumed  that  marks  and  erasures  thereon  were  those 
of  testator. 

Pyle   vs.   Murphy,   180  App.   18. 

PROBATE : 

Admissibility  of  Evidence: 

—  Jn  General:  A  party  seeking  to  procure  a  will  to  be  admitted 
to  probate  must  produce  the  subscribing  witnesses,  as  witnesses  in 
the  probate  court  if  they  are  still  living  and  sane  and  are  within  the 
jurisdiction  of  the  court  and  on  appeal  from  an  order  of  the  pro- 
bate court  refusing  to  admit  the  alleged  will,  the  party  seeking  the 
probate  is  not  relieved  from  the  duty  of  submitting  to  the  circuit 
court  the  testimony  of  the  subscribing  witnesses. 

St.  Mary's  Ilome  vs.  Dodge,  257  111.  518;  In  re  Will  of  Barry,  219 

111.  391;   Thompson  vs.  Owen,  174  111.  229;   XIV  111.  Notes  1043, 

§  139. 

On  question  of  mental  capacity  of  testator,  on  probate  of  will 
executed  in  legal  form,  only  the  testimony  of  subscribing  witnesses 
is  competent. 

In  re  Estate  of  Weedman,   254  111.   504;   O'Brien  vs.  Bonfield,   213 

111.   428;    Moody  vs.   Freund,   208   111.    78;    Claussenius   vs.   Claus- 

senius,    179    111.   545. 

And  no  contradictory  evidence  is  admissible,  except  that  fraud  or 

compulsion  may  be  shown.    Therefore,  proceedings  for  appointment 

of  conservator  for  testator  is  inadmissible. 

In  re  Estate  of  Weedman,  254  111.  504.  li  .ui 

Any  competent  evidence  is  admissible  to  show  fraud,  compulsion 
or  other  improper  conduct.     But  the  fraud  so  contemplated  does 
not  embrace  lack  of  testamentary  capacity. 
Stuke  vs.  Glaser,  223   111.  316. 

While  it  is  not  necessary  for  subscribing  witnesses  to  testify 
that  testator  was  of  sound  mind  and  memory  at  time  of  signing  or 
acknowledging  will,  yet  it  is  essential  that  they  testify  they  be- 
lieved such  fact. 

Hill  vs.  Kehr,  228  111.  204;  In  re  Will  of  Ingalls,  148  111.  287. 
Subscribing  witnesses  must  declare  that  they  believed  the  testa- 
tor was  of  sound  mind  and  memory  at  time  of  signing  or  acknowl- 
edging will,  but  are  not  required  to  use  the  exact  language  of  the 
statute,  it  being  sufficient  if  they  state  their  belief  in  equivalent 
words. 

Bice   vs.   Hall,   120  111.   597. 

Proof  that  subscribing  witnesses  did  not  know  whether  testator 
was  of  sound  mind  and  memory  or  not  is  insufficient  proof  of 
same. 

Allison  vs.  Allison,  46  111.  61. 
Right  to  probate  the  will  is  not  dependent  upon  belief  of  attest- 
ing witnesses  formed  after  their  attestation. 
Waugh   vs.    Moan,   200    111.    298. 

If  a  witness  entertains  a  belief,  at  time  of  execution  of  will, 
that  testator  is  of  sound  mind  and  memory,  it  wdll  meet  the  require- 
ments of  the  statute.  "^  ^^ 
Hill  vs.  Kehr,  228  111.  204. 

Ev.— 84 


1330  WILLS 

The  belief  as  to  sanity  to  which  subscribing  witnesses  are  required 
to  depose,  is  that  entertained  by  them  at  time  will  was  executed, 
and  not  their  belief  at  time  their  testimony  is  taken. 
Id  re  Will  of  Ingalls,  148  111.  287. 
'*  Identity  of  mutilated  will  need  not  be  established  by  evidence 

of  subscribing  witnesses. 

Webster  vs.  Yorty,  194  111.  408. 
The  fact  that  testatrix  was  in  a  comatose  condition  at  the  time 
it  is  claimed  she  signed  the  will,  cannot  be  shown  by  witnesses 
other  than  the  subscribing  witnesses,  upon  application  to  the 
county  court  for  probate,  nor  upon  appeal  to  the  circuit  court, 
where  it  is  not  claimed  such  condition  was  brought  about  by  some 
person  as  a  trick  to  obtain  her  signature,  since  a  comatose  condi- 
tion resulting  from  disease  would  go  to  the  question  of  testa- 
mentary capacity,  upon  which  the  parties  are  limited  to  the  testi- 
mony of  the  subscribing  witnesses. 

Stuke  vs.  Glaser,  223   111.  316. 

—  Proceedings  in  County  Court:  Upon  the  subject  of  the  testa- 
mentary capacity,  no  evidence  can  be  heard  on  either  side  except 
that  of  the  subscriliing  witnesses. 

Kaul  vs.  Lyman,  259  111.  30;  Stuke  vs.  Glaser,  223  111.  316;  O'Brien 
vs.  Bonfield,  213  111.  428;  Andrews  vs.  Black,  43  111.  256;  Walker 
vs.  Walker,  3  111.  291;   XIV  111.  Notes  1029,   §32. 

But  upon  fraud,  compulsion  or  other  improper  conduct,  con- 
testants may  introduce  competent  evidence  for  purpose  of  invali- 
dating for  such  reason. 

Stuke  vs.  Glaser,  223   111.   316;    Claussenius  vs.   Claussenius,   179   111. 
545;   Harp  vs.  Parr,  168  111.  459;   Heirs  of  Critz  vs.  Pierce,  106 
111.  167. 
■ — Appeal  from  Order  Admitting  Prohate:     Both  parties  con- 
fined, on  subject  of  testamentary  capacity,  to  testimony  of  witneses 

to  the  will.  )ji 

Hill  vs.  Kehr,  228  111.  204;  Stuke  vs.  Glaser,  223  111.  316;  Greene  vs. 
Hitcheock,  222  111.  216;   O'Brien  vs.  Bonfield,  213  111.  428;   In  re 
Arrowsmith,   206   111.   352;    Hobart   vs.   Hobart,    154   111.    610. 
Evidence  other  than  that  of  the  testimony  of  subscribing  wit- 
nesses  is   admissible   on  behalf  of  contestants  to   show  physical 

inability  of  testator  to  sign  the  will. 
iCraig   vs.    Trotter,   252    111.    228. 

—  Appeal  from  Order  Denying  Prohate:  Proponents  are  not 
limited  to  subscribing  witnesses,  but  may  support  same  by  any  evi- 
dence competent  to  establish  a  will  in  chancery. 

Kaul  vs.   Lyman,   259   111.   30;    Stuke  vs.   Glaser,   223   111.   316;    Hill 

vs.    Kehr,    228    111.    204;    Greene   vs.    Hitchcock,   222    111.    216;    In 

re  Barry,  219  111.  391;   Webster  vs.  Yorty,  194  111.  408. 

Contestants  are  limited  on  subject  of  testamentary  capacity  to 

testimony  of  subscribing  witnesses.  ^  »f?7/ 

Stuke  vs.  Glaser,  223  111.  316;   In  re  Arrowsmith,  206  111.  352;  lU. 

Masonic  Home  vs.  Graeey,  190  111.  95;   Heirs  of  Critz  vs.  Pierce, 

106  111.  167.     (See  Affidavits.) 

—  Impeachment  of  Subscribing  Witnesses:  As  to  a  witness 
whom  a  party  is  required  by  law  to  call,  the  rule  is  that  the  truth- 
fulness and  integrity  of  the  witness  is  not  vouched  for,  and  the 
party  so  producing  the  witness  may  bring  forward  proof  of  pre- 
vious declarations  at  variance,  on  material  points,  with  his  testi- 


WILLS  1331 

mony,  for  the  purpose  of  impeaching  him  or  contradicting  his 
testimony  on  such  points. 

Thoiupsuu  vs.  Uwcii,  174  111.  229. 

To  admit  aifidavits  of  subscribing  witness  for  purpose  of  im- 
peaching him,  the  affidavit  should  be  produced  and  attention  of 
witness  specifically  called  to  such  parts  of  it  as  it  is  thought  his 
testimony  contradicts. 

In   re   Noble,   124   111.   266. 

Proponents  being  compelled  to  produce  subscribing  witnesses  in 
county  court,  may  prove  the  affidavits  of  such  witness  made  in 
county  court,  for  purpose  of  contradicting  testimony  given  by  them 
in  circuit  court,  where  there  is  a  conflict. 

In  re  Will  of  Barry,  219  111.  391;  Thompson  vs.  Owen,  174  111.  229. 

If  one  of  the  subscribing  witnesses  to  a  will  is  impeached,  with 
reference  to  matters  stated  in  his  testimony  in  proceedings  to  con- 
test will,  such  impeachment  does  not  relate  back  to  time  will  was 
executed. 

Johnson  vs.  Johnson,   187  111.   86.     ,tl)B    - 

—  Death,  Absence  or  Incapacity  of  Witness:  Death  of  a  sub- 
scribing witness  merely  changes  the  form  of  proof,  and  permits 
secondary  evidence  of  the  attestation  and  execution  of  the  will. 
Proof  of  testator's  signature  by  other  testimony  than  that  of  sub- 
scribing witnesses  comes  under  the  designation  of  "other  necessary 
evidence. ' ' 

Hobart  vs.  Hobart,  154  111.  610;  XIV  111.  Notes  1043,  §  141. 
Proof  of  the  signatures  of  the  deceased  witnesses  to  attesta- 
tion clause,  reciting  that  testator  acknowledged  the  instrument  to 
be  his  act  and  deed,  in  their  presence  and  in  the  presence  of  each 
other,  and  that  they  subscribed  their  names  as  witnesses,  is  suffi- 
cient prima  facie  to  establish  the  due  execution  of  the  will,  without 
further  proof  of  the  signature  of  the  testator. 

Elston  vs.   Montgomery,   242   111.   348. 

Though  there  be  no  formal  attestation  clause,  the  inference 
arises,  from  the  mere  fact  of  attestation,  that  the  witnesses  believed 
testator  possessed  testamentary  capacity  at  the  time  of  executing 
the  will. 

More  vs.  More,  211  111.  268. 

Testimony  of  a  surviving  subscribing  witness  may  be  sufficient 
for  probate  of  will,  where  the  other  is  dead  and  the  attestation  is 
duly  proven.  '  f   'ijir.?,  m(I| 

Eobinson  vs.  Brewster,  140  111.  649. 

In  case  of  deceased,  insane  or  absent  witness,  the  court  may 
admit  proof  of  handwriting  of  such  witness,  and  admit  the  instru- 
ment to  probate  as  though  it  had  been  proven  by  such  subscribing 
witness  in  his  or  her  proper  person.  Proof  of  handwriting  of  the 
subscribing  witness  in  such  a  case  raises  the  presumption  that  wit- 
ness duly  attested  the  will  in  presence  of  the  testator  and  believed 
him  to  possess  testamentary  capacity. 
Calkins  vs.  Calkins,  216  111.  458. 

—  Admissibility  of  Attestation  Clause:  Probate  of  will  does  not 
depend  upon  the  recollection  of  a  subscribing  witness.  An  attesta- 
tion clause  in  due  form,  and  bearing  the  signature  of  the  witnesses, 
which  they  admit  to  be  genuine,  is  competent  evidence,  tending  to 


1332  WILLS 

establish  the  execution  of  the  will,  where  the  only  defect  in  the 
proof  is  the  failure  of  witnesses  to  recollect  that  all  the  formalities 
prescribed  in  the  statute  and  recited  in  the  attestation  clause  have 

been  complied  with. 

Thoiupsou  vs.  Owen,  174  111.  229;  See  Also  Elston  vs.  Montgomery, 
242  III.  348. 
Where  the  attestation  clause  contains  all  the  particulars  of  a 
good  execution,  it  will  always  be  prima  facie  evidence  of  due  execu- 
tion and  will  prevail  over  the  testimony  of  the  witnesses  who  give 

evidence  tending  to  show  that  some  of  the  requisites  were  omitted. 

Thompson  vs.  Owen,  174  111.   229. 

The  statements  of  the  attestation  clause  are  entitled  to  their  due 
weight,  and  the  mere  inability  of  an  attesting  witness  to  recollect 
the  facts  therein  stated  will  not  defeat  the  probate. 

In  re.  Estate  of  Kohley,  200  111.  189. 

—  Depositions:    The  mere  presence  of  one  of  the  counsel  at  the 

taking  of  a  deposition  of  a  subscribing  witness  to  a  will,  under 

section  4  of  the  Wills  act,  is  not  ground  for  striking  deposition 

from  files. 

In    re    Estate    of    Arrowsmith,    206    111.    352. 

A  deposition  of  a  subscribing  witness,  taken  under  section  4  of 
the  Wills  act,  upon  a  commission  issued  by  county  court,  may  be 
read  in  circuit  court  on  appeal  from  county  court's  order  admit- 
ting the  will  to  probate. 

In    re   Estate    of    Arrowsmith,    206   111.    352. 

Interrogatories  in  deposition  of  subscribing  witness,  inquiring 
whether  he  would  have  signed  the  instrument  except  in  the  pres- 
ence of  the  testatrix,  and  whether  all  the  things  mentioned  in  the 
attestation  clause  were  complied  with,  which  clause  recited  the 
doing  of  the  things  required  by  the  statute  to  make  a  valid  will, 
are  improper,  and  the  interrogatories  and  answers  should  be  sup- 
pressed. 

Greene  vs.   Hitchcock,  222   111.   216. 

Weig-ht  and  SuiRciency: 

To  entitle  a  will  to  probate,  four  things  must  be  proven :  The 
will  must  be  in  writing,  and  signed  by  the  testator,  or  in  his  pres- 
ence by  some  one  under  his  direction ;  it  must  be  attested  by  two  or 
more  credible  witnesses;  two  witnesses  must  prove  that  they  saw 
testator  sign  the  will  in  their  presence  or  that  he  acknowledged 
the  same  to  be  his  act  and  deed ;  they  must  swear  that  they  believed 
him  to  be  of  sound  mind  and  memory  at  the  time  of  the  acknowl- 
edgement of  the  same. 

In  re  Estate  of  Kohley,  200  111.  189;   Harrison  vs.  Weatherby,  180 

111.  418 :  Canatsey  vs.  Canatsey,  130  111.  397 ;  Crowley  vs.  Crowley, 

80  111.  469. 

But  the  proving  of  the  signatures  of  the  witnesses  may  con- 
stitute such  proof  where  witnesses  are  deceased  or  incapable. 

Thompson    vs.    Owen,    174   111.    229. 

Nor  is  it  required  that  subscribing  witnesses  be  able  to  recollect 
that  all  the  formalities  prescribed  by  statute  and  recited  in  the 
attestation  clause  were  actually  complied  with. 

-)'■"  Mead  vs.   Presbyterian   Church,   229   111.   526;    Schofield  vs.   Thomas, 

236  111.   417;"Doran  vs.  Mullen,   78   111.  342. 

It  is  sufficient  to  admit  a  will  to  probate  to  show  due  formal 


WILLS  1333 

execution  thereof,  and  that  testator  was  of  sound  mind  and  mem- 
ory at  tlie  time. 

iJice  vs.  Hall,   li'O  111.  597. 

Probate  should  be  refused  where  one  witness  cannot  recollect 
as  to  presence  ot  testator,  or  whether  he  signed  at  testator's  request. 

Greene  vs.   Hitchcock,  222   111.   21G. 

Where  witnesses  signing  by  mark  cannot  identify  instrument  or 
swear  they  believed  testator  of  sound  mind,  probate  should  be 
refused. 

Crowley   vs.    Crowley,    80   III.    469. 

That  witness  knew  testator  must  either  sign  or  acknowledge  sig- 
nature in  his  presence  is  no  proof  that  same  was  done. 

Greene  vs.   Hitchcock,  222   111.   21G. 

Evidence  of  one  witness  as  to  signing  in  presence  of  witnesses 
and  testator  is  sufficient,  where  testimony  of  other  witness  to  con- 
trary is  contradicted  by  his  own  affidavit  made  on  first  hearing  in 
county  court. 

Senn  vs.  Gruendling,   218   111.  4.58. 

Probate  court  cannot  admit  will  to  probate  w^here  one  of  two 
subscribing  witnesses  cannot  remember  any  circumstance  connected 
with  transaction,  but  circuit  court,  on  appeal  from  order  denying 
probate,  may  hear  any  evidence  competent  to  prove  due  execution 
of  will, 

Kaul  vs.  Lyman,  259  III.  30;  Voodry  vs.  U.  of  I.,  251  111.  48. 

If  testimony  of  the  two  attesting  witnesses  to  a  codicil  added 
to  a  will  is  sufficient  to  establish  the  codicil,  upon  application  to 
probate  will,  it  is  also  sufficient  to  establish  the  will. 

Hill  vs.  Kehr,  228  111.  204;   Mayville  vs.  French,  246  111.  434. 

A  will  is  established,  (except  such  portions  as  are  revoked  or 
altered  by  the  codicil)  by  proof  of  a  codicil  wa^itten  on  the  same 
paper,  or  clearly  and  unmistakably  referring  to  the  will,  so  as  to 
preclude  all  doubt  of  its  identity  without  further  proof. 

Hobart   vs.   Hobart,   154   111.   610;    XIV   111.   Notes   1043,   §143. 

Where  same  witnesses  subscribed  and  attested  both  will  and 
codicil,  written  upon  same  sheet  of  paper,  testimony  by  such  wit- 
nesses that  they  were  present  and  saw  the  will  and  codicil  executed, 
and  that  they  believed  testatrix  to  be  of  sound  mind  and  under 
no  restraint,  "when  she  signed  the  will,"  is  sufficient  proof  of  both 
will  and  codicil. 

Fry  vs.   Morrison,   159   Til.   244. 

Where  the  attestation  clause  signed  by  the  witnesses,  who  are 
both  dead,  recites  that  instrument  was  acknowledged  by  testatrix 
in  their  presence,  to  be  her  act  and  deed,  proof  tending  to  show 
the  signature  to  the  will  was  not  in  handwriting  of  testatrix  does 
not  tend  to  overcome  the  prima  facie  case  made  out  by  the  attesta- 
tion clause  and  proof  that  signatures  of  the  witnesses  were  genuine. 

Elston    vs.    Montgomery,    242    111.    348. 

Wliere  proof  shovred  that  testatrix,  during  her  last  illness,  said 
she  wanted  her  husband  to  have  her  property,  and  at  the  same  time 
that  she  wanted  another  person  to  have  something,  and  that  she 
would  finish  it  or  fix  it  tomorrow ;  that  she  lived  six  days  there- 
after, and  was  all  the  time  in  condition  to  make  a  will  in  writing, 
the  words  so  spoken  under  such  circumstances  do  not  amount  to 


1334  WILLS 

such  a  declaration  as  should  be  admitted  to  probate  as  a  nun- 
cupative will. 

Morgan  vs.  Stevens,   78  111.  287. 

Establishment  of  Lost  Wills: 

The  contents  of  a  lost  or  destroyed  will  may  be  proven  by  the 
testimony  of  a  single  witness. 

The  declarations,  written  or  oral,  of  testator,  made  after  the 
execution  of  the  will,  are,  in  event  of  its  loss,  admissible  not  only 
to  prove  it  had  not  been  cancelled,  but  also  as  secondary  evidence 

of  its  contents. 

In  re  Page,  118  111.  576. 
Lost  or  destroyed  wills  cannot  be  established  upon  unsatisfactory 
evidence,  and  the  distribution  of  estates  determined  upon  unsatis- 
factory evidence,  such  as  that  of  a  single  witness,  who  testifies  that 
after  death  of  the  testatrix,  she  found,  and  gave  to  her  husband, 
a  paper  enclosed  in  a  wrapper  of  the  same  color  and  size  as  the 
one  shown  to  her  in  court  a  year  and  a  half  after  the  incident 
occurred,  and  which  is  claimed  to  be  a  fac  simile  of  the  alleged 

will. 

St.  Mary's  Home  vs.  Dodge,  257  111.  518. 

^"  Clear  proof  of  execution,  attestation  and  contents  of  a  will  and 
'that  the  will  was  last  seen  in  the  possession  of  the  widow  some 
weeks  after  the  testator's  death,  justifies  the  presumption  that  the 
widow  performed  her  duty  under  the  law,  and  delivered  it  to  the 
probate  court,  and  such  proof,  coupled  with  the  testimony  of  the 
clerk  of  such  court,  that  he  has  made  diligent  search  among  the 
files  and  records  of  his  office  and  has  been  unable  to  find  the  will, 

makes  a  prima  facie  case  that  the  will  has  been  lost. 
Cassem  vs.  Prindle,  258   111.    11. 
To  establish  the  contents  of  a  lost  will,  it  is  not  essential  that  the 
subscribing  witnesses  be  able  to  repeat  its  exact  language,   and 
it  is  sufficient  if  they  are  able  to  recollect  with  certainty  the  sub- 
stance of  the  will,  where  it  is  a  very  simple  one. 
Cassem  vs.  Prindle,  258  111.  11. 

Where  will  is  destroyed  by  heirs,  devisees  bound  only  to  show, 
on  general  terms,  the  disposition  made. 

Anderson   vs.    Irwin,    101    111.    411. 

Proof  of  sanity  not  indispensable  in  absence  of  proof  to  contrary, 

in  bill  to  establish  destroyed  wall. 

Anderson  vs.   Irwin,    101    111.   411. 

^  "'^here  commission,  appointed  to  restore  destroyed  records,  found 
a  copy  to  be  such  and  ordered  it  recorded,  though  copy  only  had 
one  attesting  witness,  same  is  admissible  in  evidence,  the  presump- 
tion being  that  the  court,  as  well  as  the  commission,  had  sufficient 
evidence  to  justify  their  action. 

Transportation  Co.  vs.  Gill,  111  111.  541. 

CONTEST  IN  CHANCERY: 
Order  of  Proof: 

The  burden  of  sustaining  a  will  being  upon  the  party  affirming 

its  validity,  such  party  should  open  and  close. 

Harp  vs.  Parr,  168  111.  469 ;  Bevelot  vs.  Lestrade,  153  111.  625 ;  Tay- 
lor vs.  Cox.  153  111.  220;   XIV  111.  Notes  1049,  §  186. 

This  view  is  unaftected  by  the  fact  that  upon  a  prima  facie  case 


WILLS  1335 

being  made,  the  presumption  of  sanity  arising,  burden  of  proof  is 
cast  upon  the  contestant  to  show,  by  a  preponderance  of  all  the 
evidence,  that  the  deceased,  at  time  of  the  execution  of  the  will, 
was  wanting  in  testamentary  capacity. 

Craig  vs.  Soutliard,  14S  111.  M7. 

It  is  for  proponents  of  a  will  to  offer  all  the  evidence  of  testa- 
mentary capacity  in  first  instance,  and  if  they  desire  to  present 
opinions  of  experts,  based  upon  an  hypothesis  of  facts  testified  to 
by  their  witnesses,  they  should  do  so  before  closing  in  chief. 
Albrecht   vs.    Hittle,    248    111.    72. 
But  after  contestant  has  offered  his  evidence,  proponent  has  a 
right  to  examine  expert  witnesses  as  to  what  conclusions,  in  their 
opinions,  should  be  drawn  from  such  evidence. 
Albrecht   vs.    Hittle,    248    111.    72. 

Admissibility  of  Evidence: 

—  In  General:  Validity  of  will  may  be  established  by  any  legit- 
imate evidence. 

Webster   vs.   Yorty,    194   111.   408. 

While  proponent  may  make  a  prima  facie  ease  by  the  testimony 
of  subscribing  witnesses  or  the  certificates  of  the  oath  of  attesting 
witnesses  at  the  time  of  probate,  yet  he  is  not  limited  to  either  of 
such  methods,  but  may  prove  the  execution  of  the  will  and  the 
mental  capacity  of  the  testator  by  any  legitimate  evidence. 

Voodry  vs.  Univ.  of  Ills.  251  111.  48 ;  Kaul  vs.  Lyman,  259  111.  30. 
Verdict  of  coroner's  jury  admissible  to  show  that  testator  com- 
mitted suicide. 

Pyle   vs.   Pyle,   158   HI.   289. 
Testimony  of  disinterested  party  who  drew  will,  that  will  was  in 
same   condition   as  to  paper   on  which  it  was  writteii,   as  when 
executed,  is  admissible  where  fraud  and  substitution  is  charged. 
Harp  vs.  Parr,  168  111.  459. 
The  condition  a  will  was  in,  as  regards  attached  papers,  at  the 
time  of  execution  of  a  codicil,  and  the  intention  of  the  testator  as 
to  what  should  constitute  his  will,  may  be  shown  by  parol. 
Shaw  vs.  Camp,  163  111.   144. 

Scrivener  may  testify  as  to  what  his  directions  were  and  that  he 

followed  them. 

Healea  vs.  Keenan,  244  111.  482. 
Where  contestants  introduce  in  evidence  executor's  inventory, 
it  is  proper  to  refuse  to  permit  them  to  introduce  oral  testimony  of 
value  of  estate,  where  they  do  not  offer  such  proof  to  impeach  the 
inventory,  but  merely  to  show  the  value  of  the  estate,  without 
stating  whether  they  expect  to  prove  such  value  to  be  less  or  greater 

than  is  shown  by  the  inventory. 

Abrahams   vs.   Wooley,   243   111.   365. 
Refusal  to  permit  party  to  prove  that  he  had  no  authorized 
attorney  to  appear  is  proper,  as  jury  are  not  concerned  with  plead- 
ings. :. 

Larabee  vs.  Larabee,   240  111.  576. 

—  Affidavits  of  Suhscrihing  Witnesses:    Original  affidavits  filed 

on  probate  of  will  admissible. 

Harp  vs.  Parr,   168  111.  459;   Potter  vs.  Potter,  41  111.   SO. 
In  general,  the  oaths  of  subscribing  witnesses  are  competent.      ' 
Entwistle  vs.   Meikle,   180  111.  9.  '  l" 


1336  AVITHHOLDING  EVIDENCE 

But  not  when  record  shows  taken  after  will  probated. 

Godfrey  vs.   Phillips,   209   111.   584. 
Certificate  of  oath  of  subscribing  witness  at  tnne  of  first  probate 
is  admissible,  notwithstanding  the  witnesses  have  already  testified 
to  the  same  effect. 

Kellan  vs.  Kellan,  258  111.  256. 
Whether  declaration  is  in  form  of  an  af^davit  or  questions  and 

answers  is  immaterial. 

Baker  vs.  Baker,  202  111.  595. 
Introduction  of  the  will  itself  and  proof  of  death  and  the  certifi- 
cate of  the  oaths  of  the  subscribing  witnesses  make  a  2)rima  facie 
case  in  favor  of  the  validity  of  the  will. 

Waters  vs.  Waters,  222  111.  26 ;  Baker  vs.  Baker,  202  111.  595 ;  Thomp- 
son vs.  Bennett,  194  111.  57;  Wilbur  vs.  Wilbur,  129  111.  392; 
Wilkinson  vs.  Service,  249  111.  146. 

—  Order  Admitting  to  Probate :    Order  of  court  admitting  will 

to  probate  is  incompetent. 

Craig  vs.  Southard,  148  111.  37;  Purdy  vs.  Hall,  134  111.  298. 

—  Indorsement  on  Will  hy  Judge:  Admitting  endorsement  show- 
ing will  to  be  proved  and  admitted  to  probate,  is  reversible  error, 

Weston  vs.  Teufel,  213  111.  291. 
But  where  covered  by  agreement  of  attorneys,  is  not  ground  for 
reversal. 

Larabee    vs.    Larabee,    240    111.    576. 

—  Certified  Copy  of  Will:    It  is  error  to  admit  certified  copy  of 
will.     Original  should  be  produced,  or  absence  accounted  for. 

Purdy  vs.   Hall,   134   111.   298. 
But  proponents  may  introduce  certified  copy  where  original  is  in 

hands  of  contestants. 

Nieewander  vs.  Nicewander,  151  111.   156. 

Burden  of  Proof: 

See  Ante:  Testamentary  Capacity,  Undue  Influence,  Burden 
OF  Proof, — Wills. 


WITHHOLDING  EVIDENCE. 

See  Destruction,  Suppression  and  Fabrication,  Refusal  to 
Produce. 


WITNESSES. 

See  Absent  Witness,  Accessories,  Accomplice,  Acknowledg- 
ments, Adverse  Party,  Affidavits,  Age,  Agency,  Arbitration 
and  Award,  Attorneys,  Bias  and  Hostility,  Bigamy,  Book- 
keeper, Contradiction  and  Sustaining  Witness,  Corroboration, 
Credibility,  Cross  Examination,  Cumulative  Evidence,  Depo- 
sitions, Detectives,  Expert  and  Opinion,  Former  Conviction, 
Former  Testimony,  Grand  Jurors,  Handwriting,  Husband  and 
Wife,  Hypothetical  Questions,  Immunity,  Impeachment, 
Infants,  Interpreters,  Justice  of  Peace,  Leading  Questions,  New 
Trial,  Objections,  Order  of  Proof,  Offer  of  Evidence,  Parties 


WITNESSES  1337 

AND  Persons  Interested  as  Witnesses,  Pedigree,  Photographs, 
Privileged   Communications,  Kecalling    Witness,  Refusal  or 
Failure  to  Produce  Evidence,  Exclusion  and  Separation  of 
Witnesses,  Value,  Voir  JJire,  Wills. 
COMPETENCY  IN  GENERAL. 
Presumptions  and  Burden  of  Proof: 

The  presuinption  is  that  one  ofiPered  as  a  witness  is  competent 
to  testify,  and  the  burden  is  therefore  east  upon  one  who  objects, 
to  state  and  prove  the  grounds  of  his  objection. 

Boyd  vs.   McConnell,   209   111.   H96;    Campbell  vs.   Campbell,   130   111. 
46G;   XIV  111.  Notes,  1117,  §48. 

Person  objecting  must  state  and  prove  grounds  of  his  objection. 
S.  C.  Institute  vs.  Estate  of  Avery,  157  App.  568;  Standley  vs.  Moss, 
114  App.  612.  J^  ff  ,  J 

Where  ^^^tness  is  competent,  only  as  to  certain  matters,  upon 
objection  being  made,  party  offering  him  must  state  for  what  pur- 
pose he  is  introduced. 

Stewart  vs.  Kirk,  69  111.  509. 

Courts  will  not  inquire  into  proceedings -before  the  grand  jury 
for  purpose  of  determining  whether  the  evidence  heard  by  that 
body  was  sufficient  to  support  the  indictment,  unless  all  the  wit- 
nesses were  incompetent  or  all  the  testimony  upon  which  the  indict- 
ment was  found  was  incompetent.  It  will  not  be  presumed,  merely 
because  the  prosecuting  witness  did  not  testify,  that  there  was  no 
competent  evidence  given  which  would  warrant  the  grand  jury  in 
returning  the  indictment. 

People  vs.  Duncan,  261  111.  339;  People  vs.  Bladek,  259  111.  69. 

Objections: 

—  Specific  Objections:  General  objection  is  insufficient  where 
witness  competent  as  to  certain  matters. 

Colston  vs.  Olroyd,  204  111.  435. 

An  objection  to  question  propounded  to  witness  is  not  suffi- 
cient to  raise  question  of  competency.  Such  objection  must  be 
specific. 

Daey  vs.  Goll,  150  App.  9 ;  Christiansen  vs.  Dunham  Co.,  75  App.  267. 
Where  specific  objection  is  made,  based  upon  incompetency  of 
witness,  it  is  not  necessary  to  repeat  special  ground  of  objection  to 
every  question  thereafter  asked. 

Taylor  vs.  Pegram,  151  111.  106. 

Objection  by  all  defendants,  where  witness  testifying  is  compe- 
tent as  against  one,  is  insufficient. 

Holroyd  vs.  Millard,  142  App.  392. 

—  On  Appeal:  An  objection  to  the  competency  of  witness  can- 
not be  made  for  first  time  on  appeal. 

Dewees  vs.  Osborne,  178  111.  39;  Dotv  vs.  Doty,  159  HI.  46;  Cotter  vs. 
Sullivan,  162  App.  396;  Holroyd  vs.  Millard,  142  App.  392;  Willen- 
borg  vs.  Murphy,  36  111.  344;  Hipole  vs.  De  Puie,  51  111.  528;  XI 
111.  Notes,  191,  §  463. 

Party  has  no  cause  of  complaint  because  of  admission  of  evi- 
dence offered  by  himself. 

Botts  vs.'Botts,  142  App.  216. 

—  Waive)-:  A  party  against  whom  a  disqualified  witness  is 
offered  may  object  and  bring  the  matter  to  the  attention  of  the 
court  before  the  evidence  is  given,  or  he  may,  if  he  sees  proper, 


1338  WITNESSES 

waive  the  disqualification  and  permit  the  witness  to  testify,  and  by 
failing  to  make  his  objection  in  apt  time,  he  is  presumed  to  have 
waived  his  right 


Chi.  Trust  Co.  vs.  Sagola  Lbr.  Co.,  242  111, 


468. 


Where  a  party  is  aware  of  the  grounds  that  disqualify  a  witness, 
he  cannot  be  permitted  to  sit  by  and  speculate  as  to  the  character 
of  the  evidence  and  afterwards  object  to  the  competency  of  the 
witness  if  his  evidence  turns  out  to  be  unfavorable  to  him. 
CM.  Trust  Co.  vs.  Sagola  Lbr.  Co.,  242  111.  468. 

Objection  is  not  waived  by  failure  to  interpose  it  at  time  of 
taking  a  deposition,  but  such  objection  is  good  if  taken  on  the 

liearin^ 
>nV      ^'kelsey  vs.  Snyder,  118  111.  544;  Cf.  Mer.  L.  &  T.  Co.  vs.  Egan,  222 

111.  494. 

Where  the  disqualification  is  absolute,  objection  is  not  waived 
if  not  interposed  at  time  of  taking  deposition. 

Albers  Com.  Co.  vs.  Sessell,  193  111.  153;  Warren  vs.  Warren,  105  111. 
568;  Kelsey  vs.  Snyder,  118  111.  544. 
,,  But  if  objection  is  one  which  might  be  obviated,  objection  must 
be  made  at  time  of  taking  deposition. 

Albers  Com.  Co.  vs.  Sessell,  193  111.  153;  Clausen  vs.  Stone,  29  111.  114; 
Harmon  vs.  Thornton,  3  111.  351. 
Failure  of  guardian  ad  litem  to  object  is  not  a  waiver. 

Johnston  vs.  Johnston,  138  111.  385. 
Personal  representative  may  waive  objection  by  stipulation. 

Mitchell  vs.  Sawyer,  115  111.  650. 
Where  objection  made,  cross  examination  of  incompetent  wit- 
ness before  master  is  not  a  waiver  of  objection. 
Achilles  vs.  Achilles,  137  111.  589. 
Subsequent  calling  of  party  is  waiver  of  objections  to  his  compe- 
tency as  a  witness  in  his  own  behalf. 
Becker  vs.  Foster,  64  App.  192. 

—  Motion  to  Exclude:    Where  the  incompetency  of  a  witness 

is  known  to  the  adverse  party  at  the  time  the  evidence  is  given, 

he  cannot  afterwards  raise  the  question  of  his  competency  by  a 

motion  to  exclude  his  evidence. 

Chi.  Trust  Co.  vs.  Sagola  Lbr.  Co.,  242  111.  468 ;  Chi.  U.  Trac.  Co.  vs. 
,,,   ,,  May,  221  111.  530;  Hanford  vs.  Obrecht,  49  111.  146. 

determination  of  Competency: 

—  Question  of  Law:  Competency  of  witness  is  question  of  law. 
,,  .,_         Wiekliff  vs.  Lynch,  36  111.  209;  Kelly  vs.  People,  29111.  287, 

And  in  determining  such   question,   the   court  is  not  only  the 

judge  of  the  law,  but  also  the  facts  necessary  to  be  determined. 

Hoeh  vs.  People,  219  111.  265. 
Competency  of  weak-minded  persons  is  for  the  court. 

People  vs.  Enright,  256  111.  221. 

—  Examination  on  Voir  Dire:  When  objection  is  made  to  wit- 
ness on  ground  of  his  incompetency,  it  is  the  duty  of  the  court, 
l)ef()re  his  evidence  is  taken,  to  determine  the  question  of  his  com- 
petency, and  may  do  so  by  inquiring  of  the  witness  under  his  voir 
dire.    He  may  also  hear  additional  evidence  to  properly  determine 

the  question. 

White  Mem.  Home  vs.  Haeg,  204  111.  422 ;  Campbell  vs.  Campbell,  130 
111.  466;  Ronan  vs.  Bluhm,  173  111.  277. 
A  witness  who  is  objected  to  because  of  interest  in  event  of  suit,' 
may  be  examined  on  his  voir  dire,  but  resort  cannot  be  had  to 


WITNESSES  1339 

both  modes.    And  when  other  evidence  is  heard,  the  proposed  wit- 
ness  cannot   be   introduced   for   the    purpose    of   disproving   the 

in  tore st 

Diversy  vs.  Will,  28  111.  216;  Walker  vs.  Collier,  37  111.  363. 

Court  should  permit  examination  on  voir  dire. 

8.  C.  Institute  vs.  Avery,  157  App.  568. 

Capacity  and  Qualifications : 

—  Athiest:   An  athiest  is  a  competent  witness. 

Ewing  vs.  Baily,  36  App.  191. 
There  is  no  longer  any  test  of  qualification  respecting  religious 
belief  or  want  of  such  belief,  as  affecting  the  competency  of  wit- 
nesses to  testify  in  a  court  of  justice. 

Hronek  vs.  People,  13-i  111.  139;  McAmore  vs.  Wylie,  49  App.  615; 
See  also.  Cent.  Mil.  E.  E.  Co.  vs.  Eockafellow,  17  111.  541;  Noble' 
vs.  People,  1  111.  54,  XIV  111.  Notes,  1113,  §  23. 

—  3Ientally  Deficient  Witnesses:    One  so  mentally  deficient  as  to 
be  incapable  of  comprehending  the  nature  and  obligation  of  an 

oath  is  not  a  competent  witness.  [ 

Conley  vs.  People,  170  111.  587. 
In  absence  of  any  statute  to  contrary,  an  insane  person  is  com- 
petent as  a  witness  if  he  understands  the  nature  of  an  oath  and 
has  sufficient  mental  power  to  give  correct  account  of  what  he  has 

seen  or  heard. 

People  vs.  Enright,  25G  111.  221. 
Mental  derangement  which  does  not  affect  the  subject  matter  of 
the  testimony,  either  at  time  of  testifying  or  at  time  of  occurrence 

testified  to,  does  not  render  witness  incompetent. 
People  vs.  Enright,  256  111.  221. 
Fact  that  conservator  was  appointed  for  person  does  not,  of 

itself,  render  him  incompetent. 

People  vs.  Enright,  256  lU.  221;  Champion  vs.  McCarthy,  228  111.  87. 
Where  proof  shows  the  mind  of  witness  is  not  so  far  enfeebled 
as  to  prevent  an  intelligent  appreciation  of  his  responsibility  as  a 
witness  and  a  fair  recollection  and  understanding  of  the  matters 
about  which  he  testifies,  his  deposition  may  be  given  in  evidence, 
although  it  is  proven  by  record  that  a  conservator  had  previously 
been  appointed  on  the  ground  that  he  was  of  feeble  mind,  not  cap- 
able of  transacting  business,  where  it  does  not  show  nature  or 

extent  of  his  mental  impairment,  or  that  it  was  permanent. 

Tucker  vs.  Shaw,  158  111.  326. 

Where  insanity  is  such  as  to  render  party  incompetent  as  a 
witness,  other  persons  Miio  are  parties  directly  interested  in  the 

event  of  the  suit  are  also  incompetent. 
Holton  vs.  Dunker,  198  111.  407. 
But  rule  does  not  apply  in  suit  by  next  friend,  where  real  party 
in  interest  has  not  been  adjudged  insane,  nor  had  a  conservator, 

and  who  testified  on  trial. 

Tompkins  vs.  Tompkins,  257  111.  557. 

—  Infants:    Intelligence,  ability  to  comprehend  the  meaning  of 

an  oath,  and  the  moral  obligation  to  speak  the  truth,  and  not  age, 

are  the  tests  by  which  to  determine  the  competency  of  a  child  to 

testify. 

Shannon  vs.  Swanson,  208  111.  52 ;  Sokel  vs.  People,  212  111.  238 ;  Draper 
vs.  Draper,  68  111.  17;  Featherstone  vs.  People,  194  111.  325;  Ep- 
stein vs.  Berkowsky,  64  App.  498 ;  McAmore  vs.  Wiley,  49  App.  615. 


1340  WITNESSES 

■'ijL.  Grand  Jurors:    Grand  jurors  are  competent  as  impeaching 

witnesses. 

People  vs.  Nail,  242  111.  284;  Hoge  vs.  People,  117  111.  35;  Bressler 
vs.  People,  117  111.  42'Z. 
Grand  jurors  may  be  compelled  to  testify  to  proceedings  in  the 
jury  room,  if  it  is  necessary  for  purposes  of  public  justice  or  for 

the  protection  of  private  rights. 

Kirseh  vs.  Walter,  151  App.  378. 
Competent  to  prove  facts  which  came  to  their  knowledge  while 

acting  in  such  capacity. 

Granger  vs.  Warrington,  8  111.  299.  f 

Cannot  impeach  their  return  on  indictment,  nor  can  this  be.  done 

by  any  other  person  authorized  by  law  to  be  present  in  the  grand 

jury  room. 

People  vs.  Nail,  242  111.  284;  Shoop  vs.  People,  45  App.  110;  Gitchell 
vs.  People,  146  111.  175. 
Affidavits  are  competent  to  support  indictment. 

People  vs.  Strauch,  153  App.  544. 
Blit  cannot  be  received  to  disclose  fact  that  certain  witnesses 

were  present  during  examination  of  others. 

People  vs.  Arnold,  248  111.  169 ;  Gilmore  vs.  People,  87  App.  128. 
—  Witnesses  Names  Not  On  Indictment:    It  is  within  the  sound 
discretion  of  the  court  to  allow  witnesses  to  be  examined  other  than 
those  whose  names  are  endorsed  on  the  indictment. 

People  vs.  Lutzow,  240i  111.  612;  Hauser  vs.  People,  210  111.  253;  Cross 
vs.  People,  198  111.  291;  Gore  vs.  People,  162  111.  259;  Simons  vs. 
People,  150  111.  66;  Gifford  vs.  People,  148  111.  173;  Gates  vs.  People, 
14  111.  433. 

PARTY  IN  GENERAL. 

Common  law  disqualification  because  of  interest  removed  by  stat- 
ute generally. 

Feitf  vs.  Chi.  City  Ey.  Co.,  211  111.  279;  In  re  Estate  of  Maher,  210 
111.  160. 

COMPETENCY  OF  PARTY  AS  AGAINST  INSANE  PERSON. 

Where  adverse  party  is  insane,  parties  directly  interested  are 

incompetent. 

Holton  vs.  Dunker,  198  111.  407. 

But  where  suit  brought  by  next  friend,  ward  alleged  mentally- 
incompetent  but  never  having  been  so  adjudged,  and  he  himself  testi- 
fying, adverse  party  is  competent. 

Tompkins  vs.  Tompkins,  257  111.  557. 

COMPETENCY  OF  PARTIES  AND  INTERESTED  WIT- 
NESSES AGAINST  HEIRS,  LEGATEES.  DEVISEES,  TRUS- 
TEES AND  LEGAL  REPRESENTATIVES. 

Generally : 

Where  the  adverse  party  sues  or  defends  as  heir,  legatee,  devisee 
or  personal  representative,  a  party  directly  interested  in  the  event 
of  the  suit  is  not  competent  to  give  testimony  in  his  own  behalf 
as  to  transactions  between  such  party  and  the  deceased,  as  against 
such  heirs,  legatees,  devisees,  trustees  or  legal  representatives. 

Vail  vs.  Kynearson,  249  111.  501;  Gladville  vs.  McDole,  247  111.  34; 

Wilson  vs.  Wilson,  158  111.  567;  Stodder  vs.  Hoffman,  158  111.  486; 

Taylor  vs.  Pegram,  151  HI.   106;   Griffin  vs.  Strong,  148  111.  587; 

Michael  vs.  Maoe,  137  111.  485;   Ferbrache  vs.  Ferbraehe,   110  111. 

210;  Plain  vs.  Both,  107  HI.  588;   Sargent  vs.  Maxwell,  151  App. 

307;  Pierce  vs.  Jacobs,  157  App.  441;  XIV  111.  Notes,  1123,  §95. 


WITNESSES  1341 

Nor  is  he  competent  to  testify  to  conversations  or  admissions  of 
deceased  person  where  adverse  party  so  sues  or  defends. 

Elwell  vs.  Hicks,  238  111.  170;  Loeb  vs.  Steru,  198  111.  371;  Kelsey  vs. 
Snyder,  118  111.  544;  Dyer  vs.  Hopkins,  112  111.  168;  Waterman  vs. 
Spaulding,  ,51  111.  425;  Miller  vs.  Mathias,  145  App.  465. 

Rule  applies  as  well  in  favor  of  heir  by  one  degree  as  in  behalf 

of  immediate  heir.    Under  the  word  "heirs"  are  comprehended  the 

heirs  of  heirs,  ad  infinitum. 

Merrill  vs.  Atkin,  59  111.  19;  Crocker  vs.  Smith,  10  App.  376. 

Where  adverse  party  sues  or  defends  in  a  representative  capac- 
ity, a  party  in  interest  is  incompetent  unless  called  by  such  adverse 
party. 

Elwell  vs.  Hicks,  238  111.  170;  Loeb  vs.  Stern,  198  111.  371;  Grafton 
Stone  Co.  vs.  St.  L.  C.  &  St.  P.  Ky.  Co.,  199  111.  458;  Alexander  vsi 
Hoffman,  70  111.  114. 

Where  the  opposite  parties  and  the  only  opposite  parties  having 

any  interest  in  the  litigation  are  defending  as  executors,  the  adverse 

party  is  an  incompetent  witness.  ;« 

Litch  vs.  Clinch,  136  111.  410. 

A  party  in  interest  is  incompetent  where  adverse  party  sues  o^ 

defends  as  heir,  unless  called  bv  such  heir. 

Fletcher  vs.  Shepard,  174  111.  262;  Leavitt  vs.  Leavitt,  179  111.  87; 
Blanchard  vs.  Blanchard,  191  111.  450;  Vail  vs.  Eyuearson,  249  111 
501;  Drury  vs.  Henderson,  143  111.  315. 

Where  representative  attempts  to  prove  admission  against  in. 
terest  by  defendant,  after  death  of  intestate,  such  defendant  has  jv 
right,  not  only  to  deny  making  such  statement,  but  may  also  prove 
such  other  parts  of  the  conversation  as  tend  to  explain  or  destroy 
the  admission. 

Foster  vs.  Shepard,  258  111.  164;  Stewart  vs.  Kirk,  69  111.  509. 

It  is  only  when  called  to  testify  in  his  own  interest  that  a  party 

or  interested  person  is  disqualified  as  a  witness.     He  is  competent 

when  called  by  the  partv  opposed  to  him  in  interest. 

Duffy  vs.  Duffy,  243  111.  476;  Hofner  vs.  Custer,  237  111.  64;  Pyle  vs. 
Pyle.  158  111.  289 ;  McKay  vs.  Eiley,  135  111.  586 ;  Keenan  vs.  Blue, 
146  App.  7. 

Heirs  at  law  are  competent  witnesses  upon  behalf  of  claimant 

against  the  estate  of  their  ancestor.     Their  testimony  is  adverse 

to  their  own  interest. 

.    Neish  vs.  Gannon,  198  111.  219, 

Any  party  or  person  interested  may  testify  to  facts  occurring 

after  the  death  of  the  deceased  person. 

Hilt  vs.  Heimberger,  235  111.  235;  Eogers  vs.  Tyley,  144  111.  652; 
Carr  vs.  Carr,  177  111.  454. 

Though  devisees  under  will  and  defendants  in  bill  to  contest 
same.  t 

Hollo-way  vs.  Galloway,  51  111.  159. 

When  any  agent  of  any  deceased  person  shall,  in  behalf  of  any 
person  suing  or  being  sued  as  administrator,  testify  to  any  con- 
versation or  transaction  between  such  agent  and  the  opposite  party, 
such  opposite  party  may  testify  concerning  same  conversation  or 

transaction. 

Loeb  vs.  Stern,  198  111.  371;  Jacquin  vs.  Davidson,  49  111.  82. 

Party  is  only  competent  as  to  same  conversation  or  transaction 

given  in  evidence  by  agent. 

Symonds  vs.  Caldwell,  112  App.  341. 


1342  WITNESSES 

Such  ageiit  must  be  called  by  the  administrator  to  testify  to  such 
conversation,  and  cannot  be  first  called  by  opposite  party  in  inter- 
est to  testify  to  conversation  between  himself  and  his  principal. 
Elwell  vs.  Hicks,  238  111.  170. 

Where  agent  of  deceased  testifies  as  to  consideration  of  note, 

sureties  mav  testify  as  to  that  fact. 
Marshall  vs.  Karl,  60  111.  208. 

It  is  only  when  an  agent  testifies  to  a  transaction  or  conversation 
between  such  agent  and  the  opposite  party  that  such  party  may 
testify  concerning  the  same  conversation  or  transaction. 
Moore  vs.  Botto,  159  App.  522. 
A  mere  custodian  of  an  instrument  is  not  such  agent  as  will 
render   admissible   evidence   of   claimant  against  personal   repre- 
sentative. 
.^>i!r.';':i!    Comer  vs.  Comer,  24  App.  526. 

Nor  one  who,  as  mere  scrivener,  draws  mortgage  for  deceased 
and  takes  acknowledgment. 

Spencer  vs.  Boardman,  118  111.  55S. 
':   Party  is  not  competent  to  testify  as  to  matters  occurring  after 
termination  of  agency. 

First  Natl.  Bank  vs.  Dunbar,  118  111.  625. 

Where  complainants  claim  as  heirs,  and  put  in  evidence  conver- 
sation with  adverse  party,  between  themselves  and  adverse  party 
or  disinterested  witnesses  and  such  adverse  party,  latter  is  com- 
petent to  testify  to  the  same  conversation  though  all  were  prior  to 
decease  of  ancestor. 

Vail  vs.  Eynearson,  249  111.  501. 

Widow  is  competent  to  rebut  testimony  as  to  her  conversations 
with  witnesses  testifying,  if  not  in  presence  of  husband. 
Judy  vs.  Judy,  261  111.  470. 

Witness  is  not  competent,  however,  to  testify  generally  in  the 
case,  but  is  limited  to  denial  or  qualification  of  specific  conversation. 
Calkins  vs.  Calkins,  220  111.  Ill;  Butz  vs.  Schwartz,  135  111.  180. 

Where  any  person  having  a  direct  interest  in  the  event  of  the 

suit  testifies  therein   on   behalf   of  party  suing  or   defending   as 

representative,  heir  or  party  in  interest,  as  to  conversations  or 

transactions  between  ancestor  and   adverse   party,   such   adverse 

party  is  competent  as  to  such  conversations  or  transactions  so  given 

in  evidence. 

Plain  vs.  Eoth,  107  111.  588;  Freeman  vs.  Freeman,  62  111.  189; 
Louchs  vs.  Paden,  63  App.  545;  XIV  111.  Notes,  1130,  §140.  See 
also  Vail  vs.  Ryuearson,  249  111.  501;  Colston  vs.  Olroyd,  204  111.  435. 

Where  heir  testifies  as  to  conversation  with  adverse  party,  in 
presence  of  decedent,  adverse  party  is  competent  in  rebuttal. 
Blanchard  vs.  Blanehard,  191  111.  450. 

Adverse  party  is  not  competent  in  rebuttal  as  to  conversation  or 

acts  wdth  or  in  presence  of  deceased,  where  same  is  testified  to  by 

disinterested  witnesses. 

Volbracht  vs.  White,  197  111.  298. 

Where  heirs  testify  to  conversation  with  adverse  party,  since 

death  of  ancestor,  adverse  party  may  testify  as  to  same  conversation. 
Pease  vs.  Hunt,  60  App.   585. 

Where  witness  testifies  in  behalf  of  personal  representative  as  to 


WITNESSES  1343 

conversation  between  representative  and  adverse  party,  latter  may 
testify. 

Straubher  vs.  Mobler,  80  111.  21 ;  Stewart  vs.  Kirk,  G9  111.  509. 

Where  administrator  brings  action  for  rent  accruing  sul)sequent 

to  death  of  his  intestate,  party  chiiiuing  as  heir  is  competent. 
Pearce  vs.  I'eaice,  83  App.  77. 

Where  administrator  testifies  to  conversation  with  adverse  party, 

latter  may  testify  about  same  conversation. 
Parish  vs.  Vaucil,  132  App.  495. 

And  this  though  conversation  was  in  life  time  of  decedent. 
Peim  vs.  Oglesby,  89  111.  110. 

If  personal  representative  calls  adverse  party  in  interest,  he  is 

a  competent  witness  when  so  called,  and  cross  examination  as  to 

matters  testified  to  in  chief  is  competent  and  cannot  be  disregarded 

because  witness  would  not  have  been  competent  unless  so  called. 
Bertelot  vs.  Stoner,   164  App.  605. 

Where  part  of  evidence  of  incompetent  witness  is  excluded,  con- 
nected statement  as  to  same  transaction  must  be  excluded.    Admis- 
sion against  interest  cannot  be  retained  and  explanation  rejected. 
Hawley  vs.  Hawley,  187  111.  351. 

Where  conversations  or  admissions  of  interested  party  in  pres- 
ence of  deceased  are  given  in  evidence  by  disinterested  witnesses, 

not  agents,  adverse  party  is  incompetent. 

Volbracht  vs.  White,  197  lU.  298;  Euckman  vs.  Alwood,  71  111.  155; 
Maher  vs.  Title  Guarantee  Co.,  95  App.  365. 

The  conversations  or  admissions  to  which  an  interested  party 
may  testify  are  the  conversations  or  admissions  which  others  have 
testified  that  he  made, — not  the  conversations  or  admissions  made 
by  the  deceased  person ;  and  the  party  so  called  as  a  witness  is  com- 
petent to  testify  only  to  such  admissions  or  conversations  as  are 
said  to  have  been  made  by  him  out  of  the  presence  of  the  deceased 

person. 

Volbracht  vs.  White,  197  111.  298. 

Where  witness,  not  an  agent  or  party  to  suit,  or  interested,  testi- 
fies to  a  conversation,  party  is  limited  in  his  testimony  to  the  con- 
versation testified  to  by  the  witness. 

Donlevy  vs.  Montgomery,  66  111.  227 ;  Darling  vs.  Wood,  168  App.  272, 

Where  a  witness,  on  behalf  of  executor  of  deceased,  shall  testify 

as  to  any  admission  or  conversation  by  adverse  party  or  party  in 

interest,  occurring  prior  to  death  and  in  absence  of  deceased,  such 

adverse  party  or  party  in  interest  may  testify  to  same  admissions 

or  conversations. 

Stevens  vs.  Brown,  12  App.  619. 

In  suit  to  enforce  vendor's  lien  against  widow  and  heirs  of 

vendee,  plaintiff  is  competent  as  to  conversation  with  a  witness 

occurring  before  death  and  in  absence  of  such  deceased  person 

given  in  evidence  against  him. 

Stonecipher  vs.  Hall,  64  111.  121.     ■ 

Where   administrator  calls  interested  party  as   witness,   he   is 

competent  to  testify  in  behalf  of  other  party  to  all  matters  brought 

out  on  examination  by  administrator. 
Harnish  vs.  Miles,  111  App.   105. 

Where  Deposition  of  Deceased  Taken:  t 

When,  in  any  civil  action,  a  party  sues  or  defends  as  the  trustee 


1344  WITNESSES 

or  conservator  of  any  idiot,  habitual  drunkard,  lunatic  or  dis- 
tracted person,  or  as  executor,  administrator,  heir,  legatee  or 
devisee  of  any  deceased  person,  or  as  guardian  or  trustee  of  any  such 
heir,  legatee  or  devisee,  and  the  deposition  of  such  deceased  per- 
son shall  be  read  in  evidence  at  the  trial,  any  adverse  party  or 
party  in  interest  may  testify  as  to  all  matters  and  things  testified 

to  in  such  deposition  by  such  deceased  person. 

Turner  vs.  Lee,  254  111.  141;  Tanner  vs.  Clapp,  139  App.  353. 

Deposition  of  party  in  relation  to  transactions,  conversations  and 
connnuuications  had  with  adverse  party,   taken,  filed  and  read, 
cannot  be  considered  where  adverse  party  becomes  deceased  with- 
out having  testified  and  his  personal  representative  is  substituted. 
Smith  vs.  Billings,  177  111.  446. 

Interest : 

—  In  General:  In  chancery,  a  witness  is  not  necessarily  incom- 
petent because  a  party  to  the  record. 

Aekmau  vs.  Potter,  239  111.  578. 

Nor  is  it  a  fatal  objection  that  he  has  an  interest  in  the  event 
of  the  suit,  but  his  interest  must  be  against  the  party  whose  inter- 
ests are  sought  to  be  prejudiced  by  his  testimony. 

Aekman  vs.  Potter,  239  111.  578;  Dyer  vs.  Martin,  5  111.  147. 

The  test  of  interest  is  wdiether  he  would  gain  or  lose  as  a  direct 
result  of  the  suit.  The  interest  must  be  a  legal  interest  in  the 
event  of  the  suit,  which  is  certain,  direct  and  immediate,  as  other- 
wise it  goes  merely  to  the  credibility  of  his  testimony  and  not  to 

his  competency. 

Wetzel    vs.    Firebaiigh,    251    111.    190;    Campbell   vs.    Campbell,    130 

111.  466. 

The  test  of  such  interest  is  whether  he  will  either  gain  or  lose 

by  the  direct  legal  operation  and  effect  of  the  judgment,  or  that 

the  record  will  be  legal  evidence  for  or  against  him  in  some  other 

action. 

Feitl  vs.  Chi.  City  Ey.  Co.,  211  111.  279;  McClure  vs.  Otrit-h,  118  111. 

320;    Thompson   vs.    Wilson,    56    App.    159;    Boyd   vs.    MeConnell, 

209  111.  396;  Smith  vs.  Goodell,  258  111.  145. 

The  rule  is  that  it  is  the  real  and  actual  interest  that  disqualifies 

the  witness,  and  not  the  belief,  understanding  or  feeling  in  regard 

to  such  interest. 

Pyle  vs.  Pyle,  158  111.  289. 

Children  of  incompetent  witness  are  not  incompetent  from  the 
fact  that  the  establishment  of  her  claim  would  inure  to  their  bene- 
fit as  her  prospective  heirs. 

Boyd  vs.  Boyd,  163  111.  611. 

Mother  is  competent  for  children  claiming  as  heirs. 
Stewart  vs.  Kirk,  69  111.  501. 

Witness  is  never  disqualified  from  testifying  because  of  interest 
in  result  of  suit  if  the  extent  of  his  own  liability  or  claim  has 
been  previously  established,  and  is  certain,  and  a  judgment  either 
way  would  not  directly  and  certainly  increase  such  liability  or 
claim. 

Weaver  vs.  Ritchie,  152  App.  130 ;  Curtenius  vs.  Wheeler,  10  111.  462. 

—  Equal  Interest:  When  the  witness  has  an  interest  in  favor  of 
the  party  calling  him,  he  may  still  be  competent  if  it  appear  that 
he  has  an  equal  interest  on  the  .other  side.    Then  his  interests  are 


WITNESSES  1345 

equally  balanced,  and  his  mind  in  a  state  of  equipoise,  which  leaves 

him  inditi'erent  to  the  result,  as  if  he  had  no  interest  in  the  event. 

Baker  vs.  Updike,  155  111.  54;  White  vs.  Koss,  147  111.  4:27;  Kemann 

vs.  Buckmaster,  85  111.  403;  XIV  111.  Notes,  1125,  §110. 

Principal  is  a  competent  witness  to  prove  execution  in  action 

against  personal  representative  of  deceased  surety  on  note. 
Sconce  vs.   Henderson,   102   111.   376. 

—  Pecuniary  Interest:  Courts  of  equity  will  disregard  mere 
matters  of  form  and  will  look  to  the  substance  and  see  on  which 
side  of  the  controversy  lies  the  real  interest  of  a  party  to  the  suit 
who  is  interested  therein,  and  determine  the  competency  of  the 
witness  from  his  interest  in  the  case,  regardless  of  the  mere  ques- 
tion of  pleadings,  when  the  question  is  as  to  his  interest  in  the  case. 
Bardell  vs.  Brady,  172   111.   420. 

Witness  must  be  under  a  contingent  or  present  liability  or  must 
be  directly  interested  in  result  of  proceeding. 
Estate  of  Ward  vs.  Williams,  153  App.  56. 

Where  the  position  of  witness  is  such  as  result  of  suit  will  ren- 
der him  liable,  he  has  a  direct  interest  rendering  him  incompetent. 
Butz  vs.  Schwartz,  135  111.   180. 

Interest  must  be  a  pecuniary  one ;  a  moral  interest  will  not  ren- 
der witness  incompetent. 

Clark  vs.  Gibbons,  56  App.  357. 

Competency  of  witness  may  be  affected  by  his  liability  for  costs. 
Smith  vs.  Smith,  168  111.  488. 

Witness  will  not  be  excluded  on  ground  of  interest  where  inter- 
est is  in  doubt. 

Campbell  vs.   Campbell,   130  111.   466;    Christiansen  vs.  Dunham  Co., 
75  App.  267. 

—  Time  of  Interest:  Interest  must  exist  at  time  when  witness  is 
offered  for  examination  or  when  his  deposition  is  taken. 

Smith  vs.  Newton,  38  111.  230;   Bank  vs.   Sandmeyer,   164  App.  141. 
But  testimony  taken  on  former  trial  inadmissible  where,  on  sub- 
sequent  hearing,   personal   representative   is   substituted  for  the 
adverse  party. 

Eussell  vs.  Happ,  76  App.  417;   Trunkey  vs.  Hedstrom,  131  111.  204. 
And  same  rule  applies  to  depositions. 

Smith  vs.  Billings,  177  111.  446. 

Nor  is  testimony  of  adverse  party  competent  where  taken  before 
master,  but  before  hearing  heirs  or  personal  representatives  are 
substituted  for  deceased  ancestor. 

Clark  vs.  Harper,  215  111.  24;  Allen  vs.  Allen,  157  App.  362. 

—  Dower  Interest:  A  witness  is  not  incompetent  by  reason  of 
the  existence  of  an  inchoate  right  of  dower  which  depends  upon 
contingency  of  survivorship. 

Ackman  vs.  Potter,  239  111.  578;  Pain  vs.  Parson,  179  111.  185;  Pyle 
vs.  Pyle,  158  111.  289. 

Widow  is  not  competent  to  testify  to  delivery  of  deed  where 
interest  reserved  to  her  is  greater  than  her  dower  interest,  but  may 
testify  to  delivery  of  deed,  effect  of  which  would  deprive  her  of 
dower. 

White  vs.  Willard,  232  111.  464. 

—  Disclaimer  of  Interest:  Disclaimer  of  interest  does  not  render 
witness  competent  where  made  for  purpose  of  testifying. 

Volbracht  vs.  White,  197  111.  298 ;  Albers  Com.  Co.  vs.  Sessell,  193  111. 
153;  Sullivan  vs.  Corn  Pro.  Co.,  245  111.  9:  Dyer  vs.  Hopkins, 
112  111.  168. 

Ev.— 85 


1346  WITNESSES 

But  otherwise  where  he  disclaims  interest  and  it  appears  that 

he  has  no  interest. 

Smith  vs.  West,  103  111.  332 ;  Scheerer  vs.  Seheerer,  109  111.  11 ;  Smith 
vs.  Smith,  168  Jll.  4SS;  Campbell  vs.  Campbell,  130  111.  466. 

Interest  as  Affecting  Particular  Persons : 

—  Personal  Representatives :  Where  administrator,  independent 
of  liis  office  of  administrator,  has  no  interest  in  the  subject  matter 
of  the  litigation,  he  is  a  competent  witness. 

Yokem  vs.  Hicks,  93  App.  667;   Shea  vs.  Doyle,  65  App.  471. 
In   action    on   insurance    policy    by   administrator   of   assured, 
plaintiff  is  competent  witness  regardless  of  whether  or  not  he  is 

interested  in  the  suit  as  assignee  of  the  policy. 
Casualty  Co.  vs.  Maxwell,  127  App.  19. 
Administrator  is  competent  witness  in  suit  on  behalf  of  estate, 
even  though  his  wife   is  sole  heir  of  intestate.     Statute   is  not 
against  the  party  suing  or  defending  as  personal  representative, 

but  against  the  party  suing  or  defending  adversely. 

Bailey  vs.  Eobison,  244  111.  16;  I.  C.  E.  R.  Co.  vs.  Eeardon,  157  111. 
372;  Steele  vs.  Clark,  77  111.  471;  Patterson  vs.  Collar,  34  App.  632; 
XIV  111.  Notes,  1127,   §  122. 
Heir  at  law  competent  witness  for  or  against  administrator  on 

claim  against  estate. 

Freeman   vs.    Freeman,    62    111.    189;    Patterson   vs.   Collar,    34  App. 
632;  Neish  vs.  Gannon,  198  111.  219. 
Upon  application  to  require  executor  to  disclose  assets,  he  is  not 
competent  witness  as  to  facts  occurring  prior  to  death  of  deceased. 
Booth  vs.  Tabbernor,  23  App.  173. 

It  is  discretionary  with  the  court  whether  he  shall  be  examined 

or  not. 

Mer,  Trust  Co.  vs.  Egan,  222  111.  494;  Wade  vs.  Pritehart,  69  111.  279. 

One  who,  during  progress  of  a  will  contest,  had  procured  his 
discharge  as  executor,  and  neither  as  party  or  otherwise,  retains 
any  interest  in  the  suit,  is  competent,  although  before  such  dis- 
charge he  was  called  as  witness  and  withdrawn  upon  objection. 
Smith  vs.  Smith,  168  111.  488. 
On  second  trial  of  a  cause,  where  administrator  substituted  for 
deceased  plaintiff,  such  administrator  is  competent  to  testify  as  to 
former  testimony  of  his  intestate. 

C.  &  E.  I.  E.  E.  Co.  vs.  O'Connor,  119  111.  586;   Melnturff  vs.  Ins. 
Co.  of  N.  A.,  248  111.  92. 

—  Co-Defendants:  A  defendant  is  not  incompetent  against  co- 
defendant  from  the  fact  that  he  is  a  defendant.     He  may  testify 

if  his  evidence  does  not  necessarily  involve  his  own  interest. 
Aekman  vs.   Potter,  239  111.  578. 

Where  defendant  is  incompetent  to  testify  in  his  own  behalf, 

he  is  an  incompetent  witness  for  his  co-defendant. 

Whitmer  vs.  Rucker,  71  111.  410;  Linn  vs.  Linn,  261  111.  606. 

Nor  is  he  competent  to  testify  in  his  own  interest  when  called 

by  a  co-defendant. 

Stuart  vs.  Fellows,    128   111.   480;   Way  vs.   Harriman,   126   111.   132. 

Such  co-defendant  cannot  be  made  competent  by  waiver  of  bene- 
fit of  testimony  to  himself. 

Sullivan  vs.  Corn  Products  Co.,  245  111.  9. 

Dismissing   a  witness   as   complainant   and   naming  him   as   a 


WITNESSES  1347 

defendant  has  no  effect  to  render  him  an  adverse  party  in  interest 
to  complainants. 

Volbracht  vs.  White,   197   111.  298;   Bardell  vs.  Brady,  172  Til.  420; 
Pyle  vs.  Pyle,  158  111.  289;  Wagonseller  vs.  Prettyman,  12  App.  341, 
A  person  who  is  by  law  a  necessary  party  to  a  bill  cannot  be 
made  a  competent  witness  by  being  omitted.     He  is  treated  as  in- 
competent the  same  as  if  he  were  a  party  to  the  suit. 
Alexander  vs.  Hoffman,  70  111.  114. 

In  chancery  proceedings,  a  complainant  cannot  deprive  a  party 
to  the  record  of  the  testimony  of  a  witness  not  a  necessary  or 
proper  party,  by  making  him  a  co-defendant. 
Pain  vs.   Parson,   179  111.  185. 

Where  the  only  question  is  to  whom  defendant  is  to  account, 
whether  a  co-defendant  or  complainant,  and  he  makes  no  claim 
to  the  fund  or  his  liability,  he  is  a  competent  witness. 

White  vs.  Boss,  147  111.  427;  Smith  vs.  West,  103  111,  332;  Brad- 
shaw  vs.  Combs,  102  111.  428. 

Where  defendant  permits  a  bill  to  be  taken  pro  confesso  against 
himself,  and  thereby  admits  liability,  he  is  competent  against  his 
co-defendant  heir. 

Eann   vs.   Eann,   95   111.   433. 

—  StockJiolders  and  Officers:  Stockholders  in  a  corporation  are 
interested  witnesses  and  incompetent  to  testify  against  represen- 
tative of  deceased  person  in  behalf  of  the  corporation. 

Ittner  Brick  Co.  vs.  Ashby,  198  111.  562;  Albers  Com.  Co.  vs.  Sessell, 
193  III.  153;  Con.  Ice  Mach.  Co.  vs.  Kiefer,  134  111.  481;  First 
Natl.  Bank  vs.  Dunbar,  118  III.  625;  Thrasher  vs.  Pike  Co.  Ey, 
Co.,  25  111.  393. 

Though  holding  but  one  share  and  not  a  stockholder  at  time  of 

transaction  in  question. 

Nichols  vs.  Estate  of  Cunningham,  181  App.  190. 

Must  be  stockholder  at  time  of  testifying;  it  is  immaterial  that 

witness  was  a  stockholder  at  time  of  transaction  involved. 
Bank  vs.  Sandmeyer,  164  App.  141. 

Stockholder  in  defendant  company  is  incompetent  to  testify  to 
facts  and  conditions  existing  prior  to  death  of  injured  party. 

Natl.  Woodenware  Co.  vs.  Smith,  108  App.  477;  Con,  Ice.  Mach.  Co.  vs. 
Kiefer,   134  111.   481. 

Stockholders  cannot  be  made  competent  by  any  transfer  of  stock 
made  for  purpose  of  qualifying. 

First  Natl.  Bank  vs.  Sandmeyer,  164  App.  141;  Christiansen  vs. 
Towing  Co.,  75  App.  267. 

Stockholder  must  transfer  his  stock,  execution  of  release  to  cor- 
poration is  not  sufficient. 

Thrasher  vs.  Pike  Co.  Ey.  Co.,  25  111.  340. 

An  officer  (secretary),  who  is  not  a  stockholder,  is  competent. 
Casey  vs.  Sawyer  Biscuit  Co.,  163  App.   145. 

Witness  is  not  necessarily  incompetent  by  reason  of  being  a  paid 
officer  or  agent  of  corporation,  where  adverse  party  sues  or  defends 
in  a  representative  capacity. 

S.  C.  Institute  vs.  Avery,  157  App.  568. 

As  cashier  of,  or  clerk  in  bank. 

Young  vs.  First  Natl.  Bank,  51  111.  73. 

The  secretary  of  a  corporation,  although  a  stockholder,  is  a  com- 


1348  WITNESSES 

petent  witness  to  identify  the  books  of  the  corporation  and  records 

of  the  company. 

Peake  vs.  Wabash  Ey.  Co.,  18  111.  88;  Nichols  vs.  Estate  of  Cunning- 
ham, 181  App.   190. 
Where  the  effect  of  testimony  of  stockholder  is  to  charge  him- 
self, and  the  preponderance  of  his  interest  is  in  opposition  to  his 
testimony,  he  is  competent,  though  the  effect  of  his  testimony  may 
charge  personal  representative  of  deceased  stockholder. 
Thayer  vs.   El  Plomo  Mining  Co.,  40  App.   344. 

—  Servants  or  Employes:  Servant  is  not  disqualified  as  witness 
on  ground  of  liability  over.  He  is  only  disqualified  where  judgment 
would  be  evidence  against  him  of  his  liability.  If  witness  should  be 
subsequently  sued  by  plaintiff  for  same  wrong,  judgment  would  be 
neither  evidence  for  nor  against  him.     He  would  not  be  relieved 

from  liability  by  the  judgment. 

Feitl  vs.  Chi.  City  Ey.  Co.,  211  111.  279;  I.  C.  E.  E.  Co.  vs.  Weldon, 
52  111.  290 ;  C.  &  A.  R.  R.  Co.  vs.  Flaherty,  202  111.  151 ;  C.  &  A.  R. 
R,  Co.  vs.  Gore,  202  111.  188;  XIV  111.  Notes,  1126,  §117. 
But  where  foreman,  whose  negligent  order  caused  death,  is  made 
co-defendant,  he  cannot  testify  in  own  behalf  or  be  called  as  a  wit- 
ness by  a  co-defendant.     The  purpose  for  which  he  was  made 

co-defendant  can  have  no  bearing. 

Sullivan  vs.  Corn  Products  Co.,  245  111.  9. 

—  Trustees  of  College :  Acting  without  compensation,  are  compe- 
tent witnesses  in  favor  of  will,  though  institution  is  a  beneficiary. 

Boyd  vs.  MeConnell,  209  111.  396. 

—  Member  of  Church  or  Benefit  Society:  Members  and  trustees 
of  a  church,  which  is  a  beneficiary  under  a  will,  are  competent  to 
testify  in  favor  of  the  will.  The  connection  is  purely  voluntary  and 
the  church  cannot  impose  any  legal  liability  upon  the  members. 
As  the  trustees,  pastor  and  members  do  not  obtain  any  right  to 
property  bequeathed  to  a  church,  they  are  competent  witnesses. 

Adams   vs.   M.   E.   Church,   251   111.   268;    Ferraria   vs.   Vasconcellos, 
31  111.  25. 
On  the  same  principle  that  a  stockholder  in  an  ordinary  corpora- 
tion is  incompetent,  a  member  of  a  benefit  association  is  an  interested 
witness  and  is  incompetent  to  testify  in  behalf  of  society  in  suit 
on  a  benefit  certificate  by  the  personal  representative  of  beneficiary. 
Cronin  vs.  Supreme  Council,  199  111.  228;  Speer  vs.  Amer.  Star  Assn., 
157  App.  554. 
Where  action  is  brought  by  beneficiary  named  in  the  certificate, 

members  or  officers  are  not  incompetent. 

Sherett  vs.  Royal  Clan,  37  App.  446. 
Beneficiary  is  a  competent  witness. 

Modern  Woodmen  vs.  O'Connor,  182  App.  562. 

Nor  is  such  beneficiary  incompetent  in  action  of  interpleader 

between  conflicting  claimants. 

Farrenkoph  vs.  Holm,  142  App.  336. 

—  Agent:  Where  liability  of  agent  depends  upon  effect  of  testi- 
mony, agent  is  incompetent  witness. 

Off  vs.  Trapp,  109  App.  49 ;  Butz  vs.  Schwartz,  135  lU.  180. 

The  mere  fact  of  agency  does  not  make  agent  incompetent  wit- 
ness. Where  neither  the  character  of  agency  nor  agent's  conduct 
in  that  relation  subject  him  to  liability  over  to  principal,  he  is  a 

competent  witness. 

Wright  vs.  Whitaker,  137  App.  598. 


WITNESSES  1349 

Agent  of  adverse  party,  in  action  by  personal  representative,  is 
incompetent  to  testify  that  payment  on  note  was  mistake. 
Bruner  vs.  Battcll,  83  111.  317. 

—  Assignee  of  Corporate  Stock:  Plaintiff,  in  action  against  cor- 
poration for  damages  for  refusal  to  transfer  on  its  books  stock  of 
which  he  is  the  holder,  is  competent  though  assignor  is  deceased. 

Firemen's  Ins.  Co.  vs.  Peck,  126  111.  493. 

—  Guardian  and  Ward:  Guardian  should  not  be  allowed  to  tes- 
tify in  favor  of  claim  which  wrongs  and  defrauds  his  ward. 

Ex  parte  Guernsey,  21  111.  443. 

Ward  is  competent  witness  in  controversy  with  guardian. 
McFarland   vs.   MeFarland,   4  App.    157. 

Surety  is  competent  witness  in  action  by  ward  against  guardian 

and  surety. 

Seago  vs.  People,  21  App.  283. 

Minors  having  become  of  age,  next  friend,  suing  for  them,  com- 
petent after  dismissal. 

Freeman  vs.  Easley,  117  111.  317. 

Ward  is  competent  to  testify  to  matters  relating  to  deceased 

guardian   other  than  his  admissions  or  conversations,   in  action 

against  sureties  on  his  bond. 

People  vs.  Borders,  31  App.  426. 

—  Next  Friend:  A  procheim  ami,  or  next  friend  by  whom  suit 
is  prosecuted  in  behalf  of  an  infant,  is  merely  a  manager  or  con- 
ductor of  the  suit.  He  is  not  a  party  of  record,  nor  a  party  to  the 
suit  in  any  sense  within  the  meaning  of  the  rule  as  to  competency 
of  witnesses.     The  infant  is  the   party  both   of  record   and   in 

interest. 

I.  C.  R.  E.  Co.  vs.  Becker,  119  App.  221. 

—  Donee:  Donee  claiming  under  gift  from  father  is  an  incom- 
petent  witness   to   uphold   gift.     Administrator  is  competent   in 

interest  of  donee. 

Yokem  vs.  Hicks,  93  App.  667. 

—  Partners:  As  against  the  administratrix  of  a  deceased  part- 
ner, surviving  partner  is  not  a  competent  witness. 

Mer.  Bank  vs.  Fearman,  130  App.  116. 

In  suit  against  executrix  of  member  of  alleged  firm,  on  note 

executed  in  partnership  name,  surviving  partners,  though  not  sued, 

are  not  competent. 

Hnrlbut  vs.  Meeker,  104  111.  541. 

Other  co-partners  are  incompetent  in  behalf  of  plaintiffs  in  action 

against  legatee  to  establish  a  partnership  between  plaintiffs  and 

deceased. 

Bragg  vs.  Geddes,  93  111.   39. 

On  bill  against  executor  by  one  claiming  to  be  partner  of  defend- 
ant's testator,  and  thereby  owner  of  interest  in  funds  in  hands  of 
executor,  which  complainant  asks  to  be  decreed  to  him,  such  com- 
plainant is  incompetent  to  testify  to  facts  occurring  prior  to  death 
of  alleged  partner. 

Loucks  vs.  Paden,  63  App.  545. 

—  Grantees:  Where  one  claims  as  heir  and  seeks  to  assert  title 
because  of  that  relation,  defendants,  who  claim  under  deed  from 


1350  WITNESSES 

the  ancestor,  are  not  competent  witnesses  to  defeat  the  right  of  heir 

under  Statute  of  Descent. 

Leavitt  vs.  Leavitt,  179  111.  87;  Fletcher  vs.  Shepard,  174  111.  262 
Wilson  vs.  \Yilson,  158  111.  567;  Yail  vs.  Kyneaison,  249  111.  501 
Drury  vs.  Henderson,  143  111.  315;  Way  vs.  Harriman,  126  111.  132 
Ebert  vs.  Gerding,  116  111.  216;  XIV  111.  Notes,  1127,  §135. 

Grantees  are  incompetent  to  testify  as  to  delivery  of  deeds  sought 

to  be  set  aside. 

White  vs.  Willard,  232  111.  464;  Linn  vs.  Linn,  261  111.  606. 

The  purpose  of  the  rule  is  to  protect  the  estates  of  deceased 
persons  from  assaults  of  strangers.  A  suit  by  heir  to  set  aside 
deed  to  another  is  not  an  assault  upon  the  estate,  but  an  attack 
upon  the  grantee.  The  result  of  setting  aside  the  deed  is  to  aug- 
ment the  estate  of  the  deceased.  The  theory  of  the  statute  is  that 
as  the  mouth  of  the  deceased  is  closed  by  death,  so  the  mouth  of  his 

antagonist  should,  in  the  courts,  be  closed  by  law. 
Seaton  vs.  Lee,  221  111.  282. 
In  such  case,  complainant  is  a  competent  witness. 

Vail  vs.  Eynearson,  249  111.  501;   Grindle  vs.  Grindle,  240  111.   143; 

Hofner  vs.  Custer,  237  111.  64;  Seaton  vs.  Lee,  221  111.  282;  White 

vs.  White,  231  111.  298;  Fleming  vs.  Mills,  182  111.  464;  Laurence 

vs.  Laurence,  164  111.  367;  Mueller  vs.  Eebham,  94  111.  142;  Pigg  vs. 

Carroll,  89  111.  205. 

A  suit  against  grantees  of  deceased,  which  is  not  defended  by  the 

executor,  heirs,  legatees  or  devisees  of  deceased,  is  not  one  in  which 

plaintiff  is  prohibited  by  the  statute  from  testifying  as  to  personal 

transactions  with  deceased. 

Gage  vs.  Eddy,  179  111.  492;   Goelz  vs.  Goelz,  157  HI.  33;    Grindle 
vs.  Grindle,  240  111.  143. 

(Note:  Goelz  vs.  Goelz,  157  111.  33;  Gage  vs.  Eddy,  179  111.  492, 
are  not  cases  where  adverse  parties  sued  or  defended  as  heirs,  lega- 
tees, devisees  or  personal  representatives  of  deceased  grantor.  In 
former  case,  adverse  parties  were  defending  as  immediate  and 
remote  grantees  of  a  deceased  person  and  not  as  heirs,  and  com- 
plainant claimed  as  equitable  owner,  and  was  competent ;  in  latter 
case,  deceased  grantor  was  merely  a  mesne  conveyancer,  and  neither 
his  heirs  nor  personal  representatives  were  interested.  In  Grindle 
vs.  Grindle,  240  111.  143,  defendants  were  claiming  as  grantees,  and 
neither  the  widow  nor  such  children  as  were  parties  complainant, 
were  incompetent,  announcing  the  same  rule  as  in  Seaton  vs.  Lee, 
221  111.  282 ;  Hudson  vs.  Hudson,  237  111.  9.  In  White  vs.  White,  231 
111.  298,  complainant  held  competent  but  he  claimed  under  contract 
with  deceased,  and  defendant  took  as  grantee  of  deceased.) 

In  bill  by  subsequent  grantee  against  heirs  of  prior  gi-antee,  to 

have  prior  deed  set  aside,  grantor  of  complainant  is  incompetent 

where  deed  to  complainant  was  simply  to  enable  him  to  maintain  the 

bill,  which,  if  maintained,  would  result  in  interest  to  the  witness. 
McCann,  vs.  Atherton,  106  111.  31. 

Grantee  of  deceased  grantor  may  testify  in  support  of  deed  where 
adverse  party  does  not  claim  or  bring  suit  as  heir  but  as  purchaser. 
Camfield  vs.   Plummer,  212   111.   541. 

—  Makers  of  Negotiable  Instruments:  In  suit  by  administrator 
upon  promissory  note  given  to  his  intestate,  a  party  defendant, 


I 


WITNESSES  1351 

though  a  surety,  is  incompetent  as  to  an  alleged  alteration  of  the 
note  by  deceased. 

Lowman  vs.  Aubery,   72  111.   619. 
In  suit  upon  note  against  administrator  of  surety,  testimony  of 
the  maker,  not  a  party  to  the  suit,  is  competent  to  prove  execution 
of  note  by  surety.    In  such  case,  the  interest  of  the  maker  is  equally 
balanced. 

Sconce  vs.  Henderson,  102  111.  376, 

Where  plaintiff  sues  as  legatee  of  the  payee  of  a  promissory  note, 
the  makers  are  not  competent  to  testify  as  to  the  consideration  of 
the  note. 

McAyeal  vs.  Gullett,  202  111.  214;  Keenan  vs.  Blue,  146  App.  7;  Eich- 
ardson  vs.  Eicbardson,  148  111.  563;  Lockwood  vs.  Onion,  56  111.  506; 
Pierce  vs.  Jacobs,  157  App.  441;  Mohlke  vs.  People,  117  App.  595: 
Kelly  vs.  Fallon,  108  App.  108. 

And  wife  is  not  competent  to  testify  for  maker  as  to  agreement, 
although  she  kept  books  of  account. 
Gifford  vs.  Wilkins,  24  App.  367. 

And  the  fact  that  such  legatee  assigns  the  note  to  another,  who 
subsequently  re-assigns  it  to  such  assignor,  is  immaterial. 
MacAyeal  vs.  Gullett,  202  111.  214. 

In  action  at  law  on  death  of  payee  of  note,  the  principal  maker 
of  the  note  is  not  competent  on  behalf  of  the  surety  to  prove  agree- 
ment for  extension  of  time. 

English  vs.  Landon,  181  111.  614;  Dodson  vs.  Henderson,  113  111.  360. 

It  is  immaterial  that  maker  has  made  default. 

Langley  vs.  Dodsworth,  81  111.  86. 

But  on  bill  in  equity  by  sureties  to  enjoin  action  at  law  on  a  note 
by  administrator  of  payee,  the  maker  is  competent  to  testify  to 
agreements  of  extension. 

English  vs.  Landon,  181  111.  614;  Dodgson  vs.  Henderson,  113  111. 
360 ;  Bradshaw  vs.  Combs,  102  111.  428 ;  Combs  vs.  Bradshaw,  6  App. 
115;  Dist.  Phillips  vs.  Love,  54  App.  526. 

In  action  of  trover  brought  by  administrator  to  recover  value 
of  promissory  note,  a  maker,  not  a  party  to  the  suit,  whose  liability 
over  for  payment  depends  upon  outcome  of  suit,  is  incompetent. 
First  Natl.  Bank  vs.  Bressler,  38  App.  499. 

In  suit  by  beneticiaries  to  charge  trustees  mth  notes  which  were 
not  collected,  the  makers  are  competent  to  show  that  they  had  a 
valid  defense. 

Waterman  vs.  Alden,   144  111.   90. 

Debtor  is  not  competent  to  prove  usury  after  decease  of  creditor. 
Buck  vs.  Bleakley,  45  111.  100. 

In  action  by  assignee  of  deceased  payee,  makers  are  competent 
witnesses  as  to  fraud  and  circumvention. 

Leach  vs.  Nichols,  55  111.  273.  See  McAyeal  vs.  Gullett,  202  111.  214, 
Defendant  is  incompetent  to  testify  to  statement  made  to  him  by 

deceased  executor,  if  not  made  in  presence  of  co-executor, 
Berdan  vs.  Allan,  10  App.  91. 

Relating"  to  Particular  Actions  and  Proceedings: 

—  Ademption :  Though  children  of  witness  would  be  heir  to  item 
or  amount  freed  by  ademption,  she  is  a  competent  witness  in  prov- 
ing ademption  of  legacy  to  her  brother. 

Tanton  vs.  Keller,  61  App.  625 ;  Affd.  167  111.  129. 

—  Advancements:    Son  not  competent  as  against  other  heirs  of 


1352  WITNESSES 

his  father,  viz.,  children  of  a  deceased  brother,  to  establish  advance- 
ment by  father  to  such  deceased  brother,  nor  may  he  testify  to  any 
facts  occurring  before  death  of  brother. 
Comer  vs.  Comer,  119  111.  170. 
On  hearing  exceptions  to  final  report  of  administrator,  there  is 
no  objection  to  competency  of  heir  disputing  the  correctness  of  the 
report,  to  testify  as  to  who  were  parties  to  a  bill  by  other  heirs 
against  himself,  the  other  heirs  and  the  administrator  for  the  pur- 
pose of  establishing  the  fact  of  an  advancement. 
Long  vs.  Long,  132  III.  72. 

—  Citation  to  Discover  Assets:  It  is  discretionary  with  the  court 
whether  a  party  alleged  to  have  property  belonging  to  the  estate 
shall  be  examined  as  a  witness  under  oath.  It  is  the  court  that 
orIIs  niTTi 

Mer.  Trust  Co.  vs.  Egan,  222  111.  494;   Wade  vs.  Pritchard,  69   111. 
279;  Booth  vs.  Tabbenor,  23  App.  173;  XIV  111.  Notes,  1127,  §  133. 

—  Dedication:  Complainants  and  persons  interested  in  establish- 
ing alleged  dedication  by  ancestor  are  incompetent  against  heirs. 

Schneider  vs.  Sulzer,  212  111.  87.    But  see  Marlow  vs.  Rich,  252  111.  442. 

—  Bill  for  Accounting:  On  bill  against  executors  for  an  account- 
ing for  money  due  complainant  by  their  testator,  complainant  is 

incompetent  to  testify  as  to  contract. 
Vose  vs.  Strong,  144  111.  108. 

—  Creditor's  Bill:  Complainant  in  creditor's  bill  is  not  compe- 
tent as  to  admissions  of  deceased  in  action  defended  by  personal 

representative. 

Pratt  vs.  Pratt,  96  III.  184. 

—  Claims  Against  Estates:  "Widow  of  deceased  is  competent  to 
testify  against  claim  as  to  transactions  in  lifetime  of  deceased,  but 
is  incompetent  to  testify  to  conversations  or  admissions  of  deceased. 

Gregory  vs.  Gregory  Estate,  129  App.  96. 
She  is  competent  against  estate  where  son  files  claim  for  neces- 
saries furnished  her  while  parents  were  living  apart  through  fault 

of  husband. 

Todtleben  vs.  Eudowski,  181  App.  318. 

Heirs  at  law  are  competent  witnesses  upon  behalf  of  claimant. 
Neish  vs.  Gannon,  198  111.  219;  Patterson  vs.  Collar,  34  App.  632. 

And  are  competent  against  claim. 

Byers  vs.  Thomson,  66  111.  421;   Douglas  vs.  Flillerton,  7  App.   102; 
Eobnett  vs.  Robnett,  43  App.  191;  Seass  vs.  Wright,  138  App.  6. 

Husband  of  heir  at  law  of  deceased  is  competent. 

Freeman  vs.  Freeman,  62  111.  189. 
In  proceeding  to  sell  land  to  pay  claim  on  note  made  by  deceased 
to  payee  who  had  become  deceased,  heirs  of  maker  are  incompetent 

as  to  admissions  against  interest  by  payee. 
Daey  vs.  Goll,  242  111.  606. 

Claimant  is  incompetent  as  to  any  matters  occurring  before  death 

of  decedent. 

Branger  vs.  Lucy,  82  111.  91;  Kempton  vs.  People,  139  App.  563. 

But  is  competent  to  testify  to  facts  occurring  after  such  decease. 
Parrish  vs.  Vancil,  132  App.  495;  Vigus  vs.  O'Bannon,  118  HI.  334. 

Or  concerning  which  administrator  has  testified. 
Parrish  vs.  Vancil,  132  App.  495. 

Or  to  rebut  testimony  of  witness,  called  by  adverse  party,  as  to 


WITNESSES  1353 

a  settlement  occurring  between  him  and  executor  subsequent  to 
death  of  deceased. 

Straubher  vs.  Mohler,  80  111.  21. 

Physician,  claimant,  competent  as  to  transactions  and  conversa- 
tions testified  to  by  widow  with  him,  since  death  of  decedent. 
Pease  vs.  Hunt,  60  App.  585. 

Complainant  not  competent  witness  to  prove  his  claim  on  bill 
against  executors  and  trustees. 

Grinton  vs.  Strong,  148  111.  587. 

Executor  is  competent  on  behalf  of  claimant. 
Boyd  vs.  Jennings,  46  App.  290. 

But  where  executor  is  residuary  legatee,  he  is  incompetent  as 
to  transactions  between  his  testator  and  decedent  against  whose 
estate  claim  was  filed. 

Steward  vs.   Sears,  89  App.   454. 

—  Action  for  Wrongful  Death:  An  administratrix,  widow  of 
intestate,  suing  under  the  injuries  act  for  benefit  of  herself  and 
next  of  kin,  is  competent  to  testify  as  to  injuries  and  earnings  of 
deceased,  but  is  inhibited  from  detailing  any  admission  or  con- 
versation with  her  late  husband. 

Horney  vs.  St.  L.  &  N.  Ey.  Co.,  165  App.  547 ;  Lingreen  vs.  I.  C.  R.  B. 
Co.,  61  App.  174;  I.  C.  E.  E.  Co.  vs.  Reardon,  56  App.  542;  XIV 
111.  Notes,  1127,  §  131. 

Where  she  witnessed  accident,  may  testify  as  to  what  she  saw, 

if  otherwise  competent. 

Lingreen  vs.  I.  C.  E.  E.  Co.,  61  App.  174, 

Defendant  is  incompetent  as  to  matters  occurring  anterior  to 

death. 

Forbes  vs.  Snyder,  94  III.  374. 

Defendant  is  incompetent  to  testify  as  to   conversations  with 

deceased  or  warnings  as  to  use  of  a  machine. 

Kohl  vs.  Clarkson,  182  App.  519. 

But  is  competent  as  to  alleged  admissions  against  interest  after 

death  of  decedent. 

Foster  vs.  Shepard,  258  111.  164. 

Testimony  of  widow  called  as  witness  on  behalf  of  contestant  not 

competent  to  prove  condition  of  testator's  health  nor  his  habits  of 

life  shortly  before  his  death. 

Donnan  vs.  Donnan,  256  111.   244. 

Where  plaintiff,  administrator,  is  father  of  deceased,  his  wife  is 
an  incompetent  witness  though,  as  one  of  next  of  kin,  she  also  has 
direct  interest  in  suit  as  concerning  her  separate  interest. 

Thomas  vs.  Anthony,  261  111.  288;   Craig  vs.  Miller,  133  111.  300. 
In  proceeding  under  Dram  Shop  Act,  defendant  is  a  competent 
witness  in  his  own  behalf. 

Eeget  vs.  Bell,  77  111.  593.  ^ 

—  Proceedings  Relating  to  Mortgages:  Complainant  is  incom- 
petent in  suit  against  heirs  of  mortgagor. 

Drury  vs.  Henderson,  143  111.  315;  EitzMueller  vs.  Neuer,  130  App. 
380;  Morrison  vs.  Morrison,  140  111.  560;  XIV  111.  Notes,  1128  § 
135. 

He  cannot  testify  as  to  amount  due  and  this  where   deed  is 

claimed  to  be  mortgage,  and  for  that  reason  alleges  his  testimony 

would  be  of  benefit  to  heirs. 

Reed  vs.  Kidder,  70  App.  498. 


1354  WITNESSES 

Complainant  is  incompetent  as  to  heirs  and  devisees  of  deceased 
grantee  of  mortgagor. 

Stiger  vs.  Bent,  111  111.  328. 
On  bill  to  set  aside  foreclosure  against  mortgagor  and  executors 
of  mortgagee,  complainant  is  competent  against  mortgagor  to  testify 
that  he  gave  her  the  land.    In  this  case  complainant  resided  on  the 
land  at  time  of  filing  original  bill,  but  was  not  made  party  thereto. 
Sanford  vs.  Davis,  ISl  111.  570. 
]\Iortgagor   is   incompetent   to  testify   that   mortgage   was   not 
acknowledged,  on  bill  filed  by  wife  against  executor  of  deceased 
mortgagee  to  enjoin  sale  under  power. 

Warrick  vs.  Hull,  102  111.  280;  Crane  vs.  Crane,  81  111.  165. 
Where  executor  files  bill,  a  necessary  party  is  incompetent  to 

testify  to  payments  made  by  his  co-defendant  to  deceased. 
Kichardson  vs.   Hadsall,   106  111.   476. 

So  in  suit  by  administrator  against  mortgagor  and  subsequent 

purchasers  from  him,  latter  are  not  competent  witnesses  to  prove 

payments. 

J  Eoester  vs.  Byrne,  72  111.  466. 

Original  mortgagee  is  incompetent  against  heir,  where  bill  filed 

by  assignee  of  mortgagee. 

Plain  vs.  Eoth,  107  111.  588. 
But  if  heir  testifies  to  conversation  between  ancestor  and  com- 
plainant, latter  is  competent  as  to  such  conversation. 
Plain  vs.  Roth,  107  111.  588. 
Mortgagor  is  incompetent  to  testify  to  payments  made  on  bill 

filed  by  personal  representatives  of  mortgagee. 

Telford  vs.  Howell,   220   111.  52. 
Heir  of  mortgagor  is  incompetent  on  bill  against  heirs  of  mort- 
gagee to  set  aside  foreclosure. 

Ebert  vs.  Gerding,  116  111.  216. 

Mortgagor   is   incompetent   to   testify   on   bill   by   executor    of 

deceased  assignee  of  mortgagee. 
Stevens  vs.  Hay,  61  111.  399. 
Nor  is  heir  of  mortgagor  competent  to  prove  usury  where  bill 

filed  by  personal  representative  of  mortgagee. 
Mester  vs.  Zimmermann,  7  App.  156. 
Complainants,  on  bill  against  heirs  of  deceased  mortgagee  to  have 
mortgage  cancelled,  are  incompetent  to  testify  to  transaction  with 

mortgagee  in  his  lifetime. 

McGooden  vs.  Bartholic,   132  App.  392. 

Where  bill  filed  against  heirs,  one  who  claims  as  a  purchaser  of 
part  of  the  land  included  in  mortgage,  is  incompetent  against  heir. 
Morrison  vs.  Morrison,  140  111.  560. 
—  Bill  to  Establish  Trust:     On  bill  against  heir  to  establish 

trust,  complainant  is  incompetent  to  testify  in  own  behalf. 

Johnston  vs.  Johnston,  138  111.  385;   Michael  vs.  Mace,  137  111.  485; 
Kelsey  vs.  Snyder,  118  111.  544. 

On  cross  bill  to  establish  trust  against  heirs,  complainant  is  incom- 
petent. 

Mahoney  vs.  Mahoney,  65  111.  406;  Holderraan  vs.  Gray,  130  111.  442; 
Boyd  vs.  Boyd,  163  111.  611. 

Widow  is  incompetent, 

Connelly  vs.  Dunn,  73  111.  218. 


WITNESSES  1355 

Nor  may  widow,  by  statements  after  her  husband's  death,  make 
evidence  for  herself  and  prove  such  statements. 
Laucaster  vs.  Blaney,   140   111.  1'03. 
But  children  of  complainant,  in  bill  to  establish  trust  against 
heirs  of  deceased  husband,  are  competent  in  her  behalf. 
Boyd  vs.  Boyd,  163  111.  611. 

The  children  may  testify  to  declarations  of  deceased  at  time  deed 

was  being  drawn. 

Boyd  vs.  Boyd,  163  111.  611. 

On  bill  by  widow  and  heirs  to  establish  trust  in  favor  of  ancestor, 

widow  is  competent  witness  in  her  own  behalf  and  behalf  of  heirs. 
Powell  vs.  Powell,  114  HI.  329. 

But  defendant  is  incompetent  to  testify  in  his  own  behalf  to  any- 
thing but  matters  falling  within  the  exception  of  admissions,  con- 
versations or  transactions  to  which  other  witnesses  have  testified. 
Powell  vs.  Powell,  114  111.  329. 

On  bill  to  establish  resulting  trust  by  heirs  of  deceased  mother 
against  the  heirs  of  their  step-father,  complainants  are  incompe- 
tent witnesses. 

Koester  vs.  Miller,  149  111.  195. 

—  Partition:    On  bill  for  partition  by  heir  who  seeks  to  set  aside 

deed  to  another  heir,  latter  is  incompetent,  as  he  defends  as  grantee. 
Linn  vs.  Linn,  261  111.  606;  Leavitt  vs.  Leavitt,  179  111.  87;  Pleteher 
vs.  Shepard,  174  111.  262. 

Thus  grantee  is  not  competent  in  his  own  behalf  to  prove  the 

delivery  of  the  deed  as  against  an  heir  or  devisee  of  the  land. 
Hayes  vs.  Boylan,  141  111.  40O;  Walls  vs.  Eitter,  180  111.  616. 

So  heir  of  deceased  is  incompetent  to  testify  against  other  heirs 
that  a  re-conveyance  by  her  to  her  father,  of  land  previously  con- 
veyed by  him  to  her,  was  destroyed  at  her  father's  request,  thus 

intending  to  re-invest  title  in  her. 

Fletcher  vs.  Shepard,  174  111.  262. 

In  such  case,  complainant  is  a  competent  witness. 

Seatou  vs.  Lee,  221  111.  282;  Hudson  vs.  Hudson,  237  111.  9;  Grindle 
vs.  Grindle,  240  111.  143;  Vail  vs.  Eynearson,  249  111.  501. 

Where  among  those  who  are  conceded  to  be  heirs  there  arises  a 

controversy  as  to  the  division  of  the  estate  among  them,  they  may 

testify  as  such  testimony  does  not  tend  to  reduce  the  estate  among 

them. 

Laurence  vs.  Laurence,  164  111.  367. 

In  proceeding  for  partition  among  heirs  of  a  common  ancestor, 
and  for  the  adjustment  of  advancements  among  them,  the  heirs 
are  competent  witnesses  for  and  against  each  other. 
Pigg  vs.  Carroll,   89   111.  205. 

The  right  to  testify  is  denied  so  long  as  relation  to  estate  as  heir 

is  a  controverted  question. 

In  re  Estate  of  Maher,  210  111.-  160 ;   Crumley  vs.  Worden,  201   111. 
105;  Laurence  vs.  Laurence,  164  111.  367. 
Where  heirship   claimed  through   disputed  marriage,   claimant 

incompetent  where  adverse  party  defends  as  heir. 
Crane  vs.  Stafford,  217  111.  21. 

Husband  of  co-tenant  is  competent  for  the  reason  that  the  litiga- 
tion is  concerning  the  separate  property  of  the  wife, 
r  Grindle  vs.  Grindle,  240  111.  143. 


1356  WITNESSES' 

Husband  is  competent  witness  on  behalf  of  wife  in  respect  to 
advancements  as  affecting  rights  of  the  parties. 

Pigg  vs.  Carroll,  89  111.  205;  Mueller  vs.  Eebhani,  94  111.  142;  XIV  111. 
Notes,  1125,   §113. 

Where  all  parties  claim  under  same  will,  party  in  interest  is 

competent. 

Fleming  vs.   Mills,  182   111.  464. 
Where  parties  suing  and  defending  claim  property  as  heirs  of 
different  deceased  persons,  they  are  alike  incompetent  in  their  own 

behalf. 

Gilliam  vs.  Wright,  246  111.  398. 

Likewise  are  the  husbands  of  co-tenants. 

Gilliam  vs.  Wright,  246  111.  398;  Heintz  vs.  Dennis,  216  111.  487. 

Thus  where  complainants  claim  title  as  heirs  of  grandparent  and 

defendants  claim  as  heirs  of  parent,  neither  party  is  competent  to 

testify  against  interest  of  others. 

Worrell  vs.  Torrence,  242  Jll.  64. 

Where  heir  sets  up  advancem'ent,  he  is  incompetent  in  his  own 

behalf. 

Comer  vs.  Comer,  119  111.  170. 

Nor  where  one  child  claims  property  under  contract  with  parent, 

is  such  child  competent  in  her  own  behalf,  nor  her  husband,  to 

prove  the  contract. 

■'"  Way  vs.  Harriman,  126  111.  132;   Stodder  vs.  Hoffman,  158  111.  486; 

Jones  vs.  Aljbott,  235  111.  220. 
Defendant  is  incompetent  to  testify  where  complainant  sues  as 
devisee. 

Winter  vs.  Dibble,  251  111.  200. 

Defendants  disputing  title  of  a  deceased  person  whose  heirs  are 

asserting  such  title  as  complainants  in  bill  for  partition,  are  not 

competent  witnesses, 

Wilson  vs.  Wilson,  158  111.  567. 

On  bill  by  one  heir  against  two  co-heirs,  where  one  defendant 

claims  entire  estate,  alleging  resulting  trust,  the  other  defendant 

disclaiming  any  interest,  the  latter  will  be  a  competent  witness  for 

his  co-defendant. 
;;  c'-y       Scheerer  vs.  Scheerer,  109  111.  11. 

On  cross  bill  by  widow  to  have  resulting  trust  declared  in  her 

favor,  she  is  not  a  competent  witness  to  establish  the  trust  as  against 

Connelly  vs.  Dunn,  73  111.  218;  Lancaster  vs.  Blaney,  140  111.  203; 
Boyd  vs.  Boyd,  163  111.  611. 
So  widow  is  incompetent  to  testify  to  advancements  made  to 

deceased,  resulting  in  benefits  to  land. 
Barnard  vs.  Barnard,  119  111.  92. 

If  adverse  party  testifies  as  to  what  property  widow  brought  with 
her  upon  her  marriage,  she  may  testify  as  to  such  matter. 
.1.,;  Connelly  vs.  Dunn,  73  111.  218. 

Widow  may  testify  to  facts  occurring  after  death  of  husband 

d,nd  also  in  rebuttal  of  admissions  testified  to  have  been  made  by  her. 
Gillespie  vs.  Gillespie,  159  111.  84. 

But  widow  is  not  competent  to  rebut  testimony  concerning  con- 
versations with  or  in  presence  of  her  husband. 
Judy  vs.  Judy,  261  111.  470. 

Where  a  witness  testifies  to  interview  with  alleged  widow,  such 


WITNESSES  1357 

widow  is  competent  to  testify  in  respect  to  same,  by  showing  that 
it  never  occurred,  and  that  she  never  saw  such  witness  before. 
Joues  vs.  Gilbert,  135  111.  127. 
Widow  is  not  competent  against  heirs  to  avoid  an  ante-nuptial 

contract  made  by  her. 

Achilles  vs.  Achilles,  137  111.  589;    Taylor  vs.  Taylor,  144  111.  436; 

Yarde  vs.   Yarde,   187   111.   636;    Stokes  vs.   Stokes,   240  111.   330; 

Collins  vs.  Phillips,  259  111.  405;   XIV  111.  Notes,  1125,   §113. 

Persons  whose  interests  lie  with  sustaining  bill,  their  interests 

being  dependent  upon  title  alleged  by  complainant,  are  competent 

as  witnesses  when  called  by  defendants  whose  interests  are  adverse 

to  that  of  witness.    A  witness  is  competent  when  called  by  the  party 

opposed  to  him  in  interest. 

Duflfy  vs.  Duffy,  243  111.  476. 
On  bill  for  partition  by  heir,  one  who  files  cross  bill  for  specific 
performance  of  a  contract  to  convey,  made  by  her  with  ancestor, 
is  an  incompetent  witness,  nor  may  her  husband  testify  in  her 

behalf. 

GladviUe  vs.  McDole,  247  HI.  34. 
In  partition  proceedings  by  widow,  to  which  her  children  and 
those  of  former  wife  of  deceased  are  parties,  the  children  by  former 
wife  are  not  competent  witnesses  against  complainant's  children  to 
testify  as  to  declarations  of  their  father  that  the  land  was  their 
mother's  and  would  eventually  be  theirs.  Such  step-children  are, 
however,  competent  witnesses  against  complainant  as  doweress  and 

grantee  of  homestead. 

Kirby  vs.  Kirby,  236  111.  255. 

The  fact  that  other  children  of  deceased  ancestor  were  made 
defendants  does  not  prevent  their  testifying  for  their  co-defendant 
if  their  interests  were  in  fact  adverse  to  her  interest.  If  deed  sought 
to  be  set  aside  were  held  invalid  and  witnesses  would  share  with 
complainants,  their  interests  would  be  hostile  to  the  sustaining  of 
the  deed  of  their  co-defendant,  and  thus  competent  as  against  com- 
plainants. 

Jones  vs.  Jones,  213  111.  228. 

—  Bill  to  Set  Aside  Deed:  Complainant  suing  as  heir  is  com- 
petent in  own  behalf  as  defendant  defends  as  grantee  and  not  as 

heir. 

Seaton  vs.  Lee,  221  111.  282;  Hudson  vs.  Hudson,  237  111.  9;  Vail  vs. 
Eynearson,  249  111.  501;   Dean  vs.  Long,  122  HI.  447. 
But  such  complainant  is  not  competent  where   defense  is  by 

administrators  and  heirs  of  grantee. 

Guild  vs.  Warne,  149  111.  105;  Hudson  vs.  Hudson,  237  111.  9. 

Where  suit  is  by  heir  or  devisee  to  set  aside  deed  by  ancestor, 

defendant  grantee  does  not  defend  as  heir  and  is  incompetent  in 

his  own  behalf. 

Leavitt  vs.  Leavitt,  179  111.  87;  Pyle  vs.  Pyle,  158  111.  289;  Hayes 
vs.  Boylan,  141  111.  400;  Vail  vs.  Eynearson,  249  111.  501. 

Such  grantees  cannot  testifv  as  to  delivery  of  the  deeds. 
White  vs.  Williard,  232  111.  464;  Linn  vs.  Linn,  261  111.  606. 

On  bill  by  heirs  of  infant  to  set  aside  deed  made  during  infancy, 

defendant  grantee  is  incompetent  to  testify  to  acts  of  ratification 

by  grantor. 

Sayles  vs.  Christie,  187  111.  420. 

On  bill  against  heirs  and  administrators  of  deceased  grantee  to 


1358  WITNESSES 

set  aside  deed  executed  by  complainant  and  her  husband  to  intes- 
tate, she  is  an  incompetent  witness. 
Crane  vs.  Crane,  81  111.  165. 
Where  devisee  seeks  to  set  aside  deed  against  widow  and  heirs 
of  grantee,  widow  is  incompetent  to  testify  generally. 
Griffin  vs.  Griffin,  125  111.  430. 
But  she  is  competent  to  prove  that  after  her  husband's  death,  she 
found  the  deed  among  his  papers,  that  being  a  fact  occurring  after 

death  of  such  deceased  husband. 

Griffin  vs.  Griffin,  125  111.  430;  Baker  vs.  Baker,  239  111.  82;  White 
vs.  Willard,   232  111.  464. 
Where  deed  made  in  attempt  to  convey  under  provision  of  will 
is  attacked  by  heirs  of  deceased,  complainants  are  not  incompetent 

to  testify  against  son  of  deceased  grantee. 
Fleming  vs.   Mills,   182   111.  464. 
Where  if  deed  is  sustained,  party's  interest  is  greater  than  if 
deed  is  set  aside,  his  co-defendant  is  a  competent  witness  against 

him. 

Ackman  vs.  Potter,  239  111.  578. 
And  so,  if  interest  is  with  complainant  if  deed  is  cancelled,  de- 
fendant may  testify  for  co-defendant  who  claims  under  deed. 
Jones  vs.  Jones,  213  111.  228. 
In  proceedings  under  Burnt  Records  Act,  grantor  of  deed  with 
full  covenants  is,  as  against  persons  claiming  as  heirs,  incompetent 
to  prove  ownership  and  conveyance  of  property  described  in  lost 
deed. 

King  vs.  Worthington,  73  111.  161. 
Where  a  party  is  an  incompetent  witness,  testimony  favorable  to 
defendants  cannot  be  considered  and  all  other  parts  of  his  testi- 
mony accompanying  and  explaining  same  be  excluded. 
Hawley  vs.  Hawley,  187  111.  351. 
—  Specific  Performance:    Neither  complainant  nor  her  husband 
is  competent  where  defendants  claim  as  heirs  of  ancestor  alleged 

to  have  made  contract. 

Gladville  vs.  McDole,  247  111.  34;  Vail  vs.  Eynearson,  249  111.  501; 
Heintz  vs.  Dennis,  216  111.  487;  Shovers  vs.  Warwick,  152  111.  355; 
Shaw  vs.  Schoonover,  130  111.  448;   XIV  111.  Notes,  1125,  §113. 

Such  complainant  cannot  testify  as  to  the  contract. 

Cassell  vs.  Cassell,  104  111.  361 ;  Wachter  vs.  Blowney,  104  111.  610. 

But  is  competent  to  testify  as  to  performance  of  contract  so  far 

as  it  affects  land  held  by  children  or  heirs,  not  as  heirs  but  as 

voluntary  grantees,  though  testimony  cannot  be  considered  as  to 

land  held  by  them  as  heirs. 

Oswald  vs.  Nehls,  233  111.  438 ;  Allen  vs.  Allen,  157  App.  362. 

And  fact  that  administrator  w^as  joined  as  co-defendant  does  not 
render  complainant  incompetent  where  no  relief  is  granted  against 
estate  or  land  held  by  children  as  heirs. 
Oswald  vs.  Nehls,  233  111.  438. 

Complainant  is  competent  to  testify  to  same  conversations  and 
transactions,  between  him  and  deceased,  put  in  evidence  by 
defendants. 

Calkins  vs.  Calkins,   220  111.   Ill;   Vail  vs.  Eynearson,  249  111.  501; 
Marshall  vs.  Peck,  91  111.  187;  Colston  vs.  Olroyd,  204  111.  435. 

Where  one  defendant  defaults  and  admits  he  should  convey,  he 
is  a  competent  witness  against  his  co-defendant,  defending  as  heir, 
if  called  by  the  adverse  party. 

Aeicman  vs.  Potter,  239  111.  578 ;  Eann  vs.  Eann,  95  111.  433. 


WITNESSES  1359 

But  omitting  necessary  party  will  not  render  him  competent. 

Alexander  vs.  Hoffman,  70  111.  11-i. 
Statute  is  for  benefit  of  heirs  and  not  of  strangers.    Complainant 
is  a  competent  witness  after  dismissal  of  suit  as  to  minor  heir. 

Walsh  vs.  Wright,  101   111.  178;   Cf.  Alexander  vs.  Hoffman,  70  111. 
114;  Ackman  vs.  Potter,  239  111.  578. 
Where  bill  is  filed  by  son,  under  oral  contract  with  deceased 
father,  against  mother  who  claims  as  grantee,  he  is  a  competent 

witness. 

White  vs.  White,  231   111.  298. 
In  action  against  heirs  and  devisees  to  enforce  contract  of  testator 
to  devise  to  complainant,  heirs  and  devisees  are  competent  witnesses 

against  complainant. 

Weingartner  vs.  Pabst,  115  111.  412. 

Where  heir  of  deceased  wife  sues  to  compel  surviving  husband  to 
comply  with  ante-nuptial  contract,  husband  is  incompetent  to  testify 
to  acts  and  declarations  of  wife  showing  contract  to  be  inoperative. 
Dunlop  vs.  Lamb,  182  111.  319. 

Wliere  children  of  a  life  tenant  file  bill  to  compel  executors  and 
trustees  of  grantor  to  deliver  deed  executed  by  their  testator,  and 
make  life  tenant  a  co-defendant,  such  co-defendant  is  an  incompetent 
witness  against  executors  and  trustees,  where  latter  file  cross  bill 
to  cancel  deed  and  the  lease  of  such  tenant,  as  the  effect  of  his 

testimony  is  to  diminish  the  estate. 
Miller  vs.  Mears,  155  111.  284. 
—  Bill  to  Contest  Will:     Complainant  is  not  competent  to  testify 
as  to  transactions  occurring  prior  to  and  at  time  of  decease  of 
testator,  where  executors  and  legatees  are  parties  defendant.     The 
fact  that  contest  is  between  heirs  of  deceased  is  immaterial. 

Waugh  vs.  Moan,  200  111.  298 ;  Bevelot  vs.  Lestrade,  153  111.  625. 
They  are  not  competent  to  testify  in  refutation  of  charges  as  to 
certain  acts  which  witnesses  for  defendants  testify  were  stated  to 
them  by  testator  in  absence  of  such  complainants. 
Wickes  vs.  Walden,  228  111.  56. 
Where  complainant  is  incompetent,  his  wife  is  incompetent. 

Wickes  vs.  Walden,  228  111.  56;  Bevelot  vs.  Lestrade,  153  111.  625. 
Nor  is  husband  of  a  complainant  competent. 

Smith  vs.  Smith,  168  111.  488. 
Administrator  wdth  will  annexed  is  incompetent  against  heirs 
on  bill  to  construe  will  where  his  interest  is  adverse  to  heirs. 
Anderson  vs.  Anderson,  191  111.  100. 
Executor  whose  interest  lies  in  sustaining  will  is  incompetent. 

Jones  vs.  Abbott,   235   111.   220;   Godfrey  vs.   Phillips,   209   111.   584; 
Bardell  vs.   Brady,   172   111.  420;    Jones  vs.   Greiser,   238  111.   183. 

Nor  is  his  wife  competent. 

Jones  vs.  Abbott,  235  111.  220 ;  Harp  vs.  Parr,  168  111.  459. 

Executor  or  trustee  procuring  discharge  is  competent. 

Smith  vs.  Smith,  168  111.  488. 
Person  refusing  to  act  as  executor  is  competent  and  though  made 
defendant,  if  he  files  disclaimer  and  is  dismissed. 
Campbell  vs.  Campbell,  130  111.  466. 
Partner  of  executor  who,  by  contract  in  a  business  partnership 
agreement,    would    receive    thereunder    part    of    commission    of 
executor,  is  incompetent  as  against  contestants. 
Baily  vs.  Beall,  251  111.  577. 
Competency  of  an  attesting  witness  is  to  be  tested  by  the  facts 


1360  WITNESSES 

existing  at  time  of  attestation.  If  then  competent,  any  subsequent 
incompetency  will  not  j)revent  probate  of  will,  and  if  then  incom- 
petent, subsequently  acquired  competency  will  not  validate  the  will. 
Competent  attesting  witness  is  not  rendered  incompetent  by  pur- 
chasing interest  of  devisee. 

In  re  will  of  Delavergne,  259  111.  589. 

"Where  executor  is  bound  by  contract  with  testator,  to  execute 
prior  will,  without  compensation,  he  is  competent  on  part  of  con- 
testants in  a  proceeding  to  set  aside  a  second  will. 

Godfrey  vs.  Phillips,  2U9  111.  58-4. 

The  test  of  interest  which  determines  competency  is  whether  he 
would  gain  or  lose  as  a  direct  result  of  the  suit.  The  interest  must 
be  a  legal  interest  in  the  event,  which  is  certain,  direct  and  imme- 
diate, as  otherwise  it  goes  merely  to  the  credibility  of  the  witness 
and  not  to  his  competency. 

Wetzel  vs.  Firebaugh,  251  111.  190;  Dowie  vs.  Sutton,  126  App.  47. 

Legatee,  not  heir,  who  has  no  interest  by  descent,  is  competent 
for  contestant. 

Keithly  vs.  Stafford,  126  111.  507. 
Defendant,  principal  beneficiary  or  devisee,  incompetent  in  favor 
of  will. 

Jones   vs.  Abbott,   235   111.    220;    Taylor   vs.   Pegram,    151   111.    106; 
Crowley  vs.  Crowley,  80  111.  469. 
Nor  is  his  deposition  competent. 

Freeman  vs.  Easley,  117  111.  317, 

Competent  as  to  facts  occurring  after  death  of  testator. 
Holloway  vs.  Galloway,  51  111.  159. 

Beneficiary  of  will  and  trustees  to  carry  it  into  effect,  are  incom- 
petent where  heirs  at  law  are  contesting. 

In  re  Tobin,  196  111.  484;   XIV  111.  Notes,  1129,  §137. 

Where  interest  of  one  who  is  heir  and  legatee  is  in  favor  of  setting 

aside  the  will,  she  is  incompetent,  though  defendant,  and  called  by 

complainant. 

Dougherty  vs.  Gaflfney,  239  111.  640;  Winter  vs.  Dibble,  251  111.  200: 

Nor  does  the  fact  that  an  agreement  not  to  contest,  together  with 

acceptance  of  legacy,  render  her  competent  as  to  other  heirs  than 

complainant. 

Dougherty  vs.  Gaflfney,  239  111.  640. 

Devisees  under  will,  made  defendants,  are  incompetent  for  com- 
plainant, where  they  would  receive  a  larger  part  of  estate  as  heirs 
than  as  devisees.    They  should  not  be  excluded  as  heirs  and  on  that 

ground  alone.     Their  interests  should  first  be  ascertained. 
Campbell  vs.  Campbell,  130  111.  466. 

The  fact  that  legatee  has  been  promised  by  contestants  of  will 
the  amount  of  his  legacy  or  more  if  they  are  successful,  does  not 
disqualify  him  as  witness. 

Wetzel  vs.  Firebaugh,  251  111.  190. 

A  person  whose   interests  are   adverse  to  those   of  executors, 
devisees  and  legatees,  named  as  a  defendant  instead  of  complainant, 
is  not  competent  in  behalf  of  complainant. 
Pyle  vs.  Pyle,  158  111.  289. 

One  of  the  heirs  at  law,  complainant  in  a  bill  filed  to  set  aside  will, 

is  not  competent  to  give  testimony  impeaching  the  will,  where 

adverse  parties  defend  as  devisees. 
Taylor  vs.  Pegram,  151  111.  106. 


I 


WITNESSES  1361 

On  bill  by  heirs  at  law,  against  parties  defending  as  legatees, 
where  the  object  of  the  suit  is  not  merely  to  adjust  the  rights  of  the 
heirs-at-law,  but  to  take  the  estate  from  the  legatees,  some  of  whom 
are  not  heirs  at  law,  and  vest  it  in  the  heirs  at  law,  such  heirs  are 
not  competent  to  show  want  of  testamentary  capacity. 
Brace  vs.  Black,   125  111.  33. 

A   contestant  is   incompetent   to   prove   want   of   testamentary 

capacity. 

Taylor  vs.  Pegi'am,  151  111.  106. 

Members  and  trustees  of  a  church  which  is  beneficiary  under  a 

will  are  competent  in  favor  of  will. 

Adams  vs.  M.  E.  Church,  251  111.  268. 

As  are  trustees  of  a  college  where  they  receive  no  compensation. 

Boyd  vs.  MeConnell,  209  111.  396. 

The  fact  that  the  complainant  calls  a  defendant  beneficiary  as  a 

witness,  for  purpose  of  proving  genuineness  of  certain  letters,  does 

not  remove  the  disqualification  of  the  witness  to  testify  in  her  own 

behalf  on  the  issues  of  the  case. 

Garrus  vs.  Davis,  234  111.  326. 

Wife  of  legatee  is  not  competent  for  the  reason  that  she  cannot 

testify  either  for  or  against  her  husband. 
Wetzel  vs.  Firebaugh,  251  111.  190. 

Where  acts  and  declarations  of  interested  party,  at  and  during  the 

time  of  the  execution  of  the  will,  are  testified  to  by  disinterested 

persons,  he  is  not  thereby  rendered  competent  to  contradict  their 

statements  as  to  what  he  said  and  did  on  the  occasion  of  the  making 

of  the  will. 

Volbracht  vs.  White,  197  111.  298. 

Surviving  husband  is  incompetent  to  testify  to  any  fact  of  trans- 
action, the  knowledge  of  which  was  obtained  by  means  of  the  mar- 
riage relation. 

Wetzel  vs.  Firebaugh,  251  111.  190 ;  Schreffler  vs.  Chase,  245  111.  395. 

He  cannot  testify  to  any  conversations,  with  testatrix  and  other 
witnesses,  in  his  presence  during  the  marriage. 
Wetzel  vs.  Firebaugh,  251  111.  190. 

Widow  is  incompetent  if  her  interest  lies  with  the  side  offering 

her    testimony,    regardless    of    whether    she    is  complainant    or 

defendant. 

Baker  vs.  Baker,  202  111.  595;  Freeman  vs.  Fteeman,  117  111.  317. 

Widow  incompetent  as  to  mental  capacity  of  testator  where  based 

on   conversations   with   him,    although   testimony   adverse   to   her 

interest. 

Donnan  vs.  Donnan,  236  111.  341. 

Widow  not  competent  to  testify  as  to  any  fact  or  transaction,  the 
knowledge  of  which  she  obtained  by  reason  of  the  marriage  relation. 
And  this  is  the  case  as  to  amount  of  notes  and  mortgages  owned 
by  husband. 

Stephens  vs.  Collison,  256  111.  238. 

In  suit  by  heirs  to  set  aside  will,  a  divorced  wife  of  testator  is  not 
competent  to  give  such  testimony  in  regard  to  conversations  or 
occurrences  which  happened  during  the  existence  of  the  marriage, 

as  would  tend  to  overthrow  the  will. 
Wickes  vs.  Walden,  228  111.  56. 
Ev.— 86 


1362  WITNESSES 

Person  incompetent  as  a  witness  will  not  be  rendered  competent 
by  executing  release  of  his  interest  made  for  that  purpose  only. 

Volbracht  vs.  White,  1^7  111.  298. 

Subjects  of  Testimony: 

—  Admissions    and    Conversations    of   Deceased:      Where    any 

person  having  a  direct  interest  in  the  event  of  the  action  testifies 

therein  on  behalf  of  party  suing  or  defending  as  representative, 

heir  or  party  in  interest,  as  to  conversations  or  transactions  between 

ancestor  and  adverse  party,  such  adverse  party  is  competent  as  to 

such  conversations  or  transactions  so  given  in  evidence. 

Plain  vs.  Roth,  107  111.  588 ;  Colston  vs.  Olroyd,  204  111.  435. 

Where  the  heir  testifies  to  a  conversation  between  ancestor  and 

adverse  party,  latter  is  competent  witness  as  to  same  conversation. 

Plain  vs.  Roth,  107  111.  588;  Freeman  vs.  Freeman,  62  111.  189;  Louehs 
vs.  Paden,  63  App.  545;  XIV  111.  Notes,  1130,  §  140. 
Where  heir  testifies  as  to  conversation  with  adverse  party  in 
presence  of  decedent,  adverse  party  is  competent  in  rebuttal. 
Blanchard  vs.  Blanchard,  191  111.  450. 
Adverse  party  is  not  competent  in  rebuttal  as  to  conversations, 
or  acts  with  or  in  presence  of  deceased,  where  same  is  testified  to  by 

disinterested  witnesses. 

Volbracht  vs.  White,  197  111.  298. 
Where  disinterested  witness  testifies  to  any  conversation  or  state- 
ment of  a  party  interested  adversely  to  executors,  devisees  and 
legatees,  such  conversation  or  statement  being  made  in  presence  of 
deceased,  the  party  making  such  statement  is  not  competent  to 
testify  thereto, — the  conversations  and  statements  to  which  he  can 
testify  being  those  made  by  him  out  of  presence  of  deceased,  and 

testified  to  by  a  disinterested  witness. 
Volbracht  vs.  White,  197  111.  298. 
Adverse  party  is  competent  as  to  conversations  or  admissions, 
alleged  to  have  been  made  against  interest,  after  death  of  intestate, 
and  may  not  only  deny  making  same,  but  may  prove  whole  con- 
versation though  it  destroy  the  admission. 

Foster  vs.  Shepard,  258  111.   164;  Vail  vs.  Rynearson,  249  111.  501; 
Stewart  vs.  Kirk,  69  111.  509. 
But  he  is  not  competent  to  explain  a  conversation  attributed  to 
him  by  his  own  witness,  though  witness,  after  cross  examination  on 

the  point,  is  subsequently  recalled  by  administrator. 

Richeson  vs.  Sternberg,  65  111.  272. 

Party  is  limited  in  denial  or  explanation  of  conversations  or 
transactions  to  that  testified  to  by  personal  representative  or  wit- 
nesses in  latter 's  behalf. 

Calkins  vs.  Calkins,  220  111.  Ill;  Donlevy  vs.  Montgomery,  66  111.  227. 

—  Facts  Occurring  After  Decease  of  Ancestor:     A  party  may 

testify  as  to  facts  occurring  after  the  death  of  the  deceased  person. 
Hilt  vs.  Heinberger,  235  111.  235;  Emerich  vs.  Hileman,  177  111.  368. 

Widow  may  testify  as  against  heirs  that  she  had  not  abandoned 

homestead. 

Carr  vs.  Carr,  177  111.  454. 

Heirs  may  testify  as  to  facts  and  circumstances  occurring  after 

death  of  ancestor. 

Kingman  vs.  Higgins,  100  HI.  319. 


■il 


WITNESSES  1363 

Though  devisees  under  will  and  defendants  in  bill  to  contest 
same. 

HoUoway  vs.  Galloway,  51  111.  159. 

—  Testimony  Adverse  to  Interest:  Interested  witness  may  testify 
against  interest  when  called  by  party  against  whom  his  interest 

lies. 

Hoffner  vs.  Custer,  237  Uh  64;    Godfrey  vs.   Phillips,  209  111.   584; 

McClure  vs.  Obrich,  118  111.  320i;  Remann  vs.  Buckmaster,  85  111. 

403. 

It  is  only  when  called  to  testify  in  his  own  interest  that  a  party 

or  interested  person  is  disqualified  as  a  witness.     He  is  competent 

when  called  bv  the  party  opposed  to  him  in  interest. 

Duffy  Vs.  Duffy,  243  111.  476;   Pyle  vs.  Pyle,  158  111.  289;   McKay 
vs.  Riley,  135  111.  586. 
If  such  witness  be  called  by  adverse  party,  and  is  cross  examined 
as  to  same  point,  such  testimony  given  in  cross  examination  cannot 

be  thereafter  objected  to. 

Bertelot  vs.  Stoner,  164  App.  605;  Harnish  vs.  Miles,  111  App,  105. 

—  Admissions,  Conversations  and  Transactions  of  Deceased 
Agent:  In  suit  on  contract,  party  is  not  competent  as  witness  to 
admission  of  or  conversation  between  himself  and  agent,  unless  same 
was  made  or  had  in  presence  of  surviving  agent  of  adverse  party, 
and  then  only,  except  where  conditions  are  such  that,  under  pro- 
visions of  sections  2  and  3  of  the  Act  in  regard  to  Evidence  and 
Depositions,  he  would  have  been  permitted  to  testify  if  deceased 

person  had  been  principal  and  not  agent. 

Rothstein  vs.  Siegel,  Cooper  &  Co.,  102  App.  600;  Zeigler  vs.  Clin- 
ton Ins.  Co.,  84  App.  442;  (Jones  and  Addington  111.  Statutes, 
Annotated,  H  5521)  ;  XIV  111.  Notes,  1131,  §   144. 

And  the  foregoing  rule  applies  to  actions  on  penal  bonds. 
Henry  vs.  Tiffany,  5  App.  548. 

Insured  is  not  a  competent  witness  against  defendant  insurance 
company  as  to  conversation  with  deceased  agent. 
Zeigler  vs.  Ins.  Co.,  84  App.  442. 
Beneficiary  in  certificate  is  incompetent  to  testify  to  any  conver- 
sation with  deceased  treasurer  of  local  lodge. 
Grand  Lodge  vs.  Young,  123  App.  628. 

If  conversation  or  admission  is  given  in  evidence  by  disinterested 

person,  it  must  appear  that  at  the  very  time  of  making  declarations, 

such  agent  be  transacting  or  doing  the  business  of  the  principal, 

so  that  the  statements  of  the  agent  become  a  part  of  the  res  gestae. 

Grand  Lodge  vs.  Young,  149  App.  603. 

A  party  may  testify  to  payment  of  insurance  premiums  to 
deceased  agent  of  insurer.  (Amendment  of  1899  changed  statute  to 
read  ' '  conversation ' '  instead  of  ' '  transaction. ' ' ) 

Helbig  vs.  Citizens  Ins.  Co.,  234  111.  250;  Affg.  138  App.  115;  S.  S. 
120  App.  158. 

And  mav  also  testifv  to  delivery  of  the  policy. 
Helbig  vs.  Citizens  Ins.  Co.,  "234  111.   250. 

Incompetency  of  adverse  party  is  not  removed  by  his  reading  in 
evidence  a  portion  of  a  deposition  by  the  agent,  taken  by  the  defend- 
ant, but  not  put  in  evidence  by  such  defendant. 

Doggett  vs.  Greene,  254  111.  134. 

"Where  agent  of  party  becomes  deceased  after  giving  testimony  in 
case  where  new  trial  is  granted,  adverse  party  -wall  not  thereby 


1364  WITNESSES 

become  competent  to  testify  on  second  trial,  even  under  stipulation 
that  on  future  trial  agent's  testimony  taken  by  stenographer  should 

be  read  as  deposition. 

TTunkey  vs.  Hedstrom,  131  111.  204. 
But  where  such  testimony  is  read  in  evidence,  adverse  party  may 
then  testify  concerning  such  matters  so  read. 

Chi,  Trust  Co.  vs.  Sagola  Lbr.  Co.,  242  111.  468, 

It  is  only  conversations  and  transactions  between  the  party  suing 
and  a  deceased  agent  of  the  principal  sued  that  are  excluded.     A 
party  to  a  suit  may  testify  as  to  transactions  of  a  deceased  agent  of 
adverse  party  with  persons  not  parties  to  the  suit. 
C.  C,  C,  &  St.  L.  By.  Co.  vs.  Best,  68  App.  532. 

—  Books  of  Account:  A  witness  is  competent  to  identify  a  book 
of  original  entry  kept  by  himself,  notwithstanding  he  has  a  pecu- 
niary interest  in  result  of  litigation  and  adverse  party  is  defending 

in  representative  capacity. 

McGlasson  vs.  Housel,  127  App.  360;  Eichardson  vs,  Allmon,  40  App. 
90;  Ailing  vs.  Breeze,  27  App.  595;  Nichols  vs.  Estate  of  Cun- 
ningham, 181  App,  190;  Miller  vs.  Pratz,  179  App.  204. 

HUSBAND  AND  WIFE. 
In  General: 

Husband  and  wife  are  incompetent  to  testify  for  or  against  each 
other  except  where  the  wife  would,  if  unmarried,  be  plaintiff 
or  defendant ;  or  where  the  cause  of  action  grows  out  of  a  personal 
wrong  or  injury  done  by  one  to  the  other,  or  grows  out  of  the 
neglect  of  the  husband  to  furnish  wife  with  suitable  support ;  and 
except  the  litigation  shall  be  concerning  the  separate  property  of 
the  wife,  and  suits  for  divorce;  and  except,  also,  upon  policies  of 
insurance,  so  far  as  relates  to  the  amount  and  value  of  the  property 
alleged  to  have  been  destroyed ;  or  in  actions  against  carriers,  so 
far  as  relates  to  loss  of  property  and  the  amount  and  value  thereof ; 
or  in  all  matters  of  business  transactions  which  were  had  and  con- 
ducted by  such  married  woman  as  agent  of  her  husband,  except  as 
to  admissions  or  conversations  to  the  other,  whether  made  by  him 
to  her,  by  her  to  him,  or  by  either  to  third  persons. 

Sehreffler  vs.  Chase,  245  111.  3&5;   Way  vs.  Harriman,   126  111.   132; 

Mueller  vs.  Eebham,  94  111.  142;  XIV  111.  Notes,  1114  et  seq.,  §§31 

et  seq. 

The  underlying  reason  of  the  rule  prohibiting  a  husband  or  wife 
from  testifying  for  or  against  each  other's  interests  is  founded  on 
the  broad  ground  of  public  policy, 
Fearn  vs,  Postlewaite,  240  111.  626. 

Admissions,  Conversations  and  Acts: 

On  ground  of  public  policy,  neither  the  husband  nor  wife  may 
testify  to  communications  and  conversations  occurring  between 
them  during  coverture,  and  that  inability  continues  even  after  rela- 
tion is  severed  by  death  or  divorce. 

Wickes  vs.  Walden,  228  111.  56;  Geer  vs.  Goudy,  174  HI.  514;  Goelz 
vs.  Goelz,  157  111.  33. 

Widow  is  not  competent  witness  to  testify  to  any  fact  or  trans- 
action, the  knowledge  of  which  was  obtained  by  means  of  marriage 
relation,  whether  same  be  severed  by  death  or  divorce, 

Donnan  vs,  Donnan,  256  111.  244;  Stephens  vs.  Collison,  256  111.  238; 
Reeves  vs,  Herr,  59  111.  81 ;  Griffith  vs.  Griffith,  162  111,  368. 


WITNESSES  1365 

And  this  is  true  though  called  against  her  interest, 

Abrahams  vs.  Wooley,  243  111.  365;  Donnan  vs.  Donnan,  236  111.  341. 
Widow  may  testify  to  facts  occurring  after  husband's  death. 

Gillespie  vs.  Gillespie,   159  111.   84;   Griffin  vs.  Griffin,  125  111.  430; 
Grose  vs.  Kutledge,  81  111.  266. 

"Wife  is  not  competent  to  testify  to  any  conversations  with  her 
husband  during  coverture. 

State  Bank  vs.  Barnett,  250  111.  312. 

Irrespective  of  her  interest  in  the  suit. 
Baker  vs.  Baker,  239  111.  82. 

(Note:    Deniston  vs.  Hoagland,  67  111.  265,  was  decided  prior  to 

amendment  of  1874 ;  Galbraith  vs.  McLean,  84  111.  379,  was  decided 

upon  authority  of  Deniston  case,  and  Christy  vs.  Ashlock,  93  App. 

651,  on  these  authorities.    See  Goelz  vs.  Goelz,  157  111.  33;  Donnan 

vs.  Donnan,  236  III.  341.) 

Widow  may  testify  to  acts,  e.  g.,  delivery  of  deed. 

Baker  vs.  Baker,  239  111.  82;   White  vs.  Willard,  232  111.  464;   Grif- 
fin vs.  Griffin,  125  111.  430. 

May  also  testify  in  rebuttal  denying  statements  testified  to  have 
been  made  in  presence  of  such  witnesses  but  not  in  presence  of 
husband. 

Judy  vs.  Judy,  261  111.  470. 

Husband  is  incompetent  to  testify  to  any  fact  or  transaction,  the 

knowledge  of  which  was  obtained  by  means  of  the  marriage  relation. 

Wetzel  vs.  Firebaugh,  251  111.  190;  Schreffler  vs.  Chase,  245  111.  395. 

Surviving  husband  is  incompetent  as  to  any   conversation   of 

deceased  wife,  but  he  is  competent  witness  to  testify  to  the  delivery 

of  a  deed  by  her. 

Weigand  vs.  Eutschke,  253  111.  260. 

Facts  obtained  from  one  by  the  other  because  of  the  marital  rela- 
tion shall  not  be  made  public  through  testimony  in  a  court  of  law. 
Facts  which  come  to  his  or  her  knowledge  by  means  equally  acces- 
sible to  any  person  not  standing  in  the  relation  of  husband  or  wife, 
may  be  testified  to  by  surviving  spouse,  where  otherwise  competent. 
In  this  action,  plaintiff  beneficiary,  a  physician,  was  allowed  to 
testify  as  to  physical  condition  of  wife  at  time  and  prior  to  applica- 
tion for  policy. 

Supreme  Lodge   of  Mystic  Workers  vs.   Jones,   113   App.   241. 

A  third  person,  hearing  conversation  between  husband  and  wife, 
may  give  evidence  of  it. 

Gannon  vs.  People,  127  111.  507;  People  vs.  Lamberg,  160  App.  644. 

Where  marriage  is  void,  alleged  second  wife  is  competent  as  to 

admissions  of  husband  that  he  had  never  been  divorced  from  first 

wife. 

Cole  vs.  Cole,  153  111.  585;  Clark  vs.  People,  178  111.  37;  Hoch  vs. 
People,  219  111.  265. 

Competency  of  Wife : 

—  Actions  By  or  Against  Hushand:  In  actions  by  husband,  wife 
is  not  competent  in  his  behalf. 

Gordon  vs.  Reynolds,  114  111.  118;  Eendleman  vs.  Eendleman,  156  111. 
568;  Keithley  vs.  Wood,  151  111.  566. 

In  suit  by  husband  concerning  property  in  which  wife  has  no 
interest,  he  is  not  competent. 

Francis  vs.  Ehoades,  146  111.  635 ;  Keithley  vs.  Wood,  151  111.  566. 
Wife  incompetent  in  action  for  criminal  conversation. 

Groom  vs.  Parables,  28  App.  152. 


1366  WITNESSES 

"Wife  is  not  competent  witness  in  foreclosure  to  prove  defense  of 

payment. 

Gemkow  vs.  Link,  225  111.  21. 

Where   husband  exchanges  property  and  takes   deed   for  that 

obtained  in  wife's  name,  she  is  not  a  competent  witness  for  the 

Imsband. 

Mitchell  vs.  McDougal,  62  111.  498. 

In  action  against  sureties  of  a  note,  wife  of  principal  maker  is 

not  competent  witness  for  defendant,  for  reason  her  husband  is 

directly  interested  in  result  of  suit. 

Craig  vs.  Miller,  133  III.  300;  Phares  vs.  Barbour,  49  111.  370. 

Wife    is    incompetent    for    husband    as    to    transactions    which 

occurred  before  marriage. 

Eoxburgh  vs.  Eoxburgh,  162  App.  364. 

In  action  for  slander,  wife  of  defendant  is  not  a  competent  wit- 
ness for  him. 

Hawver  vs.  Hawver,  78  111.  412. 

In  action  of  trespass,  wife  is  incompetent  for  husband. 

Eeidel  vs.  Crocker,  161  App.  608;  Poppers  vs.  Wagner,  33  App.  113. 

Though  called  to  deny  exclamation  testified  to  by  plaintiff  as  hav- 
ing been  made  by  her. 

Wolf  vs.  Van  Housen,  55  App.  295. 

Nor  is  she  competent  in  action  of  replevin  against  him  for  house- 
hold goods. 

Ginsburg  vs.  Morrall,  105  App.  213. 

—  Agency:  Statute  permits  wife  to  testify  for  her  husband  when 
she  has  acted  as  agent  of  her  husband  in  the  particular  business 
transaction. 

Dannewitz   vs.   Miller,    179   App.   185;    Lumbard   vs.   Holdiman,    115 
App.  458 ;  Pettingill  vs.  Drake,  14  App.  424. 

She  may  testify  as  to  conversations  with  parties  where  she  acted 
as  agent. 

MeDavid  vs.  Eork,  92  App.  482. 

To  make  wife  competent,  it  must  appear  she  was  authorized  by 

her  husband  to  conduct  some  business  transaction  for  him,  which 

she  did  conduct.    Mere  conversation  with  party  is  not  enough. 
Donk  Bros.  Coal  Co.  vs.  Stroetter,  229  111.  134. 

If  she  makes  a  contract  as  her  husband's  agent,  she  is  competent 

to  prove  same. 

Eobertson  vs.  Brost,  83  111.  116;  Elec.  Vehicle  Co.  vs.  Price,  138  App. 
594;  XIV  111.  Notes,  1116,  §42. 

Agency  must  be  shown. 

Powell  vs.  Powell,  114  111.  329;  Mitchell  vs.  Hughes,  24  App.  308. 
Competency  is  limited  to  extent  of  agency. 

Poppers  vs.   Miller,   14  App.   87;   I.  C.   E.   E.   Co.   vs.   Messnard,   15 
App.  213. 

Where  she  is  administratrix  and  brings  action,  she  is  competent 
to  testify  against  estate  as  to  acts  done  as  agent  of  her  deceased 
husband. 

Eobnett  vs.  Eobnett,  43  App.  191. 

— -In  Actions  By  or  Against  Both:  Where  both  are  defendants, 
each  is  competent  in  own  behalf. 

Vercler  vs.  Jansen,  96  App.  328;  Kelly  vs.  Hale,  59  App.  568.     See 
also  Thomas  vs.  Anthony,  179  App.  463. 

Where  husband  and  wife  are  jointly  sued  upon  a  contract  lia- 
bility, the  wife  is  not  a  competent  witness. 

Thomas  vs.  Anthony,  261  111.   288;   Eev.   179  App.  463;   Hyman  vs. 
Harding,  162  111.  357. 


WORDS  AND  PHRASES  1367 

This  where  interests  are  so  identified  that  testimony  of  one  could 
not  affect  person  testifying  without  affecting  the  other. 

Thomas  vs.  Anthony,  261  111.  L'S8. 

Competency  of  Husband : 

—  Separate  Property  of  Wife:  The  husband  may  testify  in  all 
cases  where  litigation  concerns  separate  property  of  wife,  unless 
wife  is  herself  incompetent  by  reason  of  capacity  in  which  opposite 

party  sues  or  defends. 

Linkeraan  vs.  Kuepper,  226  111.  473;   bmith  vs.  Long,  106  111.  485; 

Eads  vs.   Thomson,   109   111.   87;    Ftmk  vs.   Eggleson,   92   111.   515; 

McNail  vs.  Zeigler,  68  111.  224;  XIV  111.  Notes,  1116,  §  41. 

"Where  litigation  concerns  separate  property  of  wife,  and  action 

is  one  in  which  she  would,  if  unmarried,  be  defendant,  husband  is 

competent  to  testify  for  or  against  her. 

Booker  vs.  Booker,  208  111.  529;  Cassem  vs.  Huestis,  201  111.  208. 

In  partition,  husbands  of  co-tenants  are  competent. 

Grindle  vs.  Grindle,  240  111.  143. 
He  is  competent  on  behalf  of  wife  in  litigation  concerning  her  sole 
and  separate  property.    He  is  also  competent  in  reference  to  trans- 
actions where  he  has  acted  as  agent  of  wife. 
Pain  vs.  Farson,  179  111.  185. 
Competency  is  not  affected  by  unnecessarily  making  him  a  party. 

Pain  vs.  Farson,  179  111.  185. 
In  actions  for  slander  brought  by  wife,  husband  is  competent  wit- 
ness for  her. 

Hawver  vs.  Hawver,  78  111.  412. 
Husband  is  competent  on  behalf  of  wife  as  to  her  separate  prop- 
erty in  regard  to  transactions  before  marriage. 
Otis  vs.  Spencer,  102  111.  622. 
Where  wife  is  incompetent  to  testify  in  her  own  behalf,  husband 

is  likewise  incompetent  to  testify  for  her. 

Gillam  vs.  Wright,  246  111.  398;  Heintz  vs.  Dennis,  216  111.  487 
Mann  vs.  Forein,  166  111.  446;  Shovers  vs.  Warrick,  152  111.  355 
Shaw  vs.  Schoonover,  130  111.  448 ;  Way  vs.  Harriman,  126  111.  132 
Treleaven  vs.  Dixon,  119  111.  548. 

Criminal  Actions: 

A  wife  is  incompetent  to  testify  for  or  against  her  husband  m 

criminal  case.  ,,  ^^., 

People  vs.  Duncan,  261  111.  339;  Hoch  vs.  People,  219  111.  265;  Hiler 
vs.  People,  156  111.  511. 
May  testify  for  joint  defendant,  if  grounds  of  defense  distinct 

from  that  of  her  husband.  ^  _,    ^^^ 

Gillespie  vs.  People,   176  111.   238;   Creed  vs.  People,  81  111.  565. 
May  testify  against  co-defendant,  where  nolle  prosequi  is  entered 

as  to  the  husband. 

Love  vs.  People,  160  111.  501. 
Or  in  corroboration  of  husband,  where  he  has  pleaded  guilty. 

Graff  vs.  People,  208  111.  312. 
Husband  is  incompetent  to  testify  for  or  against  wife  in  criminal 

case. 

Miner  vs.  People,  58  111.  59. 

WORDS  AND  PHRASES. 

See  Custom  and  Usage,  Abbreviations,  Expert  and  Opinion, 
Judicial  Notice,  Parol,  Presumptions. 


1368  WORDS  AND  PHRASES 

Presumptions : 

Technical  words  are  presumed  to  be  used  technically,  and  words 
of  definite  legal  meaning  and  signification  are  to  be  understood  in 

that  definite  legal  sense. 

Aetna  Ins.  Co.  vs.  Hoppin,  249  111.  406. 
Words  in  a  contract  will  be  presumed  to  have  been  used  in  sense 
in  which  they  were  used  and  understood  by  the  courts  of  justice. 

DeClerque  vs.   Barber   Paving   Co.,    1G7   lU.   215;    Myers  vs.   Ruddy, 
154  App.  438. 
Where  local  terms  and  phrases  are  used  in  a  contract,  presump- 
tion is  that  parties  employed  them  according  to  their  local  signifi- 
cation. 

Myers  vs.  Walker,  24  111.  134. 

Parol  Evidence: 

Where  certain  words  used  in  a  written  instrument  have  acquired 
a  particular  meaning  by  local  or  trade  usage,  and  such  usage  is 
shown  to  have  been  so  general,  uniform  and  frequent  as  to  warrant 
the  inference  that  parties  had  knowledge  of  and  contracted  with 
reference  to  the  usage,  it  is  competent  to  show  that  meanmg  by 

parol. 

Chi.  Portland  Cement  Co.  vs.  Ilof man,  168  App.  71 ;  Packard  vs.  Van- 
Schoick,  58  111.  79;  XII  111.  Notes,  519,  §§  351  et  seq. 
The  meaning  of  terms  of  art  and  science,  technical  phrases,  and 
words  of  local  meaning,  when  employed  in  an  agreement,  may  be 

proved  by  extrinsic  evidence. 

Myers  vs.  Walker,  24  111.  134;  A.  T.  &  S.  F.  Ey.  Co.  vs.  Goelz,  51 

App.  151. 
When  a  word  has  a  general  w^ell  defined  signification,  it  is  not 
competent  to  change  that  meaning  by  evidence.    On  the  contrary,  if 
a  word  is  employed  which  has  no  definite  and  specific  general  mean- 
ing, its  local  meaning  may  be  proved. 

Galena  Ins.  Co.  vs.  Kupfer,  28  111.  332;  Western  Ey.  Co.  vs.  Mo.  Mall. 
Iron  Co.,  91  App.  28;  Lord  vs.  Owen,  35  App.  382;  XI  111.  Notes, 
991,  §  198. 
An  experienced  builder  and  contractor  may  testify  as  to  the 
accepted  meaning  among  builders  of  technical  words  used  in  a  con- 
tract for  erecting  a  building,  but  it  is  not  permissible  to  prove  by 
such  witnesses  the  proper  construction  of  the  entire  contract, 
aark  vs.  Shirk,  170  111.  143. 
If  it  is  not  certain  from  the  face  of  a  contract  in  w^hat  sense  terms 
were  used  by  the  parties,  parol  evidence  is  admissible  to  enable 
the  court  to  determine  in  w^hat  sense  such  terms  were  understood 

by  them. 

Irvin  vs.  Powell,  188  111.  107;  Dornfield  vs.  Volkman,  138  App.  421; 
Peabody  vs.  Dewey,  51  App.  260. 
Parol  evidence  is  admissible  to  show  that  certain  words  and 
phrases  used  in  a  trade  contract  have  a  well  known  and  established 
meaning  among  the  merchants  -and  dealers  engaged  in  the  class  of 
trade  which  is  the  subject  matter  of  the  contract. 
Steidtman  vs.  Lay  Co.,  234  111.  84. 
Where  a  particular  word  or  phrase  has  a  particular  or  technical 
meaning  in  a  particular  neighborhood,  or  at  a  particular  period, 
and  that  word  or  phrase  is  used  in  an  instrument  made  at  that  place 
or  time,  it  is  competent  to  show  that  meaning  by  parol. 

Broadwell  vs.  Broadwell,  6  111.  599;  Barrett  vs.  Stowe,  15  111.  423; 
Ball  vs.  Benjamin,  56  111.   105. 


WORK  AND  SERVICES  1369 

Parol  is  competent  to  show  meaning  of  abbreviations  in  land 

descriptions. 

MeChesney  vs.  City  of  Chicago,  173  111.  75. 
In  a  suit  against  an  express  company,  abbreviations  in  a  receipt 

may  be  explained  by  parol. 

Amor.  Express  Co.  vs.  Lessem,  39  111.  313;  Tailoring  Co.  vs.  Adams 
Express  Co.,  158  App.  374. 
Expert  evidence  should  not  be  received  as  to  the  meaning  of  a 
condition  in  a  contract,  to  understand  which  no  previous  study  or 

habit  is  necessary. 

Lord  vs.  Owen,  35  App.  382. 

The  term  "current  funds"  has  a  specific  legal  and  well  known 

meaning  that  cannot  be  contradicted  or  explained. 

Galena  Ins.  Co.  vs.  Kupfer,  28  111.  332;  Marc  vs.  Kupfer,  34  111.  286. 

It  is  wholly  unnecessary  to  call  a  workman  in  marble  to  prove 

the  legal  meaning  of  a  contract  "to  erect  a  monument,"  or  what 

would  be  understood  by  such  a  contract  in  the  trade,  because  there 

could  be  no  dispute  as  to  its  meaning.     The  law  would  attach  to 

this  language  a  precise  signification. 
Sanford  vs.  Eawlings,  43  111.  92. 
Testimony  of  experienced  railroad  men  is  competent  to  explain 
and  define  terms  used  in  his  occupation,  such  not  being  opinion 

evidence. 

Garrity  vs.  Cath.  Order  of  Foresters,  148  App.  189. 


WORK  AND  SERVICES. 

See  Assumpsit,  Attorneys,  Physicians  and  Surgeons,  Medical 

AND  Surgical  Services. 

PRESUMPTIONS  AND  BURDEN  OF  PROOF. 

Nature  and  Time  of  Employment: 

A  general  hiring  is  presumed  to  be  at  will. 

Davis  vs.  Fidelity  Ins.  Co.,  208  111.  375;  V(5gel  vs.  Pekoe,  157  111.  339; 
Orr  vs.  Ward,"  73  111.  318 ;  Brougham  vs.  Paul,  138  App.  455. 

But  such  presumption  may  be  rebutted  by  admissions  of  parties. 
Doerr  vs.  Brune,  56  App.  657. 

An  employment  generally,  fixing  no  term  of  service,  which  con- 
tinues for  several  years,  will  be  treated  as  a  hiring  by  the  year. 
Miller  vs.  Ci'nnemon,  168  111.  447. 

Continuing  to  render  labor  and  services  in  an  employment,  after 
the  expiration  of  a  definite  term,  raises  presumption  of  a  new  hir- 
ing upon  like  terms. 

Glucose  Sugar  Co.  vs.  Flinn,  184  111.  123;  Ingalls  vs.  Allen,  132  111. 
170;  Morgan  vs.  McCaslin,  114  App.  427;  Moline  Plow  Works  vs. 
Booth,  17  App.  574;  XIII  111.  Notes,  417,  §16. 

The  terms  of  a  written  contract  for  services  will  be  presumed  to 

continue  from  year  to  year  so  long  as  the  employment  lasts,  until 

the  contrary  is  shown. 

Hears  vs.  O'Donoghue,  58  App.  345. 

But  if  employe  receives  notice  of  a  reduction  of  wages  there- 
after to  be  paid,  and  continues  in  service  without  objection,  pre- 


1370  WORK  AND  SERVICES 

sumption  will  be  that  he  consented  to  new  terms  and  performed 

services  thereunder. 

Crane  Plow  Works  vs.  Adams,  142  111.  125. 

But  such  presumption  does  not  arise  where  after  the  termina- 
tion of  the  services  under  the  contract,  the  employer  requested  the 
employe  to  do  certain  other  work,  at  a  different  place,  but  at  the 
same  price,  especially  when  request  is  made  after  considerable 
time  had  elapsed  after  completion  of  service  under  agreement. 
Ingalls  vs.  Allen,  132  111.  170. 

Proof  that  services  were  of  a  slightly  different  character  or  were 
performed  at  a  different  place  is  not  sufficient  to  overcome  the  pre- 
sumption arising  from  a  continuation  in  employment. 
Ingalls  vs.  Allen,  132  111.  170. 

No  time  being  fixed,  the  presumption  is  that  services  were  to  be- 
gin at  once  or  within  a  reasonable  time  after  the  execution  of  the 

contract. 

Barnard  vs.  Babbitt,  54  App.  62. 

Wlien  the  plaintiff  declares  generally  for  work  and  labor  done, 
and  materials  furnished,  and  defendant  files  the  general  issue  with 
notice  that  he  will  insist  on  the  trial  that  the  work  done  was  per- 
formed under  a  written  contract,  the  burden  is  not  thrown  on 
plaintiff  to  show  an  abandonment  of  the  special  contract,  until  de- 
fendant has  proven  the  averment  in  his  notice. 
Kobinson  vs.  Parish,  62  111.  130. 

As  to  Compensation: 

Where  extra  work  and  labor  is  performed  or  materials  furnished 
of  the  same  character  as  other  portions  agreed  in  special  contract, 
it  will  be  presumed  that  the  additional  work  was  to  be  paid  for  at 
the  same  rate,  but  not  if  work  is  of  different  character. 
Chicago  &  G.  E.  E.  R.  Co.  vs.  Vosburg,  45  111.  311. 

Party  affirming  that  a  certain  compensation  was  agreed  upon  has 

burden  of  proving  same. 

Howard  vs.  Goebel,   62   App.  497. 

Presumption  is  that  services  rendered  by  one  admitted  into  the 

family  were  gratuitous. 

Heffron  vs.  Brown,  155  111.  322;  Collar  vs.  Patterson,  137  111.  403. 

But  this  presumption  may  be  overthrown  and  the  reverse  estab- 
lished by  proof  of  an  express  or  implied  contract. 
Keyes  vs.  Thornton,  150  App.  523. 

On  claim  against  estate  for  services  rendered  deceased  in  his  life 
time,  his  declarations  to  the  effect  that  he  was  not  well  treated  by 
claimant,  as  well  as  his  declarations,  not  in  claimant's  presence 
and  hearing,  as  to  money  paid  to  latter,  are  incompetent.  Neither 
is  it  competent  to  show  that  other  relatives  offered  deceased  a  home 

with  them. 

Avery  vs.  Moore,  34  App.  115. 

ADMISSIBILITY  OF  EVIDENCE. 
To  Establish  Express  Contract: 

An  express  contract  may  be  proven  by  facts  and  circumstances 
which  show  that  both  the  parties,  at  the  time  the  services  were  ren- 
dered,  contemplated   or  intended   pecuniary   compensation   other 

than  such  as  naturally  arises  out  of  family  relation. 

Brooks  vs.  Ostrander,  158  App.  78;   McClory  vs.  Lancaster,  44  App. 
212. 


WORK  AND  SERVICES  1371 

An  express  contract  may  be  proven  not  only  by  an  actual  a^ee- 
ment,  by  direct  evidence,  by  the  express  words  used  by  the  parties, 

but  also  by  circumstantial  evidence. 
Heffron  vs.  Brown,  155  111.  322. 
May  be  established  by  admissions  made  to  members  of  claimant's 

family. 

Vogel  vs.  Murphy,  182  App.  631. 

To  Establish  Implied  Contract: 

An  implied  contract  may  be  proven  by  circumstances  showing 

that  the  parties  intended  to  contract  and  the  general  course  of 

dealing  between  them. 

Neish  vs.  Gannon,  198  111.  219;  Sherman  vs.  Whitesides,  190  111.  576; 
Miller  vs.  Miller,  16  111.  295;  Keyes  vs.  Thornton,  150  App.  523; 
XI  111.  Notes,  1021,  §  376. 

To  Show  Amount  of  Compensation: 

—  The  Contract:  Plaintiff  has  same  right  to  prove  a  special  con- 
tract for  services  under  the  common  counts  as  he  has  to  rely  upon 

an  implied  contract. 

Chi.  E.  &  B.  Co.  vs.  Johnson,  44  App.  224. 

And  the  measure  of  damages  is  fixed  by  the  contract  itself,  and 
the  party  suing  does  not  waive  his  rights  to  insist  upon  the  con- 
tract as  the  measure  of  damages  by  introducing  evidence  in  rebut- 
tal, tending  to  show  what  his  services  were  reasonably  worth. 
Sands  vs.  Potter,  59  App.  206;  Affd.  165  111.  397._ 
While  a  contract  continues  executory,  plaintiff  must  declare 
specially,  but  when  it  has  been  fully  performed  on  his  part  and 
nothing  remains  to  be  done  under  it  except  for  plaintiff  to  pay, 
plaintiff  may  declare  generally  in  indehitatus  assumpsit. 

Union.  El.  E.  E.  Co..  vs.  Nixon,   199  111.  235;   Sands  vs.  Potter,  165 

111.  397;   Gibson  vs.  O 'Gara  Coal  Co.,   151  App.  424. 

And  the  contract  and  evidence  of  its  performance  is  admissible 

in  evidence  under  the  common  counts  where  it  has  been  so  fully 

executed  that  nothing  remains  to  he  done  except  to  pay  the  amount 

due. 

Sands  vs.   Potter,   165   111.   397;    Gibson  vs.   O'Gara  Coal    Co.,    151 

App.  424. 

On  issue  as  to  whether  a  contract  for  services  was  at  a  yearly 

salary  or  general,  for  what  the  same  w^ere  reasonably  worth,  proof 

of  what  the  contract  was  at  the  beginning  of  the  employment  is 

competent. 

Mears  vs.  O'Donoghue,  58  App.  345. 

The  burden  of  proving  a  special  plea  setting  up  a  contract  dif- 
ferent from  that  set  up  by  plaintiffs  is  upon  defendant. 
Osgood  vs.   Groseclose,   159   111.   511. 

Where  labor  is  performed  under  a  special  contract  fixing  the 
amount  of  compensation  therefor,  the  contract  and  it  alone  must 
control  in  fixing  the  amount  of  compensation  to  be  paid.  The  com- 
pensation in  such  case  forms  a  part  of  the  agreement,  and  cannot 
be  altered  or  varied  by  parol  evidence  showing  that  the  work  was 

worth  less  than  was  agreed  to  be  paid  for  it. 

C.  &  G.  E.  E.  E.  Co.  vs.  A^osburg,  45  111.  311. 

Where  one  seeks  to  recover  for  work,  w^hich  he  claims  to  have 

done  without  a  special  contract,  if  it  appears  that  the  work  was 

begun  under  a  contract  in  writing,  which  he  says  has  been  re- 


1372  AVORK  AND  SERVICES 

scinded,  he  may  be  required  to  produce  the  contract  in  order  that 
the  court  may  see  whether  his  claim  is  well  founded. 

Cook  County  vs.  Harms,  10  App.  24. 
Where  services  are  rendered  under  a  special  contract  as  to  price 
to  be  paid,  the  contract  must  control,  and  evidence  of  the  reason- 
able value  of  such  services  is  inadmissible. 

Peoples  Adjustment  Co.  vs.  Darrow,  172  111.  62. 

Value  of  Services:    Inquiry  under  a  quantum  meruit  is  not 

what  benefits  immediate  or  remote  have  been  derived  from  services 
rendered,  but  what  is  the  value  of  such  services. 

Eotlistein  vs.  Seigel,  102  App.  600. 

In  action  for  wages,  the  value  of  the  services  of  plaintiff  to 

third  parties  is  inadmissible. 

Connelly  vs.  Cover,  102  App.  426. 

Reasonable  value  is  immaterial  where  there  is  an  express  con- 
tract fixing  the  value  of  the  services. 
Wilson  vs.  Wilson,  125  App.  325. 

In  action  of  assumpsit  on  common  counts  to  recover  commissions 
for  securing  options  on  coal  lands,  where  plaintiff  claims  that  he 
w^as  to  fix  his  own  commissions,  and  also  that  defendant  corpora- 
tion's president  agreed  to  pay  him  five  dollars  per  acre,  but  de- 
fendant claims  the  price  agreed  upon  was  fifty  cents  per  acre,  evi- 
dence as  to  value  of  land  and  also  of  reasonable  value  of  plaintiff's 

services  is  admissible. 

Donk  Bros.  Coal  Co.  vs.  Stroetter,  229  111.  134. 

In  assumpsit  for  services  rendered,  evidence  of  value  is  admissi- 
ble where  there  is  nothing  to  show  there  was  any  agreement  to  pay 
therefor  a  particular  amount  or  at  a  particular  rate. 

Heffron  vs.  Brown,  155  111.  322 ;  XI  111.  Notes  445,  §  88. 

In  action  on  alleged  parol  contract  for  services  rendered  in  care 
of  plaintiff's  parents,  where  making  of  alleged  contract  is  denied, 
and  amount  of  compensation  alleged  to  have  been  promised  is 
claimed  to  be  unreasonable  and  improbable,  the  party  seeking  to 
recover  may  prove  her  qualifications  as  a  teacher  of  music,  and  the 
value  of  her  services  as  such,  not  for  purpose  of  recovery  on  quan- 
tum meruit,  or  for  recovery  of  any  more  or  less  than  alleged  con- 
tract price,  but  for  the  purpose  of  answering  the  claim  that  the 
alleged  contract  was  an  unreasonable  one,  and  therefore  improb- 
able that  it  was  entered  into. 

Waldron  vs.  Alexander,  136  111.   550. 

Reasonable  value  of  services  may  be  proven  though  plaintiff 
sues  on  common  counts,  relying  upon  an  executed  special  con- 
tract, where  there  is  no  dispute  as  to  such  services  but  the  evidence 
as  to  the  special  contract  is  so  irreconcilable  as  to  warrant  jury- 
in  believing  the  minds  of  the  parties  had  not  met. 
People's  Adjustment  Co.  vs.   Darrow,   172   111.   62. 

—  Opinion  Evidence:   The  value  of  services,  when  sought  to  be 
proven  by  a  witness  other  than  plaintiff,  should  be  shown  by  sub- 
mitting to  such  witness  hypothetical  questions  based  upon  testi- 
mony given  by  other  witnesses  in  the  case. 
Snyder  vs.  Zeller,  113  App.  34. 

Unless  such  witness  has  personal  knowledge  of  all  the  services 

rendered  and  their  character. 

Walters  vs.  Mason,  159  App.  560. 


WORK  AND  SERVICES  1373 

Witnesses  who  testify,  the  one  that  she  had  been  a  housekeeper 
for  four  years  and  knew  the  value  of  a  housekeeper's  services, 
and  the  other  that  she  had  been  eleven  years  in  the  employment 
business  and  acquainted  with  the  wages  of  housekeepers  during 
that  time,  are  competent  to  state  their  opinions  as  to  value  of 
services  rendered  as  a  housekeeper. 
Heffron  vs.  Brown,  155  111.  322. 

Witness  may  not  state  his  opinion  as  to  value  of  services  without 
showing  a  sufficient  knowledge  to  form  an  opinion. 
Oil  Company  vs.  Boyer,  137  App.  518. 

Witness  testifying  as  to  probable  cost  of  work  may  assume  that 
contract  would  have  been  completed  without  accident  and  within 

the  stipulated  time. 

Hays  vs.  Wagner,  220  111.  256. 
In  action  to  recover  for  work  and  labor,  where  plaintiff  testified 
he  was  to  receive  for  his  services  "the  custom  of  the  country," 
testimony  by  a  witness  who  did  not  profess  to  have  knowledge  of 
services  claimed  to  have  been  performed,  the  kind  thereof,  or  the 
manner  of  performing,  is  inadmissible  to  show  what  the  services 

were  worth. 

Byrne  vs.  Byrne,  47  111.  507. 

—  Compensation  Paid  Servants:    In  order  to  establish  amount 

agreed  to  be  paid  for  a  particular  service,  it  is  not  competent  to 

permit  evidence  as  to  terms  of  settlement  made  by  servant  to  a 

helper, 

Dixon  vs.  Million,  142  App.  559. 

—  Compensation  Paid  Others:  The  reasonable  value  of  services 
rendered  and  paid  for  is  not  established  by  inference  or  presump- 
tion from  amount  paid  for  such  services. 

Hoover  vs.  B.  &  0.  S.  W.  E.  K.  Co.,  158  App.  292 ;  Sclimitt  vs.  Kur- 
rus,  234  111.  578. 
Price  paid  is  admissible  but  slight  evidence  of  value. 

Coffeen    Coal    Co.    vs.    Barry,    56   App.    587;    Chi.    City    Ey.    Co.    vs. 
Menely,  79  App.  679. 
Nor  is  price  paid  another  for  same  or  similar  services  admissible 
on  issue  of  reasonable  value  of  services. 
Scott  vs.  Wright,  138  App.  105. 
Receipts  taken  by  a  party,  in  themselves,  prove  nothing,  as  they 
are  neither  evidence  of  the  value  of  the  work,  nor  where  nor  for 

whom  performed. 

Grove  vs.  Miles,  58  111.  338. 

Evidence  of  charges  is  admissible  without  first  showing  same 

are  customary  and  usual  where  there  is  no  usual  or  customary 

charge  in  the  locality  for  like  services. 

Fleming  vs.  Chi.  City  Ey.  Co.,  163  App.  185;     McCarthy  vs.  Spring 
Valley  Coal  Co.,  149  App.  275. 

—  Attorney's  Fees:  In  fixing  the  amount  of  a  reasonable  fee, 
examination  should  be  directed  to  what  is  customary  for  such  legal 
services,  where  contracts  have  been  made  with  persons  competent 
to  contract,  and  not  what  is  reasonable,  just  and  proper  for  the 

solicitor  in  the  particular  case. 

Metheny  vs.  Bohn,  164  111.  495;  Zempner  vs.  Kozminski,  171  App.  570; 
XI  111.  Notes,  495,  §  134. 
Where  to  be  allowed  by  court,  it  is  not  bound  by  testimony  of 


1374  WORK  AND  SERVICES 

attorneys  at  the  bar,  but  can  and  should  take  into  consideration 
his  own  knowledge  of  the  value  of  such  services. 
Gentleman  vs.  San.  Dist.,  260  111.  317. 
And  evidence  should  be  preserved  in  the  record,  otherwise  decree 

cannot  be  supported. 

Methenv  vs.  Bolm,  164  111.  495. 

discharge' OF  EMPLOYE. 

Admissibility  of  Evidence : 

Justification  may  be  made  without  special  plea,  and  is  admissible 

under  general  issue. 

McCurdy  vs.  Alaska  Com.  Co.,  102  App.  120;  Hoffman  vs.  Worlds  Col. 

Expos.,  55  App.  290. 

Burden  of  showing  good  and  sufficient  cause  for  discharging 

servant  rests  upon  employer  relying  on  such  defense,  after  servant 

has  proven  contract  and  full  performance  by  him  up  to  time  of  his 

discharge,  and  his  willingness  to  perform. 

Ludwig  vs.  Boot  Eng.  Co.,  148  App.  632;  Campbell  vs.  Fierlein,  134 
App.  207. 
In  suit  for  breach  of  contract  of  hiring,  the  amount  of  damages 
is  the  contract  price,  and  the  burden  of  showing  what  plaintiff  did 
or  could  have  earned  by  reasonable  diligence  in  other  employment 
in  case  of  his  discharge  before  expiration  of  contract  is  on  de- 
fendant. 

Kelly  vs.  L.  &  N.  Ey.  Co.,  49  App.  304;  Worlds  Col.  Exp.  vs.  Rich- 
ards, 57  App.  601. 
In  action  for  breach  of  contract,  master  may  show  acts  justifying 
discharge,  though  servant  may  not  have  been  discharged  for  that 

reason. 

Orr  vs.  Ward,  73  111.  318. 
Master  may  show  immoral  conduct,  and  may  testify  as  to  infor- 
mation received  as  to  same. 

Weaver  vs.  Halsey,  1  App.  558. 
Proof  that  servant  habitually  associated  with  disreputable  people 
is  competent  in  justification  of  his  discharge. 
Gould  vs.  Magnolia  Metal  Co.,  207  111.  172. 
That  a  deduction  was  made  from  wages  of  servant  by  reason  of 
absences  is  not  proof  of  sufftcient  defense  depriving  master  of  right 

to  discharge. 

Mandel  Bros.  vs.  Hocquard,  99  App.  75. 
Where  contract  is  proven,  the  wrongful  discharge,  what  servant 
had  been  paid,  his  readiness  and  ability  to  work,  and  what  he 
earned  after  his  discharge,  a  prima  facie  case  is  made. 
Morris  vs.  Taliaferro,  75  App.  182. 
Where  an  employe  is  wrongfully  discharged,  he  is  not  after- 
wards required  to  offer  to  work  before  he  can  recover  for  breach 
of  the  contract  by  reason  of  such  wrongful  discharge. 
Stumner  vs.  Wilson,  82  App.  384. 
Where  no  services  have  been  performed  under  a  contract  of 
hiring,  the  employe  may  maintain  action  for  breach  of  contract, 
the  measure  of  damages  being  the  wages  agreed  upon,  less  that  sum 
earned  or  which  could  have  been  earned  by  him  through  the  exer- 
cise of  reasonable  diligence  in  seeking  other  employment. 

Browns  vs.  Board  of  Education,  29  App.  572;  Moline  Plow  Co.  vs. 
Booth,  17  App.  574. 
In  action  for  damages  for  wrongful  discharge,  burden  is  upon 


X-RAYS  1375 

servant  to  show  that  he  was  engaged  for  a  definite  period  and  was 
discharged,  without  sufficient  cause,  before  the  end  of  it. 
Mandel  Bros.  vs.   Hocquard,  99  App.  75. 

Letters  written  by  plaintiff  after  he  had  been  told  not  to  come 
back  to  work  until  notified,  which  stated  he  did  not  consider  him- 
self discharged,  and  asking  for  information  on  that  point,  are 
properly  admitted  in  evidence  in  action  for  wages,  where  their 
effect  is  limited  by  instruction,  to  show  notice  to  the  employer  that 
the  employe  did  not  understand  he  was  discharged. 
Eeiter  vs.  Standard  Scale  Co.,  237  111.  374. 

If  the  servant  has  not  worked  elsewhere,  the  employer  may  show 

that  he  could,  by  reasonable  effort,  have  gained  other  employment, 

and  may  diminish  the  damages  by  whatever  he  can  show  plaintiff  to 

have  earned  thereat. 

Doherty  vs.  Sehipper  &  Block  Co.,  157  App.  413. 

The  burden  of  proving  that  other  work  was  or  could  have  been 

obtained  is  upon  the  employer. 

School  Directors  vs.  Orr,  88  App.  648 ;  Brown  vs.  Board  of  Education, 
29  App.  572. 
Evidence  of  the  net  earnings  of  the  servant  during  the  unex- 
pired term  is  admissible  under  general  issue,  in  action  for  damages. 
Fuller  vs.  Little,  69  111.  229 ;  XIII  111.  Notes,  420,  §  52. 
The  burden  of  proving  a  just  excuse  for  abandoning  employment 

is  upon  the  servant. 

Griffin  vs.  Kelirer,  24  App.  243. 
An  employe  wrongfully  discharged  cannot  hold  himself  in 
readiness  to  perform  his  contract  for  service  and  by  successive 
suits  upon  the  theory  of  constructive  service  recover  the  various 
installments  of  salary  as  they  accrue  according  to  the  terms  of  the 
contract  of  employment.  Such  employe  can  have  but  a  single 
action — and  that  for  the  damages  occasioned  by  the  wrongful  dis- 
charge ;  and  a  recovery  in  one  action,  upon  whatever  theory  insti- 
tuted, is  a  bar  to  all  subsequent  actions. 

Doherty  vs.  Sehipper  &  Block  Co.,  157  App.  413. 


XRAYS. 

See  Photographs. 


INDEX 


[references  are  to  pages] 
ABANDONMENT 
Easement 

Burden  of  proof,  1 
Direct  evidence  as  to  intention,  1 
Of  wife  or  children 

Husband  to  provide  liome.  2 
When  not  presumed,   2 
Admissibility  of  evidence,  2 
Weight  and  sufficiency  of  evidence,  2 
Of  street 

By  citv,  1 
Proof,  1 
Of  homestead,  617,  669 
ABATEMENT 

Matters  of  record,  3 

Not  necessary  to  plead.  3 
Jfotion  to  dismiss  substituted  for,  3 
Other  action  pending,  4 

When  should  be  sho\\  n.  4 
When  plea  not  sustained,  4 

Previous  action  on  same  claim,  4 
Former  action  for  different  usee,  4 
Suit  pending  in  another  state,  4 
Order  of  proof  and  participation 
Default,  4 
Pleading  over,  4 
Re -plea  ding,  4 
ABBREVIATIONS 

.  Judicial  notice,  5,  753 
Initials,  5 
Contractions,  5 
Omitted   names,   5 
Official  character,   5 
Land  descriptions,  5 
Sex,  758 
Parol  evidence 

Written   instruments,  5 
Legal  significance,  5 
Technical   use,   5 
Ballot  markings,  6 
ABDUCTION 
Intent,  6 

Gist  of  offense,  6 
Presumptions  and  burden  of  proof 

Chastity,  6 
Admissibility  of  evidence 

Declarations  of  abducted  female,  6 
Previous  associations,  6 
Inducements,   6 
Consent   of   parents,   6 
Consent  of  female,  6 

1377 


1378  INDEX 

[references  are  to  pages] 

ABDUCTION   (Continued) 

Weight  and  sulFiciency,  6 
Enticing   from   lionie,   G 

Illicit  relations,  7  ' 

Chastity,  266  ■• 

Burden  of  proof,  217 
ABILITY  TO  ACT,  290 
ABODE 

Domicile,  451 
Kesidence,    1141 
ABORTION 

Admissibility  of  evidence 

Relation  of  accused  and  woman,  7 
Other  efforts  and  attempts,  7 
Soliciting  practice,  7 
Expert  and  opinion,  8 
Declarations,  8 
Hotel  register,  8 
Presumptions  and  burden  of  proof,  8,  217 
Criminal  intent,  8 
Jurisdiction,  8 
Expert  and  opinion,  516 
ABROAD 

Deposition  taken  abroad,  432 
ABSENCE 

Death  presumed  from,  396 
ABSENCE    OF    RECORD 

Certiticate    of    clerk,    257 
Proof   by  witness,   257 
ABSENT  WITNESS 
I'resumptions 

Where  witness  has  knowledge  and  is  available,  9 
Ex-employe,  9 

Where  witness  incompetent,  9 
Eye-witnesses,  9 
Right  to  explain,  9 
Former  testimony, 

Right  to   introduce — Coroner's   inquest,   9 
Contradictory,   9 
Witness  out  of  jurisdiction.  9 
Witness  kept  away  by  adverse  party,  9 
Proof  by  bill  of  exceptions,   10 
Proof  by  person  hearing  former  testimony,  10 
Proof  by  stenograpliic  notes  or  abstract  of  counsel,  10 
Criminal  action,   10 
Impeachment  after  admitting  affidavit  for  continuance,  84 
ABSTRACTS  OF  TITLE 
Delined,    10 
Admissibility 

Destroyed    deeds,   10 
Where  no  higher  grade  of  evidence,  11 
Accuracy,  11 
Burnt  records  act,   11 
Torrens  land  act,   11 

Where  destroyed  court  records  restored,  12 
To  show  conveyance,   12 
Preliminary  proof 
Necessity  for,  12 
Deed  los't,  12 
Registration  of  title,  12 
Statutory  requirement,  12 
Sufficiency  of,  12 
Burnt  records  act.  12 


INDEX  1379 


[referexces  are  to  pages] 

ABSTRACTS  OF  TITLE   (Continued) 
Meanint^f  of  abbreviations,   12 
]Made  in  ordinary  course  of  business,  12 
Handwriting  of   abstractors,   12 
Affidavits,  i-4 
Contents  and  sufficiency 

Acknowledpnient   of   deeds,   14 
At  time   of  transaction,    14 
Entries  from  government — patents,  14 
All  facts  of  record  impairing  title,  14 
Aider  by  affidavits 

Celibacy  of  grantor,  15 
Identity  of  parties.  15 
Information   and   belief,   15 
Sworn  or  letter  press  copies 

Opportunity  for  verification.   15 
Under  burnt  records  act,  15 
Uncertified  copy  of,  16 
Entirety,  16 
Whole  of 

In  ejectment,  16 
Objections 

On  application  to  register  title,  16 
Presumptions   and   burden  of   proof,    10,   217 
Date  of  signing,   16 
Deeds  lost,  16 
Statutory   requirements,   16 
Best  and  Secondary  Evidence,   166 
Date,  .39,3 
ABSURDITY 

Of  line  of  conduct,  997 
ABUTTING  OWNERS 
Presumptions 

Partv  wall,  1033 
ACCEPTANCE 

See  assent.  128 

Voluntary  convej'ances.   129 
ACCESS 

Legitimacy.    778 

To  place  of  concealing  stolen  proiJerty 
As  evidence  of  taking,  770 
ACCESSORIES 

After  the   fact 

Proof  of  principal  felony,   17 
Concealing  murder,   17 
Indictment  for  larceny,  17 
Indicted  and  tried  with   principal,  17 
Before  the  fact 

Weight  and  sufficiency  of  evidence,  17 
Words,  acts,  signs  or  motions,  17 
Assenting  by  presence,  17 
Principal  guilty,  18 
Conviction  of  principal,  18 
Affirmative  nature  of  action.  18 
ACCIDENT 

No  other  accident 

Proof  inadmissible,  18 
Impossibility,   18 
Conditions  relating  to 

At  time  of  accident.  18 
AVhere  unchanged.   18 
Prior  condition,   18 
Prior  time,  18 
Surrounding  conditions.  19 


1380  INDEX 

[keferexces  are  to  pages] 

ACCIDENT    (Continued) 

Export  and  opinion,  516 
Judicial  notice,  754 
Presumption 

No  presumption  of  negligence  from  accident,  1002 
Repairs  after  accident,  1125 
Pliotograpii  of  scene  of.  981 
Similar  accident's,  1182 
Insurance    against,    972,    1274. 
ACCOMPLICE 

Defined,  19,  699 
Competency 

Without  entering  nolle,  19 
Corroboration 

Discretion  of  court,  19 

When  required,  19 

Extent,  19 
Acts  and  declarations 

Of  one  admissible  against  all,  19 

Feigned  complicity,  19 
Cross  examination 

Inducements  or  promises,  19 

Expectation  of  leniency,  19 
Weight  and  sufficiency 

Convictian  without  other  evidence,  20 

Where  contradictory,  20 
Prosecution  for  incest.  699 
ACCORD  AND  SATISFACTION 
Proof  of  satisfaction,  20 
Receipt  obtained  by  false  representation,  20 
Must  be  full  satisfaction,  20 
Intent,  20 

Acceptance  of  remittance,  20 
Credit  to  debtor 

Rescission  of  contract  of  settlement,  20 
Payment  of  a  less  sum 

Release  not  under  seal,  20 
Joint  tort  feasors 

Release  to  one.  21 
Acceptance  and  retention   of  checks 

In  full  payment, — affirmative  proof,  21 

Good  faitii,  21 

Bona  fide  dispute,  21 

Deceit  by  mistatement  of  facts,  21 

Liquidated   demand,   22 

Agreement  to  take  less,   22 

Less  sum  secured  for  larger  sum  unsecured,  22 
Admissibility  under  pleadings 

No7i  est  facium,  22 

Nil  debit,  22 

General  issue,  22 
Burden  of  proof,  23,  218 

On   party  alleging,  23 
ACCOUNTANT 

Rook-keeper,  201 
Conclusions  of  witnesses,  290 
ACCOUNT  BOOKS 

See  books  of  account,  188 
ACCOUNTS 

Settlement 

Presumption   from  giving  note,  1008 
Payment 

Parol  proof.  1071 
Limitations,  797 


INDEX  1381 

[REFERENCES   ARE   TO  PAGES] 


ACCOUNT  STATED 

Defined,  23 

Admissibility  of  original  character  of  debt,  24 
Admissions,  24,  38 
In  pleading,  24 
To  strangers,  24 
Book  of  entry,  24 
Verbal  admissions,  24 
Presumptions 

Assent, — indorsement  of  0.  K.,  24 
Express   promise   not   necessary,   24 
Retention  Avitliout  objection,  24 
Matters    included,    25 
Correctness,    26 
Receipt  of  account,  26 
Burden  of  proof,  26,  218 
Settlement,  26 
Fraud,  26 
Question  for  jury,  26 
Cross  examination,  26 
ACCUSED 

Credibility,  539 
Immunity,  683 
Injiocence 

Presumption,  1022 
Failure  to  testify,  1114 
ACKN  0  WLEDGMENTS 
Necessity  for 

Deeds,   26,   27 
Contracts,  27 

Certified  copy  of  unacknowledged  deed,  27 
Ancient  deeds,  27 
Governor's  deed,  27 
Release  of  dower,  27 
Authority  of  officer 
Notary   public,   27 
Justice  of  peace,  27 
Clerk  court  of  record,  27 

Certificate  of  clerk  showing  party  not  officer,  27 
Certificate  showing  authority,  27 
Extrinsic  competent  to  show,  28 
Letters  J.  P.,  28 
Certificate 

Objection  obviated  by  grantor's  testimony,  28 
Signature, — failure  of  officer  to  write,  28 
Date, — M-ant  of.   28 
Scope  and  weight,  28 
Prima  facie  evidence  of  execution,  28 
Date  of  deed 

Presumption  from,  29 
Amendment  and  aid 

Executed  in  foreign  state,  29 
By  officer,  29       * 
Impeachment 

Burden  of  proof,  29 
Certificate, — by  what  judged,  29 
Between  parties,  30 
Clear  proof,  30 
Disinterested  witness,  30 

Signature  not  in  handwriting  of  grantor,  30 
Parol  evidence, — action  of  ejectment,  30 
By  wife,  31 
Officer  as  witness,   31 
Record   of  unacknowledged   instrument,   1096 


1382  INDEX 

[refeeences  are  to  pages] 

ACKNOWLEDGMENTS    (Contiimed) 
Testimony  of  grantor,  31 
Conspiracy  of  grantee,  31 
When  certificate  not  overcome,  31,  32 
Burden  of  proof,  218 
ACQUAINTANCE 
Of  witness 

Party  at  telephone,  1226 
With  handwriting,  604 
With  subject  testified  to  as  expert,  513 
ACT  OF  LEGISLATURE 

See  judicial  notice,  746,  747 

Legislative  acts  and  journals,  776 
Statutes,  1195  to   1197 
ACTIONS 

Identity  of  judgment  recited  in  bond,  682 
Identity  of  second  suit,  682 
Identity  of  matter  formerly  adjudicated,  564 
Of  parties  to  former  action,  565 
ACTS  AND  DECLARATIONS 
Accomplice 

Of  one  admissible  against  all,  19 
Feigned   complicity,    19 
To  show  fraud,  576 
Intention  of  donor,  593 
Of  one  in  ])Ossession,  52,  905,  1240 
ACTS  OF  OWNERSHIP 

Presumption  from,  1241 
ACTUAL  WEALTH 

See  pecuniary  circumstances,  969 
ADEMPTION 

Presumption,   1002 
ADJOINING  LAND  OWNERS 
Presumptions 

Party  wall.  1033 
ADJOURNMENT  OF  COURT 
Parol   proof,    1101 

Regvilarity  of  jtulicial  proceedings,  33 
Presumption,  1002 
ADJUDICATION 

See  former  adjudication,  563 
Judgments,  738 
Records,  1099 
ADMINISTRATION 
Letters  of 

Post  evidence,  170 
ADMINISTRATOR 

Representative  capacity,  1132 
As  witness,  1346 
ADMISSIBILITY  OF  EVIDENCE 
General  rule,  33 
By  whom  determined,  33 
ADMISSIONS  AND  DECLARATIONS 
Account  stated 

Correctness,  24 
To  strangers,  24 
Book  of  entry,  24 
Verbal,  24 
In  general,  34 

No  foundation  nece'ssary  where  that  of  party  to  suit,  34,  688 
Self  serving  statements,  37 
Implied    admissions,    37,    1292 

Destruction  and  suppression  of  evidence,  37,  437 


INDEX 

[references  are  to  pages] 

ADMISSIONS   AND    DECLARATIONS    (Continued) 
Tender,    o7,    1239 
Silence,  37,   1292 
In  presence  of  another,  38 
Account  stated,  38 
Reports  of  employees,  38 
Out  of  presence  of  adverse  party,  38 
Whole  of  utterance,  1293 
Compromise   and   settlement,   284 
Infants,    705 
Weak  minded  persons,  40 

Having  conservator,  40 
Parties  to  record,  40 
In  general,  40 
Nominal  party,  41 
Parties  in  interest 
Joint  obligors,  41 
Community   of  interest,  42 
Third  parties,  41 

In  general,  41 
Tenants  in  common,  39 
Where   community   of   interest,   42 
Deceased  persons 
In  general,  42 

Testator,  1299.  1307,  1318,  1328 
Relating  to  title,  42,  1239 
Gifts,  42 

To  impeach  contracts.  43 
To  show  suicide.  43,  400 
To  establish  heirsliip,  43 
To  show  assignment  of  note,  43 
Marriage,  44 
Counsel 

Right  to  make,  44 
Right  to  withdraw,  44 
To  avoid  continuance,  44 
Made  at  former  trial,  44 
By  silence,  44 
Effect,  44 
Officers,  45 

Co-obligors,  45 
Not  against  county,  45 
After  retiring  from  ofKce,  45 
Partnership 

Existence  of  partnership  in  question,  45.  956 
To  show  existence  of  partnership.  45,  956 
After  dissolution,  46 
Admissions  of  dormant  partner,  46 
Relating  to  book  entries,  46 
As  limited  by  scope  of  business,  4G 
Principal  and  agent, 
In  general,  46 

Relating  to  pending  negotiations,  49 
Fact  of  agency,  47,  87 
Necessity  of  authority  in  agent.  47 
To   enlarge  agent's  authority.  47 
To  prove  conversion  by  agent.  47 
Relating  to  matters  within  scope  of  employment,  47 
Agent's  books  as  admissions  against  him,  50 
As  part  of  res  gesfce,  50,  1140 
When  agent's  declarations  hearsay,  50 
After  termination  of  agencj%  49 
Landlord  and  tenant,  50 
Principal   and   surety,   50,   1045 


1383 


1384  INDEX 

[REFERENCES   ARE   TO   PAGES] 

ADMISSIONS    AND    DECLARATIONS    (Continued) 
Keluting    tu    negligence,    51,    IKJo,    113'J,    1141 
Master  and  Servant,  51,  1141 
Grantor  and  grantee,  52 

Impeachment  of  deed,  52,  1238 
To  sustain  deed,  53 
Disparagement  of  grantee's  title,  53 
Reformation  of  deed,  53 
Made  in  absence  of  grantee,  53 
Time  of  making.  54 
Mental  condition,  54 
Declarations  of  grantor,  54 
Undue  influence  or  fraud,  54 
In  reference  to  boundary  line,  54 
Alleged  fraudulent  conveyance,  583 
Vendor  and  purchaser,  54,  55,  50 
Admissions   of  vendee,   54 
Prior  to  sale,  54 
Statements  as  to  OAvnership,  55 
Subsequent  to  sale.  55 
Impeachment  of  vendee's  title,  55 
To  construe  contract,  55 
Payment  of  purchase  money,  56 
Fraud,  56 

To  show  price  of  goods,  56 
Mortgagor  and  mortgagee.  56.  57 

Contemporaneous  with  extcution,  56 
Subsequent  to  execution,  56 

As  against  person  claiming  through  mortgagor,  56 
As  against  subsequent  incumbrancers,  56 
To  show  acquiescence  in  sale,  57 
Mortgagor's  intention.  57 
Attachment  against  mortgagor,  57 
Matters   affecting  title.   57,   123S 
To  overcome  record  title,  57 
As  proof  of  title,  57 
To  impeach  title,  57 
r>y  party  in  possession,  58 

To  prove  title  in  declarant,  53-58 
To  prove  title  in  deceased  person,  1240 
To  prove  title  in  another,  58 
To  explain  title,  58 

In  disparagement  of  title,  real  pro])erty,  58 
In  disparagement  of  title,  personal  property,  905 
To  show  extent  of  possession,  58 
To  prove  ownership  of  personal  property,  58,  999 
Privies,  59,  60 
In  estate,  59 
In  blood,  59 
Administrator,  59 
Assignor  and  assignee,  59,  131 
Heirs,  00 

Devisee's,  60,  1318 
Parties  to  contract,  00 
Corporations.  60 

Corporate   officers,  60 
Directors   and   stock-holders,   01 
Books  of  account,   195 
Notes  and  bonds,  61,  184 
In  general,  61 

As  to  time  of  apparent  alteration,  61 
Impeachment  of  assignment,  61 
To  show  ownership,  61 


INDEX  1385 


[references  are  to  pages] 

ADMISSIONS    AND    DECLARATIONS     (Continued) 

Former  owners,  131 

Declarations  relating  to  notes  not  in  issue,  61 
Matters  concerning  domicile,  61 

In  general,  61 

Paupers,  61 

Intent,  62 
Insurance,  62 

Books  of  society,  62 

Declarations  of   insured,  62,  713,  717 
Eeligious  association,  62 
Trusts,  62 

Express  trust  in  land,  62 

Resulting  trust,  63,  1256 

Admissions  of  trustee,  63 
Pleadings,  63,  64 

Former   pleadings,    63,    568 

Equity  competent  at  law,  63 

Amended  pleading,  63 

Bill  of  particulars,  63 

Demurrer,  63 

Affidavit,  63 

Pleading  not  filed,  63 

Plea  of  7wn  est  factum,  63 

Bill  and  answer,  64,   113 

Of  co-defendant,  64 

Withdrawal  of  plea,  64 

Sworn  answer   to   amended  bill,   570 

Stipulations,    570,    1204 
Former  testimony 

Although  compulsory,  64 
Depositions,  65 

In  another  case,  65,  432 
Right  of  court  to  compel,  65 

To  avoid  incumbrance  of  record,  65 
Estoppel,  65 

In  pais,  65 

Recitals  in  agreements,  65 

Inducement  to  action,  65 
Weight  and  sufficiency,  66,  67,  68 

Deceased  person,  66 

Occurring  several  years  prior,  67 

Full  knowledge  of  rights,  67 

]\Iarriage  contract,   68 

Verbal,  68 
Of  accused  in  bigamy,  177 
Of  accused  in  liomicide,  639 
Cloud  on  title,  274 
As    concerning   limitations 

New  promise,  799 

Adverse    possession,    1240 
Former  pleadings 

Common  law,  568 

Chancery,  569 

Stipulations,  570 

Answers,    113 
Of  maker  of  note 

Against  surety,  610 
Of  insured 

Benefit  society,  62,  713 

Life,  717 
Of  officers  of  insurance  company,  720 
Admissions  of  devisee,   1318 
Admissions  of  employees,  1134 


1386  INDEX 

[references"  are  to  pages] 

ADOPTION 

JUiidi'ii  of  proof,  69,  218 
I'resuinptions,   6'.),   1003 
Jurisdiction  of  court,  69 
Record  must  show  jurisdiction,  09 
Admissibility  of  evidence,   69 

Parol  when,  69 
^Vhen  jurisdiction  cannot  be  attacked,  69 
ADOPTION  OF  STATUTES 

Construction,  558 
ADULT  See  age,  85 
ADULTERY 

Definition,  69 
Averment  of  marriage,  69 
Proof  of  marriage,  69 
Preponderance  of  evidence,  09 
Circumstantial  evidence,  69 

Weight  and  sufficiency,  70 

Presumptions,   71 
Opinion  evidence,  71,  516 
Character  and  reputation  of  parties,  71 

Chastity,   71 

Alleged  paramour,  71 
Letters  and  correspondence  as  part  of  res  gestae,  72 
After  filing  bill,  72 
Recrimination  as  defense,  73 
Criminal  conversation,  363 
Statutory  offense,  73 
Bill  for  dower,  72 
As  bar  to  dower,  455 
Burden  of  proof,  218 
Weight  and  sufficiency  of  proof,  1290 
ADVANCEMENTS 
Delined.  73 
How   established,  73 

Must  be  in  writing,  73 

Deed,  not  indicating  on  face,  73 
Consideration  of  love  and  affection,  73 
Account  book,  73 
Lost  instrument  evidencing,   74 
Quit  claim  deed  to  ancestor,  74 
Note  paid  by  parent,  74 
Destruction  of  evidence,  74 
Intent   of   donor,   74 
Declarations  of  donor,  75 
Parol,  75,  930 
Presumptions,  75 
Value,  76 
Repayment,  76 
Gifts^  592 

Husband  and  wife,  75 
Parent  and  child,  75,  76 
Trusts,    1254,    1255 
ADVERSE  PARTY 
Right  to  call,  76 

Effect  of  calling  or  naming  as  nominal  party,  76,  1347 
Effect  of  disclaimer  of  interest,  77 
Contradiction  and  impeachment,  77,  686 
Witnesses,   1340.  etc. 
ADVERSE  POSSESSION 
Presumptions,  77 
Essential  elements,  78 

In  general,  78 

Possession,  78 

Payment  of  taxes,  7r 


INDEX  1387 


[references  are  to  pages] 

ADVERSE  POSSESSION   (Continued) 
Admissibility    of   evidence,    79 
Weight  and  sufficiency,  71) 
Questions  of  law  and  fact,  80 
Burden  of  proof,  218 
Ejectment,  478 
Possession,  997 
Title,   1241 
Trespass,   1346 
ADVERSE  WITNESS 

See  bias  and  hostility,  173 
Credibility.  354 
ADVERTISEMENT 
Bucket  shops,  214 
False   pretenses,   540 
Lottery,  811 
Rewards,  1148 
Warranty,  1284 
ADVICE  OF  COUNSEL 
See  attorneys,  142 

Malicious   prosecution,    820,    821 

Privileged  communications,  1047  to  1051 

Trespass,  1245 
AFFECTION   AND   PERSUASION 

As  undue  influence,  1316 
AFFIDAVITS 

Abstracts  of  title,  14 

Where  deeds  lost,  14 

Celibacy,   15 

Identity  of  parties,  15 

Information  and  belief,  15 
Defined,  80 
Form,   81 

In  general,  81 

Jurat,  81 
Amendment,  81 
Ex  parte  affidavits,  81 
Presumptions,  81 
Judicial  notice,  82 
Particular  affidavits,  82,  83 

Voters.  82 

Attachment   bond.    82 

Change  of  venue,  82 

Of  merits.  82 

For  introduction  of  copies,  82,   158 

In  aid  of  plea,  83 
In  replevin 

As  eyidence  of  value,  1131 
Counter  affidavits 

Default.  412 

Judgments  by  confession,  741 

New  trial.  866 
AFFIDAVITS  FOR  CONTINUANCE 
Admissibility  of  affidavits,  83,  84 

In  general,  83 

As  an  admission.  83 

Under  different  form  of  action,  83 

Whole  of,  83 

Containing  statements  of  opinion,  83 

Judicial  admission,  84 
EfTect  of  admitting,  84 

Civil  actions,   84 

Criminal  action,  84 
Impeachment  of  absent  witness,  84 


1388  INDEX 

[referekces  are  to  pages] 

AFFIRMANCE  AND  AVOIDANCE  OF  CONTRACTS 

By  infants,  704 
Katitication  in  general,  10G4 
AFFIRMATIVE 

Burden   of   proof,   84 

In  general,  84 

Determined  by  pleading.   85 
Weight,  85 
AFTER  THE  FACT 
Accessories 

Concealing  murder,  17 

Indictment  for  larceny,  17 

Indicted  and  tried  with  principal,  17 
AGE 

Admissibility  of  evidence,  85,  86 

Family  record,  85 

School  record,  85 

Declarations  of  deceased  persons,  86 

Confession,   86 
Competency  of  witnesses,  86 

Opinions  of  witnesses,  86 
Inspection  by  jury,  86 
Burden  of  proof,  218 
Conclusions  of  witnesses,  288 
Expert  and  opinion,  516 
As  aflfoctins'  contributory  negligence,  701 
AGED  WITNESS,  772 
AGENCY 

Admissions   and   declarations 

Necessity  of  authority  in  agent,  47 

To  enlarge  agent's   authority.  47 

To  prove  conversion  by  agent,  47 

Eelating  to  matters  within  scope  of  employment,  47 

After  termination  of  agency,  49 

Relating  to  pending  negotiations,  4  9 

Agent's  books  as  admissions  against  him,  50 

As  part  of  res  (lestae,  50,  114U 

When  agent's  declarations  hearsay,  50 
Fact  of  agency 

Admissions  of  agent,  47.  87,  88 

Admissions   of   principal,   88 

Circumstantial  evidence,  88 

Color  of  agency  must  be  known,  88 
Order  of  proof,  86 

Authority,  86 

Knowledge  of  party,  86 
Presumptions,  87 

Corporate  agents,  87 

Continuance  of  relation.  87 
Burden  of  proof,  87,  218 
Admissibility  of  evidence,  87,  88,  89 

Declarations  and  acts  of  agent,  87 

Admissions  of  principal,  88 

Circumstantial,  88 

Prior  course  of  dealing,  89 

Parol,  89 
Conclusions   of  witnesses  as   to,  287 
Husband   and  wife 

Presumptions  and  burden  of  proof.  655 

Competency  of  wife  as  witness,  661 
AGREEMENT 

To  pav  for  services,  130 

Parol,"  913 

To  extend  contract  sued  upon,  137 


INDEX  1389 

[references  are  to  pages] 

AGREEMENT    (Continued) 
I'ni'xi'cutecl,  917 
Alterations    in    93,    1003 
AGRICULTURE 

Expert  and  opinion,  516 
Judicial    notice 
Crops,  756 
AIDING  AND  ABETTING 
Accessories 

Before  the  fact,  18 
ALCOHOL 

See,  imst,  liquors 
ALIAS 

Passing  under,  550 
ALIBI 

Defined,  90 

Burden  of  proof,  90,  219 
Degree  of  proof,  90 
Weight  and  sufficiency,  90 

Exact  time,  90 
Presumptions,  90 
Legitimate  defense,  91 
Rebuttal,  91 

Hotel  register,  91 
Impeachment,  91 
ALIENATION  OF  AFFECTIONS 
Right  of  action,  91 
Matters  to  be  proved,  91 
Presumptions,  92 
Conversations,  93 
Character,  92 
Damages,  92 

Gist  of  action,  92 
Mitigation,  92 
Divorce  decree,  92 
Abduction,  266 
ALLEGATIONS  AND  PROOFS 
Must  agree,  92 
No  allegation.  93 
Matters  not  denied.  93 
ALLEYS  AND  SIDEWALKS 

Judicial  notice,  744 
ALMANACS 

See  judicial  notice.  754,  760 
ALTERATIONS  AND  ERASURES 
Question  of  law  and  fact.  93 
Admissibility  of  instruments,  93 
Presumptions,  94,  1003 

Fact  of  alteration,  94 
As  to  validity  of  instrument,  95 
Time  of  alteration,  95 
Burden  of  proof,  95,  219 
In  general,  95 
Notes,  96 
Admissibility  of  evidence  to  show  or  explain  alteration,  96,  97 
Parol  evidence,  96 
Opinion  evidence,  96 
Comparison  of  instruments,  96 
Copies,  96 
Affidavit,  96 
Pleading,  97 
Witnesses,  97 
Authority  to  make,  97 
ALTERNATIVE  QUESTION 
When  leading,  772 


1390  INDEX 

[references    ARE" to    PAGES] 

AMBIGUITY 

Admissibility  of  parol  evidence,  97  to  103 

Contracts,  97 

Contracts  for  conveyance,  436,  678,  679 

Deeds,  100  to   102 

Wills,   102,   1297 

Letters,   785 
Burden  of  proof,  219 
AMENDMENT 
Affidavits,  81 
Public  record 

By  clerk,  municipal  corporation,   1083,   1085,  1088 
Officer's  return,  1173,  1176 
AMENDMENT  AND  AID 

Acknowledgment  foreign   state 

Proof  of   foreign   law,  29 
AMOUNT  OF  EVIDENCE 

Wlicre  crime  charged  in  civil  case,  1290 
ANCESTOR 

Admissions  of 

Pedigree,  973 

Value,    1264 

Title,  1239 
In'sanity  of,  1157,  1158 
ANCIENT  DOCUMENTS 
Definition,  103 
Proof  of  execution.  103 

Burden  of  proof,   103 

Necessity  of  showing,  103 

Acknowledgment,  104 

Subscribing  witness,   104 

Power  of  attorney,  104 
Delivery,  104 

Presumption,  104 
Extrinsic  in  aid,  104 
Foundation  for  admission,  105 

How  laid,  105 
ANCILLARY  USE  OF  EVIDENCE,  417,  441 
ANIMALS 

Injuries   by   animals,    105 

Domestic   animals,   105 

Wild  animals,  105 

Vicious  animals,  106 

Defenses,   107 
Similar   conduct   of,    1185 
Animals  injured  or  killed,  108 

Dogs,  108 

Fowls,  108 

Race  horses,  108 
Diseases  of  animals,  109 

Burden  of  proof  as  to  knowledge  of  character  of,  219 
Expert  and  opinion,  516 
Habits  of  animals 

Malicious   mischief,   603 
Judicial  notice,  754 
Bloodhounds 

Tracking    by,    627 
ANIMUS 

See  credibility,  354 
Motives 

Witness.   861 
Bias   and    hostility,   173 
ANIMUS  REVOCANDI 

Wills,    1328  ■ 

ANNUITY  TABLES,  796 


INDEX  1391 

[references  are  to  pages] 


ANSWER 

Answers  iindpr  oath 

In  general,  110 

Dismissal  of  bill,  111 

Two  defendants,  111 

Information  and  belief.  111 

Matters   not   responsive.    111 

Matters  in  evidence,  111 

Spirit  of  charge.   111 

Bills  for  divorce,  113 

Oath  waived,   112 
Unsworn  ansAvers,  112 

As  evidence.  112 

Admissible  as  admission.  6-1,  112 
Conclusiveness,   112 

Impeachment  of  defendant,  112 

Hearing  on  bill  and  answer.  113 

Fact  admitted  by  answer,  113 

Exceptions,  113 
Admissibility  of  answer  of  one  defendant,  113 
Admissibility   as  admission,   570 
In  garnishment,  592 
ANTECEDENTS 

(loss  examination  as  to,  371 
ANTE  LITEM  MOTAM,  973 
ANTE  NUPTIAL  CONTRACT 

Presumptions  and  burden  of  proof.  113,  219 

Knowledge  of  extent  of   husband's  property,   113 
Admissibility  of  evidence,  114 
Competency  of   witnesses,   114 
As  bar  to  dower,  455 
ANTI  SALOON  TERRITORY 

Admissibility  of  evidence.  114 

Records  of  election  creating,  114 

Government    license,    115 

Former  prosecutions,  116 

Good  faith,  116 
Weight    and    sufhciencv,    116 
APPARENT  DANGER 

As  defense,  homicide,  649 
APARTMENT  HOUSES 
Judicial  notice,  754 
APPEAL  BONDS 
Pleading,   117 

Of  the  declaration,  117 

Set  off,  117 

Nul  tiel  record,  117 

Non  est  factum,  117 

Non  dam)iificatus.  117 
Admissibility  of  evidence,  117 

Prosecution  with  effect.  119 

Issuance  of  execution.   119 

Cost  and  damages,  119 

When   lease   competent.    119 

Costs  and  damages,   120 

Correctness  of  fee  bill,  120 

The  bond.   117 

Mistake  in   name   of   party.    118 

True  intent,  118  "        • 

Defense  in  original  action,  118 

Judgment  and  decree.  119 

Certified   transcript,   119 
APPEARANCE 

See  age,  86.  516 


1392  INDEX 

[references  are  to  pages] 

APPEARANCE   (ContiniUMl) 

Attorneys,    143 

Expert  and  opinion,  516 

Judgments,   738 

Photographs,   984,  985 
APPLIANCES 

J)i'nion'strative,    416 
Experiments,   506 
APPOINTMENT  OF  CONSERVATOR 

As  concerning  testamentary  capacity,  1309 
APPRENTICES 

Consent  of  parties,  120 

Parol  competent  in  action  for  services,  120 
Enticing  apprentice,   120 

Measure  of  damages,   120 
ARBITRATION  AND  AWARD 

Admissibility  of  evidence  by  arbitrators,   120 
Admissibility  of  submission  and  award,  121 
Presumptions  and  burden  of  proof,   121 

Matters  submitted,  121 

Ratification  by  partner,  121 
Impeachment  in   equity,   121 

In    general,    121 

Admissibility  of  parol  evidence,  121 
Arbitrators  as  witnesses,  122 
ARCHITECT'S  CERTIFICATE 
iSoe  building  contracts,  214 

Assumpsit,   131 

Parol,  930 
ARGUMENT  OF  COUNSEL 

Attorney's  opening  statement,  148 
Reading  books,  188 
Failure  of  witness  to  testify,  1114 
Recalling  witness  after,  891 
ARREST 
Illegal 

Effect  extradition  proceedings,  535 
By  private  persons 

False   imprisonment.   536 

Justification,   536,   537 

General  issue,  537 

Intent  and  malice,  537 

INIanner  of  treatment,  537 

Responsible  parties,  537 
Cross  examination  as  to,  error,  699 
Resisting,    1147 
ARSON 

Corpus  delicti,  122 
Threats,  123 

Of  accused,  123 

Of  third  persons,  123 
To  defraud   insurer,   123 

Intent,   123 

Insurer,  123 

Policy,  123 
ARTICLES  IN  EVIDENCE,  417,  638 
ASSAULT  AND  BATTERY 
Burden  of  proof,  123,  220 

Intent,  123 

Self  defense,  123 

lender  pleadings,   124 
Admissibility  of  evidence,  124 

In  general,  124 

Under  particular  pleadings,  124 


INDEX  1393 


[references  are  to  pages] 

ASSAULT   AND    BATTERY    (Continued) 
Threats,   125 
Character   of  party,   126 
As  to  damages,  126 
Weight  and  sufficiency,  127 
Abduction,    266 

Pecuniary  circumstances  of  parties,  969 
ASSENT 

Contract  of  carrier 

Shipper's  assent,  128 
Carrier's  assent,  129 
Contract  of  telegraph  company,  129 
Conveyances,   129 

Voluntary  settlements,   129,  912 
Work  and  services,  130 
General   rule,   130 
Physician,   130 
Burden  of  proof.  220 
ASSESSOR'S  SCHEDULES 
Parol,  930 

As   evidence   of  value.   722,   1264 
Eminent   Domain,   492 
ASSIGNMENT 

Presumptions,  130 

Negotiable  instruments,   130 
Admissibility  of  evidence.  131 
Opinion  of  witness,  131 
Admissions,  131 
Ante-nuptial  contract,  220 
Parol 

Negotiable  instruments,  930 
Judgment,   930 
Corporate   stock,   931 
ASSIGNMENT  OF  NOTE 

Admissions  and  declarations 
Deceased  persons,  43 
Of  prior  holder,  131 
ASSIGNOR 

Admissions   of,    131 
ASSUMPSIT 

Common   counts,  131 
In  general,  131 
Indebitatus  assumpsit,  132 
Money  had  and  received,  132 
Goods  sold  and  delivered,  132 
Work  and  services.  132 
Special  contract,  133 
Building  contracts,  134 
Abandoned  contract,  134 
Obligation  by  statute,  134 
Policy  of  insurance,  134 
Breach  of  contract,  134 
Breach  of  warranty,  134 
Pay  in  articles  of  personal  property,  134 
Promissory  note,  135 
Partnership  account,  135 
Rent,  135 
Moneycoimts,   857 
General  issue 

Matters  provable  generally,  135 
Abandonment  of  contract,  136 
Payment.  136 
Unlawful  contract,  136 
Recoupment  and  set-off,  136 
Custom  and  usage,  137 


1394  INDEX 

[keferences  are  to  pages] 

ASSUMPSIT    (Continued)  Y^aXTAa   QWA 

I'lTmature  iU'tion,  Ki? 

Faihuc  and  want  of  consideration,  137 

Bankruptcy,  138 

Statute  of  frauds,  138 

Ultra  vires,  138 

Breacli  of  warranty,  138 

Contracts  of  guaranty,  139 

Tender,  139 

Fraud  and  circumvention,  139 

Insurance  contracts,  139 
Burden  of  jiroof,  220 
ASSUMPTION  OF  FACTS 
Cross  examination,  3G7 
Hypothetic^,!  questions,  637 
ATHEIST 

Sec  witnesses,  1339 
ATTACHMENT 

Burden  of  proof,  140,  231 
Admissibility  of  evidence,  140 

In  genera],  140 

Possession,  140 

Affidavit  not  evidence  of  indebtedness,   140 

Acts  of  ownership,  140 

Creditor  at  time  of  transfer,  140 

Creditor  impeaching  deed,  141 
Admissions  and  declarations,  57 

Against  mortgagor,  57 
ATTACHMENT  BOND 

Amdavits,  83 
ATTESTATION 

Acknowledgments,  26 
Wills, 

Defined,  1234 
ATTESTING  WITNESS 

Privileged  communications, 

Attorney  as,  1049 
Wills,  1333 
ATTORNEYS 

Judicial  notice,  142 

Privileged  communications,  1047 

Advice  as  defenses 

Malicious  prosecution,  830 

Trespass,  1245 
As  witnesses,  143 

Competency,  142 

Nominal  withdrawal,  142 

Attorney's  minutes,  142 
Authority,  143 

Presumption,  143 
Inquiry  as  to,  376 
Fees  and  services,  143 

Right  to  practice,  143 

Retainer  defined.  143 

Charged  on  firm  books,  144 

When  services  need  not  be  proven,  144 

No  special  contract,  144 

Injunction,  146 
Negligence,  147 

Presumption.  147 
Dealings  with  clients.  147 

Presumptions.  147 
Burden  of  proof,  231 

Proving  former  testimony  of  absent  witness  by.  572 
Stipulations,  44,  1204 


INDEX  1395 

[references  are  to  pages] 
ATTORNEY'S  OPENING  STATEMENT  ..-lurT,    ^,^    „.; 

Adniissihilitv   of  I'vidonce   to  ilis|)iovp,   148 
AUTHENTICATION 

Books  of  account,  190  .3 

Foreign  laws,  560 

Copies,  328 

Certificates,  256 

Records.  1107 

Handwriting,  602 

Judgments  sister  state,  556 

Judgments  foreign  countries,  557 
AUTHENTICATION  OF  RECORD 

Not  controlled  by  common  law,  1107 

Act  of  congress  not  exclusive,  HOT 
AUTHORITY 

Burden  of  proof,  221 

Of  counsel 

Wlien  may  not  be  enquired,  370 
AUTOMOBILES 

Expert  and  opinion,  517 

Speed,  1194 

Warranty,  1281 
AWARD 

Burden  of  proof,  222 

Arbitration  and  award,  120 

B 

BAD  CHARACTER 

See  character,  263 
Credibility,  358 
Impeachment,  695  to  698 
BAD  FAITH 

See  good  faith,  595 
Color  of  title,  479 
Knowledge  of  adverse  claim,  1241 
BAD  REPUTATION 
Of  engine,  765 
Of  employe,  600 
BAGGAGE 

Loss  of,  by  innkeeper,  706 
BAIL 

See  bonds,  184  to  186  '  it. 

Recognizance,  1077   to  1080 
BAILMENT 

Breach  of  contract 

Presumptions  and  burden  of  proof,  149 
Demand  and  refusal,  149 
Question  for  jury,  149 
Burden  of  i)roof,   222 
BALANCES  OF  ACCOUNT,  189 
BALLOTS 

Abbreviations,  6 
Admissibility 

Contested  elections,  319  IM 

BANK  CHECKS 

Presumptions,  1007 
See  post.   Checks 
BANKRUPTCY  ^ 

Burden  of  proof,  222 
See  fraudulent  conveyances,  582 
Must  be  pleaded,"  138 
Insolvency,  709,  710 


1396  INDEX 

[references  are  to  pages] 

BANK   OFFICER 

As  expert   as   to   handwriting.   605 
As   expert    as    to   genuineness   of   money,   768 
BANKS  AND  BANKING 
Burden  of  proof.   222 
Books  of  account,  195 
Custom  and  usage,  384 
I'resumptions,  1006 
See  post,  Che'cks 
BASTARDY 

Proeoedings  in  general,  150 

Civil,  150 
Who  may  maintain,  150 
Non-resident,  150 
Unmarried  woman,  150 
Admissibility  of  evidence,  151 
Depositions,  151 
Offers  of  compromise,  151 
Complaint,  151 
Child.  151 
Naming  child,  151 
Poverty   of   mother,   151 
General  reputation.  151 
Admissions  of  defendant,  151 
Admissions  of  prosecuting  witness,  151 
Conception  and  gestation,  152 
Date,  152 

Inquiry  in  general,  152 
Cross  examination,  153 
Corroboration.  154 
Opinion   and   expert,   154 
Weight  and  sufficiency.  154 
Burden  of  proof,  154 
Mother  unmarried  woman,  154 
Degree   of   proof.    154 
Credibility  of  witnesses,  154 
Settlement,   155 

Impeachment  of  receipt,  155 
Burden  of  proof,  222 
Abduction,  266 
BATTERY 

See  assault  and  battery,  123 
BEASTS 

See  animals.  105 
BED  AND  CLOTHING  EXHIBITED,  417 
BEER,  116 
BEFORE  THE  FACT 
Accessories,  17 

Weight  and  sufficiency  of  evidence,  17 
W^ords.  acts,  signs  or  motions,  17 
Assenting  by  presence,  17 
Principal  guilty,  18 
Conviction  as  principal,   18 
Affirmative  nature  of  action,  18 
BEHAVIOR 

Of  witness,  357 
BELIEF 

Insane    delusion,    1306 
BELIEF  AND  INFORMATION 
False  imprisonment,  539 
Malicious  prosecution,  814,  815 
BELLS 

Ringing  of 

Positive  and  negative,  994 


INDEX  1397 

[references  are  to  pages] 

BEQUESTS 

Soo  wills.  1297 
BENEFICIARIES 

!See  insurance,  711 

Wills,  1297 

Witnesses,  1359 
BENEFIT  ASSOCIATIONS 

See  insurance,  711  to  717 
BEST  AND  SECONDARY 
In  general 

Necessity  of  production.  156 

Existence  of  writing.  156 

Document  beyond  jurisdiction,  156 

Voluminous  documents,  156 

Written  instruments  in  general,  157 

Wrongful  withholding  or  destruction  of  evidence,  157 

Lost  or  destroyed  writing.  158 

Party  destroying  evidence  cannot  ofl'er,  439 
Preliminary  proof. 

Discretion  of  court,  158 

Affidavits.  158 

Showing  purpose  for  which  evidence  offered,  159 

Notice  to  produce,  159 

Loss  of  original,  162 

Due  search,  163 

Examination  of  witnesses,  165 

Degrees  of  secondary  evidence,  165 
Private  writing 

Newspapers,  166 

Abstracts  of  title,  166 

Letters  and  letter  press  copies,   166 

Sale  of  mortgaged  property,  167 

Memorandum,  167 

Telegram.  167 

Deeds,  167 

Record   of   unacknowledged   instrument.    168 

Private  books,  168 

Contracts,  168 

Articles  of  partnership,  168 

Architect's  certificate,  168 

Duplicates  and  copies,  168 

Notes,    169 

Receipts,  169 

Mortgage,  169 

Wills.  169 
Official  writings 

Required  to  be  in  writing,  169 

Not  required  to  be  in  writing,  169 

Particular  records,  169 

Court  records,  170 

Corporate    records,    171 
Objections,  waiver  and  consideration,  172 
Contested  elections,  320 
Corporations.  346 
BIAS  AND  HOSTILITY 
In  general.    173 

Admissibility,  173 

Cross  examination,  173 

Details,   173 

Direct  evidence.  175 
Cross  examination  of  hostile  witness,  175 
Hostility  of  dving  declarant,  175 
BIBLE,  85 
BIGAMY 

In  general,  175 


1398  IND^X 

[references  are  to  pages] 

BIGAMY    (Continued) 

xVttual  marriage,  175 
Lawful  spouse  living,  176 
Question  of  law  and  fact,  176 
Validity  of  marriage,  276 
Capacity  of  accused  to  contiact.  176 
Presumption  as  to  compliance  witli  law,  177 
Record  evidence,  177 
Ecclesiastical  ceremony,  177 
Admissions  of  accused,  177 
Opinion  evidence,  177 
Certificate  of  oflicer  officiating,   177 
Board  of  health  record  of  marriage,  177 
Dissolution  of  former  marriage,  178 
Burden  of  proof,  178 
Degree  of  proof,  178 
Intent,  178 

Competency  of  second  wife,  178 
BILL  AND  ANSWER  IN  CHANCERY 
Admission's  and  declarations,   6o,   113 
Date  of  filing  bill,  393 
BILLS  OF  DISCOVERY 

See  discovery,  444 
BILL  OF  EXCEPTIONS 
Absent  witness 

Former  testimony,  10,  179 
Admissibility  to  show  former  testimony,  179 
Party  to  suit,  179 
Deceased  witness,  179 
Absent  witness,  10,  179 
Efi'ect  of  admitting  by  consent,  179 
BILL  OF  LADING 

Presiunptions,   179 

Condition  of  goods,  179 
Ownership,  179 
Contract  of  carriage,  179 
Admissibility  of  evidence,  180 

Contradiction  by  carrier,  180 
To  prove  verbal  consent.   180 
Forwarding  line,  180 
Parol,  931 
BILL  OF  PARTICULARS 

Admissions  and  declarations,  63 

Where  bill  withdraMn  on  second  trial,  63 
Civil  actions,  180 
Purpose,  180 
Right  to,  181 

Requisites  and  sufficiency,  181 
Scope  and  efiect,   181 
Amendment,  182 
Reading  to  jury,  182 
Admissibility,  182 
Criminal  trials,  182 
Right  to,  182 
Scope  and   effect,   183 
Reading  to  jury,  183 
BILLS  OF  SALE 
Parol,  931 

Warranty,  1285 
BILLS  AND  NOTES 

See  post  negotiable  instruments 
BIRTH 

Registers  of  births,  deaths  and  marriages,  1116 

Pedigree,  972 

Of  child,  as  evidence  of  rape,  1059 


INDEX  1399 

[referexces  are  to  pages] 
BLANK    CONTRACT  '  ••    -v.^. 

Admissible  to  idcntiry  parlies,  G7G 
As  evidence  tif  eoiitract,  U17 
BLOOD    HOUNDS,   627 
BLUE  PRINT,  442 

BOARD    OF    HEALTH    RECORD,    177 
BODILY  FEELINGS 

See  mental  and  phj'sical  states.  844 
BOMB 

Demonstrating,   418 
Throwing,   310 
BONDS 

Burden  of  proof,  184 
Parol,  931,  932 
Admissibility  of  evidence 
Official  capacity,  184 
Validity,  184 
Recitals,  184 
Admissions,  184,   1045 
Certified  copy.   185 
Approval  of  bond,  185 
Pleadings  in  former  suit,  185 
Books   and   records,   185 
Official  orders,  185 
Judgments,  186 
Weight  and  suffieien'cy  of  evidence 
Bond  for  payment  of  money,  186 
Penal  bond,   186 
Bond  for  deed,  186 
Attachment  bond,  186 
See   ante.  Appeal   Bonds 
BOOK  ACCOUNT 

See  account  stated,  23  ' 

Books  of  account.  188 
Of  stranoers,  not  admissible  as  corroborative  evidence,  42 
BOOKKEEPER 
As  expert 

To  show  result  of  calculation.  201 

Improper   method   of   book-keeping,    201  ~[ 

BOOKS 

On  mechanics,  187  ■^<^rr 

Medical  books,  187 

Reading  from,  187 
Experts,  187 
Law  books.  187 

Criminal  action.  187 
Civil  action,  187 
Scientific  books,  187 
Attached  to  deposition,  843 
BOOKS  OF  ACCOUNT  r. 

Defined 

In  general,  188 
Cash  book.  189 
Ledger,  189 

Agent's  record  of  business.  189 
Engine  inspection  book,  189 
Order  book  of  merchant,  189 
Pass  book  of  merchant,  189 
Memoranda,  1S9 
Only  book,  189 
Necessity  of  production,  189 
Admissibility,  189 
In  general,  189 


1400  INDEX 

[references  are  to  pages] 

BOOKS   OF  ACCOUNT    (Continued) 

J'roliminary  proof,  190 

Copies,  190 

Books  transcribed   from  memoranda,   192 

Books  compiled  from  time  cards,  193 

Entries  made  by  third  parties,  193 

Entries  not  relating  to  business  conducted,  193 

As  part  of  res  gesim,  193,  1136 

To  explain  payment  of  note,  194 

To  show  failure  of  payment,  195 

Corporate  books.  195 

Partnership  books,  195 

Building  and  loan  association  books,  105 

Bank  books,  195 

Effect  of  dilapidation,  197 

As  part  of  cross  examination,  197 
Effect  of  admission,  197 
BOOKS  OF  ENTRY 

Account  stated,  24 
BOUNDARIES 

Presumptions,  201 
Admissibility  of  evidence,  202 

Extrinsic  to  identify  monument,  202 

Declarations  and  statements,  202 

C4eneral  reputation,  203 

Plats,  203 
Weight  and  sufficiency 

Surveyor's  monuments,  203 

Acquiescence,  203 

Of  parol  agreement,  203 
Estoppel,  204 
Statutes  defining 

Judicial  notice,  741 
BRANDS 

See  ownership,  903,  904 

Trade  marks.  1242 
BREACH  OF  COVENANT 
Burden  of  proof.  223 
BREACH  OF  PEACE 

See  assault  and  battery,  123 
BREACH  OF  PROMISE 

Contract  of  marriage,  204 

Burden  of  proof,  204 

May  be  inferred,  204 

Letters  admissible  to  show  contract,  204 

Hearsay  incompetent,  205 

Engaged  to   another,  205 

Express  contract,  205 
Breach"  of  contract,  205 
Request  and  refusal,  205 
Defenses,  205 

Married  plaintiff,  205 

Infancy,  205 

Lewd  conduct  of  plaintiff,  205 

Immoral  consideration.  205 

Sentiments  of  plaintiff,  205 
Damages 

Exemplary,  207 

Pecuniary  circumstances,  207 

Expense  of  preparation,  208 

Seduction,  208 

Venereal   disease,   208 

Money  value  of  home,  208 


INDEX  1401 


[references  are  to  pages] 

BREACH   OF  PROMISE    ((\intinu(>(l) 

Defaiiiatioii  of  eluuacter,  208 

Mitigation,  208 
Burden  of  proof,  223 
Abduction,  266 
BRIBERY 

Defined,  209 

Admissibility  of  evidence,  209 

Cancelled  checks   as   corroboration,  209 

Jurisdiction  of  court,  209 

Animus,  209 
Weight  and  sufficiency,  209 
BROKERS 

Actions  for  commissions,  210 

Valid  contracts  of  sale,  210 

Procuring  cause,  211 

When  contract  and  sale  not  essential,  212 

License,  212 
BUCKET  SHOP 

Presumptions,  213 
Weight  and  sufficiency 

No  intention  to  deliver,  213 

Intention  of  keeper,  213 

No  inquiry  of  customer.  213 

Circulars  as   to   requirements,  214 

Signing  by  customer.  214 

Corporate  stocks,  214 
Intention,  214 
Expert  and   opinion.   .'jlR 
BUGGY  INTRODUCED  IN  EVIDENCE,  417 
BUILDING  CONTRACTS 

Admissibility   in  evidence,  214 

Under  pleading,  214 
Weight  and  sufficiency  of  evidence,  215, 
Parol,  932 
BUILDINGS 

Burden  of  proof,  214 
Removal  as  constituting  waste,  1287 
BULLET,  417 
BURDEN  OF  PROOF 
Defined,  503,  215 
Account  stated 

Settlement,  26 

Fraud,  26 
Adoption.  69 
Agency,  87 
Bigamy,  178 
General  rules,  215 
As  determined  by  pleadings,  216 
Affirmative.  216 
As  to  shifting  of  burden,  216 
Negative  in  issue,  216,  861 
Where   license   required,   217,   861 
Abandonment,  217 
Abduction,  217 
Abortion.  217 
Abstracts  of  title,  217 
Acceptance,  218 
Accident,  218 

Accord  and  satisfaction,  218 
Account  stated,  218 
Acknowledgment,  218 
Adoption,  218 
Adultery,  218 


1402 


INDEX 


[keferences  are  to  pages] 

BURDEN  OF  PROOF   (Continued) 

AdviTso   possession,  218 
Age,  218 

Rape  without  forte,  218,  1062 
Rape  with  force,  218 
Agency,  218 
Alibi,  219 
Alterations,  219 
Ambiguity,  219 

Knowledge  of  character  of  animals,  219 
Ante  nuptial  contract,  219 
Assault  and  battery,  220 
Assent,  220 

Contract  of  carrier,  220 
Restrictive  conditions,  220 
Assignment,  220 
Assumpsit,  220 
Attachment,  221 

Plea  in  abatement,  221 
Ownership,  221 
Fraudulent,  221 
Attorneys,  221 
Authority,  221 

In  general,  221 
Of  law,  221 
Agent,  221 

Corporate  officer,  221 
Partner,  221 
Stranger,  222 
Award,  222 
Banks,  222 

State  of  account,  222 
Payment  of  check,  222 
Bankruptcy,  222 
Bad  faith,  222 

Negotiable   instruments,   222 
Color  of  title,  222 
Bailment,  222 
Bastardy,  222 
Bonds,  222 

Breach  of  promise.  223 
Breach  of  covenant,  223 
Breach  of  promise,  113 
Breach  of  contract,  223 
Brokers,  223    . 
Buildings,  223 

Cancellation  of  instruments.  223 
General  rule,  223 
Fraud  and  undue  inlluence,  223 
Insanity,  223 
Chastity,  224 
Citizenship,  224.  272 
Cloud  on  title.  224 
Competency  of  witnesses.  225 
Compromise  and  settlement.  225 
Computation,  225 
Confession  and  avoidance,  225 
Confusion  of  goods,  225,  302 
Consideration,  225 

Instruments  under  seal,  225 
Release,  225 
Illegal,  225 


IXJJEX  1403 


[references    are   to   TACiES] 

BURDEN  OF  PROOF    (Contiimed) 
I'loiiiis.sory  note,  2:JG 
Partial  226 
Conspiracy,  226 
Contempt",  226 
Contested  elections,  226,  .T16 
Contracts,  226 

Terms  and  conditions,  226 
Construction.  226 
Illegal  consideration,  226 
Of  sale,  226 
Different  contract,  226 
Conveyances,  227 
Fraud,  227 

^^oliintarv  conveyances,  227 
Cliild  to  parent.  "227 
Parent  to  child.  227 
Corporations,  227,  349 

Plea  of  mil  iid  corporation,  227 
Execution  of  mortgage,  227 
Absence  of  corporate  antliorization,  349 
Absence  of  authority  of  oilicer,  349 
Corporate  existence.  349 
Legal  corporation,  349 
Ultra  vires.  349 
Credit.  227 
Creditor's  bill,  228 
Death,  228 
Debt,  228 
Dedication,  228 
Default.  228 
Deed,  228 

As  mortgage.  228 
Bill  to  set  aside,  228 
Duress,  228 

Insanity  and  undne  infhience.  228 
Delivery  on  condition,  228 
Proof  of  conditions.  416 
Lost  deeds,  228 
Denial  of  execution,  228 
Descent  and  distribution.  229 
Existence  of  heirs,  229 
Intestacy.  229 
Will  established.  229 
Descent  of  realty,  229 
Desertion,  229 
Discount,  229 
Divorce,  229 
Domicile,  229 
Dower,  229 
Due  care.  230 
Duress.  230 
Ejectment.  230.  472 
In  general.  472 
Immediate  possession.  472 
Existence  of  ]>ropert3-,  472 
Identity  of  property,  472 
Compliance  with  statute,  472 
Embezzlement.  230 
Eminent  domain,  230.  498 
Pight  to  condemn.  230 
Value,  230 


1404  INDEX 

[references  are  to  pages] 

BURDEN  OF  PROOF   (Continued) 

Title,  230 

Damages,  230 
Estoppel,  230 
Exemption,  230 
Experiments,  231 
False  imprisonment,  231 
Fellow  servant,  231 
Fiduciary  relation,  231 
Fires,  231 
Fire  arms,   544 
Forfeiture,  231 
Fraud,  232 

Fraud  and  deceit,  232 
Gifts,  232 

Gambling  contracts,  232 
Garnishment,  232 
Guardian  and  ward,  232 
Guaranty,  232 
Highways,  232 

Prescription,  232 

Abandonment,  232 

Dedication,  232 

Existence,  232 

Obstructing,  232 
Homestead,  233 

In  general,  233 

Assertion  of  lien,  233 

Abandonment,  233 
Husband  and  wife,  233 

Agency  of  wife,  233 

Agency  of  husband,  233 
Identity,  233 

Property  sold  by  description,  233 

Stock  of  goods,  "233 

Larceny,  234 

Persons,  234 
Infancy,  234 

Civil  actions,  234 

Criminal,  234 
Innkeeper,  234 
Insanity,  234 

Civil  action,  234 

Criminal  action,  234 

Lucid  interval,  234 

Restoration,  234 

Will  proponents,  234 
Insolvency,  235 
Insurance,  235 

Benefit  society,  235 

Death,  235 

Assessment,  235 

Notice,  235 

Amendment,  235 

Violation  of  law,  235 

Forfeiture,  236 

Accident  company,  236 

Fire  insurance,  236 

Identity  of  property,  236 
Intestacy,  236 
Interest,  236 

Usury,  236 

Payment  to  extend  note,  236 


INDEX  1405 


[references  are  to  pages] 

BURDEN   OF   PROOF    (Continued) 
Joint  liability,  23fi 
Partnership,  236 
On  note,  237 
Impeachment   of  judgment,  237 
Jurisdiction,  237 
Knowledge,  237 

Contents  of  writing,  237 
Of  defect,  237 
Of  danger,  237 
Larceny,  238 
Lease,  238 

Legislative  acts  and  journals,  238 
Legitimacy,  238 
Libel  and  slander,  238 

Criminal  responsibility,  238 

Civil  action,  238 
License,  238 
Limitations,  238 
Life  tables,  238 
Malicious  prosecution,  239 

Want  of  probable  cause,  239 

Malice,  239 
Malpractice,  239 
Mandamus,  239 
Manslaughter,  239 
Marriage,  239 
Master  and  servant,  239 

Negligence,  239 

Promise  to  repair,  239 
Medical  and  surgical  services,  239 

Action  by  physician.  239 

Contract  of  corporation.  240 

Recovery  as  damages,  240 
Mental  state,  240 
Money  paid.  240 
Money  had  and  received,  240 
Negative  in  issue,  240 
Negligence,  240 
Negotiable  instruments,  241 
Notaries  public,  241 
Notice  of  injury,  241 
Novation,  241 
Officers,  242 

Existence  of  office,  242 

Duty,  242 

False  return,  242 
Ordinances,  242 

Existence  of,  242 

Continuance  in  force.  242 

Unreasonableness,  242 
Ownership,  242 

Personal  property,  242 

Streets  and  alleys,  242 

Notes,  242 

Insurance,  242 
Partnership,  242 

Existence,  242 

Secret,  242 
Payment,  243 
Penalties,  243 

Physicians  and  surgeons,  in  actions  for  malpractice.  243 
Plat  correct,  243 


1106  INDEX 

[references  are  to  pages] 
BURDEN  OF  PROOF   (Continiiod)  vtArrrT 

I'ossosssioii,   2415 

Bill  to  icmovo  cloud,  243 

Burglary  and  larceny,  243 

Forcible  entry  and  detainer,  243 
Principal  and  agent,  243 
I'rincipal  and  surety.  244 
Promise  to  repair,  244 
Quo  warranto,  244 
Receipt,  244 
Receiving  stolen  property,  244 

Larceny,  244 

Guilty  knowledge,  244 

Identity  of  property,  244 
Rescission,  244 
Recognizance,  245 
Recoupment,  245 
Reformation  of  instruments,  245 
Refusal  to  produce  evidence,  245 
Release,  245 
Replevin,  245 
Replevin  bond,  246 
Replication.  246 
Residence,  246 
Resisting  arrest,  246 
Resulting  trust,  246 
Reward,  246 
Sales,  246 

Identity,  246 

Compliance   with   order,   246 

Under  trust  deed,  246 
School  teacher,  247 

Right  to  teach,  247 
Seduction,  247 

Cround  for  discharge  of  servant,  247 
Set-off.  247 
Settlement,  247 
Signature,  247 
Specific  performance,  247 
Suicide,  247 

Benefit  society,  247 

Accident  company,  247 
Survivorship,  247 
Taxes,  247 

Validity,  248 

Exemption,  248 

Payment,  248 
Tax  deed.  248 
Tender,  248 
Timber.  248 
Title,  248 
Trade  marks,  249 
Trespass,  249 
Trover,  249 
Trust,  249 
Trust  funds.  249 
Undue  influence, 

Wills,  249 

Deeds,  249 
Usury,  249 
Vagabond.  249 
Value,  249 
Vendor's  lien,  249 


INDEX  1407 

[references  are  to  pages] 

BURDEN  OF  PROOF   (Contiiuicd) 
W'luie,  24y 

\'oluiitary  conveyance,  250 
Waiver  of  terms  of  contract,  250 

Warranty,  250  i 

Water  and  watercourses,  250 
Boundary,  250 
Navioability,  250 
Water  late,  250 
Wills,  250 

Testamentary  capacity,  250 
Undue  influence,  251 
Witnesses,  251 

Disqualifying  interest,  251 
Written   statements  to   impeach,  251 
Work  and  services,  251 
On  plea  of  nil  debit,  400 

On  one  asserting  deed  absolute  on  face,  to  be  a  mortgage,  411 
BURGLAR'S  TOOLS,  253,  417 
BURGLARY 

Euildinc-,  252 
Hotel,  252 
Stable.  252 

Dwelling,  252  ■'    ^  - 

Engine  room,  252 
Ownership,  252 

Possession,  252  '^-' "* 

By  partnership,  253  • 

Corporations,    252 
Intent,  252 

Intoxication,  252 
Consent  of  owner,  252 
Identification  of  burglar,  253 

Possession  of  stolen  property.  253 
Disposition  of  stolen  goods.  253 
Burglar's  tools.  253,  417 
Keys,  253 
Experiments,  253 
Time  of  entry,  253  .:ii.J 

Conduct  and  false  statements,  254 
BURNING 

Arson.  122 

Fires,  544 
BURNT  RECORDS 
Abstracts  of  title 

Where  proper  affidavit  filed,  11 
Sworn  or  letter  press  copies,  15 
Sworn  answer  in  burnt  records  proceeding,   110 
Eecords,  1080 
BUSINESS 

See  admissions   and   declarations,  34 

Abstracts  made  in  due  course,  13  TA'> 

Agency,  89 

Gambling  contracts,  587 
Account   stated,   23 
Books  of  account,  188 
Custom  and  usage,  382 
Judicial  notice,  754 
Tifft  r/esfrr.  1132 
BUSINESS  EXPERIENCE 

As  showing  knowledge  of  instrument  signed,  372 
On  question  of  duress,  462 
BUSINESS  IMPROVEMENTS 
Judicial  notice.  744 


1408  INDEX 

[references  are  to  pages] 

BY-LAWS 

Corporations,  338 
Insurance,  714,  715 
Prosumptions,  1023 
BY-STANDER 

See  declarations  as  part  of  res  gestce,  643,  1141 


CALCULATION 

Conclusions  of  witnesses,  290 
Burden  of  proof,  225 
Best  and  secondary,  167 
CALENDAR 

Judicial  notice,  754 
CANADA  THISTLES 

Admissibility  of  evidence,  254 
CANCELLATION  OF  INSTRUMENTS 
Burden  of  proof 
General,  255 

Fraud  and  undue  influence,  255 
Insanity,  255 
Parol  evidence,  255 
Weight  and  sufficiency,  255 

Fraud,  255 
Delay,  256 
CANCELLED  CLAUSES  IN  WILL,  1299 
CANCELLED  CHECKS,  209 
CAPACITY 

Conclfisions  of  witnesses.  291 
Experiments,  507,  508,  509 
Expert  and  opinion,  517 
Infants,  700,  701 
Wills,  1305  to  1316 
Of  woman  to  bear  children,  616,   1020 
CAPACITY  IN  WHICH  PERSONS  ACT 

Written  contracts,  929 
CARBON  COPY,  192 
CARE 

Burden  of  proof,  230 
Expert  and  opinion,  522 
Habits,  599  to  602 

Presumption,  1017 
Conclusions  of  witnesses,  287 
Insurance,  718 
CARNAL  KNOWLEDGE 
See  Adultery,  69 

Criminal  conversation,  363 
Incest,  699 
Rape,  1156 
Seduction,  1165 
CARRIERS 

Assent,  128 
Bailment,  148 
Bill  of  lading,  179 
Burden  of  proof,  220,  224 
Experiments,  506 
Customs  and  usage,  388,  398 
Judicial  notice,   759 
i?es  gesUe,  1132  to.  1141 
Presumptions,  1006 
CASH  BOOK 

As  evidence,  189 


INDEX  1409 

[references   are   to   PACiES] 


CATALOG 

Wanaiitv,  1284 
CAUSE 

Deatli,  399,  400 

Expert  ami  opinion,  518  to  521 
Experiments,  500 
Insurance,  712,  TKJ,  718,  719 
Nuisance,  869  to  872 
Presumptions,  1014 
Similar  facts,  1182  to  1184,  1187 
Suicide.  12i:i,  1214 
CAUSE  AND  RESULTS 

Cross  examination,  371,  373 
CAUSE  OF  INJURY 

Statements  and  declarations,  844 
CELIBACY 

Abstracts  of  title 
Ailidavits.   15 
CELEBRATION  OF  MARRIAGE,  829 
CEMENT 

.hulicial  notice  of  composition,  755 
CENSUS 

Judicial  notice,  755 
CEREMONY 
Marriage 

As  proof  of,  829 
CERTIFICATE  OF  ACKNOWLEDGMENT 
Presumptions  of  authority  from,  27,  28 
Signature,   omission,   28 
Seal,  omissions,  28 
Scope   and   woiglit,   28 
CERTIFICATE  OF  DEPOSIT 

Parol,  932 
CERTIFICATE  OF  NATURALIZATION,  272 
CERTIFICATE  OF  PUBLICATION,  932,  1175,  1176 
CERTIFICATE  OF  SALE 

Parol,  932 
CERTIFICATE  OF  TAXES,  932 
CERTIFICATE  OF  TEACHER,  932 
CERTIFICATES 
Admissibility 

Non-existence  of  record,  256 
Certificate  of  probate  judge,  257 
Municipal  clerk,  257 
Clerk  of  foreign  district  court.  257 
Clerk  of  county   and   circuit   courts,  257 
Comptroller  of  currency.  258 
Comptroller  of  city.  258 
Register  of  land  office,  258 
Clerk  of  supreme  court,  258 
Secretary  of  state,  258 
Election  canvassers,  259 
Auditor's  certificate.  259 
Surveyor's   certificate,  259 
Weight  and  siifficiency 

Certificate  of  acknowledgment,  259 
Mine  engineer,  259 
Presumptions.  259 
Amendment,  260 
Of  officers  in  proof  of  records 
In  general,   1098 

Clerk  of  county  court  and  countv  clerk,  1085 
Of  city,  1088 


1410 


INDEX 


[references  are  to  pages] 

CERTIFICATES   (Continued) 

Private  corporations,  1092 
Records  of  federal  government,  1094 
Recorder,  1096 

Judicial  records.  1107  to  1110 
CERTIFICATES  OF  EVIDENCE 
Admissibility,  260 
Former  adjudication 

To  show  issues,  565 
Proof  of  former  testimony  by,  573 
CERTIFIED  COPIES 
See  copies,  328 

Records,   1094,   1095,   1098 
Public  records,    1098 
CERTIORARI 

Admissibility  of  evidence 
Before  writ  issued,  260 
After  writ  issued,  260 
Return  of  writ,  260 
CESTUI  QUE  TRUST 
Admissions  of,  1256 
Admissions  of  trustee  as  against,  63 
CHAIN  SIMILE,  626,  1066 
CHANCERY 

Burden  of  proof,  261 

When  upon  defendant,  261 
No  replication,  261 
Issues  and  proof,  261 
Of  the  bill,  261 
Unverified  answer,  262 
Sworn  answer,  262 

Admissibility  of  answer  of  one  defendant,  262 
Bill  as  an  admission,  569 
CHANGE 

Presumptions  against,  1008 
CHANGE  OF  VENUE 

Affidavit,  82 
CHARACTER 
Civil  actions 

In  general,  263 
Criminal  actions 
In  general,  263 
General  reputation,  264 
Relevant  traits,  264 
Particular  acts,  264 
Time,  264 

Number  of  witnesses,  264 
Weight,  264 
Character  of  witnesses,  265 
To  repel  presumption  of  fraud.  577 
Issue  of   insanity,   645 
Of  impeaching  witness.  699 
Impeachment  by  proving  reputation  bad,  695 
Alienating  affections,  92 
Bastardy,  151 
Breach  of   promise,  208 
Criminal  conversation,  364 
False  imprisonment,  536,  539 
Homicide 

Accused  631 
Deceased,  633 
Impeachment  by  reputation,  695 
Libel  and  slander,  794 


INDEX  1411 


[refekences  are  to  pages] 

CHARACTER   (Continued) 

Malicious  prosecution,  814 
Rape 

Cliastity  of  prosecutrix,  1058 

Cimstity  of  defendant,  1058 
Seduction,  1166 

On  issue  of  testamentary  capacity,  1310 
CHARTER 

Judicial  notice,  743 
Corporations,  344,  350 
CHARTS 

See  diagrams,  441 

Plats,  992 

Surveys,  field  notes  and  monuments,  1214 
CHASTITY 

Presumption,  6 
Burden  of  proof,  224 
Abduction,  6,  266 

Presumption  and  burden  of  proof,  6.  266 

Declarations  of  abducted   female,  266 

Previous  associations,  266 
Alienation   of  afTections.  266 
Assault  and  batterj^  266 
Bastardy,  266 
Breach  of  promise,  266 

Knowledge  of  defendant,  266 

Mitigation  of  damages,  267 
Criminal  conversation,  267 

Admissibility  of  evidence,  267 
Homicide,  267 
Rape,  268 

Character  of  prosecutrix,  268 

Character  of  defendant,  268 
Seduction 

Competent,  268 

Time,  268 
Embezzlement,  268 

Cliastity  of  prosecutrix,  268 
Credibility  of  witnesses,  268 
CHATTEL  MORTGAGE 
Parol,  932 

Identity  of  property,  932 

Conditional  delivery,  932 
Presumptions,  1007 
Admissions  and  declarations 

Contemporaneous  with  execution,  56 

Subsequent  to  execution,  56 
As  against  person  claiming  through  mortgagor,  56 
As  against  subsequent  incumbrancers,  56 
Of  assignor,  against  interest,  59 
CHATTELS 

Declarations  of  former  owner,  905 
Declarations  of  party  in  possession,  999 
CHEAT 

See  conspiracy,  306 

False  pretenses,  540 

Fraud.  574 
CHECKS 

Accord  and  satisfaction 

Acceptance  in  full  payment,  21 
Without  funds,  false  pretenses,  540 
As  corroborative  evidence,   590 
Presumptions,  1007 


1412  INDEX 

[references  are  to  pages] 

CHECKS  (Continued) 

As  to  compromise  and  settlement,  281 
From  giving  check,  1007 
Custom  of  depositors  to  check,  754 
Secondary  evidence  as  to  contents,   803,  804 
Tender   by,    1228 
Stubs,  not  part  of  res  gestcc,  1136 
Caneelk^d  checks,  209 
CHEMIST  AS  EXPERT,  534 
CHICAGO  CITY  DIRECTORY 

Judicial  notice,  755 
CHICAGO  CITY  RAILWAY  COMPANY 

Judicial  notice,  744 
CHICAGO  RIVER 

Judicial  notice,  741,  761,  1288 
CHILD 

See  age,  85 
Bastardy 

Naming  cliild,  151 
Introducing  in  evidence,  151 
Full  period  of  gestation,  154 
Guardian  and  ward,  598 
Infants,  700 

Intelligence,  opinion  as  to,  524 
Legitimacy,  777 
Parent  and  child.  907 
Opinion  as  to  paternity,  529 
Presumptions,  1022 
Giild  bearing,  presumption,  1020 

Birth  of  as  evidence  of  rape,  1059 
Witnesses,  1339 
CHOSES  IN  ACTION 

Declarations  of  former  owner,  131 
CHRISTIAN  NAMES 
Judicial  notice,  673 
Presumptions.  674 
CHRISTIAN  SCIENCE 

Belief  in  as  aft'ecting  testamentary  capacity,  1314 
CHURCH  DOCTRINE 

Preacher  departing  from,  521 
CHURCH  REGISTERS,  1090 
CHURCH  SOCIETIES 

Judicial  notice,  755 
CIGARETTES 

Judicial  notice,  755 
CIRCUIT  JUDGES 

Presumption,  1007 
CIRCULARS 

Bucket  shop  transactions,  214 
Fraud  and  deceit,  579 
Warrantv.  1284 
CIRCUMSTANTIAL  EVIDENCE 
Defined,  269 
Legal  evidence,  269 
Kinds,  270 

Inferences  and  presumptions,  270 
Value,  270 
CITIES 

See  corporations,  338 

Jiulicial  notice,  743  to  745 
Ordinances,  892 
Sidewalks,  1179 
Records,   1087 


IXDKX  1413 

[referexcbs  are  to  pages] 

CITIZENS 

iSoo   citizenship,  272 

Contested  elections,  3] 6 
Domicile,  451 
CITIZENSHIP 

Burden  of  proof,  224,  272 
Presumptions,  272 
Certificate  of  naturalization,  272 

TJecords  of  naturalization,  272 
CITY  DIRECTORY 

Admissibility,  273 

Chicago  citj^  directory 
Judicial  notice,  755 
CITY  RECORDS,  1087,  1097  J 

CIVIL  ACTION 

Presumption  of  innocence,  1022  3 

Presumption  of  knowledge  of   law,    1025 

Criminal  charge  in,   1290 
CIVIL  SERVICE  RULES,  332  Loi  .aoiJj,. 

CLAIMS  AGAINST  ESTATES 

Presumptions,  909 

Express  contracts,  910 

Implied  contracts,  910 

Habits  as  to  payment  of  money,   fiOl 

Pecuniary  circumstances,  971 

Declarations  of  deceased  as  to  payment  and  treatment,   1370 

Admissions  of  deceased  to  establish  contract,  1371 

Witnesses,  competency 

Personal  representatives,  1346 
Widow,  1352 
Heirs  at  law,   1352 
Claimant.  1352 
CLAIMS  ALLOWED 

Presumptions,   1007 
CLERK 

Books  of  account,  191 

Of  attorney 

Privileged  communications,   1047 
CLERK'S  CERTIFICATE 

Date,  392  0 

See  certificates,  256 
CLIMATE 

Judicial  notice,  760 
CLOTHING 

See   demonstrative   evidence,  273 
CLOUD  ON  TITLE 

Burden  of  proof,  225,  278 

Defined,  273 

Necessity  of  proving  title,  274 

Color  of"  title,  274 

Ownership  and  possession,  275 

Vacancy  of  property,  277 

Admissions,  277 

Presumptions  as  to  title,  277 

Admissibility  of  quit  claim  deed,  278 

Admissibility  of  foreign  deed,  278 

Weiglit  and  sufficiencv,  278  -^- 

COAL  MINE 

Opening, — not  waste,   1287 
C.  0.  D. 

Judicial  notice,  279 

Admissibilitv  of  evidence,  279 
Parol.  279 


Un  INDEX 

[REFERENCES   ARE   TO   PAGES] 

CO-DEFENDANT 

See  accessories,  17 
Accomplices,   19 
Homicide,  640 
Confessions,  296 
Corroborations,  352 
Credibility,  358 

Destruction  of   evidence  by,  438 
Right  to  cross  examine,  366 
Witnesses,   1346 
Admissions  in  answer  of,  64 
Admissions  in  conspiracy,  308 
Answers  of,  113 
CODICIL 

Sec   wills.   1297,   1333 
CO-HABITATION 

See  adultery,   69 
Bigamy,  175 

Criminal  conversation,  362 
.    Divorce,  446 
Marriage,  827 
COLLATERAL  ATTACK 
Foreign   judgments.   554 
Service  in  general,  1173 
Records 

Judgments  in  general,  1103 
COLLATERAL  FACTS 

Account  books  not  evidence  of,  198 
To  show  good  faith,  1187 
Fraud,  1184 

No  previous  accidents,  18 
Repairs  after  accident,   1125 
Similar  facts  and  transactions,  1182 
Separate  and  similar  offenses,  1168 
COLLATERAL  KIN 

Insanitv  of.   1158 
COLLATERAL  MATTERS 

When  answer  of  witness  conclusive,  174 
COLLEGE  STUDENT,  1038,  322 
COLLUSION 

See  conspiracy,  306 
Fraud,  574 
COLOR  OF  TITLE 

Cloud  on  title,  274 

Defined,  279 

Tax  deeds,  280,  1216 

Admissibilitv   to    show,   280 
COMMERCIAL  AGENCY 

Statements  to  as  proof  of  fraud,  577 
COMMISSIONS 
Broker 

Presumptions,  1008 
COMMON  CARRIER 

Judicial  notice,  755 
COMMON  COUNTS 
Assumpsit,   131 
COMMON  DISASTER 
Survivorship.   1216 
COMMON  KNOWLEDGE 

Judicial   notice,  755 
COMMON  LAW 

Presumptions,  1008 


INDEX  1415 


[references  are  to  pages] 

COMMON  LAW    (Continued) 

Presumption  as  to  existence,  558 

■  Indicia!   notice.   748 
COMMUNICATIONS 

See  privileged  communications.  280 
By  telephone  as  evidence,  122G 
By  telegraph,  1224 
COMPARISON  OF  HANDWRITING 

See   handwriting.    602 
COMPARISON  OF  INSTRUMENTS 

Alterations.  96 

Forgery,    562 

Records,  1098 

Ordinances.  896 
COMPETENCY  OF  EVIDENCE 

For  one  purpose,  280 

As  to  one  party.  280 
COMPETENCY  OF  WITNESSES 

See  witnesses,  1336 
COMPLAINT 

Of  prosecutrix,  1057 

Confidence  game,  299 

To  show  fraud.  577 
COMPOSITION  WITH  CREDITORS 

See  compromise  and  settlement.  281 
COMPROMISE  AND  SETTLEMENT 

Presumptions 

Receipts,  281 

Checks,  281 

Complete  settlement,  283 

Burden  of  proof,  282 
In  general,  282 
By  surety,  283 
Subject  matters.  283 

Promissory  notes,  283,   1008 

Agreement.   283 

Prior  action,  283 

Offers  of  compromise 
Competency,   284 

As  consideration  of  doubtful  claim,  284 
COMPTROLLER  OF  CITY,  258 
COMPTROLLER  OF  CURRENCY,  258 
COMPULSORY  EXAMINATION 

See  physical  examination,  985 
COMPUTATION 

Burden   of   proof,   225 

Expert  and  opinion,  290 

Attorneys,    1048 
CONCEPTION  AND  GESTATION 

Bastardy.  152 
CONCLUSIONS 

See  conclusions  of  witnesses,  285 
Legal  conclusions.  775 
Expert  and  opinion.  518 
CONCLUSIONS  OF  WITNESSES 

In  general,  285 

Due  care.  285 

Defect,  285 

Agency,  287 

Temperature,  285 

As  to  admissions  or  conversations  of  another,  287 

Existence  of  road,  288 

Existence  of  street,  288 

Age,  288 

Cruelty,  288 


1416 


INDEX 


[references  are  to  pages] 

CONCLUSIONS  OF  WITNESSES    (Continued)  WAT 

Insolvency,   288 

Relating  to  personal   injuries  generally  288 
Existence  of  oral  contract,  288 
Authority,    288 
As  to  misrepresentations,  289 
As  to  employment,  289 
Indebtedness",  290 
Fright  of  animals,  290 
Result  of  calculation,  290 
Value  of  time,  290 
Profits,  290 
Possession,  290 
Sewerage  conditions,  290 
Consent  to  terms  of  contract,  290 
Use  of  partnership  funds,   290 
Ability  to  act,  290 
Condition  of  goods,  291 
Pain  and  suffering,  291 
Vision,  291 
Hearing.  291 
CONCLUSIVE  EVIDENCE 

See  former  adjudication,  503 

Former  judgment.  738  to  740 
CONCRETE 

Judicial  notice,   755 
CONDEMNATION  PROCEEDINGS 

See   eminent   domain.   4S:; 
CONDITION  OF  MERCHANDISE 

Kxpert  tcstifvino-  as  to,  521 
CONDITIONAL  ADMISSION  OF  EVIDENCE,  889 
CONDONATION 
Defined,  450 
Presumptions,  450 
Specific  acts,  450 
Knowledge,  450 
Subsequent  conduct,  450 
Cohabitation,  450 
CONDUCT 

Absurdity  of,  997 

Destruction,  suppression  and  fabrication  of  evidence,  437 
Of  prosecutrix  in  action   for  rape,   1059 
Estoppel  by  conduct.  65 
Admissions   may   be   implied    from 
Silence,  1214 
Flight  or  alias,  550 
Resisting  arrest,  1147 
Attempted  suicide,  1291 
Refusal  to  produce  evidence.  1113 
Of  Avitness  on  trial,  to  show  interest.  357,  358 

Opinion  as  to,  521 
Surprise,  765 
Of  passengers,  1139 
CONDUCTOR  ^ 

Admissions  as  res  qcstcr,  1141 
CONFEDERATES 

S(>e  cons])iracv.  308 
CONFESSION  AND  AVOIDANCE 

Burden  of  proof,  225 
CONFESSIONS 
Definitions 

In  general,  292 
Implied,  292 
Admissibility 

General'  rule,  292 


INDEX  1417 

[references  are  to  pages] 
CONFESSIONS  (Continued) 

Wlion  accusation  denied,  1292 
Province  of  court,  293 
Copies.  293 

In  foreign  lanp^uage,  293 
Made  to  detectives,  293 
Voluntary  confession,  294 
^Yhole   must  be  given,  294 
Confession  of  facts,  294 
When  obtained  by  deceit,  294 
When  obtained  by  personal  violence,  294 
Coroner's  inquest,  295 
Before  grand  jury,  295 

Admissions  not  amounting  to  confession,  296 
Silence  when  accused.  1292 
As  to  joint  defendants,  296 
Weight  and  sufficiency 
In  general.  297 

Partially  discredited  confession,  297 
Uncorroborated  confession.  297 
To  sustain  conviction.  297 
Verbal  admissions,  297 
Extra-judicial,   298 
Implied  confessions,  298 
To  establish  corpus  delicti,  298 
Confessions  of  third  persons,  298 
CONFIDENCE  GAME 
Pleading 

Indictment,    299 
Bills  of  particulars,  299 
Variance,  299 
Admissibility  of  evidence 
Similar  oflfenses,  299 
Uncompleted  attempt.  299 
Former  complaints,  299 
Reliance  upon  statements.  300 
Fictitious  letters  and   telegrams,  300 
Opinion.  300 

Contract  legally  binding,  300 
Weight  and  sufficiency 
Sale   of  stock,   301 
CONFIDENTIAL  COMMUNICATIONS 
See  attorneys,  142 

Privileged   eomiiiuiiications,    1047 
CONFIDENTIAL  RELATION 

See  Hduciarv  relations,  542 
CONFUSION  OF  GOODS 

Burden  of  proof,  302  t   - 

Presumptions 

IMinn^ling  bv   consent     302 
conjectures'  and  IMPRESSIONS 
^^'itnl■ss  cannot  testify  as  to.  511 
That  witness  "took"  from  what  partv  said    ''SS 
CONNECTION  BETWEEN  FACTS  OFFERED  AND  FACTS  TO  BE  PROVEN 
Dffer  of  evidence,  884 
Order  of  proof,  889 
CONSENT 

See  assent,  128 
Of  parents 

Abduction,  6 
Of  female,    6 
CONSENT  OF  PARTIES 
Apprentices.   120 


1418  INDEX 

[references  are  to  pares] 

CONSEQUENCES  OF  ACTS  PRESUMED  INTENDED,  621 
CONSIDERATION 

Love   and  afl'ection,   73 

Recital  of  in  deed  is  hearsay,  411 

Inadequacy  of 

As  proof  of  fraud,  577 

Fraudulent  conveyance,  587 
Burden  of  proof,  225 

When  instrument  under  seal,  225 

Release,  225 

Illegal,  225 

Promissory   note,  226 

Partial,  226 

Different  consideration.  226 
Presumptions  and  burden  of  proof,  302 

Sealed  instrument,  302 

Contract  of  sale,  303 
Parol  evidence,  303 

Want  of   consideration,  303 
Marriage,  305 
Deeds  as  evidence,  306 
Action  on  contract,  306 
Failure  and  want  of 

Pleading,    137 
Resulting  trusts,  1253 
CONSPIRACY 

Burden  of  proof.  226 

Nature  and  elements  of  crime,  306 

In  general,  306 

The  agreement,  306 

Gist  of  the  offense,  306 
Admissibility  of  evidence 

In  general,  307 

Overt  acts,  307 

Documentary,  307 

To  show  motive.  308 

Other  offenses.  308 

Acts  and  declarations,  308 
Weight  and  sufficiency  of  evidence,  310 
Degree  and  burden  of  proof,  311 
Pleading  and  proof,  311 

Indictment,  311 

Bill  of  particulars,  312 
CONSTABLE 

\'ali(lity  of  process.  1120 
CONSTRUCTION  OF  STATUTES 

Adopted   statutes.    1197 
CONSTRUCTION  OF  WILLS,  1297  to  1305 
CONTEMPTS 

Burden   of  proof,   226 
Defined 

In  general,  312 

Civil,  312 

Criminal.  313 
Jurisdiction,   313 
Indictable  offense,  313 
Jury  trial,  313 
Immunity,  313 
Intention,    314 
Fact  of  contempt-pleadings,  314 

Bill  of  particulars,  314 

Special  interrogatories,  314 


INDEX  1419 


[references  are  to  pages] 

CONTEMPTS  (Continued) 
Criminal,  314 

Constructive,  314 
Civil,  315 

iSworn  answer,  315 

Burden  of   proof,  315 
Admissibility  of  evidence,  315 
Degree  of  proof 

Civil,  316 

Criminal,   316 
CONTEMPORANEOUS  ORAL  AGREEMENT 

Nut  i)rovable  by  parol,  917 
CONTENTS 

Presumption  as  to  knowledge,  764 
CONTENTS  AND  SUFFICIENCY 

See  abstracts  of  title,  14 
CONTESTED  ELECTIONS 
Presumptions 

Notice  of  election,  316 

Right  of  person  to  vote,  316 

For  whom  vote  cast,  316 

Proclamation  of  results,  316 
Burden  of  proof 

In  general,  226 

Illegality  of  votes,  226,  316 

Condition  of  ballots.  226,  317 

Preservation  of  ballots.  317 
Questions  of  law  and  fact,  317 
Admissibility  of  evidence 

In  general,  317 

Circumstantial  evidence,  317 

As  to  how  ballot  was  marked,  318 

Voters  affidavits,  318 

Declarations  of  voter,  318 

To  inspect  ballot,  318 

Ballots,  318 

To  show  voters  not  legal  voters,  319 

Missing  ballots,   319 

To  show  voter's  age,  319 

Certificate  of  election,  320 
Weight  and  sufficiency  of  evidence 

Judge's  return,  320 

Buying  votes,  320 
Best  and  secondary,  320 
Residence  of  voter,  320 

In  general,  320 

Defined,  320 

Permanent  abode,  321 

Intention,  321 

Time,  321 

Sleeping  and  eating.  321 

College  students,  322 

Previous  voting  in  same  district,  322 

Voting  in  another  precinct,  322 

Continuance,    322 

School    district    plat,   322 

Abandonment.  322 

Temporary  residence,  322 

Temporary  absence,  322 

Pauper,  323 
Witnesses,  323 

Determination  of  competency,  323 

Privilege  of  voter,  323 


1420  ^^I^EX 

[references  are  to  pages] 

fj  rp  <Tr,  ^  "TT  T- ?/•  (^  •-', 

CONTINUANCE 

I'msumptions,   1008   to   1010 
CONTINUANCE  OF  CAUSE 

I'lfsiuiiptions,    1010 
CONTRACTIONS 
Of  names 

Judicial  notice,   758 
CONTRACTS  .     . 

i'arol  evidence  to  show  abandonment  or  rescission,  2 
Admissions  and  declarations  _^_  ,,. 
Deceased  persons,  43       -  '       ' 
Presumption  as  to  contracting  with  reference  to  custom  and  usage,  385 
Date  of  delivery,  391 
Escrow,  500  ■ 
Parol,   933,  934 
Presumptions 

Contents,   1010 
Delivery,   1010 
Legality,   1010 
Freedom  of  parties,  1010 
Performance,  1010 
Interest  of  parties,  1010 
Rescission,  1011 
Foreign  state,  1011 
Alterations  and  erasures,  93,  1003 
Ante-nuptial  contract,  113 
Building  contracts,  211 
Gambling  contracts,  585 
Ratification,  1064 
Rescission,  107G 
Release,  1118 
Seals,   1102 
Waiver,  1279 

Work  and  services,  130,  13G9 
Burden  of  proof 

Terms  and  conditions,  22G 
Construction,  226 
Illegal  consideration,  226 
Of   sale,   227 
Breach  of,  223 
Best  and  secondary  evidence,  168 
CONTRACT  OF  CARRIER 
Assent  of  shipper,  128 
Assent  of  carrier.  129 
CONTRACT  OF  TELEGRAPH  COMPANY 

Assent    129 
CONTRACTS  OF  TESTATOR,  1319 
CONTRADICTION  AND  SUSTAINING  WITNESS 
Direct  impeachment,  324 
Incidental  impeachment,  324  ' 
Sustaining  witness,   324 
CONTRADICTORY  STATEMENTS 

Iin]H>achment  bv  inoving,  687 
CONTRIBUTORY  NEGLIGENCE 

Admissions  and  declarations  relating  to,  51 
Infants   presumed  incapable   of,   701 
CONVERSATIONS 

Admissions  and  declarations,  33 
Telephone,  1226 
CONVERSION 

See  trover  and  conversion,  1248 


INDEX  1421 

[references  are  to  pages] 


CONVEYANCES 

Assent 

Voluntary  settlements,  129 
Burden  of  proof 
Fraud,  227 

Voluntary  conveyances,  227 
Child  to   parent,   227 
Parent  to  child,  227 
Presumptions,  1011 
Acknowledgments,  26 
Deeds,  409 
Delivery,  413 
Consideration,   302 
CONVICTION 

See  former  conviction,  566 
CO-OBLIGORS 
Admissions 

Officers,   45 

Principal  and  surety,  50 
Privies,    59 
COPIES 

Abstracts  of  title,  15,  16 
Carbon   copy,    192 
Private  writings 

Admissibility,   328 
Contracts,    328 
Contract  in  law  report,  168 
Letters,   329 
Telegrams,  329 
Letter  press  copies,  329 
Corporate  records,   329 
Power  of  attorney,  329 
Lease  and  mortgage,  329 
Public   writings 

Land  ofhce  entries,  330 
Land  patents,  330 
Ordinances,  330 
Bond  registers,  331 

Records  of  county  clerk  and  recorder,  331 
Internal  revenue  collector,  332 
Civil  service  commission,  332 
Court  records,   333 
Cause  pending,  333 
Public  officials,  333 
Judgments,  333 

Naturalization  proceedings,  334 
Depositions,  334 
Ship  enrollment.  334 
Appointment  of  administrator,  334 
L^nacknowledged  instruments,  334 
No  seal,  334 
Surveys,  334 
Compared  "copies,  562,  896,  1098 
Proof  of  correctness, — what  sufficient,  562 
Foreign  judgments,  557 
See  Records.  1080 
CORONER'S  INQUEST 

Admissibility  of  verdict  in  subsequent  proceedings 
In  general,  334.  400 
Actions  for  negligence,  336 
Actions  on  insurance  policy,  336 
Bill  to  contest  will.  336 
Admissible  in  entirety,  336 


1422  INDEX 

[REFERKNCES   ARE   TO   PAGES] 

CORONER'S  INQUEST   (Continued) 

Name  and  seal  of  coroner,  336 

Proceedings  in  sister  state,  336 
Weight  and  ell'ect  of  verdict,  336 
Admissibility  of  depositions 

In  general,  337 

The  affidavit,  337 

Stenographic   notes,   337 

Parol  evidence,  337 

Admissions  of  accused,  337 
Immunity,  685 
CORPORATE  OFFICERS 

Admissions  and  declarations,  60 
CORPORATE  RECORDS 

Best  and  secondary  evidence,  171,  340 
In  general,  1091 
CORPORATE  STOCK 

Presumption  from  possession.  903 
Names  of  holders  on  stock  books,  906 
Presumption  as  to  regularity  of  issue,  1011 
Market  price,  825 
CORPORATIONS 

Admissions  and  declarations 

Corporate  officers,   60 

Directors  and  stockholders,  61 
Admissibility  of  evidence 

Articles  of  incorporation,  338 

Articles  of  consolidation,   338 

Bill  of   sale,   338 

Certificate  of  comptroller  of  currency,  338 

Contracts,  338 

Deeds,  339 

Execution  of  bonds,  339 

Judicial  decrees   against  corporations,   339 

Leases,  339 

Letters,  339 

Opinion  evidence,  340 

Parol  evidence,  340 

Parol  as  to  existence  of  corporation  in  criminal  action,  343 

Corporate  records  and  books,  340.  1091 
Weight  and  sufficiency  of  evidence 

On  plea  of  mil  tiel  corporation,  342 

To  establish  corporate  existence,  342 

Acceptance  of  special  act,  344 

Corporate  obligations,  345 

Ratification  of  acts  of  officers,  345 

Residence,  345 
Best  and  secondary  evidence     346 
Presumptions,  346 

Issue  of  stock,  346 

Ownership  of  stock,  346 

Execution  of  mortgages,  346 

Execution  of  contracts,  346 

Authority  of  officers  and  agents,  347 

Seals,  347 

Subscriptions,  348 

Receipt  of  notice  of  directors'  meeting,  348 

Authorization  of  acts  of  officers,  348 

Existence  of  corporation,  348 
Burden  of  proof 

Absence  of  corporate  authoiization,  349 

Absence  of  authority  of  officer,  349 

Corporate   existence,   349 


INDEX  1423 

[references  are  to  pages] 

CORPORATIONS   (Continuod) 
Legal  corporation,   349 
Ultra  vires,  349 

Plea  of  vul  ticl  corporation,  227 
Execution  of  mortgage,  227 
Estoppel,  349 

Competency  of  stock-holders  and  officers  as  witnesses,  359,  1347 
Judicial    notice,    350,    214 
Coriiorate  signature,  250 
CORPUS  DELICTI 
Defined,  350 

Particular  offenses,  350 
Degree  of  proof,  351 
Admissibility  of  evidence,   351 
Circumstantial   evidence,  351 
Confessions,  351 
CORRECTION  OF  DEPOSITION,  435 
CORRESPONDENCE 
Letters,  779 

Wliole  of  utterance,  1296 
CORROBORATION 

Accomplice,   19,  352 

Discretion  of  court,  19 
AVlien   required,    19 
Extent,  19 
Extra  judicial  confessions,   352 
In  general,  352 
Corpus  delicti,  353 
Acts  and  declarations,  353 

Former   declarations,   353 
Competent  by  prosecutrix,  353 
CORROBORATIVE  TESTIMONY,  356 
CO-SURETY 

As  to  transactions  with  deceased,  1350 
Admissions,  41 
COUNSEL 

See  attorneys,  142 

Malicious  prosecution,  821 
Privileged  communications,  280 
Trespass,  1246 
Admissions  and  declarations 
Right  to  make,  44 
Right   to  withdraw,   44 
To  avoid  continuance,  44 
Made  at  former  trial,  44 
By  silence,  44 
Effect,  44 
Stipulations,  1204 
COUNTER  AFFIDAVITS 
New  trial,  866 

Judgments  by  confession,  741 
Default,  412 
COUNTER  CLAIM,  1176 
COUNTER  PART  OF  DOCUMENT,  165 
COUNTY  JUDGES 

Presumption,   1012 
Judicial  notice,  750 
COUNTY  SEAT 

Judicial   notice.  742 
COURSE  OF  DEALING 

Admissibility  as  to  gambling  contracts,  587 
Agency,  89 


[KEi^ERENCES   ARE   TO   PAGES] 

COURTS 

Officers 

Judicial  notice,  743,   749 
Rules  of  court,  1153 
Records 

Judicial  notice,  751 
Judicial,  1099 
Adjournment 

Roo-ularity  of   judicial  proceedings,  33 
COURT  ORDERS  AND  ACTIONS 

Judicial  notice,  752,  753 
COURT  RECORDS 

Best  and  secondary  evidence,  170,  1099 
COURT  ROOM 

Exclusion  of  Avitnesses,  504 
COVERTURE 

See  husband  and  wife,  654 
Marriaoe,  827 
CREDIBLE  WITNESS 

Subscribing  witness  to  will 

Defined,  1326 
Credibility,  354 
CREDIBILITY 

Matters  afi'ecting  credibility 
Presumptions,    354 
Opportunity  for  knowing,  354 
Religious   belief,   355 
Positive   and  negative  statements,  355 
Probability  of  statements,  355 
Exaggeration,  355 
Difl'erent   versions,   355 
Contradictory   statements,  355 
Intentional  falsehood,  356 
Corroborated   testimony,   356 
Intelligence  and  capacity  of  witness,  356 
Deportment  and  demeanor  of  witness,  357 
Number  of  witnesses,   357 
Financial  standing,  357 
Omission  in  former  trial,  357 
Insanity,  357 

Attorney  and  witness,  357 
Suborning  evidence,  357 
Relationship,   358 
Custody  of  officer,  358 
Leaving  court  room,  358 
Circumstances,    358 
Character  of  witness,  358 
Accomplice,  358 

Interest  of  witness  not  a  party,  358 
Efforts  of  compromise,  358 
Marriage,  359 
Parties  of  record,  359 
Employee,  360 
Compensation,   360 
Before  grand  jury,  360 
Demand  of  bribe,  360 
Reward,  360 

Detectives,  440  ,  . 

Province  of  court 

May  not  determine  credibility,   360  ^ 

May  call  witness,  361  ■' 

Province  of  jury 

Number  of  witnesses,  362 


INDEX  1425 

[references  are  to  pages] 

CREDITOR 

Pxclatioiisliip 

Impoaoliing  conveyance,  582 
CREDITOR'S  BILL 
Imnniiiity,  685 
Burden  of  proof,  228 
Fraud,   574 

Fraudulent  conveyances,  580 
Husband  and  wife,  654 
CRIME 

Charged  in  civil  cases,  1290 
Presumption  of  innocence,  1022 
Infants 

Presumption  as  to   capacity,   701 
Other  charges  not  relevant  in  proof  of,  1168 
■McM-e  fact  of  arrest,  566 
CRIMINAL  ACTION 
Former   testimony 

Absent   witness.    10 
CRIMINAL  CHARGE  IN  CIVIL  SUIT,  1290 
CRIMINAL  CONVERSATION 
:\rarriaoe,  .-562 

Competency  of  witnesses,  363 
Seduction 

Proof  by  corre'spondence,  363 
Defendant  failing  to  testify,  363 
Defenses 

Death  of  wife,  363 
Consent  of  wife,  363 
Suit  against  another  defendant,  363 
Forgiveness  of  wife,  363 
Recrimination,   363 
Conduct  of  parties,   363 
Connivance  of  husband,  363 
Damages 

Loss  of  services,  364 
Chastity  of  plaintiff's  wife,  364 
Chastity  of  defendant,  364 
Exemplary   damages,   364 
Social  rank,  364 
Pecuniary  circumstances,  364 
Aggravation  of  damages,  364 
Mitigation,    365 
Chastitv,   267 
CRIMINAL  INTENT 
Accomplice 

Corroboration  required,  19 
Homicide,    621 
Intent 

In   general,    726 
CRIMINATING  DOCUMENTS 

Compelling  produotion,  1051 
CROPS 

.Judicial   notice  as  to  maturity,  756 
CROSS  EXAMINATION 
Accomplice,    19 
Account   stated,  26 
Bastardy,  153 

Bias  and  hostility,  173,  175 

Showing  arrest  or  indictment  as  matter  of  impeachment,  699 
Right  to  cross  examine 
In  general,  365 
On  default,  365 


1426  INDEX 

[references  are  to  pages] 

CROSS  EXAMINATION   (Contiimcd) 

By  both  parties,  365 

Rifjht  of  co-defendants.   :;f)6 

Parol  foundation  for  secondary,  366 

Direct  irrelevant,  366 

In   ejectment,   366 
Conduct  and  mode 

Repetition,  367 

Right  to  recall,  367 

Assuming  material  facts,  367 

Assuming   answers  untrue,   367 

Exclusion  after  cross  examination,  367 

Memorandum,  367 

Opening  defense,  368 

Leading  questions,  368 

Variant  statements,  368 
Matters  tending  to  degrade  witness 

In  general,  370 

Occupation,  370 

Habits,  371 

Drunkenness,  371 

Cause  and  results,  371 

Antecedents,   371 

Former  prosecutions,  371 
Interest 

In  general,  371 
Relation   as    employee,    371 
Financial  interest,   371 
Bias  and  hostility,  371 
Matters  irrelevant 

Contradiction,  372 
Conversation  with  third  party,  372 
Business  experience,  372 
Defense  not  relied  upon,  372 
Financial   condition,   372 
Limit 

Discretion  of  court,  372 

Direct   examination.   372 

Inconsistent  conduct,   373 

Improbability,  373 

Time,  place  and  circumstance,  373 

Cause   of   result,    373 

As  to  experts,  374 

Re-direct,  375 

As  to  direct  examination  in  miscollaiicous  instances,  375 
Impeachment 

Inconsistent  statements,  687 

By  writings,  691 
CRUELTY 

As  ground  for  divorce,  defined.  446 
CUMULATIVE  EVIDENCE 

Limiting  number  of  witnesses 

Facts  conceded,  379 

Principal  issue,  380 

Collateral  matters,  380 

Experts,  380 

Practice,  380 
Emphasis  by  re-examination,  381 
New  trial 

Civil  causes,  381 

Criminal  actions,  381 

Impeaching  evidence,  381 
Continuance  for,  382 


INDEX  1427 

[references  are  to  pages] 

CUSTODIAN  OF  PAPERS,  163 
CUSTOM  AND  USAGE 
In  general 

Defined,  382 

What  constitutes,  382 

Nature  and  requisites,  382 

Extent  of  custom  or  usage,  383 

Admissibility,  383 

Number  and  competency  of  witnesses,  384 

Judicial  notice,  384 
Contracts 

Presumption  as  to  contracting  with  reference  to,  385 

Admissibility  of  custom  and  usages,  386 
Employer  and  employee,  387 
Railroads 

Ballasting   track,   388 

Operation  of  yards,  388 

Method  of  doing  work,  388 

Permitting  persons  to  ride  in  cars  not  for  passengers,  388 

Inspection  of  engine  and  cars,  388 

Receiving  and  transporting  shipments,  388 

Use  of  track  as   foot  path,  388 

Permitting  shippers  to   ride,   389 

Regulation  of  laborers'  living  quarters,  389 

Boarding  and  alighting  from  trains,  389 

Recommending  employees,  389 
Street  railways 

Position  of  conductor  on  cars,  389 

Position  of  passengers  on  cars,  389 

Boarding  and  alighting  from  cars,  389 

Regulating  cars  at  street  crossings,  390 

Running  on  particular  tracks.  390 

Stopping  cars  at  particular  place,  390 
Mines  and  mining,   390 
Public  officers,   391 
Foreign  customs  and  usages,  391 
Transfer  companies,  391 
Manufacturers,  391 
Building  trades,   391 
Commercial  transactions,  392 
Packing  companies,  392 
Elevators,  392 
Pleading 

Assumpsit,  137 

Case.   383 
CUSTOMARY  OBEDIENCE 
Of  employers'  rules,  1155 


DAMAGES 

Action  on  bond,  186 

Alienating  affections,   92 

Apprentices 

Loss  of  service.  120 

Assault  and  battery,  126 

Breach  of  promise,  207 

Criminal  conversation,  265 

Dram  shops,  456 

Effect  of  tender,  1229 

Eminent  domain 

Compensation  for  land  taken,  483 

Damages  for  injury  to  property  not  taken.  493 


1428  INDEX 

[REFERENCES   ARE   TO   PAGES] 

DAMAGES    (Continued) 

Expert  and  opinion,   522 
False  imprisonment,  540 
Fires,  548,  549 
Injury  and  pain,  758 
Insurance,  713 

Benefit  societies,  713 
Fire  insurance,  722,  725 
Libel  and  slander,  790,  794 
Malicious   prosecution,  822 
Nuisance,   1187 
Pecuniary  circumstances,  969 
Presumptions,   1012,  1013 
Seduction,  1167 

Set  off  and  counterclaim.  1176 
Similar  settlement  as  proof  of,  484,  1186 
Trespass,   1246 
Trover  and  conversion,  1251 
View  by  jury,  1269 

Wage3,  earning  capacity  and  domestic  relations,  1273 
Warranty,  1285 
AVork  and  services,  1370,  1371 
DANGER 

Expert  and  opinion,  523 
DATE 

Rule  of  fixing,  393 
Judgment,   393 
Clerk's  certificate,  393 
Abstracts  of  title,  393 
Firing  bill  in  chancery,  393 
Deed 

Presumption  as  to  execution,  393 
Presumption  from   acknowledgment,  28 
Presumption   as   to  delivery.   394 
Filing.  394 
Forcible  entry  and  detainer,  394,  553 
Penal  action,  394 

Cutting  timber,  394 
Contract 

Delivery,  394 
Parol,  395,  916 
Pleading  and  proof 

Assumpsit  on  contract,  395 
Case,   395 
Negotiable   instruments 
Execution,  395 
Assignment,  395 
Indorsement,  395 
Fixing  by  fact  that  witness  heard  of  occurrence,  613 
Presumptions,   1013.   1014 
DAY  BREAK 

Judicial  notice,  760 
Weather  bureau  records,   1290 
DEADLY  WEAPONS 
Judicial  notice,  396 
Defined,  306 
In  prosecution  for  homicide 

Intent  and  malice  from  use  of,  627 
Habit  of  carrying,  627 
Possession.  627 
Rale  to  defendant,  628 
DEAF  WITNESS 

Method  of  examining.  396 


INDEX  1429 

[references  are  to  pages] 

DEALERS  AS  EXPERTS,  518 
DEALINGS 

I'lesumption  of  good  faith  in  general,  597 
DEATH 

Burden  of  proof,  228 

As  affecting  competency  of  witness,  1340 

As  affecting  confidential  communications,   1050 

Seven  years  absence 

Presumptions,   396 

Admissibility  of  evidence,  397 

Weight  and  sufficiency,  398 

Credibility   of   witness   contradicting,   399 
Cause   of   death.   299 

Presumptions,  399 

Admissibility  of  evidence,  399 

In   homicide  prosecutions,  628 
Continuance  of  life,  400,  1014 
Damages  presumed  from  fact  of,  1012 
Registers  of  births,  deaths  and  marriages.  1110 
Presumption  as  affecting  validity  of  marriage,  832 
Coroner's  inquisition  as  to  cause  of,  400 
DEBT 

Burden  of  proof,  228,  400 

On  plea  of  nil  debit,  400 

On  plea  of  no7i  est  factum,  400 
Effect  of  plea  of  payment,  400 
Actions  on  specialties,  400 

Effect  of  plea  of  -non  est  fnctiim,  400 

Effect  of  plea  of  nul  tiel  record,  401 
Actions  on  records 

In  general,   401 

Judgments,   401 

Money  counts,  401 

Verbal  promise,  401 
Payment  presumed  from  lapse  of  time,  964 
No  presumption  of  written  evidence,  1021 
Pre-existing 

No  presumption  from  giving  of  check.  1007 
For  penalty,  degree  of  proof,  976 
Existence  of 

Fraudulent  conveyances,   581 
Insolvency,  709 

Reason   for  execution  of  instrument,  860 
DECEASED  OFFICER 

Certificate  of  acknowledgment 

Weight,   28 
DECEASED  PERSONS 

Admissions  and  declarations 

In  general,  39,  42 

Privies  in  estate,  59 

Of  insured  in  action  on  benefit  certificate,  62,  713 

Of  insured  in  life  policy,  717 

Books  of  account,  200 

To  show  gift  an  advancement.  36.  75 

Book  account  to  show  advancement,  73 

For  or  against  heirs  at  law,  42,  1240 

In  disparagement  of  title,  53,  1239 

As  to  mistake  in  deed,  53 

Grantor's  declarations  to  establish  trust  against  grantee,  54 

To  show  mental  condition  at  time  of  making  deed,  54 

Not  admissible  to  show  undue  influence,  54 

Relating  to  title,  42 

Gifts,  42 


1430  INDEX 

[references  are  to  pages] 

DECEASED  PERSONS  (Continued) 

To  impeach  contracts,  42 

To  show  suicide,  43 

To  show  assignment  of  note,  43 

Marriage,  44 

Of  holder  of  note,  61,  131 

Weight  and  sufficiency,  66 
Competency  of  witnesses 

In  general.  1340  to  1364 

Husband  and  wife.  1364  to  1367 
In  relation  to  boundaries,  54,  202 
As  to  dedication,  402 

Depositions  to  show  fornier  testimony,  438 
Deposition  of  deceased  party  in  evidence,  1343 
Lost  depositions,  809 
Dying  declarations,  463 
Death,  cause  of 

Presumptions,  1014 

Seven  years'  absence,  1014 
Former  testimony 

Stenographer's  notes,  570 

Bill  of  exceptions,  179,  1202 

Certificates  of  evidence,  260 

Subject  in  general,  570 
Coroner's  inquest 

In  general,  334 
Concerning  abortion,  8 
In  action  against  dram  shop  keeper.  460 
Habits 

To  aid  presumption  of  payment,  967 

To  show  due  care,  599 

To  rebut  allegation  of  suicide,  601 
To  aid  ancient  documents,  103 
As  to  legitimacy,  778 
To  establish  heirship,  43 
As  to  pedigree,  in  general,  973 
As  to  age,  86 
Homicide  prosecutions 

Threats  of   deceased,   629 

Statements  in  general,  643 

To  show  suicide,  43,  647 
Knowledge 

Of  contents  of  instrument,  764 
Love  of  life 

Presumption,  1027 
Photographs 

As  proof  of  identity,  984 
Privileged  communications,  1050 
Official  registers  of  deaths,  1116 
I^es  gestce  in  general,  1132 
Residence 

Inheritance  tax,  1144 

For  purpose  of  administration,  1145 

As  affecting  descent,  1146 
Stenographers'  notes. 

To  show  former  testimony,  1201 
Suicide 

Presumption,  1041 

In  general,  1212 
Survivorship,  1216 
Trusts,  1252 
Value 

Admission  of  ancestor.  1264 


INDEX  1431 

[references  are  to  pages] 

DECEASED   PERSONS    (Contimu d) 

Wages,  earning  capacity  and  domestic  relations,  1376 
Support  of  family,  1278  ;t')ijllir 

Wills 

Declarations  of  testator  to  aid  construction,  1299 

Memoranda  to  aid  construction,  1303 

Declarations  to  show  testator's  state  of  mind,  1307 

Letters  of  testator,  1309 

Letters  to  testator,  1309 

Declarations  inadmissible  to  show  undue  influence,  1317 

To  aid  proof  of  revocation,   1328 

To  establisli   lost  will,   1334 
DECEASED  WITNESS 

Former  testimony,  570 
Bill  of  exceptions.  179 
Certificates  of  evidence,  260 
Stenographers'  notes,  1201 
Interpreter,  733 
DECEIT 

See  fraud  and  deceit,  579 
Admissibility  of  confession  obtained  by,  294 
DECISIONS  OF  SISTER  STATE,  559 
DECLARATION  OF  TRUST 

Parol.  936 
DECLARATIONS 

Admissions  and  declarations,  33  to  68 
Eef^  gestce,  1132. 
DECREE 

Best  and  secondary,  170 
Judgments,  758 
Draft  of.  not  record.  1099 
DECREE  IN  CHANCERY 

Presumptions.  1015 
DEDICATION 

Burden  of  -roof.  228,  402 
Presumptions,  402 
Admissibility  of  evidence 

Parol  in  general,  402 

Direct  proof  by  owner,  403 

Plats  and  platting,  403 

Explanation  of  plat,  403 

Acts  and  declarations.  403 

Not  listed  for  taxation,  404 

Owner's  motives,  404 

Condemnation  proceedings,  404 

Fencing  premises,  404 

Adjusting  assessment,  404 

Condition  in  deed,  404 

ITser,  405 
Weight  and  sufficiency  of  evidence 

Acts  and  declarations,  405 

Blank  in  plat.  405 

Judgment  recovered  for  obstructing,  406 

Fencing  out  road,  406 

Building  sidewalk,  406 

As  to  intent,  407 

As  to  acceptance,  407 
Estoppel  to  deny,  408 
DEED  AS  MORTGAGE 
Presumption,   411 
Burden  of  proof.  411 
Parol  evidence,  411 
Weight  and  sufficiency,  412 


1432  INDEX 

[keferences  are  to  pages] 

T  n "".' 3 '3^  •■•"    ri"; 
DEEDS 

Admissions  and  declarations 

Fraud  and  undue  influence,  54 
Advancements,  73 
Acknowledgment,  26 
Ambiguity,  100 
Best  and  secondary,  167 
Burden  of  proof 

As  mortgage,  228 

Bill  to  set  aside,  228 

Duress.  228 

Insanity  and  undue  influence,  228 

Delivery  on  condition,  228,  415 

Lost  deeds,  228 
Admissibility 

Guardian's  deed,  409 

Master's  deed,  409 

Sheriff's  deed,  409 

Tax  deed,  409 

Foreign  deed,  409 

Warranty  deed,  410 
Delivery 

In  general,   414 
Execution  of  deed,  410 
Recording,  410 
Description,  410 
Consideration,  411,  306 
Date 

Presumption  as  to   execution,  393 
Escrow,  500,  416 

Forcible  entry  and  detainer,  551 
Parol 

As  mortgage,  934 

Terms,  934 

As  trust,  934 

Consideration,  934 

Invalidating  deed,  934 

Sustaining  deed,  935 

Description,  935 

Parties,  935 

Interest,  935 

Reservation,  935 

Date,  935 

Acceptance,  935 

Delivery,  936 

Recording,  936 

Bill  to  correct  mistake,  936 

Bill  to  redeem,  936 
Presumptions,  1015,  1016 

As  to  release  of  homestead,  617 
Notice  of  unrecorded  deed,  1067 
See  posi,  voluntary  conveyances 
DE  FACTO  CORPORATIONS 

See  corporations,  342,  343,  344 
DEFAMATION 

Libel  and  slander,  787 
DEFAULT 

Burden  of  proof.  228 

Admission  by  default,  412 

Right  to  introduce  evidence  after,  412 

Motion  to  set  aside  default,  412 

Counter  affidavits,  412 

Right  to  cross  examine,  365 


INDEX  1433 

[referknces  are  to  pages] 


DEFECT 

Siniilar  accident,  1182 

Knowledge   of.   287 

Expert  on  Opinion.  525,  526 
DEFENSE  OF  HABITATION 

Tloniic'ido.   651 
DEFINITIONS 

Abstracts  of  title,  10 

Accomplice,  19,  099 

Account  stated,  23 

Adultery,  69 

Advancements,  73 

Affidavits,  80 

Alibi.  90 

Ancient  documents,  103 

Arson,  122 

Attestation  of  wills,  1324 

Bills  of  discovery,  444 

Books  of  account,  188 

Bribery,  209 

Burden  of  proof,  215,  503 

Circumstantial  evidence,  269,  501 

Cloud  on  title,  273 

Condonation,  450 

Confessions,  292,  503 

Contempts,  312 

Corpus  delicti,  350 

Credible  witness 
Wills.  1326 

Cruelty,  446 

Cumulative.  504,  1067 

Custom  and  Usage,  382 

Deadly  weapons,  396 

Domicile,  451 

Duress.  461 

Dying  declarations,  463,  634 

Estoppel,  504 

Evidence,  501 

Fiduciary  relations,  542 

Gambling  contracts,  585 

Gifts.  592 

Good  faith.  595 

Habitual  drunkenness,  449 

Heirs,  1341 

Impotency,  448 

Inhabitant,  1141 

Inn  keepers.  706 

Insane  delusion,  1306 

Insolvency,  709 

Interest,  730 

Judicial  notice,  761,  1293 

Larceny,  706 

Leading  questions,  771 

Lottery,  811 

Malice 

Homicide.  622 

Malicious  prosecution,  817 

Motion  to  direct  verdict,  442 

Necessaries.  702 

Novation,  867 

Nuisance.  869 

Original  telegram.  1225 

Official  records.  1080 

Patrons  of  disorderly  house,  446 


1434  INDEX 

[references  are  to  pages] 

DEFINITIONS    (Continued) 
Pedigree,  973 
Pledge,  992 
Positive  evidence,  994 
Preponderance,  503 
Presumptions,  502,  1000 
Prima  facie,  502 
Privileged  communications,  793 
Probable  cause,  815 
Ratification,  1064 
Real  evidence,  501 
Reasonable  doubt,  1065 
Rebuttal,  503,  1067 
Receiver  of  stolen  property,  1076 
Relevancy,  1112 
Relevant,  503 
Bes  gestce,  501 
Residence  of  voter,  320 
Retainer,  143 
Suicide,  1212,  712 
Telegrams,  original,  1225 
Testamentary  capacity,  1305 
Testimony,  501 
Undue  inflvience,  1316 
Usury,  1260 
Waiver,  1279 
Waste,  1286 
DEGRADE 

Questions  tending  to  degrade  witness,  370 
DEGREES  OF  SECONDARY  EVIDENCE,  165 
DEGREE  OF  PROOF 

See  weight  and  sufficiency,  1290 
Penalties,  974 
Reasonable  doubt,  1165 
DELIBERATION 

Presumption,  1016 
DELIVERY 

Intent,  413 
Presumptions,  414 
Deeds,  414 

Personal  property  as  payment,  415 
Date  of  contract,  415 
Parol  evidence 

Conditional   delivery,  415 
Opinions  of  witnesses,  416 
Of  ancient  documents,  104 
As  relating  to  gifts,  594 
See  Acknowledgments,  26 
DELUSION,  1306 
DEMAND 

Bailment,  149 

Forcible   entry   and  detainer,   553 
Replevin,  1126,  1127 
Trover  and  conversion,  1250 
DEMAND  FOR  BRIBE 

As  affecting  credibility,  360 
DEMEANOR  OF  WITNESS 

As   affecting   credibility,   357 
Opinion  as  to.  521 
DEMONSTRATIVE  EVIDENCE 
In  general,  416 
Preliminary  proof,  417 
Admissibility  generally 
In  general,  417 


INDEX  1435 


[references  are  to  pages] 

DEMONSTRATIVE  EVIDENCE   (Contiimod) 
Ancillary,  417 
Particular  instances,  417 
Objections,  418 
Experiments 

Mechanical  demonstration,  507 
DEMURRER 

Admissions   and   declarations,   63 
DEMURRER  TO  EVIDENCE 
IMust  be  in  writing,  418 
What  it  admits,  418 
Joinder,  418 
DENIAL  OF  EXECUTION 
Issues  raised,  411) 
In  general,  419 

Guaranty  of  promissory  note,  419 
Covenant  on  lease,  419 
Delivery,  419 
Authority  of  agent,  419 
Where  instrument  not  set  out,  419 
Foreclosure,  419 
-     The  affidavit 

Who  should  make,  420 
When  filed,  420 
As  evidence,  420 
Admissibility  of  evidence 
In  general,  420 

Authority  of  corporate  officer,  420 
Alteration,  421 
Personal   obligation,   421 
Policy  of  insurance,  421 
Lease,  421 
Bonds,  421 
Preponderance  sufficient,  421 
DENTIST 

Expert.  525 
DEPARTMENT  RECORDS 
Federal  government,   1094 
To  establish  anti-saloon  territory,  115 
Weather  bureau,  1289 
DEPORTMENT  AND  DEMEANOR  OF  WITNESS 
As  affecting  credibility,  357 
Opinion  as  to,  521 
DEPOSITS 

Judicial  notice  of  manner  of  withdrawing,  754 
Embezzlement,  482 
Books  of  account,  196 
DEPOSITIONS 

Admissions  and  declarations 

In   another   case,   65 
Admissible  in  bastardy  case.  151 
Admissions  in  to  prove  trust,  1258 
Books  attached  to.  843 
Refusal  of  witness  to  attach  exhibits,  434 
Who  may  take,  422 

Notary  public.  422 
Disinterested  persons.  422 
Naming  commissioner,  422 
Caption  and  certificate 

Character  of  officer  certifying.  422 

Form,  423 

Waiver  of  issuance  of  commission,  423 

Time  of  taking,  423 

Swearing  witness,  423 


1436  INDEX 

[keferexces  are  to  pages] 

DEPOSITIONS   (Continued) 

Certificate  to  identify,  423 

Necessity  for  notarial  seal,  423 

Accompanying    deposition,   433 
Indorsements,  424 
Notice 

Necessity  for,  424 

Names  of  witnesses,  424 

Residence  of  witness,  424 

Objections,  424 

Waiver,  424 

Filing  interrogatories,  424 

What  insufficient,  425 

What  sufficient,  425 

Claim  against  estate,  425 

Joint  debtors,  425 
Affidavit,  524 
Adjournments,  425 
Opening,  426 

Attendance  of  witnesses,  426 
Objections  and  motions  to  suppress,  426 

Grounds,  426 

Time,  428 

Form,  429 
Admissibility  in  evidence 

Immaterial  evidence,  430 

Copies,  430 

Taken  in  another  suit,  430 

Stipulation,  431 

Party  making  evidence   for  himself,   431 

Other  parties,  431 

Hearsay,  431 

Like  matters,  431 

Taken  in  foreign  language,  432 

Former  testimony,  432 

Taken  at  coroner's  inquest,  432 

Subscribing  witness,  432 

Dictated  or  written  by  attorney.  432 

When  deponent  present  at  trial,  432 

Presence  of  attorney,  432 

After  substitution  of  new  parties,  432 

Parts  untrustworthy,  432 
Weight  as  evidence,  433 
Parties  entitled  to  use 

May  be  used  by  either  party,  433 

Subsequent  party  to  suit,   433 
Efifect  of  use,  433 

Right  to  examine  deponent  at  trial,  433 
Attaching  exhibits 

Statutory  provisions,  434 

Copies  of  originals,  434 

Refusal  to,  434 
Election  of  method  of  examination,  435 
Errors  and  corrections,  435 
Second  depositions,  435 
Misdemeanors,  435 

Rendering  adverse  party  competent,  435,  1343 
Examination  of  witness,  435 
DEPUTY 

Authentication  of  record,  557 
DESCENT  AND  DISTRIBUTION 
Burden  of  proof 

Existence  of  heirs,  229 

Intestacy,  229 


INDEX  1437 

[references  are  to  pages] 

DESCENT  AND  DISTRIBUTION    (Continued) 
Will   t'stablishcd,  221/ 
Lcfiitimacy,  777 
Pedigree,  972 
Intestacy,  734 
Heirship.  616 
DESCENT  OF  REALTY,  229 
DESCRIPTION 

Admissibility  of  evidence 

Contracts  for  sale  of  real  estate,  436 
Deeds,  436 
Wills,  436 
Burden  of  proof,  436 
Ambiguity,  100 
Of  persons 

Wills,  parol,  1302 
Identity,  673 
Parol,  928, '935,  950 
Wills,  1301  to  1303 
DISCOUNT 

Burden  of  proof,  229 
DESERTION 

Burd(>n  of  proof.  229 
Grounds  for  divorce 

Burden  of  proof,  447 
Time  of  absence,  447 
Intention,  448 
Reasonable  cause,  448 
Offer  to  return,  448 
Consent,  448 

Uncorroborated  testimony,   448 
DESTRUCTION,  SUPPRESSION  AND  FABRICATION  OF  EVIDENCE 
Destruction   and   suppression 
Presumptions,  437 
Right  to  prove,  438 

Destruction  by  co-defendant  or  joint  obligor,  438 
Relief   from  burden,   438 
Fabrication 

Presumption,  438 
Right  to  prove,  438 
Appearance  of  document,  438 
Secondary  evidence 

Party  destroying  cannot  offer  secondary,  439 
Weight  and  sufficiency,  439 
DETECTIVES 
Credibility 

Criminal  action,  440 
Civil  actions,  441 
DEVISE 

Parol  to  identify  property,  1301 
DEVISEES 

Admissions  and  declarations,  60,  1318 
DIAGRAMS 

Parol  explanation,  936 
Admissibility 

In  general,  441 

Preliminary  proof,  441 

Ancillary  use.  441 

Plat  of  street  and  intersections,   441 

Division  fence,  442 

Location  of  property,  442 

Survey,  442 

Blue  print,  442 

Profile  of  improvement,  442 


Ii38  INDEX 

[references  are  to  pages] 

DILAPIDATION 

Of  account  book,  197 
DILIGENCE 

Due  search,  163 
Lost   instruments.   801 
DIRECT  EVIDENCE 

Abandonment  of  homestead,  620 
As  to  insolvency,  710 

Defendant  in  action  of  malicious  prosecution,  819 
False  pretenses 
Intention,  541 

Reliance  upon  representations,  541 
Fraud,  576 

Grantor  as  to  intent,  582 
Fraud  and  deceit,   579 
Gamblinfj  contracts,   586 
Good  faith  in  acquiring  title,  596 
Intoxication,  735 
Malicious  intent,  621 
Ownership,  905 
Intention,  725 
DIRECT  EXAMINATION 
Adverse  party,  76 
Cross  examination.  373 
Bias   and  hostility,   173 
LeadinjT  questions,   772 
DIRECTING  ATTENTION,  773 
DIRECTING  VERDICT 
Motion 

Defined,  442 

When  motion  waived,  443 
Evidence 

Not  weighed,  443 
Taken  as  true,  443 

Plaintiflf  entitled  to  benefit  of  all  evidence,  443 
Scintilla  rule,  443 
DIRECTORS  MEETING 

Notice  of,  348 
DIRECTORY 
City,  273 

Chicago  city  directory 
Judicial  notice,  755 
DISASTER 

Survivorship,  1216 
DISCHARGE  IN  BANKRUPTCY,  222 
DISCHARGE  OF  EMPLOYE 
Cause  of,  1374 

Husband  may  testify  as  to  drunkenness,  457 
DISCONNECTION   OF  TERRITORY 

Judicial  notice,  741 
DISCOVERY 

Bills  of  discovery,  444 
Defined,  444 

Jurisdiction  in  equity,  444 
Cumulative  remedy,  444 
Necessary  averments  of  bill.  444 
Who  entitled  to  relief,  444 
Incriminating  matters,  445 
Answer,  445 
Immunity.    685 
DISCREDITING  WITNESS 

TTow  far  party  may  discredit  own  Avitness,  686 
DISCRETION  OF  COURT 
Cross  examination,   372 


INDEX  1-A39 


[references  are  to  pages] 

DISCRETION  OF  COURT  (Continued) 
Recallino;  witness,    1070 
Order  of  proof.  889 
Limiting  number  of  witnesses,  379 
View  by  jury,  1268 
Leading  question.  774,  775 
Evidence   after  argument,   891 
DISEASES  OF  ANIMALS 

Exi)ert  testimony  a.s  to,  109 
DISGRACE 

As  ell'ecting  privilege  of  witness,  683 
As  element  of  damage  in  aetion  for  seduction,  1168 
DISOBEDIENCE 

Of  employer's  rules,  1155 
Of  witness 

Order  of  exclusion,  504 

Contempts,  312 
DISPOSITION  OF  ANIMALS,  107,  754 
DISORDERLY  HOUSE 

Admissibility  of  evidence 

General  reputation.  445 

Circumstantial  evidence,  446 
Patrons  defined,  446 
DISTANCE 

Experiments,  507 

Expert  and  opinion,  517,  528,  529,  531 
Judicial  notice,  745 
Speed,  1192.  1194 
DIVORCE 

Alienating  affections,  92 
Burden  of  proof,  bigamy,  229 
Degree  of  proof,  446 
Answer,  446 
Cruelty 

Defined,  446 

Abusive  language,  447 

Drunkenness,  447 

Failure  to  support,  447 

Complaint  by  wife,  447 

Single  act,  447 

Two  or  more  acts,  447 

Action  by  husband,  447 
Desertion 

Burden  of  proof,  447 

Time  of  absence,  447 

Intention,  448 

Reasonable  cause,  448 

Offer  to  return,  448 

Consent,  448 

Uncorroborated  testimony,  448 
Impotency 

Defined.  448 

Burden  of  proof,  448 

Lapse  of  time,  449 
Drunkenness 

Habitual  drunkenness  defined,  449 

After  filing  suit,  449 

Sobriety.  449 

What   sufficient  proof,   449 

Negative  testimony,  449 
Defenses 

Adultery,  449 

Connivance,  449 


1440  INDEX 

[REFERENCES    ARE   TO    PAGES] 

DIVORCE  (Continued) 
Condonation 

Defined,  450 
Presumptions,  450 
Specific  acts,  450 
Knowledge,  450 
Cohabitation,  450 
Witnesses 

Number  of,  450 
Divorced  wife.  450 
DOCKET  AND  MINUTES  OF  JUDGE,  738 
DOCKETS  OF  JUSTICES  OF  PEACE 
In  general,  762 
False  imprisonment,  539 
Malicious  prosecution,  822 
Copies,  1105 
DOCTOR 

Malpractice,  989  ,,„.„.     orr 

Expert  as  to  mental  and  physical  states,  514,  519.  845,  849  to  855 
Physicians  and  surgeons,  987 
Medical  and   surgical   services,   836 
Assent  to  services,  130 
Compelling  to  testify.  854 
Osteopath,  854 
DOCUMENTARY  EVIDENCE 
Abstracts  of  title,  10 
Account  stated,  23 
Affidavits,  80 

Affidavits  for  continuance,  83 
Ancient  documents,  103 
Answers,  110 
Bill  of  exceptions,  179 
Bill  of  lading,  179 
Books,  187 

Books  of  account,  188 
Certificates,  256 
Certificates  of  evidence.  260 
City  directory,  273 
City  and  village  records.  1087 
Copies,  328,  1097 
Coroner's  inquest,  334 
Corporate  records,  338,  340,  1091 
Deeds.  409 
Depositions,  422 
Diagrams,  441 

Dying  declarations,  468,  1214 
Foreign  judgments,  554 
Former  pleadings,  568 
Hospital  records,  653 
Hotel  registers,  654 
Instructions,  710 
Inventory  of  estate.  904 
Judges  dockets  and  minutes,  738 
Judgments,  738 
Legislative  journals,  776 
Letters,  779,   1309,   1319 

WTiole  of  letters.  1296 
Letter  press  copies,  786 
]\Iemorandum,  838 
Newspaper,  863 
Ordinances,  892 
Patents,  961 
Photographs,  981 


Ti^DEX  1441 


[references  are  to  paces] 

DOCUMENTARY  EVIDENCE   (Continued) 
Plats.  9'JO 
Police  records,  994 
Receipts,  1071 
Records.  1080 
See  Posi,  records 
School  recoid.  86 

Registers  of  births,  deaths  and  marriages,  1116 
Rules  of  court,  1153 
Rules   in  actions  of  negligence,   1154 
Stenographer's  notes.   1201 
Stereoscopic  view,  1204 
Stipulations.  1204 
Surveys  and  field  notes,  1214 
Tax  deeds,   1216 
Tax  receipts.  1223 
Telegrams.  1224 
Train  bulletins,  1243 
Weather  report,  1289 
Wills.  1237 

Authentication,  see  ante,  authentication 
Acknowledgments.  26 

Advertisement,  214,  540,  811,  1148,  1284 
Alterations  and  erasures,  93 
Ambiguity,  97 
Anti-saloon  territory 

Record  of  election  creating,  114 

Government  license.  115 
Assessor's  schedules,  930,  1264 
Ballots,  319 
Best  and  secondary 

Document  beyond  jurisdiction.  156 

Voluminous  documents,  156 

Wrongful  withholding  of  evidence,  157 

Lost  or  destroyed  writing,  158 

Preliminary  proof,  158 

Notice  to  produce.  159 

When  notice  not  necessary,  159 

Loss  of  original,  162 

Due  search,  163 

Degrees  of  secondary  evidence.   165 

Counterpart.  165 

Letters  and  letter  press   copies,   166 

Telegram.  167 

Deed,  167 

Unacknowledged  instrument,  168 

Contract  in  court  report.  168 

Duplicates  and  copies,  168 

Official  writings,  169 

Court  records,  170 

Corporate  records,  171 

Objections,   waiver  and   consideration,   173 
Blueprint,  442 
Catalogue,  1284 
Certificates 

Non  existence  of  record.  256 

Miscellaneous  certificates,  257 

Weight  and  sufficiency,  259 

Presumptions,  259 

Official  certificates  of  general  land  oflfice   1237 
Certified   and  examined  copies 

Records  in  general.   1097 

Must  be  certified  copy  of  record,  not  record,  1097 


1442  INDEX 

[references  are  to  pages] 

DOCUMENTARY  EVIDENCE   (Continued) 

Erasures  and  intt-'ilineations,  1098 

Copies  difl'ering,  1098 

Aid  by  parol,  1099 

Letter  press  copies,  329 
Checks,  see  ante,  checks 
Circular,  579,  1284 
Civil  service  rules,  333 
Conspiracy 

Bank  books,  307 

Police  records,  307 
Copies 

Private  writings,  328 

Public  writings.  330 

Ship  enrollment,  334 

Compared  copy,  562,  896,  1098 

Carbon  copy,  192 

Duplicates,  168 

Counterpart,  165 

Sworn  copies,  1109 

Copies  attached  to  deposition,  434 

Foreign  ordinance,  896 
Corporate  records 

Articles  of  incorporation.  338 

Corporate    record    and    books.    340.    1091 
Cross   examination 

As  to  writing.  369 

Counsel  entitled  to  memorandum.  842 
Denial  of  execution,  419 

Destruction,  fabrication  and  suppression  of  evidence,  437 
Foreign  judgments,  554  iJnio-i' 

Foreign  law,  558 
Handwriting,  602 
Illegally  obtained  evidence,   682 
Immunity,  682 

Incriminating  documents,  1051 
Indebtedness 

Not  presumed  evidenced  by  writing.   1021 
Lost  instruments 

Preliminary  proof  for  secondary   evidence,.  802 

Due  search.  803 

Proof  of  contents.  803 

Proof  of  execution.  804 

Particular  instruments.  804  to  810 

Lost  wills,  811 
Newspaper  article,  788 
Objections,  874 

Order  of  proof,  892 
Official  registers 

School  record,   86 

Registers  of  births,  deaths  and  marriages.   1116 

Ship  enrollment.  904 

Weather  reports,  1289 

Internal  revenue  record,   115 

Registers  of  land  office,  475 
Parol 

Interpretation  of  writings.  913 
Impeachment 

By  written  statements  generally,  325,  690 
Public  documents 

Statutes.  1195 

Foreign  law,  558 

Legislative  journals,  776 


INDEX 

[references  are  to  pages] 

DOCUMENTARY  EVIDENCE   (Continued) 
Payment 

Need  not  be  proved  by,   'J03 
Production  of  documents,  1051 
Release,  111 'J 

When  may  be  oU'ered,  892 
Wliole  of,  1296 
Destruction  of  documentary  evidence 

Party   destroying  cannot  oiler   secondary,  439 
Subject  in  general,  437 
Best  and  secondary 

Subject  in  general,  156 
Refusal  or  failure  to  produce 
Subject  in  general,   1112 
DOGS 

See  animals,  108 
DOLLAR 

Abbreviation 

Judicial  notice,  753 
DOMESTIC  JUDGMENTS 

See   judgments.    738 
DOMESTIC  RELATIONS 
injury  to  person,  1273 
^Vrongful  death,  1276 
Action  by  widow,  1279 
Homicide,  630 

See  Husband  and  Avife,   655 
Infants,  700 

Work  and  services,  1370 
DOMICILE 

Admissions  and  declarations 
Paupers,  61 
Intent,  62 
Burden  of  proof,  229 
Presumptions,  451 
Defined 

In  general,  451 
Infants,  451 
Married  women,  452 
Persons  iion  compos,  452 
Pauper,  452 

Person  in  military  or  naval  service,  453 
College  students,  453 
Admissibility  of  evidence 
Declarations,  453 
Voting,  453 

Party's  own  testimony.  453 
Avoidance  of  process,  453 
Real  inquiry,  454 
DOUBT 

Reasonable  doubt,  1291 
Defined,  1065 
Subject  in  general,  1065 
DOUBTS  AND  RUMORS 

As  to  paternity  of  child,  778 
DOWER 

Adultery,  72 
Burden  of  proof 

To  show  seizure,  329,  454 
Proof  necessary 

In  general,  454 
Marriage,  454 
Death   of  husband,  454 
Seizin  of  husband 

Burden  of  proof,  229,  454 


1443 


1444  INDEX 

[refekences  are  to  pages] 

DOWER   (Continued) 

Estate  of  inheritance,     454 

Estate  in  remainder,  454 

Time  of  seizin,  454 

Title  deeds,  454 
To  bar  dower 

Degree  of  proof,  455 

Adultery,  455 

Ante  nuptial  contract,  455 

Post  nuptial  contract,  455 

Eminent  domain,  455 

Limitations,  455 
Value 

Proof  of  by  life  tables,  455 

Inchoate,  456 
DRAFT  OF  DECREE,  1099 
DRAINAGE 

.Judicial  notice,  756 
DRAM  SHOPS 

Civil  action  for  damages 

Presumptions,  456 

Burden  of  proof,  456 

Admissibility  of  evidence,   456 
DRUGS 

illegal  sale,  1171 
DRUNKENNESS 

Dram  shops,  456 
Homicide,  645 
Intoxication,  734 
Of  witness,  737 
As  ground  for  divorce 

Habitual  drunkenness  defined,  449 

After  filing  suit,  449 

Sobriety,  449 

What  suiUcient,  449 

Negative  testimony,  449 
DUE  CARE 

Burden  of  proof,  230 
Habits  admissible  on  issue  of,  599 
Conclusions  of  witnesses,  285 
Presumption,  1017 
Weight  of  presumption,  1291 
Presumption  as  to  love  of  life,  1027 
Presumption  from  proof  of  habits,  1020 
Expert  and  opinion,  522 
Proof  where  no  eye  witnesses,  599 
Weight  and  sufficiency  of  proof,  1291 
DUPLICATE  COPY 

To  prove  aitcration,  96 
As  degree  of  secondary  evidence,  165 
Books   of   account,   192 
Patents,  962 
DURESS 

Burden  of  proof,  230 
Defined 

In  general,  461 

Threats  of  civil  action,  461 

Threats  of  criminal  prosecution,  461 
Parties 

Surety,  461 

Husband  and  wife,  461 

Parent  and  child,  461 

Innocent  third  party,  461 


INDEX  1445 

[references  are  to  pages] 


DURESS  (Continued) 

W'liat  may  be  considered 

Laches,  462 
Weight  and  sufficiency, 

Threats,  462 

Duress  of  goods,  463 

Imprisonment,  463 
DUST 

Explosions,  534 
DaTiiago  from.  496 
DUTIES  OF  SERVANT 

Opinion,  522 
DUTY 

Officers,  <S87 
DYING  DECLARATIONS 
Bias  and  hostility,  175 
Defined,  463 

Principle  upon  which  admitted,  464 
Mental  faculties,  464 
Extremity  of  declarant 

Fixed  belief,  464 

Actual  danger  of  death,  464 

Inducement  of  belief,  464 

How   proof  may  be  made,  404 

Concerning  religious  consolation,  465 

Suflficiency  of  proof,  466 
Province  of  court  and  preliminary  proof 

Admissibility  question  for  court,  467 

Degree  of  proof,  467 

Presence  of  jury,  467 

Repetition    of   preliminary   proof,  467 
Influence  of  opiates,  468 
Writing  best  evidence.  468 
Different  statements.  468 
Time  of  death,  468 
Statement  signed  by  nurses,  469 
Presence  of  state's  attorney,  469 
Exoneration  of  accused,  469 
Husband  and   wife,  469 

Statements  of  others  than  injured  person,  469 
Substance  of  declaration,  470 
WTiole  of  declaration,  470 
Self  exculpatory,  470 
Objections  to  admission,  470 
Weight  and  probative  force,  470 
Impeachment  of  dying  declaration 

In  general,  470 

Contradictory  statements,  471 

Hostility  towards  accused,  471 

Condition  of  declarant's  mind,  471 
Admissibility  in  'civil  cases,  460,  471 
Note   as   constituting   dying   declaration,  460 
See  also  Homicide,  6.'?4 
DYNAMITE 

Judicial  notice,  534,  756 


E 


EARNING  CAPACITY 

In  personal  injury  actions,  1273 
EASEMENT 

Abandonment,  1 


1446  INDEX 

[references  are  to  pages] 

EBB  AND  FLOW  OF  TIDE 

As  constitutiiiu;  navigability  of  water,  1289 
ECCLESIASTICAL  CEREMONY 

Bigamy,  177 
EJECTMENT 

Abstracts  of  title,  16 
Presumptions 

Rightful  possession,  471 

Ownership  from  possession,  471 

Possession  and  source  of  title,  473 

Continuance  of  possession,  472 

From  possession,  472 

Validity  of  title  from  government,  473 

Good  faith,  472 
Burden  of  proof,  230,  472 

In  general,  472 

Immediate  possession,  472 

Existence  of  property,  473 

Identity  of  property,  472 

Compliance  with  statute,  473 
Pleading  and  proof 

As  to  declaration,  473 

Homestead,  473 

Limitations,  473 

Denial  of  interest,  473 

Possession,  473 

Demand,  473 

Default  of  one  defendant,  474r 
Admissibility  of  evidence 

As  to  description.  474 

Consideration  in  deed,  474 

Deed  as  mortgage,  474 

Location  by  parol,  474 

Legal  title  by  parol,  474 

Fraud,  474 

Reputed  ownership,  475 

Contract   of   purchase   and   performance,   475 

Subsequently   acquired  title,   475 

Plats,  475 

Sherift"'s  deed,  475 

Tax  deeds,  475 

Entry  books,  475 

Unrecorded  deed,  475 

Official  certificate  of  register  of  land  oflfice,  475 

Unacknowledged  deed.  476 

Date  of  filing  deed,  476 

Record  of  former  suit.  476 

Payment  of  taxes  without  color  of  title,  476 

Outstanding  title.  476 

Possession    before    acquirement    of    title,    476 
Weight  and  sufficiency  of  evidence 

Strength  of  own  title,  476 

Titl"    from   common   source.   477 

On  denial  of  common  source.  477 

Mesne    conveyances    and   possession,   477 

Prior  possession,  478 

Actual  possession   under   deed.   478 

Prior  possession  of  grantor,  478 

Where  fee  simple  claimed,  478 

Adverse  possession,  478 

Legal  title.  478 

Trustee,  478 

As  against  intruder,  479 


INDEX  1447 

[REFERENCES    ARE   TO    PAGES] 

EJECTMENT    (Coulimicd) 
Limitations,   479 

Wiu'ie    (lotciulant   holds   contract    for   possession,  479 
Guardian's  deed,  479 
As   to  time  of  bringing  suit,  479 
Heirsliip  of  plaintill's  grantors,  479 
Bad  faith,  479 
Description,  479 
Dechirations,  480 
ELECTIONS 

Creating  anti-saloon  territory,  114 
Contested  elections,  316 
ELEVATORS 

Custom  and  usage,  392 
Expert  and  opinion,  525 
EMANCIPATION  OF  INFANT,  705,  907 
EMBEZZLEMENT 

Burden   of   proof,  230 
Chastity  of  prosecutrix,  268 
Presumptions,  1017 
In  general 

Failure  to  account  for  money  received,  480 
Deposit  of  money,  480 
Liability  of  defrauded  party,  480 
Ownership 

In  general,  480 
Unincorporated  body,  481 
Character  of  property,  481 
Demand 

By  bank  depositor,  481 
By  express  company,  481 
Intent 

Public  officer,  481 
Intention  to  repay  debt,  481 
Agent,  482 
Bank  ofiicer,  482 
Knowledge,  482 
Various  acts,  482 
Value 

Railroad  ticket,  482 
Bank  deposits,  482 
Venue,  482 
EMINENT  DOMAIN 

Burden  of  proof,  230,  498 
Defeats  dower  rights  when,  455 

Time  when  compensation  fixed,  483 
Compensation  for   land  taken 

Measure  of   damages  generally,  483 

Owner's  estate,  483 

Offers  to  sell,  483 

Rental  value  of  property  condemned,  484 

Price  at  which  others  would  buy,  484 

Rental  value  of  adjacent  property,  484 

Price  paid  by  owner,  484 

Price  paid  by  others,  484 

Price  paid  for  other  property,  484 

Prospective  use  of  pro])erty,  485 

Sale  of  similar  property,  485 

Opinion  evidence  as   to  value,  487 

Special  value  to  owner,  489 

Special  value  to  petitioner,  489 

Value  for  particular  purposes,  489 

Profits  from  land,  489 


1448  INDEX 

[references  are  to  pages] 

EMINENT   DOMAIN    (Continued) 

Advancement  of  property,  489 

Value  when  sub-divided,  489 

Mineral  value,  489 

Actual  sales,  489 

Title  to  property,  490 

As  to  land  being  subject  to  overflow,  491 

Repairs  to  property,  491 

Adaptability  of  land,  491 

Assessor's  book,  492 

Deeds  and  leases,  492 

Value  of  improvements,  493 

Plats,  492 

Ingress  and  egress,  492 

Value  of  buildings,  492 

Purpose  for  which  land  is  used,  493 

Removal  of  business,  493 

Trespass,  493 

Loss  of  profits,  493 
Damages  for  injuries  to  property  not  taken 

In  general,  493 

Diminution  of  income,  493 

Liability  to  fires,  493 

Diversion  of  traffic,  493 

Difficulty  of  access,  494 

Interference   with   use   and   enjoyment,  494 

As  a  nuisance,  494 

Increase  of  insurance  rates,  494 

Depreciation  of  rental  value,  494 

Inconvenience  to  owner,  494 

Future  use,  494 

Possible  injury  to  persons  or  animals,  495 

Amoiuit  of  land  taken,  495 

Efl'ect  of  improvement  on   remaining  projierty,  495 

Expense  of  maintaining  improvements,  495 

Stipulation  of  counsel,  495 

Plans  and  specifications,  495 

Ordinances,  495 

Smoke  and  cinders,  496 

Noise,  496 

Damage  common  to  entire  public,  496 

Wages  of  employees,  496 

Speculative  damages,  496 

Removal  of  business,  497 

Failure  to  fence  right  of  way,   497 

Damages  to  residences,  497 

Removal  and  damages  to  personal  property,  497 

Value  when  sub-divided.  497 

Loss  of  water  supply,  497 

Plans  of  proposed  construction,  497 

Burden  of  proof,  498 
Benefits 

In  general,  498 

Nature  and  extent,  498 
View  by  jury 

Right  to  make  view,  498 
Time  of  taking,  499 
Property  to  be  included,  499 
Nature    of    facts    obtained,    499 
Use  of  facts  obtained,  499 
Weight  of  facts  as  evidence,  499 
Effect.  499 
EMPHASIS  BY  RE-EXAMINATION,  381 


INDEX  1449 


[references  are  to  pages] 

EMPLOYE  AS  WITNESS 

Credibility,  :<(i() 

Parties  and  persons  interested  as  witnesses,  951 

Witnesses,  1348 

Failure  to  call  ex-employe,  1113 
EMPLOYER  AND  EMPLOYE 

Custom   and  usage,   387 

Rules  of  employer,  1154 

Safer  method,  1156 

Assent  to  services,  130 

Burden  of  proof 

Terms  of  contract,  252 

Admissions  of  employees 
In  general,  51 
Ses  gestce,  1139,  1141 
EMPLOYMENT 

Presumptions 

Nature  and  time  of,  1017,  1018 
Compensation,  1018 

Assent,  130 
EMPLOYMENT  CONTRACT,  936,  937 
ENDORSEMENTS 

See  post,  negotiable  instruments 
ENTIRETY 

See  whole  of  utterance,  1293 
ENTRIES  IN  BOOKS 

Book  accounts,  188 

Registers  of  birtlis  and  marriages 
In  general,  1116 
Must  be  required  to  be  kept,  827 

Records  not  required  to  be  kept,  1081 

Memoranda,  838 

As  res  gestce,  1136 
ENTRY 

Forcible   entry   and  detainer,   550 
ENTRY  BOOK,  962 
EQUITABLE  DEFENSE 

Presumptions,   tOlS 
EQUIVALENTS  AND  CONTRACTIONS  OF  NAMES 

Judicial  notice,  758 
ERASURE 

See  alterations  and  erasures,  93 
ESCAPE 

Weight  and  sufficiency,  500 
ESCROW 

Deed,  500 

Burden   of   proof,   416,    500 

Parol  proof  of  conditions,  416 

Contracts,  500 
ESTATE 

Power  over,  1036 

Presumption  as  to  settlement,  1040 

See.  ante,  claims  against  estates 
ESTOPPEL 

Defined,  504 

Burden  of  proof,  230 

Dedication,  408 

Admissions  and  declarations,  65 

Quo  warranto,  1054 

Corporations,  349 

Boundaries,   204 

Former  adjudication,  563 
EVIDENCE     DEFINED 

Prima  facie,  502 


1450  INDEX 

[references  are  to  pages] 

EVIDENCE   DEFINED    (Continued) 
J^unlen  of  proof,  503 
Preponderance,  503 
Relevant,  503 
Rebuttal,  503 
Confessions,  503 
Cumulative,  504 
Estoppel,  504 

Testimony  and  evidence,  501 
Real  evidence,  501 
Circumstantial  evidence,  501 
Hes  gestce,  501 
Presumption,   502 
Judicial  notice,  761 
EXAGGERATION 

As   affectino:   credibility.   355 
EXAMINATION  OF  TITLE,  1018 
EXAMINATION  OF  WITNESSES 
Cross  examination,  SttS 
Hypothetical  questions,  669 
Leading  questions,  771 
Objections,  872 
Ofl'er  of  evidence,  884 
Order  of  proof,  889 
Recalling  -witness,  1070 
Bias  and  hostility,  173 
Credibility,  354 

Contradiction  and  sustaining  witnesses,  324 
Impeachment.  685 
Direct  examination,  375 
EXAMINED  COPIES 

Books  of  account,  192 
Records,  1097 

Record  in  collector  of  revenue  office,  115 
Copies,  331 
EXCLAMATIONS 

As  part  of  res  aesi(V,  643,   1141 
EXCLUSION  AND  SEPARATION  OF  WITNESSES 
Riglit  to  order,  504 
Violation  of  order.  504,  505 
EXCLUSION  OF  EVIDENCE 
Competency  of  witness,  878 
Remaining  silent  wlien  oll'ered,  1210 
Rebuttal  of   evidence  after  motion   to  exclude,    1068 
EXECUTION 

Return  vvlla  bona,  as  proof  of  insolvency,  709,   710 
EXECUTION  OF  INSTRUMENTS 
Acknowledgment,   28 

Recorded   unacknowledged   instrument,   476 
Lost  instalment,  804 
Ancient  document,  103 

Instrument  offered  as  secondary  evidence,  157,  167 
Wills,   1321,   1328 
Denial  of   execution.  419 
EXECUTOR  AND  ADMINISTRATOR 
Competency  as.  witness,   1346 
Representative  capacity,   1132 
Admissions  of,  59 

Admissions  of  devisee  ns  against,  60 
•Tudgment  against,  as  to   sureties,   740 
EXEMPLARY  DAMAGES 

Financial  circumstances,  969 
EXEMPLIFICATIONS 
Records 

Act  of  congress  not  exclusive,  1107 


INDEX  1451 


[references  are  to  pages] 

EXEMPLIFIED  COPIES,  116,  330 
EXEMPTIONS 

Presinii])tion.  1018 
EXHIBITION  OF  INJURY 

\'oluntary   exlii'oition   of   injury,   505 

niscvetion  of  couit,  505 

Particular  instances  wlicrc  held  not  error,  506 
EXHIBITS 

Refusal   to   attach    to   depositions,   434 
Demonstrative  evidence.   4]Ci 
EXISTING  STATE  OF  THINGS 

Presumption  as  to  continuance,  1008 
EXISTENCE  OF  PARTY  TO  SUIT,  143 
EXISTENCE  OF  RECORD,  1081 
EX  MALEFICIO 
Trusts,  1259 
EXONERATION 

Dying  declarations,  469 
EX  PARTE  AFFIDAVITS,  81 
EXPECTANCY  OF  LIFE 
Life  tables,  796 
Dower.  455 
EXPERIMENTS 
Civil  actions 

In  general.  506 

Vision  and  distance,  507 

Stopping  trains,  507 

IMechanical  tests,  507 

Firing  pistol,  508 

Bodily  defects,  508 
Criminal  trials 

Suicide  by  hanging,  508 

Firing  of  pistol,  508 

Effect  of  red  pepper  in  eyes,  508 

Lapse  of  time.  509 
Cause  of  explosion,  534 
EXPERT  AND  OPINION 
Opinion   evidence 

In  general,  509 
Non  experts 

Opinions  in  general,  509 
Experts 

Opinions  in  general,  510 

Usurping  province  of  jury,  511 

Conjectures   and  impressions,   511 

Time  of  opinion,  511 

Classes  of  experts,  511 

Admissibility  from  necessity,  512 

Qualification  of  experts,  513 

Cross   examination,   514 

Weight  and  sufficiency,  515 
Miscellaneous  instances 

Abortion,  516,  8 

Accident,  516 

Adultery,  516 

Age,  516 

Agriculture,  516 

Alteration  of  instruments,  516 

Animals,   516 

Attempts  and  efforts,  517 

Attorneys'  fees,  517 

Automobiles,  517 

Bookkeeper,  201 


1452  INDEX 

[references  are  to  pages] 

EXPERT  AND  OPINION    (Continued) 

Books,  187 

Bucket  shops,  518 

Business  transactions,   518 

Cause  of  death,  518 

Cause  and  etl'ect  of  injury,  518 

Church   doctrine,   521 

Condition  of  merchandise,  521 

Conduct,  demeanor  and  character,  521 

Cumuhitive   evidence,   380 

Damages,  521 

Danger,  522 

Due   care,   523 

Duties  of  servants,  522 

Finger   prints,  523 

Fraud,   523 

Genuineness  of  bank  notes,  523 

Handwriting,  523 

Health  and  pliysical  condition,  523 

Highways,  524 

Historical  facts,   524,   617 

Identity,   524 

Insurance,  524 

Intelligence  of  child,  524 

Intention.  524 

Intoxication,  524 

Larceny,   524 

Law,  524 

Law  of  sister  state,  560 

Libel  and  slander,  524 

Malpractice,  525 

Mechanics,  machinery  and  building  trades,  525 

Mines  and  mining,   527 

Noise,  odors  and  smells,  528 

Observations  and  exercise  of  senses  bv  witnesses,  528 
Rape,   1059 

Mental  and  physical  states,  848  to  853 
8anity  and  insanity,  1059 
Value 

In  general,  1264 

Eminent  domain,  487 
Wills 

Mental   capacity,   1310   to   1312,   1315 

Undue  influence.  1319 

Constniction,  1303 
Qualification  of  non-expert,  510,  1311 
Weight  of  expert  evidence,  1292 
Hypothetical  questions 

In  general,  669  to  673 

On  inquiry  as  to  value,  1264 

Right  to  ask   non-expert.    1159 
EXPLANATION  OF  DOCUMENTS  BY  PAROL,  913 
EXPLOSIVES 

Opinion  evidence 

Cause  of  explosions,  534 

Experiments,  534 
Condition  after  explosion,  535 
EXTENT  OF  CROSS  EXAMINATION,  370 
EXTORTION 
By   threats 

Former  acts,  535 
By  officer 

Authority  to  charge  fees,  535 


INDEX  1453 

[references  are  to  pages] 


EXTRADITION 

lllrgal   arrest,   53") 
EXTRA  JUDICIAL  CONFESSIONS 
See  Confessions,  292 

Cor{)us   ck'liciti,  351 

Corroboration,  352 

Hoiiiit'ide,  625 
EYE,  417,  506 
EYE  WITNESS 
Absent 

Presumptions,  59 
Habits  wliere  no  eye  witnesses 

I'roof  of   599 

Presumptions  as  to  due  care,  1017 

Weight  and  sufficiency  of  presumption,  1291 
Right  of  court  to  call,  3(J5 


FABRICATION  OF  EVIDENCE 

See  destruction,  suppression  and  fabrication  of  evidence,  437 
FAC  SIMILE 

Seal  of  corporation,  347 
Proving  handwriting  by,  603 
FACT 

-ladicial  notice,  755 

Presumptions  must  be  based  on,  1001 
Witness  must  state,  285 
Expert  not  to  decide  questions  of,  511 
FAILURE  AND  WANT  OF  CONSIDERATION 
Rendering   deed   null,   305 
Negotiable   instruments,   137 
FAILURE  TO  PRODUCE  EVIDENCE 

Presum])tions    from,    1112 
FAILURE  TO  TESTIFY,  363,  1114 
FALSE  IMPRISONMENT 
Burden  of  proof,  231 
Arrests  by  private  persons 

Justification,  537 

General  issue,  537 

Intent  and  malice,  537 
Arrests  by  officers 

Malicious  prosecution  distinguished,   538 

Burden  of  proof  and  presumptions,  538 
Admissibility  of  evidence 

Legality  of  appointment  of  officer,  539 

W^arrant,  539 

Justice's  docket,  539 

Belief  and  information,  539 

Verdict  of  jury,  539 

Habeas  corpus  proceedings,  540 

Actual  damages,  540 

Motives,   540 

W^ords  spoken,  540 
FALSE  PRETENSES 
Fraudulent  intent 

Presumption  as  to  knowledge,  540 

Other  similar  acts,  540 

Check  without  funds,  540 

Promise,  541 

Acts  and  declarations  of  conspirator,  541 
Reliance  upon  representations,  541 
Ownership  of  goods,  541 
Intention,  541 


1454  INDEX 

[references  are  to  pages] 

FALSE  PRETENSES    (Continued) 

Contract  legally  binding,  541 

Negligence  of  purchaser,  541 

Warranty,  541 
FALSE  REPRESENTATIONS 

Accord  and  satisfaction,  20 

Reliance  upon,  541,  578 
FALSUS  IN  UNO,  FALSUS  IN  OMNIBUS,  356 
FAMILY 

Record,  86 

Expense,  657,  663 

Insanity  in  family,  1157,  1158 
FARMERS  AS  EXPERTS 

Agriculture,   516 

Animals,  109 
FATHER 

Same  name  as  son 

Presumption   as  to  conveyance,  674 
FEDERAL  GOVERNMENT 

Records,  1094 
FEELINGS 

]\Iental  and  physical  states,  844 
FEE  SIMPLE 

Warranty  deed  not  proof  of,   1242 
FEES  AND  SERVICES 

Attorneys,  143 

Physicians 

Assent  to  services,   130 
Recovery  of  fees,  987 
FEIGNED  COMPLICITY 

Accomplice,   19 
FELONIES  AND  MISDEMEANORS 

Conviction  as  allVctiiig  credibility,  566 

Former  jeopardy,  568 

Incapacity  of  infant  to  commit,  701 
FICTITIOUS  LETTERS 

Confidence  game.  300 
FICTITIOUS  PERSONS 

Conspiracy 

Padded  pay  roll,  307 
FICTITIOUS  VALUES 

Confidence  ganu>,   301 
FIDUCIARY  RELATIONS 

Defined,  542 

Undue  influence,   542 

Question  of  fact,  542 

Presumptions,  542 
FIELD  NOTES,  1215 
FINAL  SETTLEMENT 

Of  guardian,  599 
FINANCIAL  CIRCUMSTANCES 

Money  lent,  859 

As  alTecting  damages,  969 

Fraud 

Purchaser,  577 
Vendor,  582 

Fraudulent  conveyances,  582 

Beneficiary  of  gift,  593 

Of  those  having  claim  on  testator's  bounty 
As  test  of  testamentary  capacity,   1307 

In  proof  of  gambling  contracts,  587 

Payment  of  debt,  968 

Not  considered  as  affecting  credibility,  356,  357 


INDEX  1455 


[references  are  to  pages J 

FINANCIAL  CIRCUMSTANCES   (Continued) 

Question  calculated  merely  to  show  wealth  of  party,  372 
On  issue  of  forgery,  607 
FINGER  PRINTS 

Expert.   523 
FIRE  ARMS 

Presumptions  and  burden  of  proof,  544 
FIRE  ENGINE 

Speed,   1194 
FIRE  INSURANCE,  721 
FIRES 

By  locomotives 

Questions  for  jury,  544 
Presumptions,  544 
Prima  facie  case.  545 
Want  of  negligence.  545 
Proper  equipment.  545 
Other  fires,  545,  546 
Direct  evidence,  546 
Ordinances,  547 

Weight  and  sufficiency  of  evidence,  547 
Ownership  of  property.  548 
Ownership   of  engine.   548 
Elements  and  measure  of  damages,  548 
FIRING  PISTOL 

Experiments,  508 
FIRM 

See   partnership,   955 
FIXTURES 

Intention,   549 
Reservation,  550 
FLIGHT,  550 
FLOTABILITY 

As  test  of  navigabilitv,  1289 
FOOTINGS  IN  BOOKS  OF  ACCOUNT,  189,  201 
FOOT  PRINTS 

Identity,   574 
FORCE 

Rape,  1061 
Robbery,  1150 
Seduction.    1167 
FORCIBLE  ENTRY  AND  DETAINER 
Nature  of  action,  550 
Possession,  551 
Burden  of  proof.  551 
Title,  551 
Force,  552 

Notice  and  demand,  553 
Deeds,  551 

Date  of  entry,  553.  394 
Conveyance  after  suit,  553 
After  acquired  title,  553 
Ejectment,   553 
Immoral   purpose.    553 
FOREIGN  COUNTRIES 
Judgments.  557 
Deposition  taken  in,  432 
FOREIGN  COURT 

Judicial  notice.  757 
FOREIGN  DEED,  409 
FOREIGN  JUDGMENTS 
Sister  state 

Necessity  and  presumption  as  to  jurisdiction.  554 


1456  INDEX 

[references  are  to  pages] 

FOREIGN   JUDGMENTS    (Continued) 

Conclusiveness,   554,   555 

Admissibility,   555 

Justice  of   peace  judgments,  555,   1106 

AVeight  and  sufRciencj'  as  evidence,   556 

Authentication,  556,  1107 

Copy,  557 
Ck)urts  of  foreign  countries 

Conclusiveness,   557 

Authentication,   557 
Possession   as  evidence  of  ownership,  903 
FOREIGN  LANGUAGE 
Interpreter.  ~'-l2 
Deposition  taken  in,  433 
FOREIGN  LAW 

Construing  foreign  will,  1303 
Acknowledgments 

Proof  of  to  aid,  39 
Pleading,  558 
Judicial  notice,  558 
Presumptions 

Existence  of  common  law,  558 

Construction  of  statute,  558 

Adoption  of  statutes.  558 

Similarity  of  laws,  559 

Interest  laws,  731 
Judicial  construction.  559 
Printed  reports  and  statutes,  559 
Foreign  legislative  acts,  560 
Parol  evidence,  560 
Expert,  evidence,  560 
Proof  before  court,  560 
FOREIGN  WILLS,  1237 
FORFEITURE 

Burden  of  proof,  231 
FORGERY 

Qtiestions  of  law  and  fact,  560 
Presumptions  and  burden  of  proof,  561 
Secondary  evidence,  561 
Photographs,  561 
Other  forgeries,  561 

Possession  of  other  forged  instruments,  561 
Admissions  and  confessions,  562 
Proof  as  to  correctness  of  copy,  562 
Venue,  562 

Signature  not  in  handwriting  of  defendant,  56S 
Variance,  563 
Witness,  563 

Financial  circumstances,  607 
FOREMAN 

Entries  in  book  as  part  of  res  gestce,  193 
Memoranda  of,  839 

As  witness  where  joint  defendant,  1348 
FORMER  ADJUDICATION 

Identity  of  subject  matter,  563 

Parol,  564 

Where  shown  by  record,  564 

Competency  of  pleadings  and  files,  565 

Certificate  of  evidence,  565 
Identity  of  parties 
Parol.   565 
FORMER  CONVICTION 

Impeachment  of  witness 
Admissibility,  566 


INDEX  1457 

[references  are  to  pages] 

FORMER   CONVICTION    (Continued) 

liit'amoiia  crime,  566 

]\hist.  be  conviction,  566 

Manslaughter.  566 

Record  proof  criminal  action,  566 

Proof   in   civil  action,  567 

Presumption  as  to  identity,  567 
FORMER  JEOPARDY 

Admissibility  of  evidence,  568 
Pleading  and  practice,  568 
Felonies  and  misdemeanors,  568 
Identity  of  action 

Proof  bv  parol.  568 
FORMER   OPINIONS,  368,  694 
FORMER  OWNER 
Admissions 

In  disparagement  of  title  to  real  property.  58,  1239 

In  disparagement  of  title  to  personal  property,  905 

To  prove  ownersliip  of  personal  property,  58 

As  proof  of  value,  1264 

Of  assignor  of  note,   131 
FORMER  PLEADINGS 
Former  adjudication 

To  show  identity  of  action,  565 
As  admissions 

Common  law,  568 

Chancery,   113,  569 
Stipulations,  570 
Authentication,  569 
Lost  pleadings.  569 
FORMER  STATEMENTS 

Impeachment  bv  proof  of,  687 
FORMER  TESTIMONY 

Admissions,  although  compulsory,   64 

Judicial   notice,   757 

Effect  of  introducing  testimony  of  deceased  witness,  1343 

Deceased  witness 

Civil  actions,  570 

Criminal  actions,  571  _  .     ■     ,       -^    ,,-, 

As  to  testimony  in  criminal  prosecutions,  in  subsequent  civil  suit,  5<1 

Cross  examination  not  test,  571 
Living  witness 

Insane  witness,  1201 
Absent  witness,  9 
Witness  present  at  trial.  572 
Subsequent   incompetency   of   witness,  572 
Secreted  witness,  572 
For  purpose  of  impeachment,  572 
Parol,  573 
Whole  of  utterance,  1294 
Depositions,  574 

Where  deposition  not  introduced,  572 
FORMER  WILLS 

As  relating  to  testamentary  capacity,  1308 
As  relating  to  undue  influence.  1318 
FOUNDATION  FOR  IMPEACHMENT,  688 
FOWLS 

See  animals,  108 
FRAUD  ^        ,    _„„ 

Presumptions  and  burden  of  proof,  5(4,  233  .^ 

In  general,  574 
Fiduciary  relations,   575 
Charge  in  negative  form,  575 


1458  INDEX      ■ 

[references   are  to   PAGESl 

FRAUD   (Continued) 
I'arol 

Where  contract  in  writing,  575 

Financial  condition,  577 

Cliaracter  and  reputation,  577 

Other  fraudulent  acts,  577 

Preponderance,   578 

Doubt  may  remain,  578 
Admissions  and  declarations,  54 
Kxpert  and  opinion.  523 
FRAUD  AND  CIRCUMVENTION 

As  to  consideration,  304 
FRAUD  AND  DECEIT 

Elements,  579  .."Sii  ,c 

PlaintiflF's  reliance,  579 
Circumstantial  evidence,  579 
Weight  and  sufficiency,  579 
Rescission,  580 
FRAUDULENT  CONVEYANCES 
Presumption 

Motive,  580 

Voluntary  conveyance,  581 
Relationship,   580 
Preference  to  creditor,  581 
Inadequacy  of  consideration.  581 
Similar  sales,  583 

Direct  testimony  as  to  good  faith,  582 
Financial  condition  of  parties,  583 
Declarations  of  grantor,  583 
Knowledge  of  parties,  584 
Specific  intent,  584 
Mortgage  exceeding  debt,  584 
Grantor  as  witness,  585 
FREIGHT  RATES 

Judicial  notice  not  taken  of,  760 

Proof  of  fairness  and  reasonableness.  585 

Cro'ss  examination  of  expert,  37G 

G 

GAMBLING  CONTRACTS 

Defined,  586 

Burden  of  proof,  586,  233 
Presumptions,  586 
Intention,   586 
Course  of  dealing,  587 
Similar  transactions,   587 
Correspondence  between  parties,  588 
Contract  not  conclusive,  589 
Mutuality  of  intention,  589 
Preponderance  of  evidence,  589 
Financial  circumstances  of  parties,  970 
GAMING 

Judicial  notice,  757 
Losses 

Immunity  of  defendants,  685 

Competency  of  husband  as  to,  590 
Recovery  of  money  lost 

Burden   of  proof,  590 

Immiinity,  590 
GAMING  HOUSE 

Guilty  knowledge,  591 

Proof  beyond  reasonable  doubt,  591 

Immunity,  682 


INDEX  1459 

[references  are  to  pages] 


GARMENT 

Kxibition  to  jury,  417,  638 
GARNISHMENT 

Burden  of  proof,  232 

Admissibility  of  answer,  593 

Disproving  answer,   592 

Good  faith  in  assignment,  597 
GAS 

Value, — subject  of  larceny,  770 

Nuisance,    870 
GATE,  417 
GAUGE  READINGS 

From  war  department,  992 
GENERAL  ISSUE 

See  I'ost,  Pleading  and  Proof 
GENUINENESS  OF  HANDWRITING 

See  handwriting.  t)()2 
GEOGRAPHICAL  FACTS,  742,  757 
GEOLOGICAL  FORMATIONS 

Judicial  notice,  757 
GESTATION 

Bastardy,  152,  153 

Expert,  154 
GESTURES 

As  provocation,  homicide,  648 
GIFTS 

Defined,  592 

Presumptions,   593 

Burden  of  proof,  2.32,   593 

Declarations  of  donor,  593,  595 

Declarations  of  deceased  persons,  42 

Delivery,  594 

Intention,  595 

Clear  proof,  595 
GOD 

Belief  in  as  affecting  competency  of  witnesses,  1339 
GOOD  CHARACTER 

In  civil  actions,  263 

In  criminal  actions.  284 
GOOD  FAITH 

Accord  and  satisfaction,  21 

As  to  color  of  title 
Defined,  595 
Presumptions,  596 
Grantor's  ancestors,  596 
Intermediate  owner.  596 
Direct  testimony  of  occupant,  596 

Bringing  of  suit.  597 

Garnishment.  597 

Guardian  and  Ward.  597 

Libel  and  slander,  597 

Business  transactions  generally.   597 

Direct  testimony  by  grantor,  582 
GOODS 

Market  price,  823 

Expert  opinion  as  to  condition  of,  518 
GOVERNMENT  LICENSE 

Anti  saloon  territory,  115 
GOVERNMENT   REGULATIONS 

Judicial  notice,  757 
GOVERNOR'S  DEED 

Need  not  be  acknowledged,  27 


1460  INDEX 

[references  are  to  pages] 

GRAND  JURORS 

Aliidavits 

To  impeach  return,  598 

In  support  of  indictment,  598 

As   impeaching  witnesses,   695 
GRAND  JURY 

Immunity,  684 

Examination  of  witnesses 

("ompetencv  of  evidence  before,  598 
GRANTOR  AND  GRANTEE 

Fraudulent  conveyances 
Intention.  582 
Financial  condition,  582 
As  witness,   585 

Competency,  as  to  transactions  with  deceased  person,  1349 

Declarations  of  former  owner  as  against  grantee,  42,  52,  57,  1233 
GRANTOR'S  DECLARATIONS 

As   to  ownership  of  personal  property,  54,  58,  905,  999 

As  to  ownership  of  real  estate,  1238 
GROANS 

As  part  of  res  gestae,  846,  1133 
GUARANTY 

Burden  of  proof,  232 

Circumstantial  ]>roof.  1285 
GUARDIAN  AND  WARD 

Burden  of  proof,  232 

Presumptions  as  to  transactions.  598,  1020 

Guardian's  account,  598 

Effect  of  final  settlement,  599 

Receipts  of  ward,  599 

Effect  of  judgment  against  guardian,  as  to  surety,  1046 
GUARDIAN'S  DEED 

As  evidence  of  title,   1236 
GUARDIANSHIP 

Proof  of  as  to  mental  capacity,  1309 
GUILT 

Not  presumed,  1022 

IVIust  be  proved  beyond  reasonable  doubt,  1065 

Proof  of.  when  issue  in  civil  case.  1290 

Admission  of  from  conduct.  1291 
GUN 

Presumption  from  injuries  by,  1019 

Experiment   in  firing,  508 


Homicide,  627 


H 


HABEAS  CORPUS,  540 
HABITATION 

Defense  of 

Prosecution  for  homicide,  641 
HABITUAL  DISOBEDIENCE 

Of  employers'  rules,  1155 
HABITS 

On   question   of   suicide,   601 

As  affecting  credibility  of  witness,  371 

Intoxication.  602,  736* 

As  to  negligence,  599,  602 

Of  employees  generally,  600 

Of  third  persons.  601 

As  to  contracts  for  payment  of  money,  601 

Insane  plaintiff  in  personal  injury  action,  602 

Animals 

Malicious  mischief.  602 


INDEX  H61 

[references  are  to  pages] 

HABITS    (Continued) 

Injury  by   dog,   105 
Of  carrying  weapon,  627 
HAIR 

Opinion    evidence   of  Specimens,   627,   675 
HANDWRITING 

Expert  and  opinion,  523,  604 
Genuineness 

Comparison  in  general,  602 

By  court,  603 

By  jury,  603 

By  witnesses,  603 

Competency  of  witnesses,   604,  605 

Examination  of  witness,  606,  983 

Photograpliic  copy,  607 

Motive  for  executing,  607 
As  test  of  insanity,  607 
HARDENING  OF  ARTERIES 

As  alfecting  testamentary  capacity,  1304,  1314 
HARVEST  TIME 
Crops 

Judicial  notice,  756 
HATRED 

Bias  and  hostility  of  witness,  173 
HEALTH  AND  PHYSICAL  CONDITION 
Opinions,  523 
Presumptions,    1020 
Mental  and  physical  states 

In  general,  844 
HEARING 

Conclusions  of  witnesses,  291 
Fact,  not  opinions,  286 
Of  signals,  996 

Whether  witness   would  have  heard,   996 
As  positive  evidence,  994,  995 
HEARSAY 

In  general,   607 

EfTect  where  hearsay  admitted,  1125 
Declarations  in  absence  of  party  to  be  bound,  608 
Statements   of   third   persons 

Criminal  actions,  609 

By-standers,  a's  part  of  ret  gefito',  1141 

Value,  611 

Receipts  of  third  persons,  612 

In  action  against  co-surety,  1072 

Reference  to   such   third  person,   612 
Ex  parte  affidavits,  609 
Agents'  reports,  609 
Officers,  609 
Recitals  in  deeds,  009 
Letters,  610,  781 

Declarations  of  maker  of  note,  610 

Declarations  of  plaintiff  in  action  for  breach  of  promise,  611 
Medical  books,  611 
On  issue  of  partnership 

Declarations  of  alleged  partners,  611 
As  to  phvsical   condition  of  plaintiff,  611,  612 
Value,   611 
Receipts  of  third  persons 

In  action  against  co-surety,  1072 
Miscellaneous    instances,   612 
Impeachment  of  hearsav  evidence,  615 
Weight,  616 
Self   serving   declarations,   38 


1462  I^'^EX 

[REFEKENCES    ARE   TO   PAGES] 

HEAVENLY  BODIES 

Course  of 

Judicial  notice,  754 

HEIRS 

Admissions  and  declarations,   GO,   1318 
Presumption  as  to  person  leaving,  616 
Dolincd,   1341 
HEIRSHIP 

Admissions  and  declarations,  43 
Presumptions,  616 
Conclusions  of  witness,  616 
Certificate   of   jjrobate   judge,   616 
Wciglit  and  suHiciency,  616 
Decree  in  partition,  616 
Petition  in  probate,  617 
Pedigree 

In  general,  972 
Intestacy,   734 
HEREDITY 

No  presumption  of  insanity  from.  1157 
Degree  of  relationship  of  collateral  kindred,  1158 
HIGHWAYS 

Abandonment,  1 
Burden  of   proof,  232 
Dedication,  402 
Expert  and  opinion,  524 
Obstructing,  881 
HISTORY 

.Tudicial  notice.  757,  617 
HISTORICAL  FACTS 

()])inions  inadmissible,  524,  617 
HOLOGRAPHIC  WILL 

Testamentary   capacity,   1316 
HOMESTEAD 

lUirdon  of  proof,  233,  618 
Presumption 

Abandonment,  1,  617 

Release   in   warranty   deed,   617 

From  occupancy  of  wife,  618 

Value,  618 
Weiglit  and  sufficiency  of  evidence,  619 
Voting,  619 

Direct  testimony  of  claimant,  620 
Judicial  notice  of  subdivision,  (ISO 
Competency  of  widow,  669 
HOMICIDE 
Innocence 

Presumption  as  to,  620 
Malicious   intent 

Direct  testimony,  621 

Presumption,   621 
Malice 

Defined,  623 

Presumptions,  624 

Necessity  of  proof,  624 
Motive 

Not  essential.  624 

Tm[)roper  7-elations,  624 
Corpus  delicti.   350,   625 

Defined,    625 

Circumstantiiil   proof,   625 

Extra  judicial   confessions,   625 
Circumstantial  evidence 


INDEX  1463 

[refer KNCES   ARE   TO   PAGES] 


HOMICIDE    (Coiitimu'd)  "  '^' 

Legal  evidence,  625 
Kinds.  026 
Weiglit.  626 
Chain  simile,  626 
Deadly  weapons 

.hidicial   notice,   627 
Intent  and  motive  from  use  of,  627 
Habit  of  carrying  627 
Possession,  627 
Sale  to  defendant,   627 
Cause  of  death,  628 
Threats  of  defendant 

Principle  u])oii   wliich   admitted,   628 
Knowledge  of  assailed,  628 
Conspirators,  628 
Hearsay,   628 
Nature  and  weight,  628 
Explanation,  629 
Threats   of   deceased 

Not  communicated,  629 
Overt  act,  629 
Purpose  of  proof,  630 
Of  suicide,  647 
Threats  of  third  persons 

Admissibility,  630 
Domestic  relations 
Of  deceased,  630 
Of  accused,  630 
Previous  quarrels,  630 
Character  of  accused 
In  general,  631 
General  reputation,  631 
Particular  acts,  631 
Time,  632 

Proof  by  stipulation,  632 
Limiting  number  of  witnesses,  632 
Weight,  632 
Character  of  deceased 
In  general,  632 

When  defendant  assailant.  633 
Where   circumstances    doubtful.    633 
]\Iust  first  be  attacked  by  defendant.  633 
Particular  acts,  634 
Dying  declarations 
In  general,  463 
Defined,  634 

Principle  upon  which  admitted,  634 
Fixed  belief,  634 
Actual  danger  of  death,  634 
Preliminary  proof,  634 
Officers  and  oflRcial  character 
Knowledge  of  accused.  636 
Ordinance  defining  duties.  636 
Excessive  brutality  of  officer.  637 
Admissibility    of    warrant,    637 
Threats  against  officers  as  a  class,  637 
Physical  objects   in   evidence.  638 
Separate  oflfenses,  638 
Admissions  and  confessions 

Constitutional    privilege,    639 
Implied    confessions.    639 
Where  accusation  denied,   1292 


1464  INDEX 

[references  are  to  pages] 

HOMICIDE  (Continued) 

Co-defendants  and  conspirators,  640 

Whole  of  admissions,  641 

Value,  641 
Ees  gestce 

Acts  and  statements  of  accused,  642 

Acts  and  statements  of  injured  persons,  643 

Acts  and  statements  of  bystanders,  643 
Insanity 

Presumption,  644 

Burden  of  proof,  644 

Non  expert  testimony,  644 

Good  character,  645 

Degree  of  insanity,  645 

Degree  of  proof,  645 
Intoxication 

Defense  or  excuse,  645 

Mode  of  proof,  646 

Opinion  as  to  degree,  647 
Alibi 

Burden  of  proof,  647 

Purpose,  647 

Cross  examination,  647 
Threats  of  suicide  by  deceased,  647 
Provocation 

Words  and  gestures,  648 
Self  defense 

Modern  doctrine,  648 

Purpose  of  the  defense,  649 

Apparent  danger,  649 

Actual  danger,  649 

Size  and  strength  of  deceased,  649 

Belief   of  a   reasonable   person,   649 

Good  faith,  650 

Accused  aggressor,  650 
Defense  of  habitation,  651 

Doubt  as  to  admissibility  in  favor  of  accused,  651 
Burden  of  proof,  651 
Reasonable   doubt,   652 
Weight  and  sufficiency,  652 
Assault  of  enfeebled  person,  652 
Aiding  and  abetting,  653 
HONESTY 

Reputation   for,  inadmissible  to   impeach,   695 
Business  transactions  generally,  597 
HORSES 

Diseases  of 

Expert  as  to,  109 

Where  other  horses   diseased,  1185 
Value  of  race  horse,  108 
Runaway  horse,  1185 
Frightening,  1185 
Management 

Judicial  notice,  754 
HORSE  RACING 

.ludicial  notice,  758 
HOSPITAL  RECORDS 

Competencv.  653 
HOSTILE  WITNESS 
In  general,  173 
Leading  questions,  792 
HOSTILITY  OF  DYING  DECLARANT,  175,  470 


INDEX  1465 


[references  are  to  pages] 

HOTEL 

Innkeepers,  700 
HOTEL  REGISTER,  654 
HUSBAND  AND  WIFE 

Dying  decliiiatioiis  of,  409 

Abandonment  of  wife  or  cliildren,  2 

Advancements,  75 

Alienating  affections,  91 

Ante  nuptial  contracts,  113 

Bigamy,  175 

Criminal  conversation,  3G3 

Divorce,  446 

Fraudulent  conveyances,  580 

Gaming 

Competency  of  husband  as  witness,  590 
Gifts,  593 
Infants,  700 
Legitimacy,  777 
Marriage,  827 

Medical  and  surgical  services,  836 
Seduction,  1164 
Agency  of  husband.  233,  655 
Agency  of  wife,  233,  655 
Ownership  of  property,  656 
Family  expense,  657 
Transfer  of  chattels,  657 
Admissions  of  husband,  657 
Admissions  of  wife,  658 
Competency  of  husband  as  witness 

In  general,  658 

Separate  property  of  wife,   658 

To  recover  money  lost  at  gaming,  590 

Bill  to  declare  resulting  trust.  659 

Action  for  personal  injury,  6."J9 

Malpractice.  659 

Bill  for  partition,  659,  1355 

Where  husband  administrator,  660 

Where  husband  interested  in  event  of  suit.  1366 

Adverse  party  heir  or  personal  representative,  660 

Void  marriage,  661 

Divorced  husband,  661 
Competency  of  wife  as  witness 

Criminal  action,  661,   1367 

Where  acting  as  agent,  661.  1366 

Attesting  witness  to  will.  662 

Where  sued  for  family  expense.  663 

Admissions  and  declarations  of  husband,  663,  1342 

Action  by  or  against  husband.  663 

Husband  next  friend,  664 

Where  marriage  denied,  665 

Divorced  wife,  665 

Bigamous  wife.  665 
Competency  of  widow  as  witness 

Admissions  and  transactions  generally,  665,  1342,  1364 

Disproving  alleged  admissions.   666 

Claim  against  estate.  666,  1352 

Ante  nuptial  contracts,  666 

Delivery  of  deed,  666 

Will  contests,  667,  1361 

Partition  and  resulting  trust.  667 

Action  as  administratrix.  668,  1353 

Action  by  or  against  personal  representative,  668 

Concerning   benefit   certificate,   669 


1466  INDEX 

[REFERENCES   ARE  TO   PAGES] 

HUSBAND  AND  WIFE,   (Continued) 

Abandonment  of  homestead,  669 

Sec    Witnesses.    13()4 
HYPOTHETICAL  QUESTIONS 

Right  to  ask,  669 

Purpose,  669 

Prior  proof.  670 

Inferences  from  circumstances,  670 

Each  question  complete,  670 

Recitation  as  to  actual  facts,  670 

Part  of  facts,  670 

Usurping  functions  of  jury,  671 

Opinions  based  on  testimony  heard  or  read,  671 

Opinions  based  on  hearsay,  672 

Opinions  based  on  personal  knowledge,  072 

Sniliciency  of  statement  of  facts  recited,  672 

Obscure  question,  672 

Objections  to  question,  672 

Cross  examination,  673 

On   inquiry  as  to  vahie,  1264 

Right  to  ask  non  expert,  1159 


ICE 

Removal  as  waste,   1246 

Opinion  as  to  difficulty  passing  over  on  sidewalk,  530 
IDENTITY 

I'roperty  subject  of  larceny,  767 
Provable  by  parol,  928 
Misnamed  corporation,  929 
Mortgage  debt  assumed,  940 
Engine  causing  fire,  548 
Of  action,  682 
Persons 

Former  jeopardy,  parol  proof,  568 

Former  conviction,  567 

Former  adjudication,  563 

Leading  questions  proper  as  to,  773  / 

Parties  in  issue,  to  render  testimony  at  former  trial  admissible,  5<u 

Of  deceased  in  homicide,  626 

Of  accused  in  homicide,  627 

Blank  contract,  676 

Abstracts  of  title,  15 

Opinions  of  witnesses,  675 

Proof  of  by  voice,  675 

Foot  prints,   675 

Finger  prints,  675 

Hair,  675 

Trailing  by  bloodhounds,  627 

Of  parties"  to  contract,  by  i)arol,  675 

In  hbel  and  slander,  und'eistanding  of  hearers,  676 

Devisee,  676 

Beneficiary  of  insurance,  676 

Photographs,  984 

Judicial  notice,  673 

Presumptions  where  names  are  same,  1021 

Initials,  674 

Parties  of  same  name,  674 

Deed  to  father  of  same  name  as  son,  674 

Grantee  same  name  as  prior  owner  and  grantor,  C74 

Of  defendant  railroad  company,  674 


INDEX  1467 

[references  are  to  pages] 


IDENTITY   (Continuefl) 

Existence  of  party  to  suit,  675 
Consignee,  675 
Voter,  675,  677 
Real  property 

Subject  of  devise,  678 
Conveyances,  100,  678 
Contracts  for  conveyance,  678 
Description,  436 
•       Wills,  682,  1301 
Personal  property 

Subject  of  sale,  98,  680 
Chattel  niortga-i-e.  6S0.   032 
Subject  matter  of  contract,  080 
Property  insured,  681 
Wliore  subject  of  larceny,  681 
IGNORANCE  OF  LAW 

KnoAvlcd^e  of  law  presumed,  1025 
IGNORANT  WITNESS 

Leadinpf  questions,  773 
ILLEGALITY 
Of  contract 

Presumption,    1010 
Burden  of  proof,  226 
Parol,  931,  923 
Of  business 

Opinion  as  to  improjjer,  532 
ILLEGAL  ARREST 
Extradition,  536 
ILLEGAL  FEES 

Taking'  bv  oflicer,  535 
ILLEGAL  SALE  OF  DRUGS,  1171 
ILLEGALLY  OBTAINED  EVIDENCE,  682 
ILLEGITIMACY 

See  Lcffitimacv,  777 
ILLICIT  RELATIONS 

Undue  influence,  1319 
Presumption  as  to  continuance,  833 
Cross  examination,  as  affecting  credibility,  371,  695 
IMBECILE  WITNESS 

Leading  questions,  773 
IMMUNITY 

Province  of  court,  682 

Right  to  exercise  privilege,  683 

V^Hio  entitled.  683 

Basis  of  privilege.  683 

Mere  disgrace  not  enoiigh,  683 

WaiA'er  of  privilege,  684 

Production  of  incriminating  document,  684 

Offer  of  immunity,  684 

Grand  jury  investigations.  684 

Coroner's  proceedings,  685 

Creditor's  bill,  685 

Gaming  losses.  685 

Recovery  of  money  lost  at  gaming 

Bill   in   chancery.   590 
Of  witness  from  action  for  defamation.  1051 
Matters  in  'court  generally  privileged,  793 
Privileoed  communication's  in  general,  1047 
IMPEACHMENT  OF  WITNESSES 
Affidavits  for  continuance 

Absent  witnesses.  84,  687 
Adverse  party.  77.  686 
Bias  and  hostility 


1468  INDEX 

[references  are  to  pages] 

IMPEACHMENT  OF  WITNESSES   (ContiniuHl) 

Answer  of  witness  as  to.  not  conclusive,  174 

As  to  matters  purely  collateral,  174 
Credibility,  354 
Cross  examination 

Variant  statements,  368,  687 

Whole  of  conversation,  369 

Occupation  of  witness,  370 

Interest  of  witness,  371 
New  trial  not  granted  for  purpose,  381 
Former  conviction,  566 
Hearsay,  615,  687 
Stenographer's  notes,  1202 
Mere  conflicting  evidence.  685 
Impeachment  of  own  witness,  685 

Direct  examination,  686 

Incidental  impeachment,  686 

Witness  compelled  to  be  called,  686 
Preliminary  proof,  688 

Party  to  suit,  688 

Next  friend,  688 

Prosecutrix  in  bastardy  proceeding,  688 
]\Iaterial  matters,  689 
Variant  statements  in  writing,  369,  690 

Effect  of  admission  or  denial  of  statements,  693 

Pleadings.  693 

Letters,  693 

Affidavits,  693 

Depositions,  694 

Using  opposite  party's  deposition,  686 
Opinions  as  admissions,  694 
Right  to  explain  statements,  694 
Impeachment  by  reputation 

In  general,  695 

Particular  acts,  696 

Form  of  question,  696 

As  to  interest  in  case,  697 

Necessity  of  residence,  697 

Impeaching  witness'  knowledge,  697 

Witnesses  not  neighbors,  698 
Grand  jurors  as  impeaching  witnesses,  695 
Of  impeaching  witness,  699 

Cross  examination  as  to  means  of  knowledge,  699 
Cross  examination  as  to  arrests,  699 
Former  testimonv.  572 
IMPEACHMENT  OF'  ACKNOWLEDGMENT,  29,  30 
IMPEACHMENT  OF  PARTY  TO  SUIT,  688 
IMPEACHMENT  OF  RELEASE,  1121 
IMPLIED  ADMISSIONS,  37 
IMPLIED  CONFESSIONS,  292 
IMPLIED  WARRANTIES,  1281 
IMPOTENCY 

As   grounds    for    divorce,   448 
IMPRESSION  OF  WITNESS,  287 
INCEST 

Corpus  delicti,  699 
Legitimacy,  699 
Consent  of  female,  699 
Complaint  by  victim,  699 
Similar  acts,  699 
Accomplice.  699 
INCOMPETENT  OR  IMMATERIAL  EVIDENCE 
Ttebuttal,   1068 
Introducing  like  evidence,  879 


INDEX  1469 

[REFERENCES   ARE  TO   PAGES] 

INCOMPETENT  WITNESSES 

See  witnesses.  K>.'>7 
INCOMPLETE  WRITTEN  AGREEMENT 

Parol  evidence  as  to.  '.)'20 
INCONSISTENT  STATEMENTS 

Impeachment,  687 
INCORPORATION 

Parol  nroof  in  criminal  case,  .)4.>  

INCRIMINATING  QUESTIONS  AND  DOCUMENTS 

Immunitv,  648  .  j    o 

As  to  abortion,  by  woman  not  in  presence  of  accused,  8 
Production  of  incriminating  documents,  lOol 
INDEBTEDNESS 

Presumption  as  to  written  evidence,  10^1 

Hearsay,  614 
INDECENT  ASSAULT 

Impeachment  by  reputation,  695 
INDEPENDENT  PAROL  CONTRACTS,  920 
INDICTMENT 

Cross   examination   as   to,  error,   5bb  .  -     n    i   ,.,ri  uin.dpr   792 

Record  of  indictment  and  acquittal  incompetent  in  libel  and  slandci,  <92 

Identity,  677 

Presumption  from  same  name,  10.il 
Witnesses  names  not  indorsed  on,  competency,  lo4U 

INDORSORS 

See    post,  negotiable   instruments 
INDORSEMENTS  ON  NOTES 

To  bar  statute  of  limitations,  799 

See    pofit.  negotiable   instruments 
INDORSEMENT  ON  INDICTMENT 

Name  of  witness,  1340 
INDUCING  ANOTHER  TO  COMMIT  SUICIDE,  1214 
INEQUALITY  OF  DISTRIBUTION 

As  affecting  testamentary  capacity,  1308 
On  question  of  undue  influence,  1317 
INFAMOUS  CRIMES 

Conviction  of  as  affecting  credibility,  699 
Petit  larceny,  766 
INFANCY 

Burden  of  proof 

Civil  cases,  234 
Criminal  actions,  234 
INFANTS 

Competency  of  as  witnesses,   -00 
Burden  of  proving  defense  of  infancy,  -00,  lUb<i 
Age,  mode  of  proof 
Family  record,  85 
School  record,  86 

Declarations  of  deceased  persons,  bb 
Inspection  by  jury,  86 

Capacity  _       . 

Presumptions  m  civil  cases,  7UU  ^ 
Presumptions  in  criminal  cases,  701 

^"'"'l^ut'S^n  ?'a*"'age.  incpnl.l.  of  co„t,ibuto,y  negligence,  rOl 

Misrepresentation  as  to  age,  701 

Presumption  of  damage,  702 
Liability  for  torts,  702        ^       ,  .    .      ,    .f.„ 
Liability  of  parent  for  torts  of  infant,   -02 
Liability  of  infant  for  necessaries,  702 
Liability  of  father  for  necessaries,  702 

Express  promise,  703 

Burden  of  proof,  703 


1470  INDEX 

[references  are  to  pages] 

INFANTS   (Continued) 

J. lability  of  step-father  for  necessaries,  703 
Services 

Part  of  term,  705 
Right  of  action,  705 
Emancipation,  705 
Admissions  of  infants,  705 
f'nstodv  of  infant,  706 
INFERENCE 

From  failure  to  produce  evidence,  9 
From  failure  to  testify,  1114 
INFIDEL 

CrcMJibility  not  affected  by  religious  belief,  355 
INFLUENCE 

Undue  influence,  1316 
Duress,  461 

Fiduciary  relations,  542 
Fraud,  574 

Conveyances  between   parent  and   ciiild,   910,   912 
INFORMATION  AND  BELIEF 
Abstracts  of  title,   15 
Libel  and  slander,  792 
Malicious  prosecution,  814,  819 
INITIALS 

Identity,  674 
Names,  5 
Judicial  notice 

Sex  from  use  of  initials,  758 
Abbreviations  and  equivalents,  758 
Xo  presumption  of  sex,  100] 
Ownership  of  wagon,  1032 
Ownership  of  railway  cars  ami  engines,  903 
Abbreviations,  1001 
Middle  initial  not  material,  674 
INJUNCTION 

Attorneys  fees,  146 
INJURY  TO  PERSON 
Accident,  17 
Ordinances,  892 
Habits,  599 

Similar  facts  and  transactions,  1182 
Repairs  after  accident.  1125 
Promise  to  repair,  1053 
Pecuniary  circumstances,  971 
Rules  of  employer,  1154 
Pain  and  suffering 

Judicial  notice,  758 
Absence  of  complaint,  847 
Hearsay  as  to  ailments  before  injury,  611 

Opinions,  529 
Admissions 

Employe.   51,   1141 
Stockholders,  61 
Bes  gestce 

Statements  of  employees    and    injured    person,    1133 
Statements  of  bystander,  1139 
Expert  and  opinion 

As  to  due  care.  522 
Medical  and  surgical  services,  836 
Sidewalks,  1179 
Experiments,  506 
Explosions,  534 
Injury  by  animals,  106 


INDEX  1471 

[references  are  to  pages] 

INJURY  TO  PERSON   (Continued) 

Firearms,  544 

Physical  examination,  935 

Coroner's  incjuest,  334 

Ownership,  901 

Wages,  earning  capacity  and  domestic  relations,  1275 

Photographs,  984 

Release,  1118 

Custom  and  usage,  387 

Age,  85  I 

Infants,  701 

Presumptions 

Master  and  servant,  1028 

Negligence,  1029 

Love  of  life,  1027 

Weight  of  presumption,  as  to  due  care  and  love  of  life,  1291 

Burden  of  proof 

Negligence,  240 

Representative  capacity,  1132 

Speed,  1191 

Safer  method,  1156 

Demonstrative  evidence,  416  f 

Witnesses 

Competency  of  widow.  668 

Competency  of  Inisband.  659 

Competency  of  stocklioldcrs,  1347 

Competency  of  mother    where    husband    administrator,    1353 

Competency  of  joint  tort  feasor,  co-defendant,  1348 

X-ray,  984 

Inspection  of  person,  985 

Exhibition  of  injury,  505 

Intoxication,  735 

Life  tables,  797 
INNKEEPERS 

Burden  of  proof,  234 

Defined,  706 

Rights  and  liabilities,  706 

Bailee  may  diow  competency  of  servants,  707 

Presumptions  and  burden  of  proof,  708 
INNOCENCE 

Homicide,  620 

Presumptions,  1022 

Consciousness  of,  765 
INQUEST 

Coroner's,  334 

Insanitv,  1158,  1161 
INSANE  DELUSION 

]:)etinod.   1306 
INSANE  PLAINTIFF 

Habits,  602 
INSANE  WITNESS 

Former  testimony,  1201 
INSANITY 

Burden  of  proof,  234,  1156 

Presumption  as  to  continuance,   1156 

Restoration,  1235 

Of  witness 

Credibility,  357 

Previous  good  character  on  issue  of,  645 

Handwriting  as  test  of,  607 

Of  plaintiff  in  personal  injury  action 
Proof  of  habits,  602 

Homicide  prosecutions,  644 

What   is  affirmative  testimony,  995 


1472  INDEX 

[references  are  to  pages] 

INSANITY    (Continued) 
Sanity  and  insanity 

Siibjoct  in  general,   1156-1161 
Mental  and  physical  states 

Non-experts,  855 

Ell'ect  of  injury  as  to  mental  state,  848 
Expert  and  opinion,  530 
Wills,  1305 

Competency  of  adverse  party  as  to  transactions,  1340 
INSOLVENCY 

Harden  of  proof,  235 
Defined,  709 
Presumptions,  709 
Conclusions  of  witness,  709 
Rejjutation,  709 

Return  of  execution  nulla  bona,  709,  710 
Direct  testimony  by  witness,  710 
INSPECTION  BY  JURY 
To  determine  age,  86 
In  eminent  domain  proceedings,  498 
Articles  in  evidence,   416 
INSPECTION  OF  DOCUMENTS 

Production  of  documents,  1051 
INSPECTION  OF  MEMORANDA 

On  cross  examination,  197 
INSPECTION  OF  PERSON 
Physical  examination,  985 
To  determine  age,  80 
INSTRUCTIONS 

(iivcn  on  former  trial.  710 
INSTRUMENTS  UNDER  SEAL 
Consideration,  302 
Ratification,  1064 
INSURANCE 

Burden  of  proof 

Benefit  society,  235 

Death,  235 

Assessment,  235 

Notice,  235 

Amendment,  235 

Violation  of  law,  235 

Forfeiture,  236 

Accident  company,  236 

Fire  insurance,  236 

Premium,  235 

Identity  of  property,  236 
Admissions  and  declarations 

Books  of  society,  62 

Declarations  of  insured,  62 
Identity  of  property  insured 

Parol,  681 
Expert  and  opinion,  524 
Benefit  society 

Membership  and  good  standing,  711 

Notice  of  death,  712 

Proofs  of  death,  712 

Acts  of  president,  712 

Suicide,  712 

Damages,  713 

Release,  714 

Constitution  and  by-laws,  714 

Witnesses,  competency  of  member,  714 

Application,  714 


INDEX  1473 

[references  are  to  pages] 


INSURANCE    (Continued) 

Contract,  715 

Assessment,  715 

Declarations  of  assured,  717 
Accident 

Of  the  policy,  717 

Manner  of  death,  718 
Insurance  against  accident,  972,  1274 
Life 

Of  the  policy,  719 

Right  of  recovery,  719 

Cause  of  death,  719 

Payment  of  premium,  720 

Admissions   of    officers    and   agents,   720 

Of  insured,  721 
Fire 

Presumptions  and  burden  of  proof,  721 

Admissibility  of   evidence,   722 

Parol  to  vary  contract,   723 

Opinion  evidence,  724 

Proofs  of  loss,  725 
INTEMPERANCE 
Witness,  737 
Intoxication,  734 
INTENT 

Abduction,  6 

Admissions  and  declarations 

Of  mortgagor,  57 

Domicile,  62,  453 
Of  donor  in  advancements,  74 
Assault  and  battery,  125 
Bigamy,  178 
Burden  of  proof,  236 
Burglary,  252 
Embezzlement,  481 
To  make  delivery  of  deed,  413 
Direct  evidence 

False  pretenses,  541 

Fraudulent  conveyances,  582 

Gambling  contracts,  586 

Good  faith  in  acquiring  title,  59G 

Abandonment  of  homestead,  620 

Dedication  of  highway,  403 
In  civil  actions  generally.  725 
Criminal   actions  generally,   726 
Statutory  offenses,  727 
Keeper  of  house  of  prostitution.  728 
Concerning  sale  of  liquor,  728 
Instructions  to  employe,  729 
Acts  and  declarations,  729 
■\Yhen  defendant  may  testify  directly,  729 
Opinions  of  witnesses,  729 
As  to  conspiracy,  729 
INTEREST 

Defined,  730 

Judicial  notice  that  borrowers  pay,  385 
Presumptions,  730 
Circumstantial  evidence,  730 
Vexatious  and  unreasonable  delay,  730 
Laws  of  sister  state,  558,  731 
Usury,  1260 
Declarations  against 

Tenants  in  common.  39 

Partv  in  possession  of  real  property.  52,  1240 


1474  INDEX 

[references  are  to  pages] 

INTEREST  (Continued) 

Party  in  possession  of  personal  property,  58,  905 

Party  in  possession  of  chose  in  action,  131,  59 

Declarations  of  deceased  person,  43 

As  original  evidence,  1239 

As  to  value  of  real  estate,  42 

Admis'sions  concerning  title  by  limitation,  1240 

Declarations  in  own  favor 

Showing  acts  as  to  ownership  of  personal  property,  999 
As  to  claim  of  ownership  of  personal  property,  58 
As  to  real  estate.  58 
INTEREST  OF  WITNESS 

Ell'orts  to  compromise,  358 

Cross  examination  to  show,  371 

Direct  examination,  952 

Defined  as  aft'ecting  competency,  1344,  1346 
INTERLINEATIONS 

Alterations  and  erasures,  94 

In  certified  copy  of  record,  1098 

Original  will  to  verifv  record,  1097 
INTERNAL  REVENUE  RECORDS,  115 
INTERNAL  REVENUE  TAX  STAMP,  115,  116 
INTERPRETATION  OF  WRITINGS 

See  parol,  913 
INTERPRETER 

Right  to  call,  733 

Competency,  732 

Deposition  taken  abroad,  733 

Of  deceased  witness,  733 

Foreign  language.  733,  734 
INTIMIDATION  OF  WITNESS,  370 
INTESTACY 

Burden  of  proof.  236 

Subject  in  general,  734 
INTOXICATION 

As  afifecting  credibility  of  witness,  371 

As   affecting  ability   to  do  an   act,  737 

Habit  of,  602,  736 

Homicide,  645 

Opinion  evidence,  524,  734 

Direct  testimony,  735 

As  defense  in  criminal  action,  736 

Defense  in  civil  action.  735 

Of  witness,  737 
INTOXICATING  LIQUORS 

Action  under  Dram  Shop  Act,  456 

Anti-saloon  territory,  114 
INTRODUCTORY  QUESTIONS 

Leading  questions,  773 
INVENTORY 

To  show   ownership,  904 

Parol.  937 
IRRELEVANT  MATTERS 

Conditionally  received,  880.  1124 

Depending   on    ))reliminary   proof,   889 
ISSUES  IN  FORMER  SUIT  ' 

Parol  proof  of,  564 


JAIL 

Imprisonment  of  witness  as  affecting  credibility,  358,  566 
.Judicial  notice  of  keeper,  749 
JEOPARDY 

See  former  jeopardy,  568 


INDEX  1475 

[references  are  to  pages] 

JEW 

Race  prejudice  against 

Courts  will  not  take  judicial  notice,  759 
JOINDER 

In  (Icinurrcr  to  evidence,  418 
JOINT  DEBTOR 

Depositions,  425 

Eeceii)t  in  action  for  contribution,  1072 
JOINT  DEFENDANT 

Answer  of.  as  admission  against  co-defendant,  113 
Competency  as  witness  against  estate,  1346 
JOINT  LIABILITY 

Non-joinder  in  general,  866 
Burden  of  proof,  236 
Effect  of  verified  plea,  237,  867 
Partnersliip,  958 
JOINT  OBLIGOR 

Destruction  of  evidence  by,  438 
Admissions  of,  41,  45 
JOINT  TORT  FEASORS 
Release,  1120 

Parol  to  explain  receipt,  21 
Judgment  against,  740 
Accord  and  satisfaction,  21 
As  witness  in  action   bv  administrator,  1348 
JOURNALS  OF  LEGISLATURE 

.ludicial  notice   not  taken,   746,   776 
JUDGE 

Need  not  apprise  Avitness  of  privilege,  682 
Cross  examination  by,  378 
Discretion  of  court,  373 
Credibility  of  witness,  360 

Province  of  court,  360 
Certificate  of  probate  judge 

Inadmissible   in  proof  of  heirship,  616 
Qualification   of   expert.   513 
Competency  of  non-expert,  510 
Same   in  will  cases,   1310 
Judicial  notice 

Matters   of   common   knowledge,  755 

See  po.sf,  province  of  court. 
JUDGES  DOCKET  AND  MINUTES,  738 
JUDGMENTS 

Admissibility  in  evidence 

Between  same  parties,  738 

Strangers,  739 

Judicial  records,  1099 

When  conclusive  as  to  surety.   1046 

Criminal  judgment  in  civil  suit.  740 

As  against  tort  feasors.  740 

Admissibility  for  incidental  purposes.  739 

Not  admissible  to  show  facts  generally  known,  739 
Former  adjudication 

When  judgment  estops,  763 

Parol  as  to  issues.  564 

Parol  to  identify  parties,  565 
Former  conviction,  566 
Former  jeopardy,  568 
Service  of  process 

Judicial  notice,  1173 

Presumptions,  1173 

Effect  as  evidence.  1173 

When  may  be  contradicted,  1173 


1476  INDEX 

[references  are  to  pages] 

JUDGMENTS   (Continued) 

Collateral  proceedings,  1174 
Substituted  service,  1175 
Extrinsic  to  aid  substituted  service,    1176 
Of  sister  states 

Presumption  as  to  jurisdiction,   554 

Service  of  process,  554 

Conclusiveness,   554 

Admissibility  in  evidence,  555 

Weight  and  sufHciency  as  evidence,  555 

Authentication,  556 

Of  justice  of  peace  of  sister  state,  1106 
Foreign  countries 

Conclusiveness  as  evidence,  557 

How  authenticated,  557 
Action  of  debt  on,  401 
Materiality  of  date,  393 
How  proved 

Original  record,  1101 

Papers  and  files,  1102 

Part  of  record,  1102,  1108 

Lost  or  destroyed,  1102 

Restored  record,   1103 
Collateral  attack,  1103 

Parol  inadmissible,  1104 

Date  of  entry,  1104 

Service  and  return  of  process,  1105 
Certificate  of  clerk  as  to  reversal,  258 
Authentication,  1107 

By  deputy,  1109 

Sworn  copies,  1109 

Contradiction  of  transcript,  1110 

Canadian  judgment,  1110 

Act  of  congres,s  not  exclusive,   1107 
Presumptions  as   to   regularity,    1023 
JUDGMENTS  BY  CONFESSION,  "740 
JUDICIAL  ADMISSIONS,  44,  113 
JUDICIAL  DECISION 

Proof  bv  certificate  of  clerk,  258 
JUDICIAL  DISTRICTS 
.Tiidicial  notice.  749 
JUDICIAL  NOTICE 

Matters  relating  to  counties 

Boundaries,  741 

Names,  741 

Population,  742 

County  seat,  742 

Support  of  poor,  743 

Organization,  742 

Geographical  facts,  742 

Officers  and  courts,  743 
Matters  relating  to  cities 

Incorporation  under  general  law,  743 

Charter,  743 

Ordinances,  743 

Alleys  and  sidewalks,  744 

Business  ini|)rovements,  744 

Disconnection  of  territory,  744 

Chicago  city  railway  company,  744 

Chicago  river,  744 

Organized  fire  department,  744 

Boundaries,  744 

Streets,  744 


INDEX  1477 


[references  are  to  pages] 

JUDICIAL  NOTICE  (Continued) 

ravemcnt,  745 

Lot  in  certain  town,  745 
Lands  and  surveys 

Description,  745 

Grants,  745 

Location,  746 

Exemption.  746 

Survey,  746 
Legislative  acts  and  journals 

Journals,  746 

Public  acts,  747 
Foreign  countries,  747 

Political  organization,  748 

Usages,  748 
Foreign  law 

Statutes,  748 

Common  law,  748 
Courts  and  officers 

Courts,  749 

Officers,  749 

Records,  751 

Orders  and  actions,  752 

Counties  composing  judicial  district,  753 
Miscellaneous  instances 

Abbreviations.  5,  753 

Accidents,  754 

Animals,  754 

Apartment  houses,  754 

Attorneys,  142 

Brokers,  754 

Business  usages,  754 

Calendar,  754 

Cement,  755 

Census,  755 

Chicago  city  directory,  755 

Church  societies,  755 

Cigarettes,  755 

Common  carrier,  755 

Common  knowledge,  755 

Concrete,  755 

Corporations,  350,  755 

Crops,  756 

Customs,  756 

Drainage,  756 

Deadly  weapons,  396 

Dynamite,  756 

Exchange,  756 

Foreign  court,  757 

Former  testimonj^  757 

Gaming,  757 

Geographical  facts,  757 

Geological  formations,  757 

Government  regulations,  757 

History,  757 

Horse  racing,  758 

Injury  and  pain,  758 

Laboring  class,  758 

Law  merchant,  758 

Life  tables,  758 

Market  value,  758 

Names,  758 

Nuisance,  758 

Odors  and  smells,  759 


1478  INDEX 

[REFERENCES  ARE  TO  PAGES] 

JUDICIAL  NOTICE   (Continued) 
Quarantine  law,  759 
Physics,  759 
Postoffices,  759 
Race  prejudice,  759 
Railroads,  759 
Seal  of  state,  760 
Seasons,  760 
Soil  conditions,  760 
Streams,  760 
Sunday,  761 

Telegraph  messages,  761 
Value,  761 
Weapon,  761 
Whiskey,  761 
Defined,  761 
Necessity  of  proof,  761 
JUDICIAL  RECORDS 
Parol  evidence,  943 
Cause  pending,  333 
In  general,  1099 
What  constitutes,  1099 
Judicial .  notice,  1101 
Original  record,  1101 
Papers  and  files,  1102 
Part  of  record,  1102.  1108 
Lost  or  destroyed  records,  1102 
Restored  records,  1103 
Amending  records,  1103 
Collateral  attack,  1103 

Parol  inadmissible,  1104 
Date  of  entry,  1104 
Service  and  return  of  process,  1105 
Dockets  and  judgments  of  justice  of  peace,  1105 
Authentication,  1107 

Where  sufficient  in  foreign  state,  1108 
Part  of  record,  1108 
By  deputy,  1109 
Sworn  copies,  1109 
Abbreviations,  1109 
Contradiction  of  transcript,  1110 
Canadian  judgment,  1110 
Absence  of  Record,  256,  1083 
Matters  in  pais,  1101 
JUDICIAL  SALES 

Presumptions,  1023 
JURAT 

Falsity  may  be  shown,  81 
Not  necessary  part  of  affidavit,  81 
JURISDICTION 

Burden  of  proof.  237 
Presumptions,  1024 
Adoption,  69 

Service  and  return  of  process 
Recitals  of   record,   1105 
Record  failing  to  recite,  1105 
Contradiction  by  other  parts  of  record,  1105 
Aid  by  parol,  1105 
Of  justice  of  peace  of  sister  state,  1106 
Foreign  judgments 

Conclusiveness,  554 
Document  out  of  jurisdiction,  156 
JURISTS  AS  EXPERTS 
Foreign  law,  560 


INDEX  1479 

tREFERENCES   ARE   TO   PAGES] 

JURORS 

Impeaching  verdict,  863 
Former  testimony,  573 
Former  adjudication,  563 
Grand  jurors 

Impeaching  indictment,  598 
Impeaching  witness,  695 
JURY 

Province  of 

Credibility,  361 
Inspection  of  persons  by 
To  determine  age,  96 
Exhibition  of  injury,  505 
Photographs 

Jury  may  take  to  jury  room,  983 
Demonstrative  evidence,  416 
Experiments  by  jury,  508 
View  by  jury 

Eminent  domain,  498 
Subject  in  general,  1268 
Use  of  magnifying  glass,   812 

Refreshing   memory  by   stenographer's  notes,   1203 
Comparison  of  handwriting  by,  603 
Misconduct  of 

View  by  jury,  1270 
New  trial,  863 
Impeaching  writing  should  not  be  taken  by,  692 
Proof  of  foreign  law  out  of  presence  of,  560 
JUSTICES  OF  PEACE 
Sister  states 

Judgments  of,  555 
Jurisdiction  must  be  shown,  1105 
Records  of  justice  of  peace,  1105 
Copies  of  records,  762 
Certificate  of  magistracy,  763 
Judicial  notice,  762 
Admissibility  of  docket,  762 
In  general,  762 
False  imprisonment.  539 
Malicious  prosecution,  822 
Transcript  of  justice.  763 
Authentication   of  record,   763 
JUSTICE'S  DOCKET 

Action  for  false  imprisonment.  530 
Admissibility  to  show  termination  of  prosecution,  822 
JUSTIFICATION 

Libel  and  slander.  791 

Malicious  prosecution,  815 

Homicide,  648,  652 

Trespass,  1244 

Discharge  of  employe,  1374 

Abortion,  8 

Assault  and  battery.  124 

Claim  of  right  as  officer,  887,  1128 


KIDNAPPING,  763 
KNOWLEDGE 

Presumptions,  764 

Of  adverse  possession,  765 

Competency  of  employe,  765 


1480  INDEX 

[references  are  to  pages] 

KNOWLEDGE  (Continued) 

iJangcrous  cliaracter  of  machinery,  765 
Law 

Presumed,  764 
Customs,  764 

Member  of  benefit  society,  765 
Contents  of  wills,  764,  1320,  1325 
Of  parties 

Impeaclinient  of  convcyanee,  584 
Of  correctness  of  memoranda,  839 
Of  market  price,  825 
False  pretenses,  540 
Of  expert 

Question  for  court,  513 
Non -expert 

Mental  capacity.  510 

In  relation  to  wills,  1315 
Of  acts  of  agency  before  proof,  86 
Of  cliara'cter  of  deceased.   633 
Of  character  of  animals,  106 
Of  posses'sor  as  to  contents  of  documents,  764 


LABORING  CLASS 

•  hulicial  notice,  758 
LADING 
•     Bill  of  lading,  179 
Assent  to  terms,  128 
LAND  DESCRIPTIONS 

Abbreviations.   5 
LANDLORD  AND  TENANT 

Admissions  and  declarations.  50 

Admissions  of  joint  lessee,  51 

Admissions  of  tenant  as  against  landlord,  51 

Forcible  entry  and  detainer   in  general,  550 

Leases 

Parol  evidence  as  to,  938 
Identity  of  premises,  938 
Location  of  premises,  938 
Parol  as  to  executory  contract,  1119 
Warranty 

Premises  tenantable,  1281 
Burden  of  proof  as  to  lease,  238 
Presumptions 

No  presumption  that  rent  is  unpaid.  1026 

Presumption   as   to  sharing  benefits  by    joint   lessees,   1026 
LANDS 

Presumptions,  1026 

Presumption  as  to  fpiarter  section,  1026 

'I'itle  from   |)Ossession,  1034 

In  ejectment,  possession  not  presumed  rightful,  471 

Judicial  notice,  745 

Mode  of  proving  title,  1235 

Record  of  conveyances,   1095 

Execution  of  deed 

Acknowledgment  prima  facie  evidence,  410 

Recording,  410 
An^biguity  in  deed,  410 
Descrij)tion 

Parol  evidence,  in  contracts  for  conveyance,  436,  1301 
Patents 

Evidence  of  title,  901 


i 


INDEX  1481 


[references  are  to  pages] 

LANDS  (Contimiod)  .ii;iliil. 

Entry  book,  963 
Recordation,  962 
Value  of  ''""''■■'' 

Opinion  evidence,  487 
Declaration  of  ancestor,  1264 
Olfers,  1363 
Recitals  in  deeds,  306 
See  f]jectment,  471 

Eminent  domain,  483 

Acknowledgments,  26  -- '  '• 

Lost  deeds,  805 
Boundaries,  201 
LAND  OFFICE 

Official   certificates,   1237 
LAPSE  OF  TIME 

Presumption  of  payment  from,  964 
Experiment 

Test  in  open  court,  509 
LARCENY 

Burden  of  proof,  238 
Expert  and  opinion,  524 
Defined,  766 
Corpus  delicti,  766 
Character  of  taking,  766 

Possession  knowingly  surrendered,  767      -'^  t-^ 
Similar  offenses,  767 
Identity  of  proi^erty,  681,  767 
Ownership,  768 
Identity  of  accused,  769 
Possession  of  stolen  property,  769 
Proof  of  value,  770 
LATENT  AMBIGUITY 
Ambiguity,  97 

Parol  interpretation  of  writings  generally,  913 
Wills  in  general,  1301,  951 
LAW 

Foreign  law%  558 

Legislative  acts  and  journals,  776 
Statutes,  1195 
Knowledge  of,  764 
As  to  construction  of  will,  1304 
Common  law  presumed  to  continue   in   force,  1008 
Interest  law  of  sister  state,  731 

Law  published  by  authority  presumed  to  be  correct,  1196 
LAW  OF  SISTER  STATE 
Interest  law,  731 
See  foreign  law,  558 
LAW  BOOKS 

In  general,  188 
Proof  of  foreign  law,  559 
LAW  MERCHANT 

Judicial  notice,  758 
LAW  REPORT 

Contract  in  as  copy,  168 
Proof  of  foreign  law,  559 
LAWYERS  <'• 

See  Attorneys,  142 

Legal  conclusions,  775  '■  ■ 

■    Privileged  communications,  1147 
Work  and  services,  143,  954 
As  experts  as  to  law,  560 
Validity  of  title,  1238 


1482  INDEX 

[REFERENCES   ARE  TO   PAGES] 

LAYING  FOUNDATION  FOR  IMPEACHMENT 

Witnesses,  688 

Parties,  34 
LEADING  QUESTIONS 

Cross  examination,  368 

Defined,  771 

Rigiit  to  propound,  773 

Discretion  of  court,  774 

Objections,  775 
LEASE 

Burden  of  proof,  238 

Parol,  938 

J'resuinptions,  1026 
LEDGER 

As  book  of  original  entry,  189 
LEGAL  ADVICE 

As  defense  in  malicious  prosecution,  820 
LEGALITY  OF  CONTRACT 

Presumptions.  1010 

Burden  of  proof,  226 

Parol,  921,  923 
LEGAL  CONCLUSIONS 

Expert  and  opinion,  775 

Legal  efl'ect  of  documents,  776 

Matters  of  insolvency,  709 

Conclusions  of  witnesses,  285 

Title.  1238 
LEGATEE 

Admissions  of,  1318 

Parol  proof  as  to  identity,  1302 
LEGISLATIVE  ACTS  AND  JOURNALS 

Judicial  notice,  746,  747 

Journals,  776 

Presumption  of  validity,  776 

Parol  proof  as  to  adoption  of  statute,  777 
LEGISLATURE 

Acts  of  judicially  noticed,  1195 

Motive,  859 
LEGITIMACY 

Burden  of  proof,  238,  777 

Presumptions,  777 

Non-access,  778 

Opinions  of  witnesses,  778 

Competency   of   mother,   778 

Acknowledgment,  778 

Pedigree,  972 
LESSEE 

Admissions   of,    50 

Presumption  as  to  benefits,   1026 
LETTER  OF  RECOMMENDATION 

As  impeaching  evidence,  693 

To  show  competency  of  employe,  780 
LETTER  PRESS  COPIES 

Best  and  secondary.  166 

Private  writings,  786 

Official  record.  786 

Abstracts  of  title,  15 
LETTERS 

Mailing  and  receipt,  779 

As  admissions.  779 

Illegally  obtained,  779 

Answers  need  not  be  introduced,  779 

Answers  presumed  to  be  genuine,  782 

Offers  of  compromise,  780 


INDEX  1483 


[references  are  to  pages] 

LETTERS   (Continued) 
To  proA'e  agency,  780 
To  impeach  witness,  780 
To  show  adultery,  71 
To  testator 

To  show  mental  capacity,  1309 
To  show  undue  influence,  1319 
Of  testator 

Testamentary  capacity,  1309 
Undue  influence,  1319 
Trust  created  by,  1258 
When  hearsay,  781,  610 
Of  third  persons  in  general,  781 
To  show  notice,  782 
Self  serving  letters,  782 
Secondary  evidence,  783,  166 
Lost  letter,  784 
Letter  press  copies,  786 
Explanation  of  letters,  784 
Effect  of  introducing,  786 
Whole  of  utterance,  1296 
Supplementing  by  parol,  786 
To  show  whereabouts  of  person,  780 
Of  persons  accused  of  bigamy,  177 
LEX  FORI 

Similarity  of  laws,  559 
LIBEL  AND  SLANDER 
Burden  of  proof,  238 
Expert  and  opinion,  525 
Proof  of  words  used 

Equivalent  words,  all  need  not   be  proven,   787 
More  may  be  proven,  787 
Time,  787 
Place,  787 
Meaning,  788 

Understanding  of  hearers,  788 
Printed  article 

Best  evidence,  788 
Malice 

Pleading,  789 
Presumptions,  789 
Explanation  of  words,  790 
Explanation  of  intent,  790 
Subsequent   publication.    790 
Repetition  of  slander,  790 
Proof  of  words  not  charged,  791 
Justification 
Plea,  791 

Strictness  of  proof,  791 
Plea  not  evidence,  792 
Indictment  and  acquittal,  792 
Hearsay,  792 
Effect  of  plea,  793 
Privileged  communications 
Defined,  793 
Pleading.  793 
Witness,  1051 
Damages,  794 

Pecuniary  circumstances,  969 
Criminal  libel,  796 
LICENSE 

Government,  115 

Brokers,  212 

Physicians  and  surgeons,  988,  989 


1484  INI^EX 

[REFERENCES   ARE   TO   PAGES] 

LICENSE   (Continued) 
IViiiiltios,  974 
Dram  shops,  459 
Parol,  939 
Burden  of  proof,  238,  8G2 

LIFE 

Presumptions   as   to  continuance.   400,    1009 
Presumption  as  to  love  of,  1027 

Weight  of,  1291 
Survivorship,   1216 
LIFE  INSURANCE 

See  insurance,  711 
LIFE  TABLES 

Judicial  notice,  758,  79G 
Admissibility,  797 
LIMITATIONS 
Pleading,  797 
Burden  of  proof,  238,  797 
Declarations  and  admissions,  798 
Admissions  concerning  title  by,  1240 
When  contract  in  writing,  798 
Indorsements  on  notes,  799 
New  promise,  799 
Part  payment,  800 
Mutual  accounts,  801 
Adverse  possession,  78 
Ejectment 

Pleading,  473 
Adverse  possession,  478 
Payment,  964 
Residence,  1145 

Peformation  of  iustruments,  1111 
LIMITS  OF  CIVIL  DIVISIONS 

Judicial  notice,   742 
LIMITING  WITNESSES 
Cumulative  evidence 

Facts  conceded,  379 
Expert  and  opinion,  380 
Practice,  380 
Cliaracter,  265 
LIQUIDATED  DEMAND 

Accord  and  satisfaction,  22 
LIQUORS 

Judicial  notice,  761 
Intoxication 

In  general,  734 
Anti-saloon  territory 

Subject  in  general,  114 
Dram  shops 

Subject   in  general,   456 
LOANS 

No  presumption  as  to  written  evidence  of,  1027 
Pecuniarv   circumstances,   970 
LOCOMOTIVES 
Fires  by,  544 
Reputation,  765 
Ownership,   903 
LONG  TIME  LEASES 

Buildings  erected  under  i 

Judicial  notice,  744 
LOST  INSTRUMENTS 
Secondarv  evidence 

In  general,  801,  158 
Preliminary  proof,   802 


INDEX .  1485 


[references  are  to  pages] 

LOST  INSTRUMENTS   (ContimuHl) 

Due  search,  803 

Proof  of  contents,  803 

Proof  of   execution,   804 

Affidavits,  804 

Bonds,  804 

Certificates,  804 

Checks,  804 

Chattel  mortgages,  804 

Contracts,  805 

Court  records,  805 

Deeds,  806,  807,  808,  809 

Depositions,    809 

Executions,  809 

Justice's  docket,  809 

Letters.  809 

Memoranda,  810 

Notes,  810 

Pleadings,  810 

Corporate  records,  810 

AVills.  811,  1334 
LOST  WILLS,  811,  1334 
LOTTERY 

Defined,  811 
Intent,  811 

Xo  defense  that  money  was  won  by  plaintifT,  858 
LOVE  AND  affection" 
Consideration  in  deed,  73 
Wills,  1316,   1319 
LOVE  OF  LIFE 

Presumptions,  1027 

Weight  of,   1291 
LUNACY  INQUEST,  1158 
LUNATICS 

See  Sanity  and  Insanity,   1156 
Disqualification  of  opponent  as  witness,  1340 
Habit  of  insane  plaintiff  as  to  due  care,  602 
Former  testimony  of,  571 

M 

MACHINERY 

Similar  injuries,  1183 

Similar  precautions,  1188 

Repairs  after  accident,  1125 

No  other  accident,  18 

Promise  to  repair,  1053 

No  presumption  from  accident,  1029 

Opinion  as  to  possibility  of  accident,  516 

Photographs,  984 

Expert  and  opinion,  525 

Usual   custom   of  handling,   384 

Value,   533 
MACHINISTS  AS  EXPERTS,  512 
MAGNIFYING  GLASS,  812 
MAILING  LETTER 

Presumption  as  to  receipt  of,  1027 
MAILS 

.Tudicial  notice  as  to  transportation,  759 
MALICE 

False  imprisonment 

Intent  and  malice,  537 

Homicide,  622 


1486  INDEX 

[references  are  to  pages] 

MALICE   (Continued) 

Libel  and  slander 

Presmnptions,  789 

Malicious  mischief,   812 

3Ialic'io\is  prosecution,  817 
MALICIOUS  MISCHIEF 

:\Ialice  and  ill-will,  813 

Defenses,  813 
MALICIOUS  PROSECUTION 

Identity  of  parties,  814 

Cliaracter  of  parties,  814 

Proof  of  probable  cause,  815 

Want  of  probable  cause,  816 

Malice,  817  to  820 

Advice  of  counsel  or  officers,  820  to  823 

Termination  of  prosecution,  822 

P>>irden  of  proof,  822 

Damages,  823 
MALPRACTICE 

I'Lvpert  and  opinion,  525 

Burden  of  proof,  239,  989 

Action  by  wife 

Competency  of  husband  as  witness,  659 
MANDAMUS 

r.urden   of  proof.  239 
MANIPULATION  OF  LIMBS,  506,  508 
MANUFACTURERS 

Custom  and  usage,  391 
MANSLAUGHTER 

Burden  of  proof.  239,  652 

Former  conviction,  566 

See  Homicide,  620 
MAPS,  939 
MARK 

Signature  to  will.  1322 

Identifying  such   signature,  603 
MARKET  PRICE 

Subject  in   general,  823  to  826 

Judicial  notice,   758 

Proved   bv  newspaper,   863 
MARKS  AND  BRANDS 

Identity,  680 

Ownership,   904 
MARRIAGE 

Subject  in  general,   827   to   836 

Registers  of  births,  deaths  and  marriages,   1116 

Admissions  and  declarations.  44,  68 

Proof  of  in  adultery,  69 

Bigamy,    175 

Validity  of,  176 

Burden  of  proof,  239 

As  atl'ecting  credibility  of  witnesses,  359 

Criminal  conversation 

Actual  marriage  must  be  shown,  362 

Invalidating  will 

Presum])tion  testator  had  knowledge  of,  1304 
MARRIED  WOMEN 

See  Husband  and  Wife,  654 
Witnesses.  1364 
MASTER  AND  SERVANT 

Admissions   and   declarations,   51 

Burden  of  proof 

Negligence,  239 


INDEX  1487 


[references  are  to  pages] 

MASTER  AND  SERVANT  (Continued) 
Promise  to  repair,  239 
As   to   fellow   servant,  239 

Presumptions 

Due  care  by  master,  1028 

Promise  to  repair,   1053 

Repairs  after  accident,   1125 

Safer  method,  1156 

Work  and  services,   1369 

See,  Ante,  Injurv  to  Person 
MASTER   IN   CHANCERY 

Presumptions,  1028 
MASTER'S   DEED 

As  evidence  of  title,  1236 
MASTER'S  REPORT  OF  SALE,  939 
MATRIMONIAL  STATE 

Presumption   of  continuance,   831 
MATTERS    OF    COMMON   KNOWLEDGE 

Judicially    noticed.    755 
MATTERS   OF  SCIENCE  AND   ART 

Expert  and  opinion  evidence,  512 
MATTERS   OF   RECORD 

Not  required  to  plead,   3 
MATTERS  NOT  OF  RECORD 

How   may  be  proven,   1038 

Certificate   of   clerk   incompetent,   1083 
MATURITY  OF  CROPS 

Judicial   notice,    756 
MAYHEM 

Subject  in  general,  836 
MEANING   OF   WORDS   AND   PHRASES 

Parol,  926 

Words  and  phrases 

Presumption   as   to  use,   1368 
Parol  to  explain,   1368 

Ambiguity.   99 
MEANS  OF  KNOWLEDGE 

Expert,   513 

Credibility,  354 
MECHANICAL  TESTS,  507 
MECHANICS 

Books  on,  187 

Demonstrative  evidence,  417 

Experiments,  506 

Expert   and   opinion   evidence.   379,   525 
MEDICAL   AND   SURGICAL   SERVICES 

Recovery   as  damages,   836 

Action  for  by  physician,  987 
MEDICAL  BOOKS,  187 
MEETINGS 

Records  of 

Highway  commissioners,  1086 
Town  meetings,   1086 
Park   commissioners,    1089 
MEMBERS  OF  FAMILY 

Pedigree,  973 

Work   and   services,   1370 
MEMORANDA 

To  aid  construction  of  will,   1303 

To  show  advancements,  74 
MEMORANDUM 

Best  and  secondary  evidence,   167 

Ancient  documents 

Aid   by   memorandum,    104 


1488  INDEX 

[references  are  to  pages] 

MEMORANDUM   I  Continued) 

To  take  contract  out  of  statute  of  frauds,  1119 
Refreshing  memory 

Made  by   witness  himself,   838 
Time   of   making,   838 
Ma(ie  by  another,  838 
Personal  knowledge,  839 
Correctness,  839 
Right   to   use,   840 
By  books  of  account,  197,  843 
Independent  recollection,  840,  842 
As  independent  evidence,  842 
Copies  of  memorandum,  843 

Riglit  to  inspection  by  counsel  on  cross  examination,  367 
MEMORY 

Refreshing 

See,  ante,  memorandum 
See,  post,  refreshing  memory 
MENTAL   AND    PHYSICAL   STATES 
Pain  and  suffering 

Hearsay  as   to  ailments   before   injury,   611 
Appearance  as  to,  by  non  expert,  529 
Complaint  by  party,  844 
Witnesses 

Right  to  compel  giving  testimony,  854 
Non  experts.  854 

Weight  of  non  expert  testimony,  855 
Cause  of   injury,   844,   845 

Expert  and  opinion  evidence,  848  iv 

Condition  prior  and  subsequent  to  injury,  846,  847 

Absence  of  complaint,  847  i  : 

Expert  and  opinion  evidence 
Cause  of  injury,  848 
As  to  commission  of  crime,  849 
Basis  of  expert  testimony,  851 
Objective  symptoms,  851 
Subjective   symptoms,   852 

Self  serving  statements  of   injured  party,  852 
MENTAL  CAPACITY 

Infants  as  witnesses,   700 
Sanity  and  insanity,   1156 
Mental  and  physical  states,  844 
Expert  and  opinion,  530 
Wills.  1305 
MENTALLY   DEFICIENT   WITNESSES,   1339 
MERCANTILE   AGENCY 

Admissions  to  as  showing  fraud,   577 
MERCHANTS 

Custom   and  usage,   392 
Experts  as  to  business  transactions,  518 
MESSAGES 

Telegrams,  1224 
Telephone  conversations,  1226 
MESSENGER'S  STATEMENTS  HEARSAY,  856 
MIND 

Opinion  as  to  another's  intention,  524 
MINE  ROYALTIES,  1186 
MINERALS 

Removal  as  Avaste,  1246 
MINERS  AS  EXPERTS,  527 
MINES  AND  MINING 

Custom  and  usage,  390 
Expert  and  opinion,  527 


I 


INDEX  1489 

[references  are  to  pages] 

MINES  AND  MINING  (Continued) 

Habits,  600 

Wages,  earning  capacity   and   domestic  relations,   1279 

]\Tine  records  and  reports,  1090 
MINORS 

Stipulation  not  binding  upon.  1206 
MINUTES  OF  CLERK  OF  COURT 

Duty  of  clerk.  1100 
MINUTES  OF  JUDGE 

Not  recorded.  73S 
MISCONDUCT  OF  JURORS 

New  trial,   863 

View  by   iury,   1270 
MISDEMEANORS 

Former  jeopardy,  568 

Conviction   of   as   affecting   credibility,   566 

Incapacity  of  infant  to  commit,   701 

Depositions  may  be  taken,  975 
MISNOMER 

As  to  party  to  contract,  929 
MISREPRESENTATION 

By  infant,  of  age,  701 

Reliance  upon 

False  pretenses,  541 
Fraud,  578 

Fraud  and  deceit.  579 
MISTAKE 

Reformation   of  instruments,  1110 

Building  contracts,  215 

Cancellation  of  instrument,  255 

Parol,  923 

As  to  name 

Parol  proof  of,  929 

In  deed 

Parol   proof   of,   410 
MITIGATION  OF  DAMAGES 

See  ante,  damages 
MODELS 

Experiments,   507 

Demonstrative  evidence,  417 
MONEY 

Larceny 

Identity.  767  " 

Value,  771 

Tender,  1227 
MONEY  COUNTS 

A.ssumpsit,  131 

Set  off  and  counterclaim,  1176 

Money  had  and  received,  857 

Money  paid,  858 

Money  lent.  859 
MONEY  ORDERS 

Hearsay,   613 

As  proof   of   support   of  mother,    1278 
MONUMENTS,  1216,  203 
MORAL  CHARACTER 

As   nffectinir  testamentary   cijiacity.   1310 
MORTALITY  TABLES,  796 
MORTGAGOR  AND  MORTGAGEE 

Admissions  and  declarations 

Contemporaneous  Avith  execution,  56 

Subsequent   to   execution.   56 

As  against  person  claiming  through  mortgagor.  56 


1490  INDEX 

[references  are  to  pages] 

MORTGAGOR  AND  MORTGAGEE  (t  nntiiiued)  *''''^'''^  '^"-^ 

As  a<;aiiist  subsequent  iiuuinbrancers,  56 

To  show  acquiescence  in  sale,  57 

Mortiiagor's  intention,  57 

Attachment  against   mortgagor,  57 
MORTGAGES 
I'arol 

In  general.   939 

Priority,  940 

Third  parties,  940 

Identity  of  property,  940 

Fraud, "940 

Mortgage  debt  assumed,  940 

Deed  as  mortgage,  411 
Presumptions,  1029 
Best   and   secondary  evidence,   169 
Admissions    and    declarations.    57 
Exceeding  debt 

Evidence  of  fraudulent  conveyance,  584 
Subject  matter  of  chattel  mortcaiie,  680,  932 
MOTION  TO  SET  ASIDE  DEFAULT,  412 
MOTION  TO  STRIKE  OUT  EVIDENCE,  1207,  1068 
MOTIVES 

Subject  in  general.  859  to  861 
On  issue  of  genuineness  of  handwriting,  607 
MUNICIPAL  CORPORATIONS 
Dedication.  402 
Abandonment  of  streets,  1 
Eminent  domain,  483 
Ordinances,  892 
Officers,  886 
Quo  warranto,  1050 
Records 

Matters  not  of  record,  1083 

Voluminous  records,  1084 

Best  evidence,  1087 

Parol  evidence,   1087 

Amendment,  1088 

Copy   original   evidence,    1088 
Sidewalks,  1179 

Penalty  for  violation   of   ordinance,   976 
Judicial  notice.  743 
MUNICIPAL   ORDERS 

Warranty,   1281 
MURDER 

Accessories,  17 
See  Homicide,  620 
MUTILATION 
Wills,    1328 
Book  of  account,  197 
Presumed  testator  mutilnted  book,  74 
MUTUAL  BENEFIT  SOCIETY 

Admissions  and  declarations,  62 
See  Insurance,  711 


N 


NAMES 

Judicial  notice,  758 

Mistakes  in  name  of  party  to  contract,  929 

Abbreviations,  5 


INDEX  1491 

[references  are  to  pages] 


NAMES  (Continued) 
Initials,   674 

No  presumption  of  sex  from  use  of  initials,  1001 
Middle   initial  or  name   not  material,   G74 
Judicial    notice 

Equivalents  and  contractions,  673 
Nickname,  676 
Going  under  alias,  550 
Same  name 

Petitioner  and  voter,  674 
Father  and  son,  674 
Grantee  and  former  owner,  674 
Former  conviction  of  witness,  1021 
On  engine  causing  fire.  548 
On  wagon,  presumption,   1032 
Owner  of   stolen   property,   677 
Of  deceased,  prosecution  for  homicide,  626 
NAMING  CHILD 

Bastardv.    151 
NARRATION 

Not  part  of  res  gestae,  1138 
When  hearsay,  611 
NATURAL   CONSEQUENCES 
Presumption  of  intent,  1023 
Same    as    to    homicide,    621 
NATURAL  EVIDENCE 

Demonstrative   evidence,  416 
View  by  jury,  1268 
NATURAL  LAWS 

Judicial  notice  of,  759 
NATURALIZATION 
Citizenship,  271 
NAVIGABILITY 

Waters    and   watercourses,    1288,   1289 
NECESSARIES 

Opinion  as  to,  286 
Of  infant 

Not  positively  defined,  702 
Furnishing  to  infant,  702,  908 
Furnishing  to  wife,  656 
NECESSITY 

Opinion    testimony,   512 
NEEDY  CIRCUMSTANCES 

Of  creditor,  968 
NEGATIVE 

See  Positive  and  Negative.  994 
Negative  in  issue,  861 
NEGATIVE  IN  ISSUE 
Burden   of   proof,   240 
Subject   in  general,   861 
NEGLIGENCE 

Presumptions,  1029,  1030 

Burden  of  proof,  240 

Vision  and  hearing,  291 

Attempts  and  efforts,  517 

Observation  and  exercise  of  senses  by  witnesses,  528 

Space  and  distance,  531 

Not   established   by   proof   of   safer  method.   1156 
Admissions  and  declarations,  51 
Declarations    of   agent,   1133 
Conclusions  of  witnesses  as  to  due  care,  287 

Relating  to  personal   injuries  generally,  288 


1^92  INDEX 

[REFERENCES   ARE   TO   PAGES] 

NEGLIGENCE   (Continued) 

Expert  and  opinion  evidence 
As  to  due  care,  5^2 
Danger,   522 

Duties   of  servant,  522       ,,.,,.        ^      ,         _„_ 
]\lechanics,  machinery  and  building   trades,  525 
Mines  and  mining,  527 
Railroads,   529 
Sidewalks,  530 
Attorneys,  147 

Injury  to  person  of  infant,  701 
Liability  of  infants  for  torts.  702 
Customary  method  of  doing  work.  384.  388 
Mere  happening  of  accident,  1002 
Instinct  of  self  preservation 
Love  of  life,  1027 
Weight   and   sufficiency   of,   1291 
Ordinances,  892 
Habits,  599  . 

Similar   facts   and   transactions,   118^ 
Repairs  after   accident,   1125 
Promise   to  repair,    1053 
Pecuniary   circumstances,   969 
Rules   in  actions   for   negligence,  1154 
Hes  gestce,  1132 

Admissions  and  declarations,  51,  1141 
Expert  and   opinion.  509 
IMedical  and  surgical  services,  836 
Sidewalks,    1179 
Experiments,  506 
Physical  examination,  985 
Bailment,  149 
Coroner's  inquest,  334 
Explosives,  534 
Ownership.  901 
Exhibition    of    injury,    505 

Wages,  earning  capacity  and  domestic  relations,  1273 
Fires   by   locomotives,   544 
Photographs,   981 
Fire  arms,  544 
Release,  1118 
Accident,  18 

Custom  and  usage,  384,  387 
Life  tables,  796 
Representative  capacity,  1132 
Infants,  701 
Safer  method,  1156 
Speed,   1191 

Mental  and  physical  states,  844 
Intoxication,  734 
Witnesses,   1347,   1353 
NEGOTIABLE  INSTRUMENTS 
Accord  and  satisfaction 

Agreement  to  accept  less  sum.  22 
Action  by  surety 

Competency  of  note  as  to  amount  paid,  859 
Admissions  and  declarations 

Of  maker    that   he   had   paid   note,   37 

Of  one  partner  to  show  same  partnership  debt,  46  ^-,     -.01 

Of  payee  or  holder  of  note  as  against  subsequent  purchaser,  CI,  131 

As  affecting   alterations,   61 

To    impeach    assignment,   61 

Of  prior  holder,  131 


INDEX  1493 


[references  are  to  pages] 

NEGOTIABLE  INSTRUMENTS    (Contimioil) 
As   evidence  of  advanccnnent,   74 
Atlidavit  of  non  est  fiu'tum  not  evidence,  83 
Alterations   and   erasures 

Subject  in  general,  93 

Presumptions,   1003 
Assignment 

Bad  faith,  burden  of  proof,  220,  222 

Declaration  of  holder  prior  to,  131,  59,  43 
Burden  of  proof,  241 
Check 

Payment  by  bank,  222 

Acceptance'  as   compromise   and   settlement,   281 

Check   stubs 

As  res  gestce,  1136 
Competency  of  witnesses 

Wife  of  maker  in  action  against  surety,  GGl 

Maker,  as  against  estate  of  deceased  payee,  1350 
Consideration 

Impeachment,  921 

Presumed,    1008 

Illegal,  burden  of  proof,  225 

Want  or  failure,  burden   of   proof,  221 

Date 

Of  assignment,   130,  395 
Execution,  395 
Indorsement,  395 
Declarations  of  maker 

Against   surety,  hearsay,   610 
Declaration   of   prior  holder,    131,   59,   43 
Delivery 

As  pledge,  defense  to  collateral  note,  993 
Conditional,  416 
Plea  of  non  est  factum,  419 
Parol  as  to.  922 
Denial  of  execution 
In  general,   419 

Authority  of  corporate  officers,  420 
Alteration,  421 
Foreclosure  of  mortgage,  421 
Duress 

In    general,    461 
Financial  circumstances,  859 
Forgery 

Proof   of   financial   circumstances,   970 
Fraud  by  parol,  921 
Gambling  contracts,   585 
Garnishment  of  maker,  232 
Gifts,  594 
Good  faith,  597 
Handwriting,   602 
Indorsement 

Date,  presumption,   1031 
Infants,  704 
Interest 

Defined.   730 
Presumptions.  730 
Laws  of  sister  state,  731 
Abbreviations,   753 
Joint  liability 

Eff"ect  of  verified  plea,  237 
Knowledge  of  contents  from  signing 
Presumption,   1025 


1494  INDEX 

[references  are  to  pages] 

NEGOTIABLE  INSTRUMENTS    (Continued) 
Law  merchant 

Judicial   notice,   758 
Limitations, 

In  general,  797 

Burden  of  proof,  238 
Lost   instruments 

Ift  general,  801 

Checks,   804 

Promissory  notes,  810 
Parol,  940,  941 

Delivery,  922 

Usury,  922 

Capacity  in  which  person  signs,  929 

Actual  date  of  assignment,  930 

Contemporaneous   agreement   with   delivery,  940 

Contract  of  indorsor,  926 
Motive 

As   evidence   of  genuineness,   8G0 
Non  joinder,  866 
Ownership 

Notes,  presumed  from  possession,  902,  1032 

Draft,  903 

Mortgage,  903 

Certificate  of  deposit,  903 
Partnership  transaction,  959 
Partnership  obligation,  221 
Payment 

By  giving  note,  presumption.  964,  1034 

May  be  shown  under  general  issue,  965 

Burden  of  proof,  965 

Parol,  965 

Indorsements  and  credits,  966,  800 

When  limitations  begin  to  run,  799 

Presumption  from  giving  check,  963 

Habits  to  aid  presumption,  601 

Books  of  account  to  explain  payment,  194 

Books  of  bank  not  party,  196 
Photographs,  983 
Pleading 

Admissibility  under  common  counts,  135 

Premature  action,  pleading,  137 

Failure   and   want   of    consideration,    137 

Defense   of   breach   of   warranty,    138 

Tender,  139 
Possession 

As  evidence  of  payment,  963 

As  evidence  of  ownership,  997 

By  one  of  two  joint  payees,  955 
Presumptions,  1031 
Proof  of  execution  on  foreclosure,  420 
Rate  of  exchange 

Judicial  notice  not  taken  of,  756 
Regularity  of  issue,  1031 
Secondary  evidence,  169 
Settlement 

By  giving  note,  283 

Acceptance  of  check,  281 
Signature 

Knowledge,  1181 
Stamp  act,  1195 
Tender 

By  check,  1228 


INDEX  1495 

[references  are  to  pages] 

NEGOTIABLE  INSTRUMENTS  (Continued) 
Usury 

Burden  of  proof,  249 
In  general,  1260 

Face  value  not  evidence  of  actual  value  in  action  for  physical  loss,  249 
NEIGHBORS 

Declarations  as  to  pedigree,  973 

As  impeaching  witnesses,  697 
NEW  PROMISE,  797 
NEWSPAPERS 

Libelous  article 

Best  evidence,  788 

Market  price,  863 

Publishing  no  notice  of  conveyance,  863 

Service  by  publication,  IITG 
NEW  TRIAL 

Impeaching  verdict,  863 

Newly  discovered  evidence,  865 

Counter  affidavits,  866 

Cumulative  evidence,  381 
NEXT  FRIEND 

Impeachment,  688 

As  affecting  competency  as  witnesses,  1349 
NICKNAME 

Identity   of   devisee,   1302 
NIL  DEBIT 

Accord  and  satisfaction,  23 

NOISE 

Eminent  domain,  496 

Expert,    528 
NOLLE  PROSEQUI 

Accomplice,   19 
NOMINAL   PARTY 

Admissions  and  declarations,  41 

Competency  as  witness,  76,  1344,  1348 
NON  ACCESS 

Legitimacy,  778 
NON  EST  FACTUM 

Accord  and  satisfaction,  22 

Admissions   and    declarations,   63 

Denial  of  execiition,  419 
NON  EXPERT  WITNESS 

Qualification   question    for   court,   510 

See  Expert  and  Opinion,  509 

Conclusions    of   witnesses,    285 

Wills 

Qualification,  1310 

Weight  and  sufficiency  of  opinions,  1315 
NON  JOINDER,  866  '      V 

NON  OCCURRENCE 

Positive  and  negative  proof.  995 
NON  PRODUCTION  OF  EVIDENCE 

See  Refusal  and  Failure  to  Produce  Evidence,  1112 

Production  of  documents,  1051 

Best  and  Secondary,  156 

Absent  witness,  8 
NORTHHAMPTON  LIFE  TABLES,  796 
NOTARIES  PUBLIC 

Presumptions,   1031 

Right  to  take  deposition,  422 

Burden  of  proof,  241 

Foreign  notaries 

Right  to  administer  oath,  751 


liU6  INDEX 

[REFERENCES   ARE   TO   PAGES] 

NOTARIES  PUBLIC   (Contimud) 

Higlit  to  take  arkuowledgmcnts,  1031 
Within  the  county,  82 
Record  of  notary  as  to  protest,   1090 
NOTE  AS  DYING  DECLARATION,  460 
NOTES  AND   BONDS 

Admissions   and   dechirations 
In  general,   61 

As  to  time  of  apparent  alteration,  61 
Impeachment  of  assignment,   61 
To  show  ownership,  61 

Declarations  relating  to  notes  not  in  issue,  61 
See,  ante,  negotiable  instruments 
NOT  GUILTY  IN  CRIMINAL  ACTION 
All  defenses  admissible  under,  368 
NOTICE 

Notice  to  city 

Of  injury,  1181 
Service,  1174 
Customs,   764,    385 
Of  taking  depositions,  424 

Forcible  entry  and  detainer  T^ 

Waiver,  553 
Service,  553 
Presumptions,  1031 
Manifestation  of  surprise,  765 
NOTICE  TO  PRODUCE  DOCUMENTS 

To  admit  secondary  evidence,  159  'i<m'}Rts'nii8  i. 

Mere  notice  to  produce  does  not  render  book  of  account  admissible,   191 
Production  of  documents,  1051 
NOTORIETY 

Of  custom  and  usage,  383 
As  element  of  adverse  possession,  78 
Proof  of  notoriety  of  possession,  79,  1242 
NOVATION 

Burden  of  proof,  241 
Definition  and  requisites,  867 
Burden  of  proof  and  presumptions,  863 
Admissibility  of  evidence,  868 
NUISANCE 

Judicial  notice,  758 
Defined,  869 
Question  of  fact,  869 

Permanent  and  temporary  nuisance,  870 
Injury  to  other  persons  or  property,  870 
Injunction   to  restrain,  872 
NULLA  BONA 

Return  of  execution 

As  proof  of   insolvency,  709,  710 
NUL  TIEL  CORPORATION 
Burden  of  proof,  227 
What  ■sufficient,  342 
NUMBER  OF  WITNESSES 

As  determining  preponderance,  362 
Limiting 

Facts  conceded,  379 
Expert  and  opinion,  380 
Practice,  380 
As  to  character,  265 
NUNCUPATIVE  WILL 

Requirement  as  to  witnesses,  1323 
NURSES 

Dying  declarations  signed  by,  469  i. 

May  testify  as  to  natural  riianifestations  of  pain.  856 


INDEX  1497 


OATH 

Right  of  foreign  notary  to  administer,  81 
Competency  of  child  to  comprehend,  1339 
Confessions  upon  oath,  295 
Jurat    not  conclusive,   SI 
OBJECTIONS  TO  COMPETENCY  OF  WITNESSES 

OBJECTIONS  to' CORRECTNESS  OF  ACCOUNT  STATED 

Presumptions,  24 
OBJECTIONS  TO  DEPOSITIONS,  426 
OBJECTIONS  TO  QUALITY  OF  GOODS 

Opinion  as  to  reasonable  time  incompetent,  518 
OBJECTIONS 

Abstracts  of  title,  16 

Who  may  object,  873 

Grounds,  872 

General  objections,  873 

What  question  general  objection  raises,  874 

Specific  objections 

As  to  particular  questions,  875  to  877 

Time  of  objection,  877 

Objection  on   appeal,  877 

Waiver  of  objections,  878  to  880 

Right  to  rebut  incompetent  testimony.  1068 

Renewal  of  objections,  880 

Deferred  ruling,  881 

When  motion  to  strike  out  not  sufficient,  1210 
OBJECTIVE  AND  SUBJECTIVE  SYMPTOMS,  851,  852 
OBJECTS  IN  EVIDENCE 

Demonstrative  evidence,  416 

In  homicide,  638 

Exhibition  of  injury,  505 
OBSTRUCTING  HIGHVvAiS 

Location   of   obstruction,   and   notice,   881 

Existence  of  road,  882 

Intent  of  owner,  882 

Degree  of  evidence  to  convict,  883 
OBSTRUCTING  JUSTICE 

Tampering  with  witness.  883 

Tampering  with  juror,  883 
OCCUPATION 

Proof  of  as  evidence  of  gambling  contracts,  587 

Cross  examination,  358 
ODORS  AND  SMELLS 

Judicial  notice,  759 

Nuisance,  870 
OFFERS 

Of  settlement,  722 

As  proof  of  value,  1263 

Of  compromise,  284  Ta""!" 

OFFER  OF  EVIDENCE 

What  constitutes  offer.  884 

Right  to  make  and  form,  884 

Part  competent,  885 

Re -offer,  885 

Presence  of  jury,  885 

As  to  competency  of  witness,  886 
OFFICERS 

Judicial  notice,  749,  750.  751 

Burden  of  jnoof 

Existence  of  office,  242 

Duty,  242 

False  return,  242 


1498  INDEX 

[references  are  to  pages] 

OFFICERS    (Continued) 

Taking  acknowledgment 

Competency  to  impeach,  31 
Extortion,  taking  illegal  fees,  535 
Legality  of  appointment 

Action  for  false  imprisonment,  539 
Existence  of  office  in  quo  warranto,  886 
Presumptions 

Eligibility,  886 
Duties,  887 
Justification  of  acts  as  officer,  887,  1128 
Actions  on  official  bonds 
Books  and  records,  888 
Admissions  of  officer,  888 
OFFICERS  OF  CORPORATION 
Admissions,  60,  345 

Of  insurance  company  officers,  720 
Letters  between 

When  hearsay,  610 
Books  of,  as  admissions,  195 
Seals  and  authority  to  use,  1164 
As  witnesses 

As  against  representative  of  deceased  person,  1347 
OFFICERS  OF  COURT 

Judicially  noticed,  743 
OFFICIAL  BUSINESS 
Presumptions,   1031 
OFFICIAL  CERTIFICATES  AS  EVIDENCE 
See  certificates,  256 
Presumption  as  to  date,  1014 
Of  land  office,  1237 
OFFICIAL  CHARACTER 

Proof  of  in  prosecutions  for  homicide,  636,  638 
Abbreviations,  5 

Presumed  from  acting  as  such,  539 
OFFICIAL  DUTY 

Performance,  1031 
OFFICIAL  RECORDS  0 

Defined,  1080 
See  records,  1080 
OFFICIAL  REGISTER'S 

Records   in   general,   1080 
Examined  copy,  333 
Parish  register,  827 
Requisites  to  church  record,  827 
Registers  of  births,  deaths  and  marriages,  1116 
Internal  revenue  collector,  115 
Weather  bureau    record,   1289 
Of  land  oflfice,  1237 
OFFICIAL  SEALS  AND  SIGNATURES 

Judicial  notice,  751,  760,  1108 
OIL  WELL 

Opening  by  tenant  constitutes-  waste,   1287 
OLD  AGE 

Leading  questions  asked  of  aged  witness,  772 
OLD  AGE  AND  PHYSICAL  SUFFERING 

As  affecting  testamentary  capacity,  1313 
OLD  WRITINGS 

S((>  ancient  document,  103 
OMISSIONS 

Parol  evidence  to  supply  those  in  documents 
In  records,  943 
Documents,  in  general,  917 


INDEX  14UD 

[references  are  to  pages] 


OPENING  STATEMENT 

Attorneys,  148 
OPERATION  OF  RAILROADS 

Judicial  notice,  7.')9 
Expert  and  opinion,  520 
OPINIONS  AS  ADMISSIONS,  694 
OPINION  EVIDENCE 

As  to  mental  and  physical  states,  848 
Fixed  belief  of  dying  declarant,  465 
Fright  of  horse,  290 
Temperature,  287 
Appearance  of  person,  523 
Appearance  of  animals,  516 
Reputation,  696 
Intoxication,  734 

Identity,  695 
Speed,  1191 

Misrepresentations,  578 
Values,  1264 

On  question  of  sanity,  1159 
Concerning  testamentary  capacity,  1315 
As  to  handwriting,  604 
To  prove  bigamy,  177 
Adultery,  71 
Bastardy,  154 
See  expert  and  opinion,  509 

Mental  and  physical   states,  844 

Legal  conclusions,  775 

Wills 

Construction,  1303 
Testamentary   capacity,    1310 
Undue  influence,  1319 

Conclusions  of  witnesses,  285 

Title,  1238 

Sanity  and  insanity,  1156 

Malpractice,  989 

Time  of  opinion,  511 
OPPORTUNITY 

As  affecting  credibility,  354 

As  to  weight  of  positive  and  negative  evidence,  996 
OPTIONS,  941 
ORAL  TESTIMONY 

See  parol  interpretation  of  writings,  913 
ORDER  OF  PROOF 
Abatement,  4 

Determination  of  order,  889 

Evidence  depending  upon  preliminary  proof,  889 
After  argument  of  counsel,  891 
Anticipating  defense,  891 
Documentary  evidence,  891 
As     to  cross  examination,  892 
Default,  412 
Offer  of  evidence,  884 
Rebuttal,  1067 
Recalling  witness,  1070 
Impeachment,  685 
Cross  examination,  365 
ORDINANCES 
Warranty 

Article  warranted  to  comply  with,  1285 
Burden  of  proof,  242 
Judicial  notice,  743 
Motives  in  passing,  859 


1500  INDEX 

[references  are  to  pages] 

ORDINANCES    (Continuod) 

\  iolatioii 

Degree  of  proof,  976 

When  prima  facie  negligence,   1192,   1194 

Sidewalks 

Admissibility  to  show  complaint  to  proper  parties  as  to  sidewalks, 
1180 

Validity 

Presumption,  892 

Not  admissible  in  homicide  to  show  duties  of  officer,  636 

Book  and  pamphlets,  894 

Records,  895 

Copies,  895 

As  determined  by  pleadings,  895 

Different  ordinances  covering  same  subject  matter,  897 

Presumption  ordinance  still  in  force,  893 

Not  necessary  to  show  latest  revision,  893 

Weight  and  sufficiency 
Ordinance  books,  900 

In  actions  of  injury  generally 

From   defective   sidewalk,   898 
From  careless  driving,  898 
Street  railways,  899 
Railroads.  899 
Tanks  and  boilers,  900 

Presumption  of  negligence  from  violation,  1032 

Of  city  in  foreign  state.  896 
ORGANIZED  FIRE  DEPARTMENT 

Judicial  notice,  744 
ORIGINAL  ENTRIES 

Books  of  account.  188 
ORIGINAL  EVIDENCE 

Disparagement  of  title  by  party  in  possession  is,   1239 

Copy  of  city   record   is,   1088 

Disparagement  of  title,  42,  1239 

Admissions  in  general  34,  40 
ORIGINAL  TELEGRAM,  1225 
OSTEOPATH 

As  expert  witness,  854 
OTHER  ACCIDENT 

See  accident,  18 

Similar  facts  and  transactions,  1183 

Sidewalk  injuries,  1180 
OTHER  OFFENSES 

Separate   and   similar   offenses,   1168 
OUSTER,  901 
OWNERSHIP 

Where  matter  of  inducement,  901 

Presumption    from    jiossession,    902 

Names  on  railway  cars  and  engines,  903 

Marks  and  brands,  904 

Wills,  904 

Direct  evidence,   905 

Grantor's  declarations,  905 

As  to  ownership  of  real  estate,  see  title,  1235 

Declarations  of  party  in  possession  of  personal  property,  58 

Acts  of  party  claiming  to  own,  999 
OWN  witness' 

Party  not  allowed   to  impeach,   686 

May  refresh  memory  if  surprised  by,  686 


INDEX  1501 


PAIN  AND  INJURY 

-Judicial   iiDticc,   758 
PAIN  AND  SUFFERING 

Judicial  notice,  758 

Appearance  as  to,  529 

Hearsay  as  to  ailments  before  injury,  611 

Exclamations  as  part  of  res  (jc.stiV 
In  general,  1153 
Mental  and  physical  states,  846 

Opinion,  non-expi'rt,  529 
PAMPHLET 

Fraud  and  deceit,  579 

Ordinances,  894,  893 

As  proof  of  warranty,  1284 
PAPER  MONEY 

Expert   witness,  7G8 
PAPERS  AND  FILES 

Are  part  of  judicial  record,  1102 

Admissibility  of  originals  from  another  county,  1101 

Unauthenticated  files,  sister  state,  561 

To  show  former  adjudication,  565 
PARAMOUR 

As  furnishing  a  motive,  625 
PARDON 

As  aflfecting  disability  of  witness,  906 
PARENT  AND  CHILD 

Custody  of  child,  907 

Emancipation,  907 

Liability  for  torts,  908 

Liability  for  necessaries,  908 

Compensation  for  services,  909 
Express  contract,  910 
Implied  contract,  910 

Voluntary  conveyances 
Parent  to  child,  910 
Child  to  parent,  912 

Married  woman  cannot  bastardize  child,  779 

See  infants.  700 
Gifts,  592 
PARISH  REGISTER 

Admissibilitv.  827 
PAROL  INTERPRETATION  OF  WRITINGS 

Extrinsic   rendering  uncertain.    914 

Conversations  and  negotiations,  914 

Recitals  not  part  of  contract,  915 

Date,  916 

Existence  of  written  contract,  916 

Different  writings,  916 

Part  in  writing,  917 

Unsigned  writing,  917 

Contemporaneous  agreements,  917 

Delivered   instruments,  917 

Reservations.  917 

Prior  contract,  918 

Intention,  918 

As  to  strangers,  918 

Subsequent  agreements.  919 

Separate    parol    agreements.    920 

Contract  not  intended  binding,  921 

Fraud  and  deceit,   921 

Consideration,  921 

Delivery.  922 

Usury.  "922 

Illegal  agreements,  923 


1502  INDEX 

[references  are  to  pages] 

PAROL  INTERPRETATION  OF  WRITINGS   (Continued) 
Mistake,  !);•:! 

Cunc'i'ilation  of  instruments,  923 
Custom  and  usage,  924,  386 
Cliaracter  of  transaction,  924 
Construction  by  parties,  925 
Surrounding  circumstances,  925 
Words  and  terms,  926 
Identity  of  subject   matter,  928 
Condition  of  subject  matter,  929 
Identity  of  person,  929 
Capacity   in  Avhicli   persons  act,  929 
.Interpretation  of  paitieular  writings 

Advancements,  930 

Architect's  certificate,  930 

Arbitration  and  award,  930 

Assessor's  schedules,  930 

Assignment,  930 

Bills  of  sale,  931 

Bills  of  lading,  931 

Bonds,  931 

Building  contracts,   932 

Certificate  of  deposit,  932 

Certificate  of  publication,  932 

Certificate  of  sale,  932 

Certificate  of  teacher,  932 

Certificate  of  taxes,  932 

Chattel  mortgage,  932 

Compromise  and  settlement,  933 

Contracts  generally,  933 

Deeds,  934,  935 

Declaration  of  trust,  936 

Diagrams,  936 

]']mployment  contract,  936 

Insurance  policy,  937 

Inventory,  937 

Judgments,  937 

Lease,  938 

Letters,  939 

License,  939 

Maps,  939 

Master's  report  of  sale,  939 

Messages,  939 

Mortgages,  939,  940 

Negotiable  instruments,  940 

Options,  941 

Ordinances,  941 

Partnership  contracts.  941 

Passenger,  railway  ticket,  942 

Plats,  942 

Pledge,   942 

Power  of  attorney,  942 

Principal  and  surety,   942 

Receipts,  942 

Records,   943,   944 

lies  adjudicata,  order  of  court,  944 

Return  of  process.  945 

Rules,  945 

Sales  contracts,  945,  946 

Settlement,  947 

Statutes,  947 

Subpoena,  947 

Subscriptions,  947 

Summons,  948 


INDEX  150:^ 

[REFEREXCEK    are   to    PAOESl 

PAROL  INTERPRETATION  OF  WRITINGS   (Continued) 

Trusts.  94 S 

Voluntary  settlements,  948 

^Y:lrrantv.   948 

Wills.   ',)4S.  949,   950,  951 

""""^UZif^^^^nL,  .,ot  provable  by   parol   wHhc.t   notU.   to  produce, 

or  showing  loss  or  destruction,  IGO 
To  prove  independent  facts 

Payment,  though  receipt  given.  9G5  ^ 

Matters  in  pais,  concerning  courts,  170 

Government  license,  115 

Existence  and  identity  of  record    1081 

Where  written  evidence  wrongtully  withlieW,  15/ 

Other  insurance,  723 

Fact  of   sending  telegram.    1225 
Rescission  of  contract  in  general,  1076 
Reformation  of  instruments   m  general,   1110,  1111 
To  show   instruments   security 

Bill  of  sale  as  mortgage,  931  ,      ,    ,       .-,. 

Security  may  be  shown  to  become  absolute,  411 

Deed  as  mortgage,  411  .        .     ^         .    .r-. 

Deed  as  mortgage  no  defense  in  ejectment,  4<4 

Ambiguity  in  general,  97 
Parol  as  to  wills,  1299 
Mistake  of  fact,  1110 
Mistake  of  law,  1110 
Consideration,  303 
Delivery,  415 

Dates  of  writings,  395 
Priority  of  various  writings,  395 
That  contract  never  had  existence,  415 
Assent  to  contract  of  carrier,  128 
Contract   of   telegraph   company     129 
Conveyances   as   voluntary   settlement,   1^9 
Parol' warranty  accompanying  bill   ot   sale,   1^S5 

Sale  by  sample,  1282  ,        ,n--    o 

Subsequent  contract  as  rescission,  Wa.  ^ 

Abandonment  of  contract,  11S9,  2 

Acceptance  of  contract,  1189  ,   .     .    ,.  .-  „    .04 

To  show  contents  of  exhibits  beyond  jurisdiction.  434 

To  prove  alteration  of  instrument.  96 

To  complete  and  aid  trust,   1257,   1258  j,    i9f>n 

To  explkin  part  performance  under  Statu  e  of  Frauds,  1200 

Rebutting  presumption  of  adoption  of  seal,  1163 

Administrator 

Appointment  of,  1132 
Abbreviations 

Explanation,  5 
Abstracts  of  title  .   , 

Aid  by  parol,  15 
Account  stated 

Verbal  admissions,  34 
Acknowledgment 

Amendment  by  parol,  29 
Advancements 


No  part  by  parol,  75  r  j       ^    ■r^ 

Parol  incompetent  as  to  intention  of  donor,  74 

Adverse  possession  ^ 

Transfer  provable  by  parol.  iJ 

^^  Family  record  not  provable  by  parol,  85 


1504  INDEX 

[kefekences  are  to  pages] 

PAROL  IN  GENERAL  (Continued) 
Agency 

Parol  to  explain  written  appointment,  89 
Alterations  and  erasures 

Parol   admissible,  96 
Ambiguity 

Parol  admissible,  97 
Ancient  documents 

Parol  in  aid  of,  104 
Ante-nuptial  agretMuent 

Parol    inadmissible,    114 
Appeal  bond 

Impeachment  by  parol,  119 
Award 

Parol  incompetent  to  enlarge,  121 

Scope  and  effect,  930 

Parol  incompetent  to  identify  subject  matter,  682 
Assent  to  voluntary  conveyances 

Parol  admissible  as   to  condition   of  property,   130 
Document  beyond  jurisdiction,  result  of  examination,  156 
Voluminous   documents,   156 

Whether  records  or  writings  show  certain  fact,  157 
Documents  wrongfully    withheld,    157 
Documents  lost  or  destroyed,   158 
Levy  by  officer,  170 
Ministerial  acts  of  officer,  170 
Amount  of  appeal  bond,   170 
Lost   deposition,   where   witness    alive,    170 
Bill  of  lading,  contradiction  by  carrier,  180 
Approval  of  bond,  185 
Book  account,  contents  of 

Inadmissible,   197 
Explanation  of  signs  in  book  account,  201 
Boundaries 

Parol   competent   to   identify,  202 

To  show  general  reputation,  203 

Parol  agreement  as  to.  203 
Cancellation  of  instruments,  255 
Certificate  of  naturalization 

Identity  of  holder,  parol  competent,  272 

Impeachment  incompetent,  272 
Cloud    on    title 

Parol  to  show,  276 
C.  0.  D. 

Parol  competent  to  explain,  279 
Compromise  and   settlement 

Parol  to  show  non  compliance  with  conditions,  282 
Consideration 

Want  of,  303 
Ballots 

For  whom  cast,  318 
Confession  before  coroner 

When  not  reduced  to  writing,  337 
Corporation 

Identity  of  as  party  to  contract,  340 

No  delivery  of  corporate  stock.  340 

As  to  existence  of  corporation,  343 

WHiere  corporation  fails  to  make  record,  346 
Date  of  judgment,   393 

Parol  admissible  to  show  execution  issued  before,  393 

Filing  of  documents,  394 
Date    of    contract,    395 


INDEX 

[references  are  to  pages] 

PAROL  IN  GENERAL   (Continued) 
IJi'difatiun 

Parol   admissible    to   show,   403 
Deed 

Parol  as  to  time  of  filing,  410 
Ambiouity  in  description,  410 
Deed   as   mortgage,    411 

Becoming  absolute  by  parol,  411 
Delivery 

Deed,  4l4 

Contracts,  conditional,  415 
Bond,  416 

Negotiable  instruments,  416 
Depositions 

Parol  competent  where  lost,  171 
Destruction  of  evidence 

Party    destroying    cannot    oflVr    parol,    439 
Dying  declarations 

Where  reduced  to  writing,  4G8 
Location  of  lot,  474 
Fixtures 

Peservation  by  parol  inadmissible,  550 
Foreign  judgments 

Parol  as  to  jurisdiction,  555 
Foreign  law 

Statutes,  560 
Common  law,  560 
Former  adjudication 

Parol  to  show  issues  raised,  564 
Not  where  shown  by  record,  564 
Parties  to  former  action,  677 
Same   in   criminal   cases,   677 
Former  conviction 

Criminal  trials,  566 
Civil  actions,  567 
Former  jeopardy 

Parol  as  to  identity  of  persons  in  crime,  568 
Former  testimony 

Parol  competent,  573 
Fraud 

Where  contract  in  writing,  parol  competent.  575 
Fraudulent   conveyances,   582 
Guardian  and  ward 

Recei])t  of  ward,  parol  competent.  599 
Homestead 

Parol  competent  to  show  premises,  619 
Government  license 

Parol  to  show,  115 
Devise 

When  parol  competent  to  identify,  678 
Personal   property 

Subject  matter  of  contract,  680 
Where  subject  of  sale,  680 
Subject  of  mortgage,  680 
Property  insured,  681 
Subject  of  larceny,  681 
Contents  of  variant  statements  on  impeachment.  691 
Insurance 

Parol  as  to  measure  of  damages  on  benefit  policy,  713 
To  connect  beneficiary  with   contract.   715 
Accident  policy,  parol  to  vary,  717 
Lost  policy,  parol  to  show  contents,  719 
Fire  policy,  parol  to  vary,  723 


1505 


1506  INDEX 

[references  are  to  pages] 

PAROL  IN  GENERAL   (Continued) 

Waiver,  723 

Other  insurance,  723 

Incompetent  to  contradict  receipt,  724 
Justices  docket 

Parol  to  impeacli  service,  762 

Parol  to  show  alteration  or  correction  of  record,  762 

To  show  wrong  entry  of  judgment,  702 
Legislative  acts  and  journals 

Parol  to  identify,  776 

Parol  to  show  adoption,  777 
Letters 

Parol  as  to  contents  where  not  lost,  784 

Parol  to  explain,  784,  785 

Parol  to  supplement,  786 
Libel  and  slander 

Explanation   of   intent,  796 
Limitations 

New  promise  where  contract  in  writing,  798 

To  pay  judgment,  799 

Declarations   of   party   in   possession,   57 
Lost  instruments 

Substance   sufficient,   803 

Must  be  proof  of  execution,  804 
Malicious  prosecution 

Termination  of  prosecution,  822 
Marriage 

Record  evidence  not  required,  827 
Memorandum 

Contents    of,    842 
Motive 

In  passing  ordinance,  parol  incompetent,  860 
Notary  public 

Of  sister  state,  authority  to  administer  oath,  82 
Ordinances 

Adoption  cannot  be  shown  by  parol,  876 
Objections 

Must  be  specific,  876 
Process 

Parol  admissible  to  amend,  945 
Partition 

Parol  partition,  efTect,  954 
Partnership 

Parol  by  strangers,  where  written  articles  exist,  956 

For  purpose  of  trading  in  land,  958 
Patents,  for  land 

ImpeaclimeTit  by  parol.  962 
Patent  ambiguity 

Contracts  for  conveyance,  678 
Payment 

Parol  competent  though  receipt  given,  965 
Pledge 

Parol  evidence  as  to,  993 
Principal  and  surety 

Signing  on   condition.    1045 
That  contract  was  conditional,  1045 
As  surety.  1045 

To  identify  party  to  be  indemnified,  1045 
Ratification 

Of  sealed  instrument,  1064 
Receipts 

Contradiction  by   parol,   1071  ' 


INDEX  1507 


[references  are  to  pages] 
PAROL  IN  GENERAL   (Continupd) 

J5astardy   settlement,    inipeaclimeiit,   155 

To  joint  tort  feasor,  21 
Rescission  of  contracts,   1077 
Recognizance 

Parol  as  to  identity  of  principal,  1079 

Approval  by  sheriff.  1079 

Consent  to  conditions,  1079 
Payment  of  clerk's  fees 

Parol  competent,   1082 
Lost  or  destroyed  records,   1082 
Matters  not  of  record,   1083 
Writings  must  be  in  court,   1083 
Records  of  county  board,  1084 
Higliway  commissioners   records 

Cannot  be  varied  by  parol,  1097 
City  and  village  record's 

Parol  incompetent  to  enlarge  or  contradict,  1087 

Where  record  failed  to  be  made,  competent,  1088 
Taxes 

Payment  of  may  be  proven  by  parol,  1088 
Records  of  boards  of  education 

Parol   as   to,   1089 
Records  of  board  of  local  improvements,   1089 
Drainage  records,   1090 
Private  corporations 

Parol  as  to  records,  1091 
Recording  of  deed,  1096 

Aid  of  certified  copy,  1099 
Orders  of  courts  and  defects,  1101 
Papers   and    files   of   judicial    records,    1101 
Amending  judicial  records,  1103 
Contradiction  of  judicial  records,  1103 
Return   of   proees 

Contradiction,  1105 
Dockets  and  judgments  of  justices  of  peace,  1105 
Transcript  of  record,   1110 
Reformation  of  instruments,  1111 
Release  of  contract,  1118 

Consent  to  sale  of  property  under  chattel  mortgage,  1128 
Justification   of   officer   in    replevin,    1129 
Representative  capacity,  1132 
Reservations 

In   deed,   935 
Rules  of   court,   1153 
Rules  in  actions  for  negligence,  1155 
Rumors 

As  to  death  from  absence,  398 
Service  by  publication 
Parol  to  aid,  1176 

Parol  to  impeach  decree  showing,  1176 
Specific  performance 

Parol  to  aid  description  of  premises,   1189 
Acceptance  may  be  shown  by  parol,  1189 

As  to  title,  1190 
Statutes 

Act  essential  to  validity,  1196 
Contradiction  record  of  secretary  of  state,  1196 
Identifying  legislative  journals,  1196 
Signing  of  document 

By  another,  parol  to  show,  1201 
Stipulations 

Parol   suflficipnt.   1205 


1508 


INDEX 


[refekences  are  to  pages] 

PAROL  IN  GENERAL  (Continued) 
bubscription  tontiacts 

I'arol   incompetent  to  vary,   1212 
Monuments 

Location,  1216 
Taxes 

Payment,  1221 
Tax  deeds 

To  aid  affidavit,  1217 
Tax  reeeipts 

Parol  competent  to  supplement,  1223 
Telegrams 

Contents,  parol  incompetent,  1225 

Fact  of  sending,  parol  competent,  1225 
Title  to  real  estate 

Parol  incompetent  to  show,  1238 

Declarations  as  estoppel,  57 
Trusts 

Resulting,  not  defeated  by  parol  agreement,  1252 

Parol  competent  to  show,  1256 

Express,  parol  incompetent  to  create,  1256 

Parol  competent  to  aid,  1257 
Usury 

Parol  competent  to  show,  1261 
Waiver 

May  be  shown  by  parol,  1280 
Warranty 

Where  not  contained  in  written  contract,  1284 

Wills 

Ambiguity,  1301 

Oral  testimony  as  to  testator  not  holding  title,  1307 
Revocation  and  destruction  of  will,   1328 
Words  and  phrases  in  written  instruments 
Parol  competent  to  explain,  1368 
PARTIALITY 

Cross  examination  of  witnesses  as  to,   377 
Credibility,  358 
Bias  and  "hostility,  173 
PARTIES  AND  PERSONS  INTERESTED  AS  WITNESSES 
Credibility 

Parties   of  record,   951 
Criminal  action,  952 
Other  persons  interested,  952 
Proof  of  interest 

On  direct  examination,  953 
Cross  examination,  952 
PARTICULAR  ACTS 
Homicide 

Character  of  accused,  631 
To  impeach  witness,  264,  696 
To  show  incompetency  of  employe 
Negligent  acts,  1183 
Habit's  as  to  negligence,  600 
Habits  as  to  use  of  intoxicating  liquors,  600 
To  show  character  of  animals,  107,  1185 
To  diminish  damages  in  action  for  assault,  126 
•   PARTICULAR  TRAIT 

Reputation  to  be  confined  to,  264 
Of  servant,  601 
PARTITION 

Judicial  partition,  953 
Parol  partition,  954 
Solicitor's  fees,  954 


INDEX  1509 

[references  are  to  pages] 

PARTNERS 

('()iiilH't(>ncy  as  witnesses  as  to  transactions  with  deceased  partner,  1349 
PARTNERSHIP 

Burden  of  proof,  336 
Articles    of,    168 
Existence  of 

Presumptions,  955 

Burden  of  proof,  955 

Admissions  and  declarations  of  partners,  956 

Articles   of   partnership,   957 

Proof  by  stranger  where  articles  in  writing,  941 

Land   trading   ]iartnership.   941 

Contract  firm  obligation,  941 

Denial  of  partnership  under  general  issue,  958 

Weight   and   sufficiency,   958 
Liability  of  parties,  959 
Dissolution 

Evidence  to  show  notice,  960 
Partnership    books,    961 
Presumption   as   to   partners'   interest,   961 
Presumption  as  to  compensation,  961 
Admissions  and  declarations,  45,  46 
PART  PAYMENT 
Application,  964 

Indorsements  and  credits  on  notes,  966 
As  affecting  limitations,  800 
By   strangers,    Snn 
PART  PERFORMANCE 

Taking  contract  out   of   Statute   of  Frauds,   1200 
PARTIES  TO  CONTRACT 

Admissions  and  declarations,  60 
PARTIES  IN  INTEREST 

Admissions  and  declarations,  41 
PARTY 

Existence   of   party   to  suit,   143 
Admissions   of   party 

Nominal  party,  41 

Parties  to  record,  40 

Third   parties,   41 

Privies,  59 
Substantial  identity  as  to  former  testimony,  571 
Parol   identity   of   parties   to   contract.   929 
Construction   of   contract   by   parties,   925 
Proof   of   interest  of  party,  952 
Leading  questions  to  adverse  party,  772 
Competency  of  nominal  party  as  witness,  76,  1344,  1348 
Person  whose  name  forged,  not  necessary  as  witness,  563 
Refusal  to  testify,  personal  privilege 

Immunity,  0R3 

No  intendment  in  civil  cases,   1114 
Right  to  call  adverse  party,  76 
Not  to  be  excluded  from  court  room.  504 
When   privileges   of   imnumity   waived.   684 
Impeachment  of  own  witness  by  party,  686 
Parties  and  persons  interested  as  witnesses,  951 
PARTY  IN  POSSESSION 

Admissions  and  declarations  of,  58 
PARTY  WALL 

Presumptions,    1033 
PASS  BOOK 

Of   merchant,   189 
Bank  book,  195 


1510  INDEX 

[references  are  to  pages] 

PASSENGER 

Relation 

Ticket  need  not  be  produced,  942 

Pre.snnii)tion  of  negligence,  injury  by   carrier,   1030 

Injury  to  ])a.ssengpr 

Burden  of  proof,  240 
Custom  and  usage,  388,  389 

Behavior  of,  as  evidence  of  danger,  1139 
PATENTS 

Evidence  of  title,  961 

Entry  book,  962 

Eecordation,   962 

Impeachment    by   parol,    962 

Scliool  patents.  '962 
PATENT  AMBIGUITY 

Deeds,  100 

Contracts  for  conveyance,  928 

^^■ritten  contracts  in  general,  914 
PATERNITY 

Opinion   incompetent,  529 

Profcrt  of  child  improper,  151 
PAUPER 

Residence  of,  323 

Admissions  and  declarations,  61 

Domicile,   452 
PAVEMENT 

Judicial   notice,    745 
PAYMENT 

Burden  of  proof,  243,  965 

Presumptions 

Possession  of  instrument,  963 
From  giving  note.  964 
From  giving  check,  963 
Application,   964 
Recitals   in  deed.  964 

Admissibility  under  general  issue,  965 

May  be  shown  by  parol,  965 

Receipt  explainable  by  parol,  966 

Habits  of  deceased  person,  967 

Weight  of  receipt,  968 

Degree   of  proof,  968 

Indorsement  of  credits,  968,  799,  800 

8ee  onie,  part  payment 
PECUNIARY  CIRCUMSTANCES,  969  to  972 
PECUNIARY   CONDITION 

To  show  motive  or  reason,  970 
PECUNIARY  INTEREST 

Declarations  of  deceased  against,  42 
As  to  value,   1264 

Rendering  witness  incompetent  as  to  transactions  with  deceased,  1344 
PEDIGREE 

Defined,   972 

Presumptions  and  burden  of  proof,  972 

Hearsay  evidence  in  general,  973 

Declarations,  973 

Conclusions  of  witness,  616 

Decree  in  partition,  616 

Petition  in  probate,  617 

Legitimacy,  777 

Intestacy,'  734 

Heir  defined,  1341 
PENALTIES 

Presumption,   1034 


INDEX  1511 

[references  are  to  pages] 

PENALTIES   (Continued) 
Burden  of  proof,  243 
In  fjoneral,  974 
PERFORMANCE 

See  specific  performance,  1189 
Statute  of   frauds,   1200 
Duty  of  officer 

Presumption,   1031 
In  action   for  negligence,   1029 
PERJURY 

Materiality  of  testimony,   976 
Elements  of  offense,  977 
Kegularity   in   appointment   of  officer,   977 
Testimony  on  which  perjury  assigned,  979 
Necessity  of  two  witnesses,  979 
Subornation  of  perjury,  980 
Presumptions,  1034 
PERSON 

Inspection  of 

To  determine  age,  86 
Physical  examination,   985 
Identity  of.  673 
PERSONAL  INJURY 

See  ante,  injury  to  person 
See  ante,  negligence 
PERSONAL  PROPERTY 
Burden  of   proof 

Ownership,   242 
Presumption   from   possession,   902 
Owner  of 

How  affected  by  statements  of  former  holder.  244 
Declarations  as  to  ownership  by  party  in  possession,  58 
Party  may  prove  his  own  acts.  999  " 
See  also,  ante,  negotiable  instruments 
Identity  of  property  sold  by  description 

Burden  of   proof,   233 
Parol  as  to  bill  of  sale,  931 
Parol  as  to  chattel  mortgage,  932 
Larceny,  767 
As  payment 

Presumption   as   to   delivery,   415 
Specific  performance.  1191 
PERSONAL   REPRESENTATIVE 
Representative  capacity 

When  appointment  not  in  issue,  1132 
Parol  incompetent  to  show,  1132 
As  witness 

For  or  against  estate  of  deceased  person,  1346 
PETIT  JURORS 

See  ante,  jurors 
PHOTOGRAPHS 

Stereoscopic  views.  1204 

Legitimate  evidence,  981 

Jury  may  take  to  jury  room.  981 

Scene  of  accident,  981 

Not  admissible  where  arranged  by  party,  981 

Preliminary  proof,  982 

Documents,   983 

Real  property,  983 

Machinery,  9*84 

Persons,  984 

Of  injury,  984 

To  shoAV  injury.  X-ray,  984,  985 


1512  INDEX 

[REFERENCES   ARE   TO   PAGES] 

PHOTOGRAPHS    (Continued) 
Copy  of  writing 

On  issue  of  genuineness,  fa07 

PHRASES 

^Meaning  of,  1268 
Abbreviations 

Judicial  notice,   753 
Custom  and  usage,  386 
Parol,  926 
Presumptions 

Technical  words,  1042 
PHYSICAL  CONDITION 

Mental  and  physical  states,  844 
PHYSICAL  EXAMINATION 
In  general,  985  to  987 
Exhibition  of  iniiiry,  505 
PHYSICAL  EXHIBITS 

Exhibition  of  injury,  505 
Demonstrative  evidence,  416 
Physical  examination,   985 
View  by  jury,  1268 
Diagrams,  491 
Plats,  990 
PHYSICIANS  AND  SURGEONS 
Action  for  services,  987 
Right  to  practice 

Criminal  prosecutions,  989 
Malpractice,  989 

Right    to    compel    giving    testimony,    854 
Op'inion  as  to  mental   and  physical  states,   848 
As  to  commission  of  crime,  849 
Objective  symptoms.  851 
Subjective  symptoms,   852 

Weight  of  opinion  as  to  mental  capacity,  855 
Assent  to  services.   130 
Osteopath  a's  expert,  584 
PHYSICS 

Judicial  notice,  759 
PISTOL 

Firing  of 

Experiment,  508 
Firearms,  544 
Homicide,  627 
Habit  of  carrying.  627 
PLACE  OF  ACCIDENT 

Sliown  by  photographs,  981 
PLACITA 

Not  part  of  record.  1102 
PLANS  AND  SPECIFICATIONS 

Eminent  domain,  495 
PLASTER  CAST,  418 
PLATS 

Record  of  presumed  correct,  1034 
Subject  in  general,  990  to  992 
Conveyance  by  reference,   678 
PLEADINGS  AND  PROOFS 
Abatement 

Facts  of  record  need  not  be  pleaded,  3 
May  participate  in  proof  of  damages  after  default,  4 
Abbreviations 

Necessary  to  allege  how  used.  5 
Accessory 

Allegations  when  principal  and  accessory  joined  in  one  count,  17 


IxNDEX  1513 

[references  are  to  pages] 

PLEADINGS  AND  PROOFS    (Continued) 
Accord  and  satiafaetion 

Under  plea  of  nil  debet,  22 

In   action  of  trespass,  22 

Case,  23,  1119 
Admission 

Fact  admitted  in  pleading  cannot  be  disproved,  64 
Admissions  and  declarations 

Former  pleadings,   63 

Equity   competent   at   law,   63 

Amended  pleading,  63 

Bill  of   particulars,  63 

Demurrer,  63 

Affidavit,   63 

Pleading  not  filed,  63 

Plea  of  non  est  factum,  63 

Of  co-defendant,  6-4 

Withdrawal  of  plea,  64 
Adultery 

After  filing  bill,  72 

Need  not  be  pleaded  as  defense  to  divorce,  449 
Affirmative 

Determined  by  pleadings  as  to  burden  of  proof,  85,  216 
Allegations   and  proofs 

Must   agree,   92 

Where  no  allegations,  93 

Matters  not  denied,  93 
Alterations,  97,  421 
Answer  to  bill  requiring  discovery 

May  be  disproved,  112 

Fact  admitted  by  answer,  113 
Appeal  bonds 

Bond  set  out  in  haec  verba,  117 

Averment  as  to  amount  of  judgment,  117 

Non  est  factum,  admits  material  averments,   117 

Plea  of  non  damnificatus,  117 

Recitals  in  bond,   118 
Arbitration   and  award 

Impeachment,   parol   incompetent,    121 
Assault  and  battery 

Burden  of  proof  under  particular  pleading,  124 

Plea  of  son  assault  demesne  necessary  to  justification,  124 

Preservation  of  peace  to  diminish  damages,  125 

Matters  in  discharge  specially  pleaded,  125 
Assumpsit 

Burden  of  proof  under  common  counts,  131 

Indebitatus     assumpsit,     where     agreement     not     for     payment     of 
money,  132 

When  count  for  money  had  and  received  sustained.   132 

Goods  sold  and  delivered,  when  indebitatus  assumpsit  will  lie,  132 

Date  of  contract,  395 

Common  counts  sufficient  for  work  and  services,  133 

Executory   contract,  must  declare  specially,   133 

Special   contract,  when   fully  performed,  under   common   counts,   133 

Abandoned  contract,  recovery  under  common  counts,  134 

Obligation   by   statute,   134 

Policy  of   insurance,   134 

Admissibility  of  policy  without  proof  of  execution,  723 

Breach  of  contract.  134 

Breach  of  warranty,  134 

Pay  in  articles  of  personal  property,  134 

Promissory   note    under    common    counts,    135 

Partnership  account.   135 


1514  INDEX 

[references  are  to  pages] 

PLEADINGS  AND  PROOFS    (Continued) 

Kent,  i;;") 

General  issue,   135 

Matter  of  defense  after  commencement  of  suit.  136 

General  issue  admits  capacity  in  which  defendant  is  sued,  136 

Tender   and   Statute    of   Limitations,    136 

Abandonment    of   contract,    136 

Payment  competent  under  general  issue,  136,  965 

Unlawful  contract,   136 

Recoupment,  under  general  issue,  136 

Joint  liability,  denial.  958 

Set  oil  must  be  pleaded  or  notice  given,  136 

Special  damages  in  recoupment,  137 

Custom  and  usage  as  affirmative  defense,  137,  383 

Premature  action,  137 

Failure  and  want  of  consideration,  137 

Bankruptcy   must   be   pleaded,   138 

Statute  of  Frauds,   138 

Ultra  vires,  must  be  pleaded,  138 

Breach  of  warranty,  138 

Guaranty,  defense  want  of  notice,  139 

Tender,  "l39 

Fraud  and  circumvention,   139 

Insurance  contracts,  special  pleas,  139 
Best  and  secondary 

Action  or  pleading  as  notice  to  produce,  161 
Bigamy 

Proof  must  show  laAvful  spouse  living  at  time  of  cohabitation,  176 
Bill  of  lading 

Contract  limiting  liability  under  general  issue,  180 
Bill  of  particulars 

Scope  and  effect,  181 
Bonds 

Contradiction   of   recitals  incompetent,   184 
Breach  of  promise 

Date  of  contract,  205 

Chastity,  266 
Brokers 

License,  proof  unnecessary  under  common  counts,  212 

Defense,  under  general   issue,   213 
Building  contract 

Admissibility  under  common  counts,  214 
Burden  of  proof  as  determined  by  pleadings,  216 
Certiorari 

Admissibility,  in  relation  to  date  of  issuing  writs,  260 
Chancery 

Burden   of  proof  as  to  new   matter,   261 

Answer    taken   as   true    when    heard   upon    bill   and    answer   without 
replication,  261 

Material  allegations  not  denied,  261 

Unverified  answer,  262 

Facts  admitted  by  answer,  262 

Sworn  answer,  262 
Character 

Proof  of  by  stipulation,  265 
Chastity 

Breach  of  promise,  266 
Confidence  game 

SufHciency  of  indictment,  299 
Consideration 

"Want  and   failure   of,   137 
Corporations 

Corporate  existence.  342 


INDEX  ]515 

[references  are  to  pages] 

PLEADINGS  AND  PROOFS    (COntiiuuMl) 

Where   instrument   executed  by   corporation,  343 

Corporate  signature,  denial  under  oath,  350 
Custonr  and  usage 

As  atlirniative  defense  in  assumpsit,  137,  383 

In  action  for  personal  injury,  383 

Particular  custom  and  usage,  defense  to  contract,  383 
Date 

Assumpsit,  395 

Case,  395 
Debt 

Non  est  factum,  400 

Plea  of  payment,   400 

Nul  tiel  record  imju-opor  plea,  401 

Money   counts   improper,   401 
Default 

Substantive  defense  inadmissible  after,  412 
Demurrer  to  evidence,  418 
Denial  of  execution 

What  plea  admits,  419 

What  put  in  issue,  419 

Authority  of   agent,   419 

Where   instrument  not   set   out,   419 

Authority   of   corporate   officers,   420 

Proof  of  execution  in  foreclosure,  420 

Denial   of   personal   obligation,   421 

Execution  of  bond,  421 

Execution  of  policy  of  insurance,  421 
Directing  verdict,   443 
Discovery 

Effect  of  answer,  445 
Divorce 

Adultery  as  defense  need  not  be  pleaded,  449 
Ejectment 

Declaration  must  state  character  of  estate,  473 

Homestead  under  plea  of  not  guilty,  473 

Limitations  under  general  issue,  473 

Denial   of   interest   by   verified   plea,   473 

Plea   denying  possession,   473 

Proof  of  demand  unnecessary,  under  general  issue,  473 

Default  by  one  defendant,   474 

Proof   where    title    from    common    source,    477 

On  denial   of   common   source,   477 

Proof  as  to  time  of  bringing  suit,  479 
False   imprisonment 

Plea  of  general  issue,  537 

^Matters  in  discharge  must  be  specially  pleaded,  537 
Forcible  entry  and  detainer 

Possession  material  question,  551 

Title  not  subject  to  inquiry,  551 
Foreign  judgments 

Declaration    against    one,    judgment    against    lie    and    others    inad- 
missible, 555 
Foreign  law 

Must  be  pleaded,  558 

Except   in   action  on  case,   558 
Former  jeopardy 

Need  not  be  pleaded,  568 
Former  pleadings 

Subject  in  general,  568 

As   admissions,   63 

Not  admissible  to  contradict   witness  not  party,   693 


1516  INDEX 

[references  are  to  pages] 

PLEADINGS  AND  PROOFS   (Contimicd) 
i'luud  and  ciicuuiveiition 

Assumpsit,  139 
Infancy 

Burden  of  proof  on  plea,  700 
Insurance 

Suicide  must  be  specially  pleaded,  1?>9 

Admissibility  of  policy  without  proof  of  execution,  723 
Interest  laws  of  sister  state 

I\Iust  be  pleaded,  731 
Joint  liability,  denial,  958 
Judicial  notice 

Matters  of,  proof  not  required,  7G1 
Libel  and  slander 

Proof  of  words  used,  7S7 

Want  of  notice,  789 

Justification,  plea,  791 

Effect  of  plea,  793 

Privileged  communications,  admissible  under  general  issue,  793 

Truth  of  charge  i)iadmissi))le  under  general  issue  for  any  purpose,  794 

Bad  reputation  of  plaintiff,  competent  in  mitigation  of  damages,  795 
Limitations 

Defense   only   by   plea,   797 
Money  counts 

Proof  in  general,  857 
Not  guilty 

In  criminal  action,  568 

In  ejectment,  473 
Non-joinder 

Of  parties  plaintiff,  shown  under  general  issue,  8GG 

As  to  defendants,  defense  may  be  interposed  under  general  issue,  867 
Ordinances 

Cause  predicated  on,  specially  pleaded,  967 

As  defense,  admissible  under  general  issue,  897 
Ownership 

When  matter  of  inducement,  901 
Partnersliip 

Joint  liability  may  be  denied  under  general  issue,  958 
Payment 

Admissible  under  general  issue,  965 
Physical  examination 

Motion  papers  incompetent,  986 
Quo  warranto 

Counts  distinct,  1054 
Recognizance 

Writ  as  declaration,  1077 

Weight  and  sufficiency  under  plea  of  mil  tiel  record,  1079 
Reformation  of  instruments  in  equity 

Parol  evidence,  1111 
Release 

Proof  of  competent  under  general  issue  in  case,  1119 

Must  be   specially  pleaded  in  action   of  trespass,   1119 

False  imprisonment,  matters  in  discharge  nuist  be  specially  pleaded, 
537 
Replevin 

Plea  of  non  cepit  raises  issue  of  taking  of  property,  1126 

Property  in  defendant,  any  legal  title  comi)etent,  1126 

Action  on  replevin  bond,  merits  undetermined,  competent,  1130 
Representative  capacity 

Not  put  in  issue  by  plea  of  general  issue,  1133 

Not  subject  to  attack  in  collateral  proceedings,  1132 
Set  off  and  counterclaim 

Defense  of  recoupment  admissible  under  general  issue,  1177 

Set   off   must   be   pleaded,    136 


INDEX  1517 

[references  are  to  pages] 
PLEADINGS  AND  PROOFS  (Continued) 

^^^^'parcir  competent  to  aid  description  though  statute  of  frauds  pleaded. 

1189 
Allegations  and  progf  must  agree,  1190 

Stipulation        4 

Inadmissible  on   second  trial,  1200 
Striking  out  evidence,  1207 
T3.X  dpods 

Parol  evidence  incompetent  to  supply  defects,  1217 

Tender 

Burden  of  proof  on  plea,  1227 

Effect  as  admis'sion,  1229  .       ,      ,•  iooq 

May  be  explained  where  not  relied  upon  in  pleadings,  1^29 

Timber 

Want  of  license  must  be  averred,  1234 

Trespass  .  „        _      ,  j    -.0^^ 

Justification  must  be  specially  pleaded,  1244 

Trusts 

Parol  admissible  to  show  resulting  trust,  1256 
Inadmissible  to  create  express  trust,  1256 
Admissible  to  aid  express  trust,  1257 

^^"  Must  be  pleaded  on  bill  in  chancery  or  common  law,  1262 

Venue 

Necessity  of  proof,  1266 
Wages,  earning  capacity  and  domestic  relations 

Snecial  contract  must  be  alleged.  1275 

Testimonv   as   to   wages   competent   though   no   special    damages   al- 
leged, 1276 

Fact  of  next  kin,   1276 

Under  mines  and  miners  act,  1279 
Weight  and  sufficiency 

Criminal  charge  in  civil  suit,  1200 
Work  and  services 

Value,    proper    inquiry    under    qvaninm    mernit,    1372 

Justification  for  discharge  of  employe,  under  general  i.sue,  1374 

PLEDGE 

In  general,  942 

Presumptions,  1034 

Defined.  992 

Delivery  of  note  of  third  person,  992 

Delivery  in  general,  993 

Written  transfers,  993 

Defense  to  collateral  note.  993 
POLICE  RECORDS,  307,  994 
POLICY 

See  insurance.  717.  719 
POLITICAL  SUB-DIVISIONS 

Judicial  notice,  742 

POISON  .  •        1  ROS 

As  exhibit  to  jury  m  homicide,  638 

Inducing  another  to  commit  suicide  by  taking,  i-i* 

POOR 

Support  of 

Judicial  notice,  742 
POPULATION 

Judicial  notice.  742 
POSITIVE  AND  NEGATIVE 

Positive  defined.  994  ,.  nnt- 

Admissibility  of  negative  testimony.  995 

Witness  may  state  he  would  have  heard,  996 

Weight.  996 


1518  INDEX 

[refekences  are  to  pages] 

POSSESSION 

Admissions  and  declarations,  58 

Conclusions  of  witness,  290 

Presumptions,  997 

Of  deed,  presumption  as  to  delivery,  414 

Payment,  963 

Real  property 

Witness  may  state  who  is  in  possession,  999 
Transfer  may  be  proven  by  parol,  999 

Ownership  of  property  in  possession  of  husband,  G56 
POSSIBILITY 

As  evidenced  by  instance's,  18,  378 

Opinion  as  to  accident,   516 
POSTAL  REGULATIONS,  628 

.Judicial  notice,  759 
POST  MORTEM  EXAMINATION 

Homicide,  628 

Compellinof  physician  to  make,  854 
POST  NUPTIAL  CONTRACT 

As  l)ar  to  dower,  455 
POST  OFFICE 

Judicial  notice,  759 

Similar  complaints  to  inspector,  299 
POWDER  BURNS 

Experiments,  534 

Clothing,  638 
POWER  OF  ATTORNEY,  104,  942 
POWER  OVER  ESTATE 

Presumptions,   1036 
PRECAUTIONS   TO   AVOID   ACCIDENT.   1188 
PREDECESSORS  IN  TITLE 

Admissions  of 

As  to  real  property,  52 
Personal  property,  59,  905 

Made  duiinji   possession,  to  show  ownership,  999 
PRE-EXISTING  DEBT 

No  presumption  of  payment  from  giving  note,  964 

Check,  1007 
PREFERENCE  OF  CREDITOR 

FraiKhih'ut  conveyance,  581 
PREGNANCY 

Relevancy  of  in  actions  for  rape,  1059 

Presumption  as  to  age  of  woman,  1020 
PREJUDICE 

Against  Hebrew  race 

Not  judicially  noticed,  759 

Bias  and  hostilitv.  173 
PREJUDICE  AND  ANTIPATHIES 

As  test  of  testamentary  capacity,  1314 
PRELIMINARY  PROOF 

Abstracts  of  title,  12 

Best  and  secondary,  158 

Dying  declarations,  467 

Impeachment,  688 

Preliminary  proof  not  required  to  admit  admissions  of  party,  34,  688 

Photographs,  982 
PREMATURE  ACTION 

Assumpsit,  137 
PREMISES 

Repute   as   disorderly   house,   445 

Former   leasing    for   gaming   house,   591 
PREPONDERANCE 

Number  of  witnesses  considered,  362 

Fraud,  578 


INDEX  1519 


[references  are  to  pages] 

PREPONDERANCE  (Continued) 
Fiiiud   11  nd    deceit,    580 
Fraudulent  conveyances,  581 
Gambling  contracts,  589 
Gifts,  595 
Defined,  503 

Weight  and  sufficiency  in  general,  1290 
Reasonable  doubt,  in  general,   1065 
Bastardy,  154 
Alibi,  90 
Penalties,  976 
Violation  of  ordinance,  976 
PRESCRIPTION 

See   dedication,   402 
PRESUMPTIONS 
Defined,  1000 
Effect,  1000 
How  must  arise,  1001 

No  presumption  on  a  presumption,    1001 
Presumption  of  fact,  502 
Presumption  of  law,  502 
Particular  presumjitions 

Abandonment  of  homestead,  1 

Abbreviations,  1001 

Abduction,  6,  1001 

Abortion,  8 

Absent  witness,  9,  1001 

Abstracts  of  title,  16 

Accident,   1002 

Account  stated,  1003 

Acknowledgment,  1002 

Ademption,  1002 

Adjournment  of  court,  1002 

Adoption,  1002 

Adultery,  1003 

Advancements,  1003 

Adverse  possession,  77,  1003 

Alibi,  1003 

Alterations  and  erasures.  1003 

Ancient  documents,  1004 

Anti- saloon  territory,  1004 

Animals,  1004 

Ante  nuptial  contract.  1004 

Apportionment  of  debts,  1004 

Arbitration  and  award,  1004 

Assent,  1005 

Attorneys,  1005 

Bailment,   1005 

Banks  and  banking,  1006 

Bastardy,  1006 

Bill  of  exceptions,  1006 

Boundaries,  201.  1006 

Breach  of  promise,  1006 

Buildings.  1006 

Carriers,  1006 

Character,  1007' 

Chattel  mortgages,  1007 

Check,  1007 

Circuit  judges,  1007 

Claims  allowed,  1007 

Color  of  title,  1007 

Commissions,  1008 

Common  law,  1008 

Compromise  and  settlement,  1008 


1520  INDEX 

[kefekknces  ake  to  pages] 

PRESUMPTIONS   iCoiitimu-d) 

Confusion  of  goods,  1008 

Consideration,  1008 

Contested  elections,  31G,  1008 

Continuance,  1008,  1009 

Continuance  of  cause,  1010 

Contracts,  1010 

Conveyance,  1011 

Corporations,  1011 

County   jud<;es,  1012 

Credibility,  354 

Customs  and  usages,  1013 

Damages,   1012,  1013 

Date,  1013 

Death,  1014 

Declarations,  1015 

Decree  in  cliancery,  1015 

Dedication,  1015 

Deeds,  1015,  1016 

Deliberation,  1016 

Delivery,  415 

Depositions,  1016 

Descent  and  distribution,  1016 

Destruction  and  suppression  of  evidence,  437,   1016 

Divorce,  101? 

Domicile,  451 

Due  care,  1017 

Ejectment,  471 

Elections,  1017 

Embezzlement,  1017 

Employment,  1017 

Ivpiitable  defense,  1018 

Examination  of  title,  1018 

Exemptions,  1018 

Fabrication  of  evidence,  1018 

False  pretenses,  1018 

Fiduciary  relations,  1019 

Fire  arms.  1019 

Flight,  1019 

Foreign  law,  1019 

Fraud,  1019 

Fraudulent  conveyances,  1019 

Gaming,  1020 

Gifts,  1020 

Good  faith,  1020 

Guardian  and  ward,  1020 

Habits,  1020 

Health   and   physical  condition,   1020 

Heirship,  1020 

Highways,  1020 

Homestead,  1020 

Indebtedness,  1031 

Identity,  1021 

Infants,  1022 

Innkeepers,  1023 

Innocence,  1022 

Insolvency,  1022 

Insurance,  1023 

Intent,  1023 

Interest,  1023 

Interpreter,  1023 

Intestacy,  1023 

Jmlicial*  sales,  1023 

Judgments,  1023,  1024 


INDEX  1521 

[references   are   to   PA(iES] 


PRESUMPTIONS    (Coiit i.uu-d) 
Jurisdiction,  1024 
Justice  of  peace,  1025 
Knowledge.  1025 
Lands,  1026 

Landlord  and  tenant,  1026 
Larceny,  1026 
Lease,  1026 

Legislative  acts  and  journals,  1026 
Legitiniacv,  1026 
Letters,  1026 
Libel  and  slander,  1027 
Loans,  1027 
Love  of  life,  1027 
Malicioiis  mischief,  1027 
Malicious  prosectition,  1027 
Market  price,  1028 
Marriage.  1028 
Master  and  servant,  1028 
Master  in  chancery,  1028 
Mortgages,  1029 
Motives,  1029 

Municipal  corporations.   1029 
Names,  1029 
Negligence,  1029,  10,30 
Negotiable  instruments,  lOol 
Notaries  public,  1031 
Notice,  1031 
Novation,  1031 
Officers.  1031 
Official  business,  1031 
Ordinances,   1032 
Ownership.  1032 
Parent  and  child.  1032 
Partnership.  1033 
Party  walls.  1033 
Payment,  1033 
Penalties,  1034 
Perjuries,  1034 

Physicians  and  surgeons,  1034 
Plats,  1034 
Pledge.  1034 
Possession.  1034.  1035 
Power  of  city,  1035 
Power  over  estate.  1036 
Proceeding  at  law.  1036 
Purpose,  1036 
Principal  and  agent.  1036 
Public  documents,  1036 
Quo  tvarranfo,   1036 
Tvecognizance,  1086 
Records,  1037 
Receipts,  1037 
Recordation,  1037 
Refusal  to  produce  evidence,  1037 
Release,  1037 

Resulting  trust,  1037,  1038 
Residence.  1038 
Robberv.  1038 
Safetv,"  1038 
Sales,"  1038 

Sanity  and  insanity,  1039 
Seals,"  1039 
Seduction,  1040 


1522  INDEX 

[references  are  to  pages] 

PRESUMPTIONS  (Contimu'd) 

Scttlcnu-iit,   1040 

Special  assessment,  1040 

Speed,  1040 

Statutes,  1040 

Stipulations,  1041 

Suicide,  1041 

Surveys  and  field  notes,  1041 

Survivorship,  1041 

Taxes,  1041 

Tax  deeds,  1043 

Technical  words,  1043 

Tender,   1043 

Timber,  1043 

Usury,  1043 

Value,  1043 

Voluntary  conveyance,  1043 

Voter,  1043 

Waters  and  watercourses,  1043 

Wills,  1043,  1044 

Witness,  1044 

Work  and  service,  1044 
PREVIOUS  CONVICTION,  566 
PRICE 

ISIarket  price,  833 
Public  sale,  1363 
Some   evidence  of  value,   1363 
PRIMA  FACIE  EVIDENCE  DEFINED,  502 
PRIMARY  EVIDENCE 

See  Best  and  Secondary,  156 

Admission's,  34 
PRINCIPAL  AND  AGENT 

Admissions   and   declarations,  46   to   50 
Presumptions,  1036 
Burden  of  proof,  343 
Agency,  86 

Husband  and  wife,  655 
Competency  of  wife  as  witness,  661 
Witnesses,  1348 
PRINCIPAL  AND  SURETY 
Burden  of  proof,  344 
Admissions  and  declarations,  50 
Parol   to   show   signing,   on    condition,   1045 
Admissions  of  principal,   1045 
Judgments   against  principal,    1046 
Receipt  by  co-surety,  1073 
Actions  on  official  bonds,  888 
^risnaming  of  corporation,  1045 
PRINTED  ARTICLE 

Secondarv  evidence  in  action  for  libel.  788 
PRIOR  EXISTENCE 

No  presumption  from  present  existence,  1009 

Possession  of  real  estate,  1335 
PRISON  RECORD 

Inadmissible   to   show   former  conviction,  567 
PRIVATE  CORPORATIONS 
See  corporations,  338 

Records,  1091 

Seals,  1164 

Books  of  account  as  admissions,   195 
PRIVATE  STATUTES 

Judicial  notice  as  to,  1195 
PRIVIES 

Admissions  and  declarations 

In  estate,  59 


INDEX  1523 

[references  are  to  pages] 


PRIVIES    (Continued) 
In  blood,  5U 
Administrator,  59 
Assignor  and  assignee,  59 
Heirs,  60 
Devisees,  60 
Parties  to  contract,  60 
Former    testimony,    571 
PRIVILEGE  OF  WITNESS 
Immunity  in  general,  C82 
Voter,  323 

As  to  slander,  793,  1051 
Compulsory  inspection  of  person,  986 
Under  bill  of  discovery,  685 
Fraudulent  conveyances,  585 
Caming  losses,  685 
PRIVILEGED  COMMUNICATIONS 
Attorney  and  client 
The  relation,  1047 

Attorney  may  testify  as  to  relation.  1047 
Matters  of  privilege,  1048 

Attorney  as  scrivener  and  attesting  witness,  1049 
Presence  of  third  parties,  1049 
Who  may  claim,  1050 
Waiver,  1050 
Public  officials,  1050 
Election  officers,  1051 
Legal  proceedings,  793 
Witness,  1051 
Voter,  323 

Immunity  in  general,  682 
Husband  and  wife 
In  general,  663 

In  presence  of  third  person,  644 
Court  proceedings  generally.   793 
PRIVITY 

Admissions  of  those  in  privity.  59 
To  admit  former  testimony,  571 
PROBABLE  CAUSE 

False  imprisonment,  536 
Libel  and  slander,  787 
Malicious  prosecution,  814 
PROBABILITY  OR  IMPROBABILITY  OF  STATEMENTS 
As  affecting  tredibility,  355 
Cross  examination,  373 
PROBATE  OF  WILL,  1328  to  1336 
PROBATE  COURT 

Presumption  as  to  jurisdiction,  1024,  1103 
PROBATE  JUDGE 

Certificate  of,  as  showing  heirship,  616 
PROBATIVE  FORCE 

Province  of  jury,  361 
PROCEEDING  AT  LAW 

Presumption,  1036 
PROCESS 

Date  of  execution.  393 

Lost  execution,  162 

Return  of  officer  in  foreign  judgment.  554 

Conclusiveness  of  recital  in  judgment,  554 

Judicial  notice  as  to  official  return,  1173 

Presumed  regular,  1173 

Amendment.  1173 

Effect  as  evidence,  1173 


1524  INDEX 

[references  are  to  paces] 

PROCESS   (Continued) 

\\  lion  may  be  contradicted,  1173 

Recital  of  service  in   domestic  judgment,  1174 

By  publication,  1175 

Process  part  of  record,  1102 

Defective  process   contradicting  decree,   1105 

Failure  of  judgment  to  recite  service,  1105 

I'arol   to  aid   or  contradict.   1105 
PRODUCTION  OF  DOCUMENTS 

Immunity,  1051 

Power  of  court  and  scope  of  order,  1051 

Notice  to  produce,  1052 

Copies  of  documents,   1053 

Papers  for  fishing  purposes,  1051 

Where  party  know  same  indispensable,   1052 

Refusal  to  produce  evidence,  1112 

Destruction,  suppression  and  fabrication  of  evidence,  437 
PROFERT 

Child  in  bastardy  proceedings,  151 

Age,  86 
PROFILE  OF  IMPROVEMENT,  442 
PROFITS 

Eminent  domain,  489,  493 

Expert,  518 

Wages  and  earning  capacity,  127G 

Bookkeeper,  201 

Conclusions  of  witnesses,  290 
PROMISE  OF  MARRIAGE 

See  breach  of  promise,  204 
PROMISE  TO  REPAIR 

Injury  to  person,  1053 

Landlord  and   tenant,   1054 
PROMISSORY  NOTES 

Best  and  secondary,   169 

Compromise  and  settlement.  283 

See,  -avte,  negotiable   instruments 
PROOF 

Defined,  501 

When  unnecessary 

Matters  judicially  noticed,  761 

Preponderance   sufficient   in   civil   cases.   1290 
Reasonable  doubt.  1067 

Beyond  reasonable  doubt  defined.  1065 

Order  of  proof  in  general,  889  •  ' 

Offer  of  evidence,  884 
PROOF  OF  DEATH 

As  admission  of  suicide,  1213 

Benefit  society,  712,  720 
PROOFS  OF  LOSS 

Fire  insurance.  725 
PROPER  CUSTODY 

Ancient  documents  to  come  from,  104 
PROPER  MANAGEMENT  OF  RAILROADS 

Custom   and  usage,   :!SS 

Expert  and  opinion.  529 
PROPERTY 

See.  <aiife,  personal  property 
PROPONENT  OF  WILL 

Burden   of  proof,   13 12 
PROSECUTING  ATTORNEY 

May  be  witness,  142 
PROSTITUTION 

Chastity  in  general,  266 


INDEX  •  1525 

[references  are  to  pages] 

PROSTITUTION  (Continued) 

Credibility,  358 

Cross  examination,  371 
PROTECTION  OF  WITNESSES 

Provinee  of  court,  682 
PROVINCE  OF  JUDGE  AND  JURY 

Admissibility,  33 

Weight   of   admissions   for   jury,   66 

Coiirt  may  not  determine  credibility,  360 

Credibility  province  of  jury,  361 

Cross  examination,  discretion   of  court,  372 

Qualification  of  expert,  513 

Qualification  of  non-expert,  510 

Infants  as  witnesses,  700 

Discretion  of  court  as  to  leading  questions,  774 

Discretion  of  court  as  to  hypothetical  questions,  673 

Competency  of  witnesses  for  covu-t,  1338 

View  by  jury,  discretion  of  court,   1268 

Admission  of  evidence  after  parties  have  rested,  891 

Admission  of  evidence  after  argument  of  counsel,  891 

Sufficiency  of  jireliminary  proof  to  admit  dying  declarations,  467 

Agents'  authority,  98 

Probative  force,  361 
PROVOCATION 

Homicide,  648 

Libel  and  slander,  795 
PRUDENCE 

See  a)ite,  due  care 
PUBLICATION 

See  service,  1173 
PUBLIC  DOCUMENTS 

Presumptions,  1036 
PUBLIC  OFFICE 

Presum]ition    of   continuance    of,    1010 
PUBLIC  OFFICERS 

Custom  and  usage,  391 

Presumption  as  to  doing  of  duty,  1031 

Presumption  as  to  eligibihty,  1031 

Admissions  of  one  of  a  board,  45 

Books  of,  competent  evidence,  1080 

As  against  surety,   1046 
Production  of  books,  1052 

Actions  on  bonds,   184 
PUBLIC  POLICY 

Usage  not  to  conflict  with,  383 

Restraint  of   trade.   1147 

Competency  of  husband  and  wife  as  witnesses,  1364 
PUBLIC  RECORDS 

See  records.  1080 
PUBLIC  RUMORS 

Inadmissible  as  to  legitimacy,  778 

Libel  and  slander,  795 

Malicious  prosecution,  815 
PUBLIC  SALE 

As  evidence  of  value.  1263 
PUBLIC  STATUTES,   1195 
PUNITORY  DAMAGES 
See  'cnife,  damages. 
PURCHASER 

See   post,  Sales 
PURPOSE 

Presumptions,  1036 


1526  INDEX 

[references  are  to  pages] 

PUTATIVE  FATHER 

AfkiiuwU'dguK'iit  of  legitimacy,  778 
Naming   child    for,    151 


QUALIFICATIONS  OF  EXPERTS 

(,)uestion  for  court,  513 

Of  non-experts,  510 

In  will  cases,  1310 
QUARANTINE  LAW 

.ludicial  notice,  759 
QUARRELS 

Details  to  show  bias  of  witness,  173 
QUARRELSOME  CHARACTER 

1m  actions   for  homicide,  632 
QUESTIONS 

Tending   to   degrade   or   disgrace   witness 
Cross  examination,  370 

Hypothetical  cpiestions,  669 

Leading  question,  771 
QUESTIONS  FOR  COURT  AND  JURY 

See  (inte,  province  of  court  and  jury 
QUESTION  OF  LAW 

Competency  of  witness,  1338 

Agents'  authority,  98 
QUIETING  TITLE 

See   Cloud   on   title,   273 
Title,  1235 
QUOTATIONS 

Newspaper 

Market  price,  825 

Judicial  notice,  754 
QUO  WARRANTO 

IMeadings,  1054 

Estoppel,  1055 

Burden  of  proof,  244,  1055 

Presumptions,  1055 

Sufficiency  of  evidence,  1056 

R 

RACE 

Prejudice  against  Hebrew 

Judicial  notice,   759 
Inspection  to  show,  151 
Proof  of  race  as  to  legitimacy,  777 
RACE  HORSES 

Value  of,  108 
RAILROADS 

Custom  and  usage 

Ballasting  track,  388 

Operation  of  yards,  388 

Method  of   doing  work,   388 

Permitting  persons  to  ride  on  cars  not  for  passengers,  388 

Inspection    of   engine   and  cars,    388 

Receiving  and  transporting  shipments,  388 

Use  of  tra'ck  as  foot  path,  388 

Permitting  shippers  to  ride,  389 

Regulation  of  laborers'  living  quarters,  389 

Boarding  and  alighting  from  trains,  3 39 

Recommending  employees,  389 
Eminent  domain,  483 


INDEX  1527 

[keferences  are  to  pages] 

RAILROADS  (Continued) 
Expeiinienls 

Vision  and  distance.  507 
Stopping   trains,    507 
Expert  and  opinion.  521) 
Fires    by    locomotives,   544 
Freight  rate's,  585 
Habits   of  employees,  599 
Judicial   notice 

Mode  of  business,  759 
Route,  759 
Existence  of,   759 
Ownership,   7(50 
Authority  of  brakeman,  760 
Freight  rates,  7 GO 
Photograph,  'scene  of  accident,  981,  982 
Positive  and  negative,  994 
Operation 

Opinion,  529,  530 
Judicial  notice,  759 
Custom  and  usage,  388 
Public  act  regulating 

Judicial  notice,  747 
Ties  qestw 

beclarations  and  admissions  of  employees,  1133 
Admissions  of  agent,  48 
Admissions  of  servants,  51 
Rules,  945,  1154 
Safer  method,   1156 
Speed 

Opinion's  of  witnesses,  529.  1191 
Distance  car  ran  after  collision,   1192 
Unreasonable  rate,  1192 
Violation   of   ordinance 
Speed,  1192 
Regulatino-  ordinances  generally,   899 

RAILROAD  TICKET 

Embezzlement,  482 

Unnecessary  to  ]irove  relation  of  passenger  and  carrier,  94^ 
RAILWAY  CARS  AND  ENGINES 

Ownership  by  initials,  903 
RAPE 

Ccyrpus  delicti,  350 
Opinions,  530,  1059 
Consent   of    female,    1056 
Admissions  of  defendant.  1057 
Complaints  of  prosecutrix,  1057 
Chastity.   1058 

Contradiction  of  prosecutrix.  1058 
Birth   of    child,    1059 
Exhibits,  1059 
Similar  offense's.   1060 
Separate  offenses.  1060 
Force   and   intent.   1061 
Age  of  accused,  1062 

Assault  with   intent  to  commit  rape,  1063 
RATE  OF  EXCHANGE 
Judicial  notice.  756 
RATE  OF  INTEREST 

Interest   in   general,  730 
RATIFICATION 

Defined,  1064 

Contracts   in   general.    1064 

Contracts  of  corporation.   1064 

Execution  of  sealed  instrument,  1064 


1528  INDEX 

[eefekences  are  to  pages] 

READING 

Copy  of  account,  198 

Deposition   to  witness   to  correct  errors,   435 
Extracts    from    books,    to   jury,    187 
REAL  EVIDENCE 

Ueiiionstrative    evidence, 
In  general,  416 

Articles   in  evidence  in  homicide  prosecutions,  638 
Exhibition  of  injury,  505 
Physical   examination,    985 
Pliotographs,  981 
Plats,   990 
Diagrams,   441 
Models,  417 

Mechanical  demonstration,  action  for  breach  of  contract,  507. 
REAL  PARTIES 

Admissions  of,   40 
Witnesses,   1344 
REALTY 

Possession, 

Subject  in  general,   998 
Title, 

Subject  in  general,   1235 
Adverse  possession. 

Subject   in  general,   77 
REASONABLE  CARE 
See,  ante,  due  care 
REASONABLE    DOUBT 
Defined,   1065 

Each   incriminating   fact.   1066 
Links  and  particular  acts,   1066 
Whole  evidence,   1066 
Circumstantial  evidence,   1066 
Corpus  delicti,  1066 
Identity,   1067 

Particular  matters   and   proceedings 
Sanity,   1067 

Reformation  of  instruments.    1067 
Noti'ce  of  unrecorded   deed,   1067 
Alibi,   90 
Bastardy,   154 
Penalties,   976 
Violation   of   ordinance,   900 
REASONABLE  NOTICE 

To  compel   production  of   books,   160 
REASONABLE  TIME 

F'ailure   to  pay   in  personal   property.   857 
REBUTTAL 

Defined,  1067 
Right  to  introduce,   1067 
Right  to  rebut  impeaching  testimony.  1067 
Right   to   rebut    incompetent    testimony,    1068 
Introducing   like   irrelevant    testimony,   879 
Time  of  introduction,   1068 
After  argument  of  counsel,  1069 
Evidence  properly  in  chief,  1069 
Anticipating  defense,   1069 
Leading  questions,   1070 
Order  of  proof.   889 
Offer  of  evidence,  884 
RECALLING  WITNESS 

For  further  cross  examination,   1070 
Discretion  of  court,  375 


INDEX  1529 

[references  are  to  pages] 


RECEIPTS 

Abbreviations,  G 

Best  and  secondary   evidence,   IGl) 
Compromise    and   settlement,   ^81 
Trust  created  by,  1^58 
Of   ward,   599 
I'resumptions  as   to,   1037 
May  be  explained   by   parol,  1071,  942 
Where  part   constitutes   contract,   1071 
Burden   of   impeaching   receipt,    1072 
Weight  and  sulliciency,   1072,   908 
When  receipt  given  prima  facie  effect,  1072 
Receipts  of   third  persons,  612  • 
Receipt   of  co-obligor,    1072 

Payment   proved   by  parol  though  receipt  given,  965 
Tax   receipts,    1223 
Bills  of  lading,   179 
RECEIVERS,   1070 
KECEIVING   STOLEN  PROPERTY 
I'roof   of   theft,    1072 

Name   of   thief   need   not   be   proven,   1073 
Former  transactions,  1073 
Circumstantial  evidence,  107-t 
Identity  of   property,   1075 
Ownerehip  of  property,  1075 
Elements  of   offense,    1075 
Explanation    of   possession,    107G 
Receiver   defined,    1076 
RECITALS 

Parol   contradiction  of  contract,  915 
Judgment  by  confession,  1104 
Consideration   in   deed 

Between  parties,  305 
As  to  strangers,  306 
In  will 

As   to   advancement,   73 
Limitations,  798 
Trusts,   1259 
Domestic  judgments,   1174 
In   ordinance,   897 

Service   and   return    of   pro'cess,    1105 
In  contract,  915 
RECOGNITION 

Of   relation  by  family 

Legitimacy,   778 
Of  agent  by  principal,  88 
RECOGNIZANCE 

Subject   in  general,   1077   to   1080 
Burden  of  ])roof,  245 
RECOLLECTION 

Refreshing   memory   of   own   witness,   G86 
Variant  statements 

When   witness    does   not    reeollect,   689 
See  pofit.  refreshing  memory 
RECORDATION 
Of  patent,  962 
Presumed    correct,    1037 
Of    deed.    410 
RECORDED  DEED 

Introduction  of  copy,   806 

Highest    degree  of   secondary   evidence,    163,   16o 
RECORDING   OFFICER 

Presumption  of   performance  of   duty,   990 


1530  INDEX 

[referexces  are  to  pages] 

RECORD   OF    UNACKNOWLEDGED   INSTRUMENT,    168,   334 
RECORDS 

Ulticial    recoiils    detiiied,    1080 
By   whom   must   be   made,   1081 
Kecords  made  for  convenience,   1081 
Existence  and  identity   of  record 

Must  be  established  as  record,  1081 

Character   of   book,   1081 
Parol 

Inadmissible   to   contradict   or   supplant,   1082 

Parol  where  record  not  required,  1082 

Lost   or   destroyed  records,    1082 

Restored  records,   1083 
Amendment  of  record  by  clerk,    1083 
Proving  that  certain  matters   are  not  of  record,   1083,  256 

Proof  by  person  who  has  examined  record,   257 
Voluminous  records,  1084 
County  records 

Presumption   as   to   correctness,   1084 

Parol  pioof  on  failure  to  make  record,   1084 

Admissibilitj^   of  re'citals,    1085 

Competency    of    clerk    of    county    court    and    county   'clerk's    certifi- 
cate,  1085 
Town  records 

Legal   custodian,   1085 

Character   of  book,   1085 

Amendment,    1085 

Town   record   only  competent   evidence,   1086 

Parol  proof  to  vary,   1086 
Highway  commissioner's'  records 

Corporate  acts   proved  by   record  only,   1086 

Signing   by   president,    1087 

Varying  by   parol,    1087 
Cities  and  villages 

Record    best    evidence.    1087 

Contradiction    by    parol,    1087 

Failure  to  make  record,    1088 

Amendment,    1088 

Copy  original   evidence,   1088 
Civil  service  record,  1088 
Records   of   electrical   engineer,    1088 
Church   records 

Preliminary    proof,    1090 

Kept  in  foreign  language,  1090 
Notarial  records,   1090 
Piivate   corporations 

Admissibility  in  general,  340 

Parol   evidence,    1091 

Admissibility   as   to   strangeis.    1091 

Minute's,  on  sheet  of  paper.  1091 

Ownership   of   stock,    1092.   903 

Proof  by   certified   copy.    1092 

Certificate  of   incorporation.   1092 
Lodges  and  benefit  societies,  1092 

Loss  of  member's  good  standing,  1093 

Official  publications,  1093 

Parol  wliore  record  exists,  1093 
Building  and  loan  association  records.  1093 
Sale  records 

Of  firm,   1094 
Railroad  records.   1094 


INDEX  15^1 

[REFERENCES    ARE   TO   PAGES] 


RECORDS   (Continued) 

Records  of  Federal  (ioverument,  lO'J-l 
Government   license,    115 
Internal  revenue  record.   115 
Ollicial  records  of  private  writings     _ 
Presumptions,  1095 
rarol,  1096 
Index  book,  1096 

Unacknowledged  instrument.   109fa 
Certiticate  of  recorder.   1096 
Admissibility  of  original  record,  1096 
Admis'sibility  of  original  will,  109  < 
Certified  copy  of  will.  1097  ,    ,    mo? 

Instrument  not  required  to  be  recorded,  1097 
Sworn  copies  of  official  records 

Copy  made  by  witness  testifying,  1097 
Ordinance  of  sister  state,  1098 
Parol  contradiction  of  sworn  copies,  10J8 
Certified  copies,  1098 

Erasures   and  interlineations,  1098 

Seal's,  1098 

Copies  differing,  1098 

Aid   by    parol,    1099 

Judicial  records  .le     iini 

Admissibility    of   original   rccoids,   1101 

Papers  and  files,  1102 
Part  of  record.  1103 
Absence   of   placita,   1102 
Lost  or   destroyed   records,   110.v 
Restored  record.  1103 
Amending   record,    1103 
Collateral  attack,  1103  ,    -.-.nA 

Impeachment  of  record  by  parol,  1104 
See  judgments  in    general.    '38^ 
See  'judgments  by   confession,    tW 
^Yhat   essential,   1099 
Draft  of  decree.   1099 
Decree  need  not  be  signed.  1100 
Minutes  of  judge.  1100.  738 
Duty  of  clerk.  1100 
Time  when  record  made.  1100 
Order  of  court  must  be  of  record,  1101 
Abbreviated  record,    1101 
Matters  in  pais,  1101 
Judicial  notice.  1101 
Date  of   entry.   1104 
Service  and   return   of   process,   1105 
Service  in  general,  1173  „    iin<; 

Dockets  and  judgments  of  J"Btice  of  peace,  1105 
Of  justice  of  'sister  state.   1106 
See'  justices   of   peace,   762 
Authentication  of  judicial  records 

Not  controlled  by  common  law.  1107 

Act   of  Congress  not  exclusive^  1107 

Proof  by  certified  copies.   1107 

Foreign  judgments  in  general.  554 

Judge  and  clerk  one  and  same  person,  1108 

Part  of  record,   1108 

Certificate  by  deputy.  1109 

Sworn   copies,  1109 

Where  court  abolished,  1109 

Abbreviations  in  certificate.  1109 


1532  INDEX 

[referexcks  ake  to  pages] 

RECORDS   (Continued) 

Contradiction  of  trans'eript,  1110 

Canadian  judgment,  1110 
Age 

Family  record,  85 
Ancient  documents,  103 
Anti  'saloon  territory 

Records  of  election  creating,  114 

Official  certificate  of  clerk,  115 

Government  license.  1 1 5 

Internal  revenue  record,  115 
Depositions,  422 
Former  adjudication,  563 
Former  conviction,  566 
Hospital  records,  653 
Judges'  dockets  and  minutes,  738 
Judgments,  738 
Judgments  by  confession,  740 
Judicial   notice 

Records,    751 

Orders  and  actions,  751 
Legislative  act's  and  journals,  776 
Appeal  bonds 

Subject  in  general,  117  to  120 
Best  and  secondary,  169,  173 
Bonds,  184 
Certificates,  256 
Contested  elections,  316 
Copies,  328 
Coroner's  inquest,  334 
Corporations  in  general,  338 

Copies  of  corporate  records  original  evidence,  329 
Tax  records,  1088 

Records  of  boards  of  education  and  school  directors,  1089 
Board  of  local  improvements,  1089 
Of  park  'commissioners,   1089 
Drainage  records,   1090 
Mine  .records  and  reports,   1090 
Marriage,   837 
Ordinances,  893 
Ownership,  904 
Patents,  961 
Plats.  990 
Police  records,  994 
Principal  and  surety,   1046 
Production  of  documents.   1051 
Registers   of  births,  deaths   and  marriages,   1116 
Rules  of  court,  1153 
Services  of  process,  1173 
Surveys,  field  notes  and  monuments,  1214 
Tax  receipts,  1223 
Title,  1235 
Weather,  1289 
Wills.  1237 
RECOUPMENT 

In  general,  1176 
Burden   of  proof,  245 
Warranty.  1285 
RECRIMINATION 

('rimiiial  cf)n versa tion.  363 
RE  DIRECT  EXAMINATION,  375 
REFERENCE  TO   THIRD  PERSON 
Statement  not  hearsay,  612 


INDEX  .     1533 

[references  are  to  pages] 

REFORMATION  OF  INSTRUMENTS 

Mistake,    1110 

Parol  evidence,  1111 

Proof  bevoiid  reasonable  doubt,  1111 
REFRESHING  MEMORY 

From  books  of  aeeount,  197,  843 

From   ineinoranduin,  S.'>8 

Right  of  counsel  to  inspect  memorandum,  367 

Memoranda  made  by  witness,  80S 

Made  by  another,  838 

Memoranda  as  independent  evidence,  8 12 

Reading  stenograjilier's  notes  to  jury,  1203 

Of  own  witness,  where  testimony  surjirise,  686 

Leading  questions.  773 
REFUSAL  OR  FAILURE  TO  PRODUCE  EVIDENCE 

In  civil  actions 

Presumptions,  1112 

Refusal  of  witness  to  answer,  1114 

Failure  of  party  to  testify,  1114 

Right  to  explain,  1115 

Absent  witness,  8 

In  criminal  actions 

Failure  of  party  to  testify,  1114 

Destru'ction,   suppression  and    fabrication  of  evidence,  437 

Production  of  documents,  1051 

Immunity,  682 

Privileged  communications,  1047 
REGISTERS   OF  BIRTHS,   DEATHS  AND   MARRIAGES,   1116 
REGISTRATION  OF  TITLES 

Subject  in  general,  1116 

Abstract's  of  title,  10 

Good  faith,  595 

Title  in  general,  1235 

Tax  deeds,  1217 

Color  of  title,  279 

Possession.  999 
REGULATIONS    OF   POST    OFFICES 

Judicial   notice,   759 
RELATIONSHIP 

Legitima'cy,  777 

Pedigree,  972 

Parent  and  child,  907 

Husband   and    wife,    655 

May  be  shown  by  cross  examination,  371 

As   effecting   credibility,   358,   360 
RELATIVE 

Declaration's  of  as  to  pedigree,  973 
RELEASE 

Accord   and   satisfaction,  21 

In  assumpsit,   139 

Burden  of  proof,  245 

Presumptions,    1037 

Parol  evidence,   1118 

Seal  not  necessary.  1119 

Admissibility  of   release,   1119 

Effect    as    evidence,    1120 

Impeachment  of  release,   1121 

Abandonment   of   contract,   2 

Waiver.   1279 

Subsequent    agreements,    910 

Need  not  be  pleaded  in  action  of  case,  1119 

Must  be  pleaded  in  trespass,  1244 


1534  INDEX 

[references  are  to  pages] 

RELEVANCY 

DfliiK'd,   1122 

Tendency   to   prove,    1122 

Remoteness,  1123,  995 

As   to   competency,    1123 

Limitinj,^   eliect,    1123 

Connection  witli  other  testimony,  1123 

Order   of   proof,    1124 

^lotion    to   strike    ovtt,    1124 

Right  of  adverse  party,  1124 

Right  to  rebut  incompetent  testimony.  1125 

Cross  examination  as  to  irrelevant  matters,  1125 

Hearsay,  whicii  has  been  received,  1125 

Motives,   860 

Unreasonableness    or    absurdity,    997 

Handwriting,  G07 

Similar    facts    and    transactions 

Subject   in  general.   1182 
Separate   and   similar   offenses 

Subject    in   general,    1168 
No   other   accident,    18 
Conditions  relating  to  accident,   18 
Character    of    litigants 

Civil   actions    in    general,    263 

Bastardy.  151 

False  imprisonment.  593 

Libel   and  slander.   794 

Malieiou's   prosecution,   814,   817 

Breach  of  promise,  208 

Criminal  conversation,  364 

Sedu'ction,   1116 

On  question   of   sanity,  645 

Criminal  actions  in  general,  264 

Homicide,  631 

Rape,   1058 
Pecuniary  circumstances 

Subject  in  general,  969 

Wages,  earning  capacity  and   domestic  relations,   1273 
Acts  between  strangers 

Books  of  account  as  corroborative  testimony,   198 

Judgments  between  strangers,   739 

Service  of  process,  1173 

Similar   contracts    with    others.    1186,    1187 
RELIANCE  UPON  REPRESENTATIONS 
Confidence  game,  300 
False  pretenses,  541 
Fraud,   578 

l''i'aud  and  deceit,  579 
RELIGIOUS  ASSOCIATIONS 

Admissions  and   declarations,   62 
.hidicial  notice,  755 
RELIGIOUS  BELIEF 

As  alleeting  credibility,  355 
As  aireeting  com])etencv,   1339 
RELIGIOUS   CONSOLATION,   465 
REMAINDERMAN 

Damage,  waste,   1287 

Xot    affected   bv   payment   on   mortgage   by   widow,   800 
REMOTE  TRANSACTIONS 
Confidence   game,   299 
Homicide,  630 
Friiud.   1184 
Positive  and  negative,  995 


INDEX  1535 

[references  are  to  paces] 

REMOTE  TRANSACTIONS  ((  (.iilimicd ) 

Letters    of    tostator,    i:!l)'.i 

Bcs  (jcstw,  li:!8 
REPAIRS    AFTER    ACCIDENT,    1125 
REPETITIONS 

111   cmss  examination,  367 

REPLEVIN 

Burden  of   proof,   245 
Pleading 

Non  cepit,  1126 

Property    in    defendant,    1126 

Burden  of  proof.   1126 
Weight  and  sufficiency 

Plaintiff's  title,  1126 

Demand.  1126 

Possession,    1127 

Mortgaged  property,  1127 
Defenses 

Admissibility   of    evidence,    1128 
Actions    on    bonds 

In  general,   1129 

Comdusivcness  of  adjudication.  1129 

Measure  of  damages,  1130.    11 31 
REPLICATION 

Hearing  on  bill  and  answer,  112,  261 

REPLIES  ° 

By  persons  referred  to,  612 

To  letters 

Need  not  be  introduced,  779 

REPORTS 

Accidents  to  miners.  1090 

Contract   set   out    in   law    report,    168 

Proof   of    foreign   law,   559 

Reading   to   jury,  188 

Insurance 

State  reports  of  benefit  society,  <14 

Reports    of   agent 
Hearsay.  609 
REPORTS  AND  STATUTES 

Proof   of   law   of   sister  state,   559 
REPRESENTATIONS 
Reliance  upon 

False   pretenses,  541 
Fraud,  578 

Fraud   and   deceit,   579 
Opinions   of  witnesses.   578 
REPRESENTATIVE  CAPACITY,  1132 
REPRESENTATIVES 

Statements   of.   when  binding,  88 

Admissions   of,   49  .,,      ,  i     -nr-? 

Competency   of   as   to   transactions   with   '\^^^^'''\^^^^ .^.^ 
Personal    representative,   competency   as   witness.   1346.    1348 

REPUTATION 

Of  disorderly  house,  443 

To   repel   presumption   of  fraud.   577 

Impeachment  of  witness  by.  695 

Of    engine    among   employees,   765 

Character  in  general.  263 

Libel  and  slander.  794 

Malicious  prosecution,  817.  814 

False    imprisonment,    536 

Homicide 

As  proof  of  insanity,  645 


1536  INDEX 

[references  are  to  pages] 

REPUTATION  (Continued) 

Character  of  accused,  631 
Character  of  deceased,  632 

Reputation  of  employees,  600,  601,  765 

Chastity,    266 

As  to  title  to  real  property,   1242 
REPUTE 

Location  of  boundaries,  203 

Location  of  lot,  679 
REPUTED  OWNERSHIP,  999,  476,  79 
REQUEST  AND   REFUSAL 

Breach    of    promise,    205,    206 
RES  ADJUDICATA,  944 

.See   former  adjudication,   563 
I'ormcr   jeopardx',    568 
RESCISSION   OF  CONTRACT 

Fact   of  rescission,    1076 

Circumstantial   evidence,    1077 

Setting  aside   in  equity,   1077 

Abandonment  of  contract,  2 

Release,    1118 

Fraud  and  deceit,  580 

Subsec^uent    agreements,    919 

Mistake,    923 

Cancellation    of    instruments.    255 

Reformation  of  instruments,   1110 

Burden   of   proof,  244 
RESEMBLANCE 

Profert   of  child   to  show,   151 
RESERVATION 

Fixtures,  550 

By   deed.    935 
RES  GESTAE 

Evidence    defined,    501 

In   general,    1132 

Time   of   act   or   declaration,    1132 

Statements  of  injured   person,    1133 

Statements  of  prosecuting  witness,   1135 

Different    forgeries,    1136 

Book  entry,   1136 

Stubs  of  check  book,   1136 

IVIemorandum,   1138 

Must   not   be    narrative,    1138 

Fact   accompanying   act,    1138 

By-standers,    1139,   1141 

Self   serving  declarations,   1140 

Declarations    of    agent,    1140 

Statements    of    employees,    1141 
RESIDENCE 

Burden  of  proof.  246 

Inhabitant    defined,    1141 

Of    corjjoration,    1141 

In   attachment   proceedings,    1142 

Divorce   proceedings,    1143 

Purposes   of   taxation,    1144 

Purpose    of   administration,    1145 

As  to  statute  of  limitation's,  1145 

As  affecting  descent,   1146 

Parties    to    suit,    1146 

Citizenship  in  general,  272 

Contested   elections,    320 

Domicile,   451 


INDEX  1537 


[references  are  to  pages] 


RESISTANCE   TO   OFFICERS 

111    tit'iu'ial.     114G 
RESISTING  ARREST 

In  gt'iu'ial,  1147 
RESOLUTIONS 
County  Board 

As   to  defaulter,   186 
RESTRAINT  OF  TRADE 

Subject    in   <ieiieral,    1147 
RESULTING  TRUSTS 
Presumptions 

Benefit  of  third  persons.  1253 
As   to  grantee's   own   money,  1037 
Paid  bv  another,  1038 
Money"  paid  by  husband.    103S.    1253 
Money  paid  by  wife,    1254 
Money  paid  by  parent,   1038,   1254 
Where  conveyance  of  entire  estate,  1038 
Partnership,    1253 
Defined.    1252 

Not  defeated  by  parol  agreement,   1252 
Consideration 

Definite    part.    1253 
Time  of  payment.   1253 
Amount,    1253 
Burden  of  proof 

In  general,  1255 

Rebutting   presumption   of  advancement,    1255 
Admissibility  of  evidence 
Parol.   1256 

Admissions  of  grantee,  1256 
Admissions  of  grantor,  1256 
Witnesses 

Competency  of  widow    to    establish,    667 
Competencv  of  complainant,    354 
RETURN  OF  PROCESS 
Parol    to   amend,    945 
Judicial   notice,   1173 
Presumption's,  1173 

How  questioned  before  judgment,  1173 
Amendment,  1173 
Effect,  1173 

Eecital   of  service   in   judgment.    1174 
Wliere    summons    on   file   contradicts.    1105 
Collateral  attack  in  general.   1105 
OHice   of   return    on   execution,   1105 
RETURN   OF   SEASONS 
Jiulicial    notice,    760 
RETRACTION  OF  SLANDER,  796 
REVENUE  STAMP,  1195,  115 
REVOCATION  OF  WILL,  1328 
REWARDS 

Subject  in  general,   1148 
As   aflfecting    credibility,   360 
RIPARIAN  RIGHTS 

See  waters  and  watercourses,   1288 
ROAD 

Existence    of 

Presumption,  882 

Record   evidence,   882 

Judgment    to   prove   against   strangers,   406 

Dedication,    in   general,   402 


1538  INDEX 

[references  are  to  pages] 

ROBBERY 

JJistinguished  from  private  'stealing.   1150 
Corpus  delicti,   1150 
From  the  person.   1151 
Manner    of    taking,    1151 
Value  and  identity  of  property,  1152 
Ownership    of    property,    1152 
Identity    of    defendant,    1153 
RULES 

Parol,  945 

Board  of  trade  rules,  587 

Of  court 

Judicial  notice,  1153 

Record   oidy   competent   evidence,    1153 

Affidavits    incompetent,    1153 

Certified  copy  in  bill  of  exceptions,  1154 

Statement  of  trial  judge,   1154 
In   actions   for  negligence 

Injuries  to  third  pei'sons,  1154 

Injury  to  employe.    1155 

Habitual    disobedience,    1155 

Parol  evidence,   1155 
RUMORS 

Of  death,  398 
Of  paternity  of  child,  778 
Libel  and  slander,  795 

Party  living  when  absent  seven  years,  398 
RUNAWAY  HORSES,  1185 

s 

SAFER  METHOD,  1156 
SAFETY 

Presumptions,   1038 
SALES 

Burden   of   proof 

Breach  of  contract,  223 

Identity,  246 

Rescission,   244 

Compliance  with  order,  246 

Under  trust  deed,  246 
Warranty 

In   general,   1281 

Parol  where  written  contract.  948 
Specific  performance 

Sales  of  personal  property,  1191 
By   brokers.   210 

Burden  of   identifying  property  Sold  by  des'cription.  436 
Confusion  of  goods,  302 
Market   price,   823 
Custom  and  usage,   382 
Parol   as   to   sales   contracts 

In  general,   945 

Bills  of  sale,  931 
Presumption's 

As   to  time   of   payment,   1033 

Bona  fide  purchaser,   1038 

As  to  time  of  consummation,   1039 

Delivery,   1039 
To  defraud  creditors 

In  general,   580 

Pecuniary   circumstances  of   parties,   970 
Gambling  contracts,  585 


INDEX  1539 

[references  are  to  pages] 


SALES  (Continued) 
Infants,    704 
Eatilication,    10G4 
Eecoupmont,   1176 
Vendor's  declarations,  905,  54 
Identity,    680 
Value 

Similar   sales,    1185 
SALES  CONTRACTS 
Parol 

In  general,  945,  946 
Reservation,   946 
Fact  of  sale,   946 
Condition  of  good's,  946 
Quantity,    947 
Agent's   signature,   947 
Conversation  of  parties,  947 
Bill  of  sale  ' 

Parol   to  explain,   931 
SALESMEN 

■  Indicial  notice,  754 
SAMPLE 

Sale  bv,  warranty,  1282 
SANITY  AND  INSANITY 
Presumptions 

In  general,  1156 
Continuance,  1156 
Prom  suicide,  1157 
Heredity,  1157 
Burden  of  proof 

In  civil  action,  1157 
In  criminal  action,   1157 
Restoration,   1157 
Admissibility  of  evidence 

Acts  and  declarations,  1158 
Good  character,   1158 
Insanity  of  collateral  kin,   1158 
Record  of  inquest,  1158 
Appointment   of   conservator,    1309 
Re'cord  of  former  suit,   1158 
Expert  testimony,  1159 
Non   expert,   1159 

Determination   of  competency  of   witness,   1160 
Weight  and  sufficiency 
In   general,    1160 
Intoxication,   1160 
Appointment  of  next   friend,   1161 
Mental  and  physical  states  in  general,  844 
Insanity  of  witness 

As  affecting  credibility,  357 
As  affecting  right   to  "testify,  1339 
Habits  of   insane  plaintiff,   602 
Handwriting  a's   test   of,   607 
Expert  and  opinion  evidence,  530 
SCENE 

As  shown  by  photograph,  981 
SCHEDULE 

Freiglit   rates,   585 
SCHOOL  RECORD 

Of  ago.  86 
SCHOOL  TEACHER 
Burden  of  proof 


1540  INDEX 

[references  are  to  pages] 

SCHOOL  TEACHER   (Continued) 

Kiulit  to  toat'h.  24T 

Incompetency,  247 
Certificate  of,  932 
SCIENCE 

Expert  and  opinion,  512 
Words  and  phrases,  1368,  99 
Common   knowledge,   755 
SCIENTER 

Fraud  and  deceit,  579 
SCIENTIFIC  BOOKS 
Subject  in  general 

Reading  from,  187 

Contradiction  of  experts,  187 

Cross  examination  as  to  basis  of  opinion,  187 
SCINTILLA   RULE 

Directing  verdict,  443 
SCREAMS 

Witness   testifying   to.    846 
As  j)art  of  res  gestae,  1138 
SCRIVENER 

As  to  matters  of  privilege,  1049 
SEAL  OF  STATE 

Judicial  notice,  760 
SEALS 

Notaries  public  of  sister  state 

Acknowledgment.  11C2 

Affidavits,  1162 
Notaries  of  county.  1162 
Seal  of  state,   1162 

Clerk  of  court  of  record  of  sister  state,  1162 
Private   seals 

Scrawl,  1163 

Recital  in  body  of  instrument,  1163 

Printed,  1163 

Record  copy,   1163 

Partnership,    1163 

Adoption   of   seal,   1163 
Private   corporation 

Proper    seal,    1164 

Scrawl,  1164 

Authority  to  u'se,  1164 

Act  of  congress,  1164 

Proof  of  authority.   1165 

Certified  copy  of  instrument.  1165 

Contract  of  corporation   not  under  seal,   1165 
Presumptions,  1039 

Parol  as  to  abrogation  and  release  of  sealed  instrument,  919,  1118 
Seal   imports  consideration.  302 
Impeachment  of  release  not  under  seal.  302 
Fraud  and  deceit  as  to  sealed  instrument,  921 
Waiver  by  parol,  1280 

Authority  to  execute  'sealed  instrument.   1064 
Ratification   of  execution  of  sealed  instrument,   1064 
Acknowledgment 

Failure  of  oflficer  to  attach,  28 
SEARCH  FOR  WRITINGS 

What  sufficient,   163,  803 
SEASONS 

•Tudicial  notice.   760 
SECONDARY  EVIDENCE 

See   best   and   secondary.    155 
Objections  to,  when  must  be  made.  878 


INDEX  1541 

[references  are  to  pages] 


SECOND   HAND   GOODS 

Wanaiitv.    i:2Sl 
SECRETARY  OF  STATE 

C'crtilicatc,    ,'35S 
SECRETARY  OF  WAR 

])('I)artinoiit  recoicl,  992 
SECRETED  WITNESS 

Foinu'i-  testimony,  572 
SEDUCTION 

15ii'ach   of  promise,   208 
Burden   of   proof,  246 
Chastity,  268 

Of  daughter,   1166 
Loss  of  service 

Presumptions  and  burden  of  proof,  1165 
Release   by   daughter,   1167 
Pecuniary   circumstances   of   parties,   1167 
Promise   of  marriage,    1168 
Offer  of  marriage,   1168 
SELF  DEFENSE 

A'ssault  and  battery,   123 
Homicide.   648 
SELF  INCRIMINATION  OF  WITNESS 
See,   ante,   immunity 

Privilege  of  v.itness 
SELF  PRESERVATION 

Weiylit  of  presumption,  1291 
SELF  DISSERVING  STATEMENTS  AND  ACTS 
In  general,  ;U 

Joint  obligors,  41 

Tenants  in  common,  39 

Deceased   persons,   42 

Cestui  que  trust,  41 

Real  party  in   irterest.  41 

Principal  and  surety,   50 

Grantor,   52 

Vendor  and  purchaser,  54 

Mortgagor,   56 

Party   in   possession,   58 

Privie's.   59 

Assignor  of  note,   131 

Trusts,   62,   1256 
Advancements,   75 
'Impeachment,   688 
Assignment,    131 
Bigamy,   177 
Actions  on  bonds 

Officers,  184,  888 
Boundary  line,   202 
Not   amounting   to   confessions,  296 
Voter,  318 
Dedication,   404 
Flight,  550 
Silence,  292,   1292,  37 
Forgery.   561.   562 
On  former  trial.  .'>22 

Bad   faith    in   obtaining   possession,  583 
Homicide,  639 
Husband   and   wife,   658 
Incest,  699 

Infants,  not  bound  by,  705 
Insured,   721 
Letters,  779,  828 


1542  INDEX 

[REFERENCES    ARE   TO    PAGES] 

SELF  DISSERVING  STATEMENTS  AND  ACTS    (Continued) 

LiniitiitioMs,    7i)8 

Declarations  as  to  ownership,  905 
Partnership,  956 
Pedigree,  973 

Principal  and  surety,   1045 
Accused  in  prosecution   for  rape,   1057 
Prosecutrix  in   prosecution   tor  rape,   1058 
Admission   of   mistake.    1111 
Assignor  of  mortgage,  1128 
Title,  1239 
Trespass,  1247 
Trover  and  conversion,  1248 
Trusts,    1256,    1257 
Whole  of,  1294 
Wills,  1318 
SELF  SERVING  ACTS  AND  STATEMENTS 
In    corroboration,    355 
Dying   declarations,   470,    635 
Admissions  and  declarations,  37 
Letters,    782,   783 
As  res  gestae,  1140 
Hearsay,  608 
A's   to  ownership  of  personal  property,   999 

Title,  1239  •,       .•       ,  +      «ro 

Of  injured  party,  not  to  be  taken  into  consideration  by  experts,  8o2 

Replevin.    1128  " 
Homicide,   642,   643 
Part  payment 

Limitations,   798 
Pain  and  suffering,  844,  852 
Payment,  966 
Pedigree,  973 

Complaint  of  prosecutrix  in  action  for  rai)e.   1057 
Person  robbed,   1152 
Telegrams,  1226 
Letters 

While   transactions   in  fieri,  783 
Depositions   containing,    1295 

Conii)etency   of   witnesses    to   testify   as   to,   1362 
SENILE  DEMENTIA,  1314 
SEPARATE  ORAL  AGREEMENTS 

Wlicii  inav  be  shown  bv  parol.  920 
SEPARATE  AND  SIMILAR  OFFENSES 
Admissibility   of   eviden'ce,    1168 

In   general,    1168,    1169 

To   show   guilty   knowledge,   1169 

Embezzlement,    1170 

Extortion,   1170 

Bastardy,  151 

Sexual   crimes,   1170 

Criminal  conversation,   364 

Forgery,   1170 

Illegal   sale  of  drugs,   1171 

Receiving   stolen    goods,    1171 

Lottery,   1171 

Larceny,  1171 

Homicide,  1171 

False   pretenses,    1171 

Purglary,   1172 

Conspiracy,   1172 

Confidence  game,  1172 

Abortion,  1172 
See    similar    facts   and    transactions,    1182 


INDEX  1543 


[references  are  to  pages] 

SEPARATION  OF  WITNESSES 

See   exclusion   aiul   separtvtioii   of   witnesses,   504 
SERVANT 

Sec.  •ante,  master  and  servant 
SERVICE 

Subject  in  general,  1173 

Foreign   judgments 
In  general,  554 
Foreign  justices  of  peace,  763 

Domestic  judgments,  1105 

Notice   in   forcible   entry   and   detainer,   553 

See,  ante,  return  of  process 
SERVICES 

Work   and  service's,  in  general,   1309 

Of  infant,   705 

Expert   as    to   value   of,    1372,    533 

Value   where   fixed   by  'contract,   1373 

Professional 

Presumed   necessarily   rendered,    130 

Presumption   as  to   agreement  to  pay   for,   130 

By  member   of   family,  909,   1371 

Attorneys,   143 
SET  OFF  AND   COUNTER  CLAIM 

Burden   of   proof,   247 

Pleading,  136 

What   subject   of   set  off,   1177 

Must   exist  at  commencement   of  action,  1177 

As   affecting   burden   of   plaintifl's,   1177 

Sufficiency   of   evidence,    1178 

Special   damage's  must  be  pleaded,   1178 

Allirmative   judgment,    1178 
SETTLEMENT 

Presumptions,   1040 

From  giving  note,   964 
From  lapse  of  time,  967 

Payment,   963 

Burden  of  proof,  247 

For  same  accident,  1186 

Price  paid  others  in  eminent  domain,  484 

Bastardy,  155 

Offer  of,  as  admission,  773 

See  compromise  and  settlement,  281 
SEXUAL  CRIMES 

Similar   offenses,    1170 
SEXUAL   INTERCOURSE 

Non  access 

Married  woman,   as   to   spurious  offspring,   778 

Incapa'city  to  consent,   1057 
Female   under   age,    1056 
SHERIFF 

Deed  as  evidence  of  title,   1236 

Sale,  as   evidence   of  value  against  officer,   ]3G5 

Judicial   notice   that  sheriff  is    jail   keepei'    749 
SHIFTING  OF  BURDEN  OF  PROOF,  215 
SHIP   ENROLLMENT,   334 
SHOE  PRINTS 

See   foot|)rints,  574 
SHOP  BOOK  AS  EVIDENCE,  193,  839 
SHORTHAND  NOTES 

See  'stenographer's  notes,   1201 
SICKNESS 

Non  expert  witness 

As   to   effect   of   injury,   850 
Generally,  854 


1544  INDEX 

[references  are  to  pages] 

SIDEWALKS 

liijuriL's  to   person,    1179 
Admissibility  of  evidence,  1180 
Notice   of   injniy,   1181 
Opinion  evidence 

Ice  upon  as  hindering   tralTit,  530 

Proper  construction,   i>?A 

Care   of   pedestrian,  531 
SIGNATURE 

Acknowledgment 

Failure   of   olFiccr  to   write  oilice,  28 

Failure   to   attach   seal,   28 

Failure  to  sign,  28 
Handwriting 

Genuineness   in  general,   602 
Fac  simile,  603 
Photograph,  607,  983 
Forgery 

"party  whose  signature  alleged  to  be  forged,  as  witness,  563 

Corporate    signature,   350 
Of  officers  of  court 

Judicial   notice,   750,   751 
As  to   proof   by   subscribing  witness,   1211 
Tax  receipts,  1223 
By  mark,  603,  1322 
Seals 

Notary  of  county,   1162 
Presumption  of  knowledge  from  signing,  1181 
Sufficiency    of   printed   signature,    1182 
Sufficiency  of  signature  written  at  dictation,  1182 
Presumption  as  to  knowledge  by  bank,  1006 
Wills  generally,  1322 

Acknowledgment  of  testator,  1322 
Necessity   of   witnesses,   1323 

Presence  of  witnesses  when  testator  signs,   1323 
Presence  of  testator's  signature,   1323 
Witness'  knowledge  of  instrument,  1324 
Attestation  defined,   1324 
SILENCE 

As   confession,   292 
Where   accused    denies   guilt,    1292 
By  attorneys   at  judicial  proceedings,  44 
SIMILAR  ACCIDENTS 
In  general,    1182 
Sidewalk   injiu-ies,  1180 
SIMILAR  COMPLAINTS 
Conlidence  game,  299 
Fraud,   577 
Nuisance,  870 
SIMILAR   FACTS   AND   TRANSACTIONS 
Similar   accidents,    1182 
Fraud,   1184 
Animals,  1185 

(jlambling   transactions,   1185 
Sales,   1185 
Guaranty,  1186 
Other  contracts,  1186 
Mine   royalties,   1186 
Settlement   for   injuries,    1186 
Signing  of   bond   by   corporation.    1187 
Nuisan'ce,   1187 

As   evidence   of   adecpiacy   of   consideration,   1187 
As  evidence  of   bona  fide   transaction,   lls7 


INDEX  1545 

[references  are  to  pages] 

SIMILAR  FACTS  AND  TRANSACTIONS   (Continued) 
Violation    of   bnildiiij^    line    it'stiiftions,    1187 
Payment  of  insurance  piemiuni,   1188 
Previous  negligence,   1188 
Fires  by  locomotives,  546 

In  eminent  domain,  price  paid  for  other  lands,  486 
See  separate  and  similar  offenses,  1168 
SIMILAR  FRAUDS,  577 
SIMILAR  OFFENSES 

See  separate  and  similar  offenses,  1168 
SIMILAR  SALES,  485,  1185 
SISTER   STATES 
Judgments,  554 
Laws  of,  558 

Notary  public,  presumption,   1031 
Interest   laws,    731 
Ordinance  of  city  of 

Proof  by  certified  copy,  896 
Observance  of  Sunday 
Judicial   notice,   767 
SITUATION 

See  diagrams,  441 
Plats,  990 
Photographs,   981 

Surveys,  field  notes  and  monuments,  1215 
View  by  jury,  1268 
SLANDER   and"  LIBEL 

See    libel   and    slander,   787 
SMOKE  AND   CINDERS 
Emnient  domain,  496 
SOCIAL  RANK 

Criminal   conversation,   364 
Seduction,   1167 
SODOMY,  1188 
SOIL  CONDITIONS 

Judicial  notice,  760 
SOLICITOR 

Foes  and  'services,  1373 
SOLVENCY 

See  insolvency,  709 
SON 

Same  name  as  father 

Presumption   as   to   conveyance,   674 
Emancipation,  705 
SPACE  AND  DISTANCE 
Opinions 

How   far   witness   could   see,   531 
Distance   between   objects,  531 
Experiments,  507 
Judicial  notice,  744,  745 
Speed.   1194 
SPARK  ARRESTER 

Use  of  on  engines,  545 
SPECIALTY 

See,  ante,  parol  interpretation  of  writings 
Seal's 
SPECIAL  ASSESSMENTS 

Presumptions,   1040 
SPECIFIC  ACTS 

In  seduction,  1167 

In  prosecution  for  rape,  1058 

Similar  facts   and  transactions   in  general.   1182 

Cross  examination.  566 

Inadmissible  in  rebuttal  of  proof  of  good  character,  264,  631 


1546  INDEX 

[kefekences  are  to  pages] 

SPECIFIC  PERFORMANCE 

.Mutuality    of    contract,    1189 

Parol  to  a  id  description,  1189 

Agent's  authority,   1189 

Parties'  understanding  of  contract,  1189 

Consideration,  1189,  303 

Acceptance,  1189 

Abandonment  of  contract,  1189 

Title 

AfTidavits,   when   part   of   attract.    1190 
Subject  of  description,  in  general,  4o6 
Statute  of  frauds 

Parol   contract    to   convey,   1200 

Part  jDerforman'ce,   1200 

Weight  and  sufiiciency,  1200 

Written   contract    to   convey.    1201 

Contract  signed  by  another,  1201 
Burden  of  proof,  247 
Allegations  and  proofs,  1190 
Weight  and  sufficiency,  1190 
Remedy  as  matter  of  course,   1190 
Declarations  of  intention  to  give,  1190 
Burden   of   establishing   contract,   1191 
Readiness  to   perform,   1191 
Change  of  contract,  1191 
Relating  to  personal  property,   1191 
Competency  of  witnesses,  1358 
SPECIFIC  PERIL 

Circumstantial  evidence,  as  proof  of  death,  397 

SPEED 

Of  railroad  train,  1191 
Street  car,  1193 
Fire  engine.   1194 
Wagon.'^1194 
Automobile,  1194 
Horses,  1195 
SPIRITUALISM 

Relief  in  as  affecting  testamentary  'capacity,  1314 

SPOLIATION 

Sec   Destruction,  svippression  and  fabrication  of  evidence,  43'? 

SPOUSE 

See  husband  and  wife,  655 
STAINS 

Blood-stained  clothing 
Rape,  1059 

Demonstrative  evidence,  417 
STAMP  ACT,   1195 
STATE  LAWS 

See.  ante,  sister  state's 
STATE   OF   FEELINGS 

See  bias  and  hostility,  173 
STATE  OF  HEALTH 

See  mental  and  physical  states.   844 
STATUS 

As  to  heirship 

Decree  in  partition,  616 
Judgments  to   ])rove  against  strangers,  557 
STATUTE  OF  FRAUDS 
Pleading 

Equity,   1198 

Common  law  action,   1198 
Executed  contracts,  1198 
Executory   contracts,   1198 


INDEX  1547 

[references  are  to  pages] 

STATUTE  OF  FRAUDS   (Continued) 
DelL'iise   personal,   119S 

Agreement  not  to  be  performed  Avithin  one  year,  1198 
Promise  to  answer  for  delit,  default   or  miscarriage  of  anotlier,  1199 
Oral  contract  to  convey,  1199 
Written  contract  to  convey,  1199 
As   to   matter    of   description 
Contract  to  convey,  1189 
Ratification  of  sealed  instrument,  10C4 
No  application  to  reformation  of  instrument,  1111 
Abrogation  of  release  by  parol,  1118 
Waiver  by  parol.   1280 
STATUTE  OF  LIMITATIONS 

See  limitations,  797 
STATUTES 

Judicial  notice,  1195 
I'resumptions,  1196 

Admissibility  of  evidence  to  impeach,  119G 
Weight   and  sufficiency,    1197 

Construction  where  adopted  from   foreign  state,  1197 
Foreign   statutes,   558 
Abstract   of   title,    16 
STATUTES  OF  SISTER  STATE 
Con'struction,  558 
Printed  copies,  560 
Copy  of  legislative  act,  5G0 
Parol  proof.  560 
STATUTORY  OFFENSES 

Intent.  727 
STEALING 

See  burglary,  252 
Embezzlement,   480 
Larceny.  766 

Receiving  stolen  property,  1072 
Robbery.  1 1 50 
STENOGRAPHIC  NOTES 
Former  testimony 

Absent  witness,   10.   1202 
Insane  witness,  1201 
Deceased  witness,  1201 
Impeachment   of   witness.    1202 
Witness  disqualilied.  1203 
Bill  in  equity  for  new  trial.  1203 
Identity   of   action,   1203 
Prosecution  for  perjury,  1203 
Refreshing  memory  of  jury,  1203 
As   independent  evidence,   1203 
Preliminary   proof,    1203 
Transcript,"^  1204 
STEPFATHER 

Liability    for    necessaries    furnished    infant.    705 
STEREOSCOPIC  VIEW,  1204 
STIPULATIONS 
Of   attorney 
Trial.   1204 

Consent  to  judgment.  1204 
Arbitration    stipulation,    1205 
Effect  as   evidence 
Unfiled,   1205 
Oral    agreement,    1205 
Will  be  enforced.   1205 
Recitals,   1205 
Minors,   1206 


1548  INDEX 

[references  are  to  pages] 

STIPULATIONS  (Continued) 

Persons  not  parties,  1206 
Subsequent  trial,  1200,  570 
Exhibits,  1206 

When   may  be  withdrawi;,   1206 
Excess  of   authority,   1206 
Criminal  trial,  1206 

Depositions 

Contained   in  suit   on  file  in   Appellate   Court,  4:U 

Proof  of  character  by,  632 

Eminent    donuiin,  495 
STOCKHOLDERS 

Admissions   in  books    against,    195 

Ownership   of  stock,  346,  903,  906 

As   witnesses,    1347 

Admissions  of,  61 

Books  of  private  corporations  as  against,  1091 

Presumption  as  to  notice  of  meeting,  1011 
STOCKHOLDERS'  MEETING 

Notice  of.  34S.    1011 
STOCK  IN  CORPORATION 

.Market  price,  825 
STOCK  SUBSCRIPTION 

In  general,  1211,  1213 

Presumption,  1011 

Parol  as  to  contract,  947 
STOLEN  GOODS 

I'ccciviiiii-  stolen  property.  1072 
STOPPING  CAR 

Opinion.   511 
STRANGERS 

Admissibility  of  judgment  against  stranger  to  action,  739 

Slay  prove  written  contract  by  parol,  918 

As   to  proof  of   partnersliip   contract,   956 

Agency,  89 

Books  of  private  corporation,  1091 

Admissions  of  strangers.  41 

Affidavits   of  third   persons,   609 

Statements  in  general,  608 

Letters,  610.  781 

Receipts,  1072,  612 

Invoking  statute  of   frauds,   1198 

Relevancy  of  business   transactions  with,  1186 

Gambling   contracts  with,    1185 

Nuisance  as  to,  1187 

Violation  of  building  line  restriction,  1187 

Judgment,  as  proof  of  heirship,  616 

Judgment  to  prove  status   of   tlie  person.    557 

Books  of  account  not  admissible  as  corroborative  evidence,  42 

Threats  of  'strangers,   1232 

As  impeaching  witnesses.  697 

Admissions    to   strangers,    24,   798,   704 

'^]ilv  testify  to  conversation  between  husband  and  wife,  644 
STREAkS 

•ludicial  notice.   760,  761 
STREET  RAILWAYS 

Custom  and  usages,  389,  390 

Opinion 

Operation  and  management,  531 

Speed,  1193 
STREETS 

Judicial   notice,   744,   745 

Dedication,  403 


INDEX  1549 

[references  are  to  pages] 

STREETS  (Continued) 

V\  hen  paity  to  conveyance  ewtoppcd  to  deny,  408 
Abandonment,   1 
STRENGTH 

Of   assailant,  homicide,  632 
Rt'ciuired  to  tire  jiistol.  508 
STRIKING  OUT  EVIDENCE 
Propriety   of  motion,   1207 
Time  for  motion,  1208 
Form  of  motion,  1208 
Answer  to  cross  examination,  1208 
Scope  of  motion,  1208 
Stating  grounds,   1208 
Improper  answer,  1208 
Irresponsive   answer,   1208 
Improper  evidence,  1208 

Refusal  of  witness  to  answer  on  cross  examination,  1209 
Evidence  admissible  for  any  purpose,  1209 
Failure  to  object,  1209 
Evidence   conditionally   admitted,    1209 
Waiver,  1209 

Effect  of  striking  out,  1210 
When  harmles's,  1211 
Review,  1211 

Proper  defense  against   incompetent  testimony,   1068 
STUBS  OF  CHECK  BOOK 

Entries  not  part  of  res  gestae,  1136 
STUDY 

As   basis   for   qualification   of   experts,  513 
SUBJECT  MATTER 

Identity  by  ])arol.  928 
SUBJECTIVE  SYMPTOMS,  852 
SUBORNATION 

As  admission,  438,  357 
Of   perjury,   883,   980 
SUBPOENA,  947 
SUBSCRIBING   WITNESSES 
In  general,  1211 
Not  privileged,   1049 
Impeachment,   686 
Wills,  1329,  1330,  1326 
To  ancient  documents,  104 
SUBSCRIPTION 

Writing  as   evidence  of  promise,   1211 
Burden  of  proof,  1212 
Presumptions,    1011 
Denial    of    execution,    1212 
Admissibility   of  parol  evidence.   1212,   947 
Stock  'subscriptions,   1212 
Book   subscription.    1212 
Church    subscription.    1212 
SUBSEQUENT  AGREEMENTS 

I'arol,    919 
SUBSTITUTED  ARTICLES,  417,  418 
SUBSTITUTED   SERVICE 

See  sei'\iee,  1173 
SUFFERING 

Declarations  of  as  part  of  res  gestae,  1133,  846 
SUFFICIENCY 

See  weight  and  sufticiency.  1290 
SUGGESTIVE  QUESTIONS 
See  leading  questions,  771 


1550  INDEX 

[REFERENCES    ARE   TO   PAGES] 

SUICIDE 

Habits  of  deceased  on  question  of,  601,  1214 
Burden  of  proof,  247,  1213 
Admissions  and  declarations,  43 
Defined,  1212 
Presumptions,   1213 
Inducing  another  to  commit,  1214 

Declarations  of  deceased  in  prosecution  for  homicide,  647 
Attempted  suicide,  1041 
As  bearing  on  question  of  sanity,  1157 
Attempt  as  evidence  of  guilt,  1041 
SUMMONS 

Parol  to  aid  service,  948 

Failure  of  judgment  to  recite  service,  1105 

Parol   evidence    to  contradict    return    against    parties   who   have    acquired 

rights  under,  1105 
Summons  part  of  record  contradicting  recitals  as  to  notice,  1105 
Service  in  general,  1173 
SUNDAY 

Judicial  notice,  761 
SUPPORT   OF  POOR 

.(udicial   notice.   742 
SUPPORT  OR  SOLE  SUPPORT,  1278,  1279 
SUPPRESSION  OF  EVIDENCE 

See  destruction,  suppression  and  fabrication  of  evidence    438 
SUPREME  BEING 

Belief  in  as  affecting  competency.  1339 
Belief  in  as  alfe'ctino-  credibility,   355 
SUPREME  COURT  CLERK 

Certificate,  258 
SURETYSHIP 

See  juincipal  and  surety,  1045 
SURGEONS 

See  physicians  and  surgeons,  987 
SURPRISE 

By  party's  own  witness 

Questioning  as  to  former  statements,  686 
Self-serving  manifestations.  765 
SURROUNDING  CIRCUMSTANCES 

Parol  to  aid  interpretation  of  writings,  925 
To  aid  construction   of  wills,   1299 
SURVEYS  FIELD  NOTES  AND  MONUMENTS 
Subject  in  general,  1214  to  1216 
Surveyor's   record,   1215 

Surveyor  incompetent  to  impeach  certificate  to  plat,  991 
Statements  of  deceased  surveyor,  202 
Plat  to  aid  surveyor's  testimony,  203 
SURVIVORSHIP,  1216 
SUSPICION  AS  TO  ALTERATION,  93 
SUSTAINING  WITNESS,  324 
SWEDENBORGIANISM 

Belief  in  as  affecting  testamentary  'capacity,  1314 
SWORN  ANSWERS  J-       i        J^' 

See  answers,  110 
Chancery,  262 
Contempts,  315 
I'ormer  pleadings,  570 
SWORN  COPIES 

Unrecorded  deed,  332 

Copies,  328 

Record,    1097,  331 

Judicial  records,  1109 

Ordinance  of  city  of  sister  state.  896 


INDEX  1551 


[references  are  to  pages] 

SWORN  COPIES  (Continued) 

Of  corporation,  are  ori;^inal  not  secondary  evidence,  346 

Secondary  evidence,  167,  170 

Abstracts  of  title,  15 
SYMPTOMS 

Subjective  and  objective 

As  basis  for  expert  testimony,  851,  852 


TABLES 

See   life  tables,  796 
TAKING  VIEW 

iMiiincnt  domain.  483 

Photographs,  981 

View  bv  jury,  1268 
TAMPERING 

With  witnesses,  883 

Subornation  of  perjury,  980 

With  jurors,  883 
TAXATION 

Property  not  listed  for 

As  sliowinsj  dedication,  404 
TAX  COLLECTOR'S  BOOKS,  1222 
TAX  DEEDS 

Admissibility  to  show  color  of  title,  280,  1217 

Paramount  iitle.   1217 

Burden  of  proving  validity,  1217 

Parol  evidence  to  aid  affidavit,  1217 
TAXES 

Burden   of  proof 
Validity,   248 
Exemption,  248 
Payment,   248 

Validity  and  collection  of.  1218 

Payment  under  color  of.  1220 

Proof  of  payment  by  parol,  1221 

Payment  of  as  evidence  of  liquor  selling,  115 

Special  assessment  not  presumed,  1221 

Collector's  books,  1222 
TAX  RECEIPTS 

Judicial   notice,   1223 

Parol  eviden'ce  to  explain.  1223 

Admission  in  general,  1224 
TAX  SCHEDULE 

As  evidence  of  value,  1264 

Insurance,   722 
TEACHER 

Burden  of  proof 

Right  to  teach,  247 

Certificate,  impeachment,  922 
TECHNICAL  WORDS 

Presumption's,   1042 

Parol 

In  general.  913 
W^ords  and  terms,  926 

Expert  and  opinion,  526 

Abbreviations,  5 
TELEGRAMS 

Best  and  secondary.  167 

Judicial  notice.    1224 

Original  defined,   1225 


1552  INDEX 

[keferences  are  to  pages] 

TELEGRAMS   (Contimu'd) 
Admissibility,   J22J 
Contract   of   telegraph   company 
Assent.    l:.'2(i 
TELEGRAPH  MESSAGE 

Judieial  notice.  7(11 
TELEPHONE  CONVERSATIONS,  1226 
TEMPERATURE,   532 
TENANT 

fSee,  ante,  landlord   and  tenant 
TENANTS  IN  COMMON 

.Admissions  of  against  each  other,  39 
TENDER 

Bnrdeii  of  proof.  248,  1227 
Presumption's,  1227 
Party   to   whom   made,  1227 
Sufficiency  of  tender 

Production    of    money,    1227 
Count  of  money,  1227 
IMedium,  1228 
Check,  1228 

More  than  amount  due,  1228 
Specific  amount,  1228 
After  suit  brought,  1228 
Reasonable  attorney's  fees,  1228 
Offer  not  sufficient,   1228 
Must   be  unconditional,   1229 
Place  of  tender,   1229 
Objections,   1229 
Effect.  1229 

Explanation  of   tender,   1229 
Keei)ing  tender  good,  1229,  1230 
TERMS  OF  COURT 

Jiulicial  notice,   75.3 
TERMS  OF  PUBLIC  OFFICERS 

.Judicial   notice,   749 
TERMS  OF  TRADE  AND  ART 
Ambiguity,  99 
Expert  and  opinion,  526 
Words  and  phrases,  1367 
TEST 

Experiments,  507 
Explosives,   534 

As  to  te'st  of  lapse  of  time  in-  court  room,  509 
Expert  and  opinion.  514 
TESTAMENTARY    CAPACITY 

Wills.    1,305    to    1.315 
TESTIMONY  DEFINED,  501 
THEATRICAL  MANAGER 
Custom   and   usage,  386 
THIRD  PARTIES 

Admissions  and  declarations 
In  general,  41 
Community  of  interest,  42 
Parties  referred  to  for  information.  44 
See,  ante,  self  serving  acts  and  statements,  self  dis'serving  acts  and  state- 
ments, strangers 
THREATS 

Subject  in  general,  1230 
In  civil  actions,  1233 
Duress,  461,  462 
Extortion,    535 
Assault  and  battery,   125 


1NDP:X  155c 

[references  are  to  pages] 


THREATS   (Continued) 

Rlalieious  prosociitioii,  818 
Arson,  12;{ 

To  comniit  suicide,  647 
Homicide,  1230 

Of  defendant,  628,  ]2:i0 
Of  one  defendant,  1231 
Of  deceased,  629,  1231 
Of  third  persons,  630,  1232 
Of  suicide  by  deceased,  647 
TIMBER 

Subject  in  general,  1233 
Waste,  1286 
Trespass,   1243 
TIME 

As   affecting   alibi,   1)0 
Time  of  alteration.  95 
Death  from  absence,  396 
Date,   393 
Experiment's 

Capacity  of  witness  to  estimate,  509 
Stopping  train,  507 
Of  serving  notice  to  produce  papers,  161 
Through    which   res  gestcc   may   extend,   1133 
Payment 

Presumption  of,  from  lapse  of  time,  964 
TIME  BOOKS 

Books   of   account,   193 
]\Iemorandum,  839 
TIME  CARDS 

Books  compiled  from,  193 
TITLE 
Parol 

Specific  performance,  1190 
Burden  of  proof,  248 
Presumption  as  to  examination,   1018 
Admissions   and   declarations 

To  overcome  record  title,  57 
As  proof   of,   57 
To  impeach,  57 
Opinion  incompetent,  532 
Subject  in  general,  1235,  1242 
Patents,  961 
Adverse    possession,    77 
Trespass,  1245,  1246 
Good  faith,   595 
Possession,  999 

Forcible  entry  and  detainer,  551 
Ejectment,    471 
Eminent  domain,  490 
TOBACCO 

Cigarettes 

Judicial  notice,  755 
TOOLS 

Burglai-'s'  tools,  253 
TORRENS  LANDS  ACT 
Abstracts  of  title,  11 
TORT  ACTIONS 

See,  ante,  negligence 
TORT  FEASOR 

Parol  explanation  of  receipt  to,  918 
Belease  to,  1120 
TOWN  RECORDS,  1085 


1554  INDEX 

[references  are  to  pages] 

TRACKS 

l-'oot  prints,   574 

Trackini;-  by  bloodhound,  627 
TRADE  MARK 

JJuidcn   of    proof,   249 

Siibjoft    in   general,   1242 
TRADE  NAME 

[Selling  by 

Warranty,  1283 
TRADITION 

Ah   relating  to  boundaries,  203 

Pedigree.  973 
TRAILING  BY  BLOODHOUNDS.  627 
TRAIN  BULLETINS,  1243 
TRANSACTIONS  WITH  DECEASED  PERSONS 

Competency  of  witnesses,  1340 

See,  ante,  claims  against  estate 
Deceased  jiersons 
TRANSCRIPT 

Stenographer's  notes,  1204 
TRANSFER  COMPANIES 

Custom  and  usage,  391 
TRANSLATION 

Deposition  in  foreign  language,  432 

Of  testimony  of  alien,  732 
TRAVELING   SALESMEN   JUDICIALLY   NOTICED.    754 
TREATISES 

Books,  187 
TRESPASS 

Burden  of  proof,  249 

Subject  in  general,  1243 

Assault   and  battery.   123 
TRESPASS  QUARE  CLAUSUM  FREGIT,  59 
TRIAL 

Cross    examination,   365 

Default,   412 

Demurrer   to   evidence,   418 

Directing  verdict,  442 

Leading  questions,  771 

Order  of  proof,  889 

Of!'er  of  evidence,  884 

(Objections.   872 

New  trial,  363 

Rebuttal,  1067 

Admission  of  evidence  after  argument,  891 

Striking  out  evidence,   1207 

Stipulations,  1204 

Demonstrative  evidence,  416 

Physical  examination,  985 

Exhibition  of  injury,  505 

View  by  jury,  1268 

Voir  dire,  1272 

Recalling    witness.    1070 
TROVER  AND  CONVERSION 
Burden  of  proof,  249 
Title   and   possession,    1248 
Conversion    defined.    1249 

Demand  and  refusal,  1250 
Damages,   1251 
TRUSTEE 

Admissions  and  declarations 

Against  cestui  que  trust,  63 
Declarations  of  cestui  que  trust,  1256  5.;. 


INDEX  1555 

[references  are  to  pages] 


TRUST  FUNDS 

15iir(k>n  of  proof,  249 
TRUSTS 

Burden  of  proof,  249 
Kesulting   trusts,    1252 

Not  defeated  by  parol  agreement,  1252 

Consideration,  1253 

Presumptions,   1253 

Burden  of  proof,  1255 

Parol   evidence,    1256 

Competency  of   widow   to  establish,   667 
Express  trusts 

Parol  to  create,   1256 

Parol  to  aid,  1257 

Weight  and  sufficiency  of  writings,  1258,  1259 
Trusts  ex  maleficio,  1259 
Admissions  and  declarations,  62 
TRUTH 

Witness  testifying  to  truth 

No   presumption   as   to.    1044 
Justification  in  libel  and  slander,  791,  794 


u 

ULTRA  VIRES 

Defense  of  must  be  specially  pleaded,  138 

Burden  of  proof,  349 

Services  of  physician  to  emplove  of  corporation,  989 
UNACKNOWLEDGED  INSTRUMENT 

C'ertiliod  copy  of  record,  334 

Record,  168,  334,  1096 

Execution.  476 
UNAUTHENTICATED  TRANSCRIPT 

Of  foreign  proceedings 
Forger V,    561 
UNCERTIFIED  COPY  OF  CERTIFIED  COPY,  16 
UNCOMPLETED  ATTEMPTS 

Confidence  game,  299 
UNDERSTANDING  OF  WITNESS  OF  CONVERSATION 

Witness  cannot  be  asked,  288 

Libel  and  slander,  788 
UNDUE  INFLUENCE 

What  constitutes,   1316 

Burden  of  proof,  249 

Fiduciary  relations,  542 

Duress,  461 

Parent  and  child,  910 

Wills,   subject  in  general,  1316  to   1321 

Admissions  and  declarations  of  grantor 
Not    admissible    to    show,    54 
UNFILED  STIPULATION,  1205 
UNIFORMITY  OF  USAGE 

When  necessarv,  382 
UNITED  states'  REVENUE  COLLECTOR'S  RECORD,  116 
UNLAWFULNESS   OF   BUSINESS 

Opinion  incompetent.  532 
UNLIQUIDATED  DEMAND 

Accord  and  satisfaction,  22 
UNRECORDED  DEED 

Declarations   as   against  grantees,  53,   1240 

Ejectment,  475 

Notice,    1067,   1291 

Copy,  333 


155G  INDEX 

[references  are  to  pages] 

UNSIGNED    WRITING 

W'oiyht  as  sliuwiiig  real  contract,  917 
UNSWORN  ANSWERS 

See  answers,  112 

Chancery,   262 

Former  pleadings,  570 
USAGE 

See  custom  and  usage,  382 
USER 

Dedication,  402 

Corporations,    343 

Boundaries,  203 
USURY 

Burden  of  proof,  249,  1260 

Defined,  1260 

Presiuuption's,   1260 

Admissibility  of  evidence,  1261 

Weigiit  and  sufficiency,  1261 

Pleading,  1262 

Laws  of  sister  state,  731 


V 

VALUE 

Judicial  notice,  761 
Admissions  of  ancestor,  1264 

Proof  in  action  against  officer  for  failure  to  make  levy,  1265 
Subject  in  general,  1262 
Cost,  1263 
OflTers,  1263 
Similar  'sales,  1263 
Tax   schedules,    1264 
Market  price,  823 
Medical  and  surgical  services 
As  damages,  836 
Action  by  physician,  987 
Life  tables,  796 
Larceny,   770 
Robbery,  1152 
Eminent  domain,  487 
Recitals  in  deeds,  396 
Dower,  455 
Embezzlement,  482 
Affidavit  in  replevin  suit,   1131 
Expert  and  opinion,  532,  533 
VELOCITY 

See  speed,  1191 
VENEREAL  DISEASE 

Bniu'h  of  promise.  208 
VENDOR  AND  VENDEE 
See,  ante,  sales 

Grantor  and  grantee 
VENDOR'S  LIEN 

Burden  of  proof,  249 
VENUE 

Subject  in  general,  1265 
VERACITY 

Lnpeachment  by  reputation  for,  695 
No  presumption  of  veracity,  1044 
VERDICT 

See  directing  verdict,  442 
Impeachment  of  verdict  by  jurors,  863 
Demurrer  to  evidence,  418 


INDEX  1557 

[references  are  to  pages] 

VERIFICATION 

By  plea,  not  evidence,  83,  420 

Effect  as  to  plea  of  non  joinder.  8G7 

Joint  liability  may  be  denied  by  unveritied  i)lea,  958 

Burden   of  proof,  237 

Unverified  plea   admissible   as   admissions,   570 

Effect  of  amending  verified  affidavit,  81 
VIEW  BY  JURY 

Subject  in  general,  1268 

Eminent  domain,  498 
VILLAGE 

Judicial  notice,  743 

Ordinan'ces,   892 

Records,    1087 

Sidewalk   injuries,   1179 
VISION 

Conclusions  of  -witnesses,  291 

Experiments,   507 

Expert.  528 
VOICE 

Identity,   675,   1153 

Telephone  conversations,  1226 
VOIR  DIRE 

Subject    in    general.    1272 
VOLUMES  OF  FOREIGN  STATUTES 

When  admissible.  559 

To  aid  acknowledament.   20 
VOLUMINOUS  ACCOUNTS  AND  DOCUMENTS 

Best   and   sccondarv.    156 
VOLUMINOUS  RECORDS,  1084 
VOLUNTARY  CONVEYANCES 

Advancements  in  general.  72 

In  general,  129,  1005,   1016 

Knowledge  of  grantee.  129 

Imposing  obligation,  130 
Consideration,    302 
Delivery,  414 
Fiduciary  relations.  542 
Fraudulent  conveyances,   581 
Husband  and  wife.  666 
From    parent    to   child 

Fraud   and   undue   influence,   910 

Consideration,  911 

Delivery   and   recordation,   911 

Acceptance.  912 
From  child  to  parent 

Presumptions  and  burden  of  proof,  912 
Presumptions,  1042,  1015 
Trusts,  1252 
Fraud 

Burden  of  proof,  227 
Presumption  from  conveyance  of  entire  estate,  581,  1038 
By   party   indebted,   581 
VOLUNTARY   SETTLEMENTS 

Parol,   948 
VOTER 

Declarations  of  voter,  318 
Privilege.    323 
Presumptions 

Identity,   1042 

Right  to  vote,   1043 


1558  INDEX 

[referencks  are  to  pages] 

VOTER    (Continued) 

Illegal   voting,  1043 

Party  alliliation,  1043 
VOTING 

As  evidence  of  abandonment  of  homestead,  619 

w 

WAGES,  EARNING  CAPACITY  AND  DOMESTIC  RELATIONS 

injury  to  person,  1273 

Wrongful  death,  1276 

Deceased  support  or  sole  support,  1278 
WAGON 

Speed,  1194 

Noise,  528 

Initials   on   as   evidence   of   ownership,   900 
WAIVER 

Defined,  1279 

Burden  of  proof.  250,  1279 

Parol  proof  of  waiver,  1280 

Release  in  general,  1118 

Rescission  of  contract,  1076 

Objections,    878 

Depositions 

Notice  to  take,  424 

Of  notice  to  produce  documents,   IGO,  172 

Of  notice  in  forcible  entry  and  detainer,  553 

Of  incompeten'cy  of  witnesses. 
In  general.  1337 
Second  wife  in  bigamy  prosecutions,  178 

Of   incompetent   testimony,   879 

Immunity,   684 
WARD 

See.  ante,  guardian  and  ward 
WAREHOUSEMEN 

liiudeii  of  proof  as  to  negligence,  149 
WARRANT 

Of  officer 

Admissible  in  prosecution  for  homicide.  637 
WARRANT  FOR  ARREST 

Admissible  in  action  for  false  imprisonment,  539 
WARRANTY 

False  pretenses,  541 

Burden   of  proof,  250     - 

Implied  warranty,  contracts  of  sale,  1281 

Manufacturer  as  vendor,  1281 
Sale  by  sample,  1282 
Article   supplied   to   order,    1282 
For   particular    purpose,    1282 

Vendor  not  manufacturer,  1282 

Burden  of  proof  and  presumptions,  1283 

Admissibility  of  evidence,  1283 

Time  of  warranty,  1284 

Parol  to  vary  written  contract,  945,  948,   1284 

Pecf)U])meiit.    1285 
WARRANTY  DEED 

No  presTunption  as  to  release  of  homestead,  617 

When  not  eviden'ce  of  title,  1242 
WASTE 

Defined.  1286 

Maintaining  action,  1287 

\\'eight   and   sufficiency,   1287 

Justification,   1287 


INDEX  1559 

[refekexces  are  to  pages] 

WATERS  AND  WATERCOURSES 

IJurdoii    of    piH)()t',    :J3() 
Navigability,  1288 
Opinions,  534 
WEALTH 

Pecuniary  circumstances,  969 
Of  adverse  party 

Impeachment,  372 
Of  witness,  cannot  be  considered,  357 
WEAPONS 

Evidence   concerning    in    prosecution    for   homicide,    627 
In   general,    396 
Exhibiting  in  evidence,  417 
Fire  arms,  544 
Experiments,  508 
.Tudicial   notice,   761 
WEARING  APPAREL 

P^xhibiting  before  jury,  417 
WEATHER 

Official   records,   1289 
Seasons 

Judicial  notice,  760 
Memorandum.   840 
WEIGHT  AND   SUFFICIENCY 
Civil  actions  in  general,  1290 
Criminal  charge  in  civil  suit.   1290 
Reformation  of  instruments,  1291 
Notice  of  unrecorded  deed,  1294 
Due  care,   1291 
Penal  action,  1292,  976 
Criminal  prosecutions 

Evidence   as   a   whole,   1291 
Circumstantial  evidence,   1291,  273 
Justification  or  excuse,  1292 
Expert  and  opinion,  1292,  515 
Judicial  notice,  1293 
Certificate  of  acknowledgment,  28 
Cloud  on  title,  278 

Admissions  and  declarations,  66,  67,  68 
WHISKEY 

Judicial  notice,  761 
WHISTLE 

Positive  and  negative  evidence  as  to  sounding  of,  994 
WHOLE  OF  UTTERANCE 

Admissions  and  conversation's,   1293 

Confessions,  1292,  1293 

Former  testimony,  1294 

Books  of  account.  1295 

Bill  of  particulars,  1295 

Depositions,  1295 

Letters,  1296 

Libelous   publication,    1296 

Written  statements  of  party,  1296 

Eff'ect   of    accompanying   explanation,   1296 

Homicide 

Admissions  of  accused.   641 

^Yhen  does  not  justify  admitting  accusation,  641,  292 

WIDOW 

Husband   and  wife.   665 
Competency  as  witness,  1364 
Dower,    454 
Homestead,  617 


1560  INDEX 

[references  are  to  pages] 

WILLS 

Burden  of  proof,  250 

Best  and  secondary  evidence,   169 

As  proof  of  ownership,   904 

As  evidence  of  title,   1237 

Lost  wills.  811 

Construction 

In   general,    1297 
Language  of   will,    1297,    1298 
As  to  intestacy,  1298 

Surrounding   facts  and   circumstances,    1299 
Declarations  of  testator,  1299,  1300 
Ambiguity,  1301,  1302,  1303 
Opinion   evidence,    1303 
Foreign  laws,  1303 
Memoranda,  1303 
Judicial  notice,  1304 
Presumptions,   1304 
Testamentary  capacity 

What  constitutes,  1305 
Admissibility   of  evidence,   1306 
Declarations   of   testator,   1307 
Inequality   of  distribution,    1308 
Former  wills,  1308 
Letters  of  testator,   1309 
Letters  of  third    persons,    1309 
Appointment  of  conservator,   1309 
Mental  condition  of  blood  relatives,  1309 
Moral  chara'cter,  1310 
Opinion  and  expert  evidence.   1310 
Time  of  mental  capacity,  1311 
Burden  of  proof,  1312 
Ability    to    transact    business,     1313 
Old  age  and  physical  suffering.   1313 
Belief  in  Christian  Science,  1.314 
Belief  in  Swedenborgianism,    1314 
Belief  in  Spiritualism,  1314 
Prejudice  and  antipathies,  1314 
Senile   dementia,    1314 
Suicide,   1314 
Expert  and  opinion,  1315 
Omission  to  name  child,  1316 
Holographic  will,   1316 
Undue  influence 

What  constitutes.  1316 

Free  agency,  1316 

By  whom  exercised,  1316 

When  operative,   1316 

Affection   and   persuasion,   1316 

Inequality  of  distribution.   1317 

Conduct  of  beneficiaries,  1317 

Declarations  of  testator,  1317 

Admissions   of   devisee,    1318 

Prior  wills,   1318 

Letters,  1319 

Contract's  of  testator,  1319 

Illicit  relations,  1319 

Friendly   relations,    1319 

Opinions,    1319 

Knowledge  of  contents.  1320 

Circumstantial    evidence,    1320 

Allegations  and  proofs,   1320 

Presumptions,   1320 


INDEX  1561 

[references  are  to  pages] 

WILLS  (Continued) 

Burden  of  proof,   1321 
Weight  and  sufficieney,  1321 
Execution 

1-orm,  1321 
Declaration.  1322 
Signature,   1322 
Acknowledgment,  1322 
Necessity   of   witnesses,   1323 

Presence  of  witnesses  when  testator  signs,  1323 
Presence  of  testator's  'signature.    1323 
Presence  of  testator.   1324 
Presence  of  other    witnesses,    1324 
Witness'  knowledge  of  instrument,  1324 
Attestation,   1324,   1325 
Presumptions,  1325,  1320 

Competency   of   subscribing  witnesses,  132G,  1327,   1328 
Revocation,    1328,    1329 
Probate 

Admissibility  of  evidence,  1329 
Proceedings   in   county  court.   1330 
Appeal  from  order  admitting  probate,  1330 
Appeal  from  order  denying    probate,    l^^^^O^ 
Impeachment  of   subscribing  witnesses.    1330.   1331 
Death,   absence   or  incapacity  of   witness,    1331 
Admissibility  of  attesting  clause,  1331 
Depositions,    1332 
Weight  and  sufficiency,  1332,  1333 
Establishment  of  lost  wills,  1334 
Contest   in   chancery 

Order  of   proof.   1334 
Adniissibilitv    of    evidence,    1335 
Affidavit   of "^  subscribing  witnesses,   1335,   1336 
Order  admitting  to  probate.  1336 
Indorsement  on  will  by  judge,   1336 
Certified  copy  of  will.   1336 
WITHDRAWAL  OF  TESTIMONY 

See  striking  out  evidence.   1207 
WITHHOLDING  EVIDENCE 

Destruction,  su])pression  and  fabrication  of  evidence,  437 
Refusal  or  failure   to   produce   evidence,   1112 
Refusal  to  testify,  1114 
WITNESSES 

Competency  in  general  <•    -.oo-r 

Presumptions   and   burden   of   proof,   1.^37 
Objections.  1337 

Determination  of  competency,  1338 
Capacity  and  qualifications,  atheist,  1339 
Mentally   defi'cient  witnesses,   1339 
Infants,    1339 

Grand  jurors,  1340  +    i,aa 

Witnesses'  names  not  indorsed  on  inrlittment,  16W 
Party  in  general,  1340 

Competency  of  party  as  against  insane  pei-son,  1..40 
Competency  of  parties  and  interested  witnesses  as  against  heirs,  legatees, 
devisees,  trustees  and  legal  representatives 
In    general.    1340 

W'here  deposition  of  deceased  taken,  1343 
Interest  in  general,  1344 
Pecuniary  interest.  1345 
Time  of  interest,  1345 
Dower  interest,  1345 
Disclaimer  of  interest,  1345 


1562  INDEX 

[references  are  to  pages] 

WITNESSES   (Continued) 

IV'isonal    rej)resentatives,    1346 
Co-dcfcndant.s,    1346 
8tockliol(lcrs  and   officers,   1347 
Servants  oi'  employees,  1348 
Trustees  of  college,  1348 
Member  of  cliurcli  or  benefit  society,  1348 
Agent,    1348 

Assignee  of  corporate  sto'ck,  1349 
Guardian  and  ward,  1349 
Next   friend,   1349 
Donee,   1349 
Partners,     1349 
Grantees,    1349,    1350 
Makers  of  negotiable  instruments,  1350 
Ademption,  1351 
Advancements,  1351 
Citation   to   discover  assets,   1353 
Dedication,    1352 
Bill  for  accounting.  1352 
Creditors'  bill,   1352 
Claims   against    estate,    1352 
Action  for  wrongful  death,  1353 
Proceedings  relating  to  mortgages,  1353 
Bill   to   establish   trust,    1354 
Partition,    1355 
Bill   to   set   aside   deed,    1357 
Specific  performance,  1358 
Bill  to  contest  will,  1359 

Admissions   and  'conversations   of   deceased.   1362 
Facts  occurring  after  death  of  ancestor,,  1362 
Testimony    adverse    to    interest,    1363       ''    '" 

Admissions,  conversations  and  transactions  of  deceased  agent,  1363 
Husband  and  wife,  1364 
Admissions,  conversations  and  acts,  1364 
Competency  of  wife  as  witness,  1364 
Competency  of  husband,    1367 
Criminal  actions,   1367 
Examination   and   matters   relating   to 
Testimony  of  deceased  witness,  570 
Testimony  of  insane    witness,    571 
Opinions  of  ordinary  witnesses,   509 
Conclusions  of  witnesses,  285 
Expert  witnesses,  509 
Non    expert    witnesses,    854 
Compelling  attendance  of   experts,  854 
Contradiction    and    sustaining    witness,    324 
Refusal  of  witness  to  answer,  1114 
Privilege  of  witness,  323,  682,   1051 
Mode  of  ascertaining  competency,  1272 
Failure  to  call,  presumptions  from,  1113,  9 
Biu'den  of  proof  as  to,  251 
Presumj)tion   of   identity   from   name,   567 
Compelling  production   of   documents,   1051 
Privileged    communications.    1047 
Exclusion   and   separation  of   witnesses,   504 
Bias    and    liostility,    173 
Credibility,  354 
Ci'oss  examination,  365 
Redirect  examination,  375 
Former  conviction,  566 
Former  testinuuiy,  570 
Infants  as  witnesses,  1339 


INDEX  1563 

[references  are  to  pages] 

WITNESSES    (Continued) 

Intoxication   as   affecting    credibility,    737 

Limiting   number    of,    379 

Truthfulness,  no  presumption,  1044 

Recalling    witness,    1070 

Impeachment,  085 

Incidental   impeachment,   686 

Refreshing   memory   of  own  witness.   686 

Impeachment  of  absent  witness.   687 

Impeachment  of  impeaching  witness,  699 

Offer  of  evidence,  884 

Offer  of  testimony  of  competent  witness,  886 

Order    of    proof,    889 

Objections,  872 

Leading  questions,  771 

Hypotlu'tical  questions,  669 

Hearsay,  607 

Interpreter,  732 

Legal  conclusions,  775 

Parties  and  persons  interested  as  witnesses,  951 

Absent   witness,    8 

Attorneys,   142 

Deaf  witness,  396 

Detectives,   440 

Arbitrators.  122 

Rebuttal,    1067 

Witness  whose  name  alleged  to  be  forged,  563 

Stenographers,  1201 

Voir  dire,  1272 

Present   at   trial,  former  testimony,  572 

Secreted  witness,  572 

Questions  tending  to  degrade  witness,  370 

Party  not   bound  by   testimony   of   witness  required  to  call,  325 

Contradictory  statements  not  proof  of  fact,  687 

Pardon,    906 

Corroboration,   353 

Accomplice,  19 

Receiving  evidence  out  of  order,   891 

Cumulative   evidence,   379 

Emphasis  by  re-examination.  381 

Calling  of  eye  witness  by  court.  365 

Calling  by  court  for  cross  examination,  361,  366 

Cross  examination  by  several  counsels,  366 

Privileged  communications,  1051,  793 
WORDS  AND  GESTURES 
As   jirovocation 

Homicide   prosecutions.   648 
WORDS  AND  PHRASES 
Presunii)tions.   1368 
Parol,    1368,    926 
Abbreviations,   5 
Judicial   notice,   753 
AmbiouitA'.    99 
WORK  AND  SERVICES 
Assent,    130 

Nature  and  time  of  employment,  1369 
Presumption  as  to  compensation.  1370 
Establishment  of  express  contract,  1370 
Proof  of  implied  contract,  1371 
Proof  as  to  amount  of  compensation,  1371 
Value  of  services.    1372 
Discharge  of  em]iloyee,  1374 
Parent  ^and  child,  909 


1564  INDEX 

[references  are  to  pages] 

WRITINGS 

Whole  of,  913 

Recital?,  915 

Parol  proof  of  documents   beyond  jurisdiction,  156 

Altoratioii,  93 
WRITTEN  EVIDENCE 

8oo.  ante,  documeiitarv 
WRITTEN  INSTRUMENTS 

Oti'cred   to   contradict   witness,  369 

Wlicii   oflcrod   by   defendant,   892 
WRONG  DOERS 

\\lien   binding  one  another  by  admissions,  308 
WRONGFUL  ACTS 

Similar  acts 

See   separate   and   similar   offenses,   1168 


X  RAY 

Admissibility  in  general,  984 

Admission    of   X   ray   of   norma!    member,    984 

Preliminary   proof,   985 

Qiialiiication  of  X  ray  expert,  985 

Result  of  observation  by  experts,  985 

Weight,  985 

Jury  may  take,  985 


YEAR 

Judicial  notice  of  seasons,  760 

YEAST,  418 

YOUTH 

As  affecting  competency,  1339 
Contributory  negligence,  701 
Presumption  as  to  capacity,  700 


ZEAL  OF  WITNESS 

As  affecting  credibility,  358 


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